Minister of Police v Dyssell (28606/12) [2015] ZAGPPHC 184 (24 March 2015)
The court found that all relevant factors—residence of the Respondent, location of the cause of action, location of documents, and the section handling the claim—pointed to the Western Cape as the most convenient forum. The Respondent's attorney's arguments were found to be unsupported by facts and primarily...
Source-derived case information.
- Citation
- [2015] ZAGPPHC 184
- Parties
- Applicant: Minister of Police; Respondent: Laetitia Dyssell
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 28606/12
- Procedural Posture
- Stay Application / Application for Transfer of Proceedings
- Outcome
- Application granted; proceedings to be transferred to the Western Cape Division.
- Judges
- H.J Fabricius, M. F. Legodi, D. S. Molefe
- Legal Topics
- Transfer of Proceedings, Concurrent Jurisdiction, Convenience of Parties, Contingency Fee Agreements
Source-derived case record
Summary, issues, holding and outcome
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Parties
Minister of Police
Applicant
Laetitia Dyssell
Respondent
Procedural Posture
Stay Application / Application for Transfer of Proceedings
Legal Issues
- 1 Whether the action instituted by the Respondent should be transferred to the Western Cape Division for convenience.
- 2 Whether the convenience of the parties and the court justifies the transfer.
- 3 Whether the Respondent's attorney's financial interests outweigh the practical considerations for transfer.
Ratio Decidendi
The court found that all relevant factors—residence of the Respondent, location of the cause of action, location of documents, and the section handling the claim—pointed to the Western Cape as the most convenient forum. The Respondent's attorney's arguments were found to be unsupported by facts and primarily concerned his own financial interests rather than the convenience of the client or the proper administration of justice. The absence of a confirmatory affidavit from the Respondent herself further weakened the opposition. The court concluded that the Applicant had made out a proper case for transfer and granted the application.
Court Disposition
Application granted; proceedings to be transferred to the Western Cape Division.
Orders
- The action instituted under case number 28606/2012 is to be removed to the High Court of South Africa, Western Cape Division, Cape Town, in terms of Section 27(1)(b)(ii) of the Superior Courts Act 10 of 2013.
Full Case Text
Judgment text and source record
59 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case Number: 28606/12
Date: 24 March 2015
Not reportable
Of interest to other judges
In the matter between:
MINISTER OF POLICE.....................................................................................APPLICANT
AND
LAETITIA DYSSELL......................................................................................RESPONDENT
JUDGMENT
Fabricius J,
1
The Applicant herein, the Minister of Police brought an application in terms of which he sought an order that the action instituted by the Respondent (who was the Plaintiff in the main action), under case number 28606/2012 be removed to the High Court of South Africa, Western Cape Division, Cape Town, in terms of the provisions of S. 27 (1) (b) (ii) of the Superior Courts Act 10 of 2013.
2.
The Respondent, or should I rather say the Respondent’s Attorney, managed to make a mountain out of a molehill in this application, but it actually turned out to be a molehill when one had regard to the following facts which were common cause:
2.1
Plaintiff (Respondent) is an incola of the Western Cape Province;
2.2
The Defendants (Applicants) Civil Litigation: Legal Section, which handles this claim, is located in the Western Cape;
2.3
The cause of action arose in the Western Cape;
2.4
The documents required for the action are all in the Western Cape;
2.5
The Respondent’s Attorney, Mr Erwee, practices in Mussina;
2.6
The Gauteng High Court and the Western Cape High Court have concurrent jurisdiction in this matter;
2.7
Mr Erwee acts on a contingency basis for the Respondent and the provisions of the Contingency Fees Act 66 of 1997 are therefore applicable;
2.8
Clause 8 of the contingency fee agreement deals with disbursements made by Mr Erwee in the following manner:
2.8.1 Disbursements and expenses will be paid by Mr Erwee and shall in the first place be recovered from the proceedings once the claim has been finalised;
2.8.2 The disbursements will thereafter be claimed from the opponents and upon receipt thereof, the client would be refunded.
2.9
Mr Erwee has instituted approximately 250 similar actions in this Court;
2.10
All the plaintiffs in these actions reside in the Western Cape;
2.11
All the causes of action in these cases arose in the Western Cape;
2.12
The Plaintiff (the Respondent herein) did not make a confirmatory affidavit and we therefor do not know what she regards as to be
convenient to her in the litigation affecting her.
3.
I accept that in an application of this nature one should consider the convenience of all the parties as well as the convenience of the Court.
4.
It is clear from the Respondent’s Answering Affidavit, or rather Mr Erwee’s Answering Affidavit, that he is mainly concerned
about his own financial interests. Very general allegations are however also made in this particular context and very little, if any, facts are given. He however states that there are no Attorneys in the Western Cape who would be prepared to act on a contingency fee basis. I found this an astounding allegation, and of course no particular facts are given in this context. The question would also arise: how does an Attorney practicing in Mussina 1900km away from his clients in the Cape, manage to obtain 250 clients without some type of support system in Cape Town? We do not have any factual allegations in this context, but merely on a practical and logical basis one would assume that he has some type of support system in Cape Town. As far as other allegations about expenses are concerned, including those of experts, we do not know who those experts are, in which case they would be necessary, and why they would all have to be from Pretoria.
5.
Taking all of these considerations into account, I am of the view that the Applicant has made out a proper case.
The application is therefore granted in terms of the Draft Order annexed hereto as Annexure X.
_____________________________
JUDGE H.J FABRICIUS
JUDGE OF THE HIGH COURT GAUTENG DIVISION PRETORIA
I Agree
____________________________
JUDGE M. F. LEGODI
JUDGE D. S. MOLEFE
24 March 2015