Nedbank Limited v Morakeng (1712/2023) [2025] ZANWHC 74 (29 April 2025)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: 1712/2023

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

NEDBANK LIMITED

PLAINTIFF

And

ZACHARIA MORAKENG

DEFENDANT

CORAM: MASIKE AJ

ORDER

(i) Default judgment is granted in favor of the plaintiff against the defendant in the following terms:

1. The agreement between the plaintiff and defendant is terminated.

2. Payment of the amount of R192 507.38.

3. Interest at a fixed rate of 15.75% per annum, calculated and capitalised from 27 December 2022 to date of payment.

4. Costs of suit on Magistrate’s Court Scale.

JUDGMENT

MASIKE AJ

INTRODUCTION

[1] This matter served before this Court as an application for default judgment on 24 April 2025. The relief sought by the plaintiff against the defendant was in the following terms:

“1. Confirmation of termination of the agreement;

2. Payment of the amount of R192 507.38;

3. Interest at a fixed rate of 15.75% per annum, calculated and capitalized from 27 December 2022 to date of payment;

4. Costs of suit as taxed;

5. Further and/or alternative relief”

[2] When the matter was heard, I enquired from counsel for the plaintiff if the Court had jurisdiction to entertain the matter considering the chosen domicilium of the defendant, House number […] Block MM, Soshanguve, Pretoria, 0182 (the new domicilium address) falls outside the geographical area of the North West High Court, Mahikeng.

[3] Counsel for the plaintiff submitted that the plaintiff relied on three features for having instituted action against the defendant out of the North West High Court, Mahikeng and not out of the North Gauteng High Court, Pretoria. The first was the plaintiff and the defendant entered into a written instalment sale agreement (the agreement) in Mahikeng and the chosen domicilium address provided to the plaintiff by the defendant when the agreement was entered into is a address which falls within the geographical area of the North West High Court, Mahikeng. The second was that the defendant gave a notice of change of address in terms of section 95 and 97 of the National Credit Act 34 of 2005 (the NCA) on 8 June 2022, nearly 4 years after the plaintiff and the defendant had entered into the agreement.

[4] Counsel for the plaintiff lastly submitted that the section 129 notice of the NCA, the summons and the notice of set down were served by the Sheriff of the court at the new chosen domicilium address of the defendant. The defendant has not entered appearance to defend the matter and took issue with the jurisdiction of the court.

BACKGROUND FACTS

[5] From the reading of the particulars of claim annexed to the summons, on or about 5 October 2018 and at Mahikeng, the plaintiff duly represented, and the defendant entered into the agreement. The terms of the agreement were amongst others that the plaintiff sold to the defendant a motor vehicle, to wit, Volkwagen Polo Vivo 1.0 TSi GT (5DR) with engine number C[...] and chassis number A[...] (the motor vehicle), which vehicle was delivered to the defendant on the date of

conclusion of the agreement, alternatively within a reasonable time thereafter. The agreement is regulated by the NCA.

[6] The terms of the agreement, amongst others, read that should the defendant fail to pay the payments on due date or fail to satisfy any of its obligations in terms of the agreement, the plaintiff shall, inter alia, and without prejudicing any of its rights in law, be entitled to:

6.1 Cancel the agreement; and

6.2 Take possession of the motor vehicle; and

6.3 Claim payment of an amount equal to the difference between the outstanding balance as per the certificate of balance and the market value of the vehicle as at date of cancellation;

6.4 Claim interest on the outstanding amount at an annual fixed finance charge rate of 15.750% per annum as from 5 October 2018 to date of payment.

6.5 Claim costs.

[7] The plaintiff was advised that the motor vehicle was involved in an accident, damaged beyond economical repair and abandoned by the defendant. This triggered clause 7.3 read with clauses 7.3.4, 7.4 and 7.5 of the agreement, which read as follows:

“7.3 The following will be events of default, each of which is severable and distinct from the others:

7.3.1 …..

7.3.2 ….

7.3.3 ….

7.3.4 If the Goods are lost, stolen, damaged or destroyed and are

Incapable of economic repair;

7.3.5 ….

7.3.6 ….

7.3.7 ….

7.4 If the Goods are lost, stolen, damaged or destroyed. You must advise Us in writing within 10 (ten) Business Days.

7.5 On cancellation of this Agreement and on 10 (ten) Business Days’ written notice. You must pay Us the balance outstanding at the date of termination, together with all other amounts payable under this Agreement and recoverable under the Act.”

[8] On 8 June 2022, the defendant changed his chosen domicilium address from stand no […..] Mocoseng Village Mafikeng to the new chosen domicilium address.

[9] On 8 July 2022, the plaintiff had the motor vehicle valued at an amount of R 20 000.00.

[10] Based on the destruction and abandonment of the motor vehicle by the defendant, the plaintiff elected to cancel the agreement and to claim liquidated damages from the defendant.

[11] The defendant has been served with a notice in terms of section 129 of the NCA on 23 April 2023. The notice in terms of section 129 of the NCA was served by the Sheriff of the court at the new chosen domicilium address. From the reading of the particulars of claim, the defendant did not react to the notice in terms of section 129 of the NCA.

[12] The plaintiff claims an amount of R 192 507.38 being the balance amount outstanding and owing to the plaintiff by the defendant.

ANALYSIS

[13] Section 21 (1) of the Superior Courts Act 10 of 2013 reads as follows:

“21 Persons over whom and matters in relation to which Divisions have jurisdiction

(1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable

within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power –“

[14] Jurisdiction is determined based on the pleadings. The time to determine the jurisdiction of a court to entertain a matter is the time of the commencement of the action or application. In the case of action proceedings, as in this matter, the action commences when the summons has been issued and duly served. (See: Mayne v Main 2001 (2) SA 1239 (SCA) at 1243B – C).

[15] The original jurisdiction of each division of the High Court is territorial. The plaintiff must, in instituting action against a person residing in the Republic, select the court in whose geographical area such person is residing, or the cause arises. The domicile of the plaintiff never determines the jurisdiction. (See: Gallo Africa Ltd v Sting Music (Pty) 2010 (6) SA 329 (SCA) 332D – E (Gallo)).

[16] In Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) at 211A – D (Cordiant). The court evaluating section 19(1)(a) of the Supreme Court Act 59 of 1959 before its repeal by section 55(1)(a) of the Superior Courts Act 10 of 2013 held as follows:

“[10] The limitation as to the territorial area of each High Court is imposed by s 19(1)(a) of the Supreme Court Act 59 of 1959 (the Act). The section provides that such Court shall have jurisdiction over persons residing in and causes arising within its area of jurisdiction. For present purposes the jurisdiction of the Court a quo must be determined with regard to the requirement of 'causes arising'. In the past, these words were construed to mean proceedings over which a High Court has jurisdiction under the common law (Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd [1990] ZASCA 86; 1991 (1) SA 482 (A) at 486 and Ewing B McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A)). In the latter case Nienaber AJA said at 257F - G: 'The expression ''causes arising'' has been interpreted in the Bisonboard judgment supra at p 11 of the typescript copy ''. . . as signifying not 'causes of action arising' but 'legal proceedings duly arising', that is to say, proceedings in which the Court has jurisdiction under common law''. Since a Court under the common law would have had jurisdiction over persons domiciled within its area of jurisdiction (who would include, although not confined to persons ''residing or being in''), ''persons residing or being in'' and ''causes arising'' are not antithetical concepts; the former is merely an elaboration of the latter.”

[17] The court went to hold at 211D-E of Cordiant that this interpretation refers to all factors giving rise to jurisdiction under the common law.

[18] The entire Supreme Court Act 59 of 1959 was repealed by section 55(1)(a) of the Superior Courts Act 10 of 2013. The repealed section 19(1)(a) read as follows:

“19 Persons over whom and matters in relation to which provincial and local divisions have jurisdiction

(1) (a) A provincial or local division shall have jurisdiction over all persons residing or being in and in relation to all causes arising and all offences triable within its area of jurisdiction and all other matters of which it may according to law take cognizance, and shall, subject to the provisions of subsection (2), in addition to any powers or jurisdiction which may be vested in it by law, have power-“

[19] Section 21(1) of the Superior Courts Act 10 of 2013 reads like section 19(1)(a) of the Supreme Court Act 59 of 1959. I am of the view that Cordiant and the other long list of authorities dealing with section 19(1)(a) of the Supreme Court Act 59 of 1959, are good authority on the question of jurisdiction under Section 21(1) of the Superior Court Act 10 of 2013.

[20] The jurisdiction of the court to entertain a matter under section 21(1) of the Superior Courts Act 10 of 2013 (Superior Courts Act) is as a result determined by reference to the common law or any other relevant statute. (See: Gallo at 333A-B).

[21] In determining whether the court enjoys jurisdiction to entertain a matter, jurisdictional connecting factors recognized by the common law must be present. (See: Gallo at 333C).

[22] These recognized jurisdictional connecting factors include residence, domicile, the situation of the subject matter of the action within the jurisdiction of the court, cause of action which includes the conclusion or performance of a contract and the commission of a delict within the jurisdiction of the court.

[23] The chosen domicilium of the defendant falls outside the geographical area of this Court. The plaintiff did not plead that the defendant is residing within the geographical area of this Court. The situation of the subject matter of the action also is not within the geographical area of this Court. The motor vehicle from the reading of the particulars of claim and the annexures attached thereto, was found at Rebuild Centre, 403 Moot Road, Hermanstad, Pretoria.

[24] The plaintiff pleaded in its particulars of claim that partial performance of the agreement took place within the area of jurisdiction of the court in that payment is made into the account of the plaintiff, which account is situated in the area of jurisdiction of the court and / or the agreement was concluded within the area of jurisdiction of the court.

[25] I now turn to deal with the assertion that the agreement was concluded within the area of jurisdiction of the court. From the reading of the particulars of claim and the agreement attached thereto, I am satisfied that the agreement was entered into in Mahikeng on 5 October 2018 which is within the geographical area of the court.

[26] Is this one factor sufficient to confer jurisdiction on this Division of the High Court? In Roberts Construction Co Ltd v Wilcox Bros (Pty) Ltd 1962 (4) SA 326 (A), the court applied the common law principle of causae continentia. This principle entails where one court has jurisdiction over part of a cause, considerations of convenience, justice and good sense justify its exercising jurisdiction over the whole cause. (See: Road Accident Fund v Legal Practice Council 2021 (6) SA 230 (GP) at para 12 – 13).

[27] The recognized jurisdictional connecting factors existing in this matter, in my view, confer concurrent jurisdiction on this Division of the High Court with the North Gauteng High Court, Pretoria. Considerations of convenience, justice and good sense justify this Court exercising jurisdiction over the whole cause. Both Divisions of the High Court have jurisdiction over the matter, the plaintiff as dominus litis, was entitled to choose which court to institute proceedings from. The plaintiff respected the decision of the defendant to be served with notices and documents commencing action at his new chosen domiclium, that did not automatically mean the action could only be instituted out of the North Gauteng High Court, Pretoria.

[28] I now turn to deal with the application for default judgment. The section 129 notice of the NCA was served at the new chosen domicilium of the defendant on 26 April 2023. Service was affected by affixing. The combined summons and Rule 41A notice were served at the new chosen domicilium of the defendant on 21 August 2023, service was affected by affixing. On 8 April 2025, the Sheriff served on the new chosen domicilium address of the defendant, a notice of set down notifying the defendant that the application for default judgment would be heard in this Court on 24 April 2025 and service was affected by affixing.

[29] The reading of the summons and particulars of claim suggest; the defendant is in material breach of the agreement and the plaintiff is entitled to cancel the agreement, and claim liquidated damages from the defendant, as it does.

[30] When the matter was called, the defendant was not in attendance of court. Save to state there is no such Act as the Supreme Court Act 10 of 2013 as reflected in the returns of service of the section 129 notice of the NCA dated 05 May 2023, the summons and Rule 41A notice dated 25 August 2023. I am satisfied that there was proper service of the section 129 notice of the NCA, summons, and Rule 41A notice as catered for by the Uniform Rules of the Court.

COSTS

[31] A successful party is entitled to its costs unless the court finds reason to deviate from this trite principle. In this matter I have found a reason to deviate from awarding costs on a High Court Scale. This is a matter that could have been brought in the Magistrate’s Court because of the monetary claim involved. No case was made out by the plaintiff for bringing the action in the High Court.

[32] Save for the question of costs, I am satisfied that the plaintiff has made out a proper case for the relief sought.

[33] Resultantly, the following order is made: -

ORDER:

1. The agreement between the plaintiff and the defendant is terminated.

T MASIKE

ACTING JUDGE OF THE HIGH COURT SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE FOR HEARING : 24 APRIL 2025

DATE OF JUDGMENT : 29 APRIL 2025

FOR PLAINTIFF

:

MR. C NIENABER

INSTRUCTED BY

:

NIENABER & WISSING ATTORNEYS

OFFICE NO. 1 FIRST FLOOR

4204 PALMER CRESCENT

LEOPARD PARD

MAHIKENG

TEL: (018) 381 2924

Email: charl@nwatt.co.za

FOR DEFENDANT

:

NO APPEARANCE

INSTRUCTED BY

:

NO APPEARANCE