Source:

Jones and Buckle The Civil Practice of the Magistrates' Courts in South Africa (Volume I and II)/Extracts from the South African Law Reports/South African Law
Reports/2006/ GEYSER v NEDBANK LTD AND OTHERS: IN RE NEDBANK LTD v GEYSER 2006 (4) SA 544 (W)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/cpmc/2352/2353/3703/3748?f=templates$fn=default.htm

GEYSER v NEDBANK LTD AND OTHERS: IN RE NEDBANK LTD v GEYSER 2006 (4) SA 544 (W)
2006 (4) SA p544

Citation 2006 (4) SA 544 (W)

Case No 430/2004

Court Witwatersrand Local Division

Judge Goldstein J

Heard November 21, 2005

Judgment November 21, 2005

Counsel The names of the parties' counsel and their instructing attorneys not supplied.

Flynote : Sleutelwoorde
Court ­ High Court ­ Jurisdiction ­ Over 'causes arising' within jurisdiction of Court ­ Supreme Court Act G 59 of 1959, s 19(1)(a) ­ Choice of
domicilium citandi et executandi within jurisdiction of Court not sufficient ­ Action on loan agreement concluded outside jurisdiction of Court ­
All obligations in terms of loan agreement to be performed outside such jurisdiction ­ Mortgage bond to secure repayment of loan registered over
property within jurisdiction of Court, but power of H attorney authorising registration thereof signed outside jurisdiction ­ So much of loan
transaction having occurred outside jurisdiction, and so little within it, that not enough factors present conferring jurisdiction on Court ­ No
grounds of convenience, justice and good sense requiring Court to have jurisdiction. I
Headnote : Kopnota
The first respondent had instituted action in the Witwatersrand Local Division for payment of the balance of moneys due and owing in terms of a
written agreement of loan. The Registrar of the Court had thereafter granted judgment by default. A writ of execution for the attachment of the
immovable property of the applicant in Johannesburg, which property had J

2006 (4) SA p545

been mortgaged to secure the loan, was issued, the property later attached and then sold in execution. The applicant, A alleging that the
Witwatersrand Local Division had lacked jurisdiction in the action in that the cause of action was not a 'cause arising' within the jurisdiction as
intended in s 19(1)(a) of the Supreme Court Act 59 of 1959, applied for an order setting aside the default judgment, writ of execution and sale
in execution. It appeared that the agreement of loan had been entered into in Pretoria, outside B the jurisdiction of the Court, and all the
obligations of the parties in terms of the loan agreement had to be performed outside the jurisdiction of the Court. The property which had been
mortgaged to secure the loan was situated within the jurisdiction of the Court, but the power of attorney authorising registration of the
mortgage bond had been signed by the applicant in Johannesburg. The applicant had, C however, chosen the address of the mortgaged property
in Johannesburg as his domicilium citandi et executandi.
Held, on the authorities, that the choice of domicilium citandi et executandi in Johannesburg within the jurisdiction of the Court was clearly not
enough to establish the jurisdiction of the Court. (At 546D/E.) D
Held, further, that so much of the loan transaction had occurred outside of the jurisdiction of this Court, and so little within it, that there were
not enough factors giving rise to the jurisdiction of this Court and to justify its competence to hear the matter. (At 547C.)
Held, further, that there were no grounds of convenience, justice and good sense requiring the Court in Johannesburg, rather than the Court in
Pretoria, to have jurisdiction. (At 547E/F.) Application E granted and rule nisi issued.
Cases Considered
Annotations
Reported cases
Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA): compared F

Culverwell v Beira 1992 (4) SA 490 (W): distinguished

JPS Nominees (Pty) Ltd v Binstock and Another 1993 (1) SA 341 (W): dictum at 345F ­ 346I applied
Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others 2001 (4) SA 1184 (SCA): dictum in para [22]
applied
Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A): distinguished G

S v Absolom 1989 (3) SA 154 (A): dictum at 164E ­ F applied

Standard Bank Ltd v Butlin 1981 (4) SA 158 (D): applied
Suid­Afrikaanse Sentrale Ko­operatiewe Graanmaatskappy Bpk v Shifren and Others and the Taxing Master 1964 (1) SA 162 (O): applied
Tödt v Ipser 1993 (3) SA 577 (A): dictum at 589C ­ D applied H

Trade Fairs and Promotions (Pty) Ltd v Thomson and Another 1984 (4) SA 177 (W): dictum at 183D ­ E applied.
Statutes Considered
Statutes
The Supreme Court Act 59 of 1959, s 19(1)(a): see Juta's Statutes of South Africa 2004/5 vol 1 at 1­86 ­ 1­87. I

Case Information
Application for an order setting aside a default judgment, writ of execution and a sale in execution. The facts appear from the reasons for
judgment.
TheJuta
© 2018 names
and of the parties'
Company counsel and their instructing attorneys not supplied.
(Pty) Ltd. J
Downloaded : Thu Jul 25 2024 11:58:13 GMT+0200 (South Africa Standard Time)
2006 (4) SA p546
 Case Information
Application for an order setting aside a default judgment, writ of execution and a sale in execution. The facts appear from the reasons for
judgment.
The names of the parties' counsel and their instructing attorneys not supplied. J

2006 (4) SA p546

Judgment
Goldstein J:
On 5 February 2004 the Registrar of this Court granted judgment by default against the A applicant in favour of the first respondent. The
applicant who works and lives in Pretoria alleges that the judgment was void because this Court lacked jurisdiction, and so the question which
arises is whether the first respondent's action against the applicant constitutes, to paraphrase s 19(1)(a) of the Supreme Court B Act 59 of
1959, a cause arising within the jurisdiction of this Court.
The first respondent's cause of action in the summons is for 'the balance of moneys due and owing . . . in terms of a loan . . .'. That loan was
admittedly entered into outside of the jurisdiction of this Court and all the obligations of the parties in terms thereof were to be performed
outside of such jurisdiction, save C that in terms of the loan agreement the money was to be advanced only after a bond had been registered
over the property in Johannesburg. Such a bond was registered, securing the applicant's indebtedness to the first respondent, then and in the
future, arising from any cause whatever, the power of attorney to pass it having been signed by the applicant in Pretoria. In the bond, as well
as in the written D agreement of loan, the applicant entered into with the first respondent, he chose a domicilium citandi et executandi in
Johannesburg, being the address of the bonded property. This is clearly not enough to establish jurisdiction in this Court (cf Standard Bank Ltd v
Butlin 1981 (4) SA 158 (D); JPS Nominees (Pty) Ltd v Binstock and Another 1993 (1) SA 341 (W) at 345F ­ 346I). E
The written agreement of loan provides that such loan 'word na die registrasie van die verband . . . aan die verbandgewer . . . voorgeskiet'.
That registration, as I have indicated, had to occur in Johannesburg. Is that, together with the registration of the bond here, enough to render
the 'cause' one arising in Johannesburg in terms of s 19(1)(a) of the Supreme Court Act? F
Support for a positive answer to this question is to be found in Harms Civil Procedure in the Supreme Court in para A4.14 at A­22, where the
learned author says that a contractual cause arises, inter alia, where a contract is to be performed 'in part'. His authority for this proposition is
Roberts Construction Co Ltd G v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A). The plaintiff in that case sued in the Orange Free State Provincial
Division for cancellation of a contract and damages based on a breach of contract, alternatively on fraudulent misrepresentation. The case
concerned the girders of a bridge built over a river between the Orange Free State and the Cape Province (as those provinces were then
known) and the H parties, domiciled in South Africa, were peregrini in the Orange Free State. The contract had been entered into in
Johannesburg.
In Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others 2001 (4) SA 1184 (SCA) para [22] at 1201C
­ E Cameron JA said the following in regard to the decision in Roberts Construction Co Ltd: I
'This Court has in the past not been averse to developing the doctrines and principles of jurisdiction so as to ensure rational and equitable rules. In Roberts
Construction Co Ltd v Willcox Bros (Pty) Ltd this Court held, applying the common law doctrine of cohesion of a cause of action (continentia causae), that where
one court has jurisdiction over a part of a cause, considerations of J

2006 (4) SA p547

GOLDSTEIN J
convenience, justice and good sense justify its exercising jurisdiction over the whole cause. The partial location of the object A of a contractual performance (a
bridge between two provinces) within the jurisdiction of one court therefore gave that court jurisdiction over the whole cause of action. The Court expressly left
open the further development and application of the doctrine of cohesion of causes.' B

The facts in Roberts Construction Co Ltd are a far cry from those before me. Here the registration of the bond is not an issue. In fact, if it so
wished, the first respondent could have advanced the money without registering the bond at all. It seems to me that at the end of the day so
much of the loan transaction occurred outside of the jurisdiction of this Court, and so little within it, that there are not enough factors giving
rise to the jurisdiction of C this Court and to justify its competence to hear the matter. (Compare Cordiant Trading CC v Daimler Chrysler
Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) at 205E ­ G.)
Counsel for the respondent referred to the fact that before s 26 of the Supreme Court Act had made provision for the execution of an order of
any division throughout the country, only the court within D which immovable property lay had jurisdiction to declare it executable. This Court
still retains such jurisdiction and so runs the argument, on the basis of the passage I have quoted from Permanent Secretary, Department of
Welfare Eastern Cape and Another, this Court has jurisdiction over the whole claim. E
In my view, the passage relied upon and quoted above is inapplicable. There are no grounds of convenience, justice and good sense requiring
this Court, rather than that in Pretoria, to have jurisdiction. That such a requirement, namely of convenience, justice and good sense, must be
satisfied is implicit in the dicta of Cameron JA which I have quoted. The first respondent transacted with the applicant in F Pretoria, advanced
money to him there and expected him to pay it there. The applicant signed the power of attorney to pass the bond there. That Court seems to
me to be clearly the appropriate one, and none of the grounds for shifting jurisdiction to this Court is satisfied.
It is clear that in the absence of jurisdiction of this Court the judgment is a nullity and can have no legal effect. (Compare G Tödt v Ipser 1993
(3) SA 577 (A) at 589C ­ D; Trade Fairs and Promotions (Pty) Ltd v Thomson and Another 1984 (4) SA 177 (W) at 183D ­ E; Suid­Afrikaanse
Sentrale Ko­operatiewe Graanmaatskappy Bpk v Shifren and Others and the Taxing Master 1964 (1) SA 162 (O); S v Absolom 1989 (3) SA 154
(A) at 164E ­ F.) H
The case of Culverwell v Beira 1992 (4) SA 490 (W) was concerned with a judgment which was allegedly wrong, but not void, and therefore had
to be obeyed until set aside.
It is argued in the alternative, on behalf of the first respondent, that the applicant submitted to the jurisdiction of this Court but, says counsel
for the applicant, correctly I think, that I this issue is not raised in the papers before me.
In the result an order issues to the following effect, in terms of prayer 2, and a rule nisi in terms of prayer 4 as amended:
'2. That the first, second and fourth respondents be interdicted and J

2006 (4) SA p548

prohibited from passing transfer of erf 712 Parktown (Extension) Township, Registration Division IR Province of Gauteng to A the third respondent, being the
purchaser at the sale in execution, pending decision on the return date of the rule nisi of the issues listed here below.

4. That a rule nisi be issued calling on the respondents to show cause on Tuesday, 13 December 2005, at B 10:00 or so soon thereafter as the matter may be
heard:

4.1 why the default judgment of 5 February 2004 should not be declared void;

4.2 why the writ of execution, dated 27 June 2005, should not be declared invalid and of no force and effect; C

4.3 why the attachment of erf 712 Parktown (Extension) Township, Registration Division IR, Province of Gauteng, should not be set aside;

4.4 why the sale in execution on 18 August 2005 of the said erf 712, Parktown should not be set aside; D

4.5 why the costs should not be awarded against the first respondent and such other respondents as may oppose the confirmation of the rule.' E

© 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Jul 25 2024 11:58:13 GMT+0200 (South Africa Standard Time)
 F

© 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Jul 25 2024 11:58:13 GMT+0200 (South Africa Standard Time)