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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 12629/05

DATE: 21/8/2006

REPORTABLE

IN THE MATTER BETWEEN:

BEAUTY NOMFUDO NONGOVU obo

NHLANHLA NONGOVU PLAINTIFF

AND

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

PATEL, J

[1] This is an unopposed application for the removal of a trial from this Division and to be transferred to the jurisdiction of the Cape of Good Hope Provincial Division.

[2] The applicant qua plaintiff in her capacity as the mother and natural guardian of her minor son, Nhlanhla instituted an action against the respondent qua defendant. The plaintiff's claim for damages arises from personal injuries sustained by her son. He was involved in a motor vehicle collision that occurred in Dobsonville, within the jurisdiction of this Division, on or about 31 August 2002.

[3] The plaintiff's claim was lodged at the defendant's Cape Town office where the matter has been dealt with. The claim was disputed by the defendant. The plaintiff instructed Lester & Associates of Cape Town to issue summons. The summons was issued in this Division, due to the jurisdictional import of the decision of Ex parte Kajee 2004 2 SA 534 (C), and served on defendant's Pretoria office.

[4] IRISH AJ in Ex parte Kajee dismissed an application for the appointment of curator ad litem even though the Road Accident Fund's Cape Town office had consented to the jurisdiction of the Cape of Good Hope Provincial Division (CPD) to entertain both the application for the appointment of the curator ad litem and the main action. It was held that the jurisdiction of the CPD had to be determined by reference to section 19 of the Supreme Court Act 59 of 1959. In terms of that section, the CPD would have had jurisdiction to try the envisaged trial action if either the accident had occurred within its area of jurisdiction or if the defendant resided within its area of jurisdiction. And held further that the Road Accident Fund was resident in the area of jurisdiction in which it had either its principal place of business or its registered office. Its principal place of business was the place at which its general administrative business was conducted, which was not necessarily the same place at which it carried on its other business operations. 0n those tests, it could not be said that the Road Accident Fund had its principal place of business within the area of jurisdiction of the CPD. The fact that it had a number of regional offices at which claims were accepted and processed and where the claim for loss of support had been lodged could not confer upon the CPD jurisdiction in respect of a cause of action which arose in a different Provincial Division of the High Court. Thus, IRISH AJ said:

"It will be seen accordingly that this Court would have jurisdiction to try the envisaged trial action arising from the fatal accident in question if either the accident in question had occurred within its area of jurisdiction or if the defendant resided within the area of jurisdiction."

[5] The Road Accident Fund is a juristic person in terms of section 2(1) of the Road Accident Fund Act 56 of 1996. The objects of the Fund are set out in section 3, inter alia, "the payment of compensation in accordance with this Act for loss of damage wrongfully caused by the driving of motor vehicles". And section 15(2) provides:

"An action to enforce a claim against the fund or an agent may be brought in any competent court within whose area of jurisdiction the occurrence which caused the injury or death took place."

[6] In Nel v Road Accident Fund 2000 1 SA 931 (T) – a review of taxation in terms of section 81 of the Magistrates' Court Act 32 of 1944 and rule 35 formulated thereunder – LE ROUX J, at 935D G/H noted:

"The defendant, however, is not the State, but a statutory body clothed with legal personality (s 2(1) of Act 56 of 1996). It was common cause that it has various offices at which it handles claims, viz Pretoria, Randburg, Durban and Cape Town. See Newsletter on the Legal Advice Department of the Road Accident Fund, dated 0ctober 1997, in which the following statement occurs:

'(The Fund) has no registered (head) office nor does its governing Act provide for a head office to be established and maintained in Pretoria or anywhere else ... The fund's claims handling function is decentralised and currently spread over four branch offices for the very purpose of bringing claims handling a little closer to the public ... The fund "carries on business" and has its "principal place of business" at the office where the claim concerned is being administered.'

In my view, this statement correctly expresses the legal position in regard to actions against the fund. It follows that the Randburg office on which the summons was served was the principal place of business of the fund for this claim and could administer and handle every aspect thereof. It was therefore not necessary to appoint a correspondent in Pretoria and the taxing master's decision in this regard must be upheld."

[7] It appears that the plaintiff, who resides in the Western Cape, was constrained to institute the action in this Division rather than in the CPD. It is against the uncertainty whether the Road Accident Fund's office Cape Town is one of its "principal place" of business and at which office it "carries on business". The Fund is neither a domestic nor a statutory corporation in the strict sense. It is a statutory justice entity to perform a specific function, that is primarily to investigate and settle claims arising from loss or damage caused by driving of a motor vehicle whether or not the identity of both the owner or driver is established. Therefore, with deference to both LE ROUX J and IRISH AJ, I am of the view that the Fund as such does not carry on business at any one or more principal place of business at its various offices where the claim is lodged and administered. Further, the instant case is distinguishable on the facts from Nel's case, supra, and Ex parte Kajee, supra.

[8] Section 9 of the Supreme Court Act 59 of 1959 provides that:

"(1) If any civil cause, proceeding or matter has been instituted in any provincial or local division, and it is made to appear to the court concerned that the same may be more conveniently or more fitly heard or determined in another division, that court may, upon application by any party thereto and after hearing all other parties thereto, order such cause, proceeding or matter to be removed to that other division.

(2) An order for removal under subsection (1) shall be transmitted to the registrar of the division to which the removal is ordered, and upon the receipt of such order that division may hear and determine the cause, proceeding or matter in question and shall in that event apply the practice governing the division in which it was instituted and the law according to which that division would but for the removal have heard and determined such cause, proceeding or matter."

[9] A similar provision is contained in section 3 of the Interim Rationalisation of Jurisdiction of the High Courts Act 41 of 2001:

"(1) If any civil proceedings have been instituted in any High Court, and it appears to the Court concerned that such proceedings-

(a) should have been instituted in another High Court; or

(b) would be more conveniently or more appropriately heard or determined in another High Court,

the Court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other High Court.

(2) An order for removal under subsection (1) must be transmitted to the registrar of the High Court to which the removal is ordered, and upon receipt of such order that Court may hear and determine the proceedings in question."

[10] It is probable that this section has superseded, without expressly repealing, section 9 of the Supreme Court Act. Under section 9, proceedings may be removed to a Division where the proceedings may have conveniently or more fitly be heard or determined by another high court. Whereas, section 3 provides an additional ground that the proceedings should have been instituted in another high court.

[11] The plaintiff's cause of action arose within the area of jurisdiction of this Division. The statutory provisions, quoted above, provide that a matter may be removed from one Division to another for hearing or determination, even though the latter Division originally had no jurisdiction in the matter. (Veneta Mineraria SpA v Carolina Collieries (Pty) Ltd 1987 4 SA 883 (A) at 887F 888C.)

[12] The defendant has conceded liability and the only issue for determination is quantum. The plaintiff's grounds for removal of this matter, regarding quantum, are:

(a) Nhlanhla has attended five appointments for the purposes of preparing medico-legal reports and assisting in the quantification of the applicant's claim, with medical specialists practising in the Western Cape.

(b) It will be more convenient to consult the specialists and to ensure their availability at trial it is heard in the CPD.

(c) The expenses that will be incurred, should the plaintiff, her son and the five expert witnesses who have assessed and reported on Nhlanhla will be required to travel to Pretoria to attend the trial, would be considerably greater than if the matter is heard in the CPD.

(d) The defendant will inevitably refer the Nhlanhla to various of its experts for medical examinations. It would be considerably more convenient and less expensive for the applicant and Nhlanhla to attend examinations in Cape Town than to travel to Pretoria in order to be examined by the defendant's experts.

(e) The plaintiff's attorney of record is based in Cape Town and have conducted the matter largely from there.

[13] SOLOMON J in Walters Brick Industries Ltd v Henkes 1938 WLD 4 alluded to the circumstances that need to be considered in an application for change of venue. These are the convenience of the parties, the convenience of the court and the general disposition of the litigation. A court, in the instant matter the TPD, must itself have jurisdiction before it can transfer proceedings to another court. (Welgemoed and Another NNO v The Master 1976 1 SA 513 (T).) This requirement has been met since the cause of action arose within the area of jurisdiction of this Court, as well as the fact that the defendant was located at that time within the area of jurisdiction of this Division when the accident occurred. An application for a change of venue must also satisfy the court that there is a balance of convenience in favour of removing the matter. (Desai v Engar & Engar 1965 4 SA 81 (W) at 85.) With reference to the contents of the founding affidavit, which is not disputed by the defendant, a proper case is made out since convenience favours the removal of this case to the CPD.

[14] The convenience of the parties appears to be paramount. In this matter for purposes of adjudicating and determining the quantum of the third party claim, the witnesses whose testimonies that will be necessary in determining the quantum will be the plaintiff's son and the medical experts, as well as the presence of the legal representatives of the parties at the trial. The plaintiff now resides in the Western Cape and has already consulted with her medical experts who are also in that province. The medical experts that the defendant will appoint in due course will have to examine the plaintiff's son and as a measure of convenience they can be consulted in the Western Cape with ease. Since that the plaintiff's child will have to be assessed by medical experts it will obviously be more convenient to appoint such experts where she and her child are residing. It will make no sense to appoint experts in Johannesburg and have the plaintiff and her child to travel from Cape Town for purposes of assessment. Even if the plaintiff's son is assessed in Pretoria or Johannesburg by defendant's medical experts, plaintiff's medical experts are in Cape Town and it will make no sense to have them travel to Pretoria from the Western Cape for purposes of adjudicating the quantum in the action. Another factor pertaining to convenience which needs to be considered is what will happen after the order is granted. (Good, Durrant and Murray SO Ltd v Lawrence 1961 4 SA 329 (W).) In this regard one can assume that the plaintiff will continue residing in the Western Cape for the foreseeable future. Thus, "after the order is granted" the case will be conveniently and finally disposed of where the plaintiff and her child are residing.

[15] A further question which needs consideration is whether this matter can be more conveniently or fitly transferred to the CPD for hearing since the defendant conceded the liability on the merits. Technically the merits have been disposed of in this Court. The question whether the quantum can be heard, adjudicated and determined in the CPD. Mr De Beer submitted that this question has to be answered in the affirmative because generally a matter will only be transferred to another Division, after it was initially instituted in a different Division. Even if the matter is part heard a transferral will be permissible in terms of section 9(1) of the Supreme Court Act, because in matters of this nature, being a third party case, the issues on the merits and quantum are usually separated even before the merits are adjudicated. The separation of merits and quantum usually entails two separate and self-contained trials and heard by different presiding judges. Mr De Beer submitted that same can be effected in this matter by different presiding judges in two different divisions. Separation of merits from quantum is a procedure in terms of rule 33(4) aimed at facilitating the convenient and expeditious disposal of litigation. (Minister of Agriculture v Tongaat Group Ltd 1976 2 SA 357 (D) at 363D; Tudoric-Ghemo v Tudoric-Ghemo 1997 2 SA 246 (W) at 251B.) Further, considerations of justice and good sense justify removal and transferral of an action on the issue of quantum to another Division.

[16] It is usually undesirable to apply for the removal and/or transferral of an action to another Division before the close of pleadings. (Radloff v Union SWA Insurance Co Ltd 1972 4 SA 634E C.) The reason is that such a transferral will be premature before the close of pleadings because a settlement might be forthcoming once the pleadings are closed. In the current litigation pleadings have closed. Therefore transferral of this case to the CPD is convenient and appropriate for disposition notwithstanding that the merits have already been conceded by the defendant.

[17] In the premises, a proper case has been made out for the transferral of this action and an order is granted in terms of prayers 1, 2 and 3 of the notice of motion.

E M PATEL

JUDGE OF THE HIGH COURT

12629-2005

HEARD ON: 6 July 2006

FOR THE PLAINTIFF: ADV J DE BEER

INSTRUCTED BY: VAN ZYL, LE ROUX & HURTER INC, PRETORIA

DATE OF JUDGMENT: 21 AUGUST 2006

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