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IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
In the matter between:
Appeal A1446/2005
REPORTABLE					DATE:  2/10/2007

-" --

E TADEUSZ MALKIEWICZ
Appellant
Defendant a quo
and
E F VAN NIEKERK
Respondent
Plaintiff a quo
and in the matter between:
E TADEUSZ MALKIEWICZ
Appellant Defendant a quo
and
FOUROUCLAS INVESTMENTS CC
Respondent Plaintiff a quo
JUDGMENT
BOTHA J :
This is an appeal from the Magistrate's Court for the district of Witbank.
It concerns two Magistrate's Court cases. In both cases the defendant was Mr E
Tadeusz Malkiewicz. In case 828/2005 the plaintiff was Mrs E F van Niekerk. In
case 829/2005 the plaintiff was Fourouclas Investments CC.

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I shall first deal with case 828/2005. I shall refer to the parties as they were cited in
the court a quo.
The plaintiff issued a summons in which she claimed an order that the defendant be
compelled to remove a boundary wall. She alleged that she was the owner of portion
1 of stand 1700 in Highveld Park Extension 1, Witbank and that the defendant built a
boundary wall on the adjoining stand, stand 1701, which encroached on portion 1 of
stand 1700. She alleged that the value of the land on which the encroachment extends
is less than R100 000,00.
In case 829/2005 the plaintiff alleged that it was the owner of the remainder of stand
1700 in Highveld Park Extension 1. It alleged that the defendant built a house and
boundary wall on stand 1701 which encroached on its property. It also alleged that
the value of the land on which the encroachment extends is less than R100 000,00.
In both cases the defendant raised identical special pleas relating to jurisdiction. In
the first special pleas the defendant contended that the court had no jurisdiction
because there were no alternative claims for damages.
The first special pleas in both cases were disposed of together in limine in terms of
Rule 19(12). The magistrate found:
(a) that the value of the claims did not exceed R100 000,00,
(b) that the claims were not claims for the specific performance of a contractual
obligation,

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(c) that section 46 of the Magistrates' Court Act, 1944 (Act 32 of 1944) was not
applicable and
(d) that section 30(1) of Act 32 of 1944 empowered the court to entertain the
matter.
The defendant appeals on the ground that the plaintiffs' claims were claims for
specific performance without alternative claims for damages and that they did not
arise out of contractual obligations.
I do not understand the persistent allegation by the defendant that the plaintiffs'
claims do not arise out of contractual obligations. Of course they do not arise out of
contractual obligations, but as I see it the defendant's case is based on the reasoning in
the judgment in Sydney Clow Co Ltd v Herzberg 1938 TPD 201 where it was held
that a claim for specific performance which excluded the jurisdiction of a Magistrate's
Court (if without an alternative claim for damages) could arise from any obligation,
and not only from a contractual obligation.
The judgment in Sydney Clow's case supra was a judgment of two judges. It may
be argued that the judgment in Sydney Clow's case was approved by a court of three
judges in Zinman v Miller 1956(3) SA 8 (T) and that it is binding on this court. In
Carpet Contracts (Pty) Ltd v Grobler 1975(2) SA 436 (T) at 439 G-H the court
remarked that in Zinman's case supra it was held that "specific performance" in
section 46 of Act 32 of 1944 referred to claims arising from any obligation, which
could include obligations arising from delict.

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It is necessary to make the point that in Zinman's case supra the court refrained
from deciding the issue of whether "specific performance" in section 46 referred to
obligations in general or only to contractual obligations. See p12 D-E.
Sydney Clow's case supra was based on the Magistrates' Court Act 1917 (Act 32 of
1917). Section 28 of that Act dealt with jurisdiction in respect of persons. Section 29
dealt with jurisdiction in respect of causes of action. In section 29(1)(c) the monetary
limit of jurisdiction was fixed at £ 200. Section 30 granted jurisdiction in respect of
arrests, attachments, interdicts and mandamenten van spolie "subject to the limits of
jurisdiction prescribed in this Act".
Section 44 enumerated instances "where
Magistrate's Courts would not have jurisdiction, one of which was matters" in which
is sought specific performance of an act without an alternative payment of damages".
( My underlining). In the Dutch version is : " .. waarin daadwerklike vervulling van
een verbintenis zonder een alternatieve eis voor schadevergoeding gevorderd word ".
(My underlining). The English version of Act 32 of 1917 was the signed version.
In Sydney Clow's case the court dealt with the differences between the English and
Dutch versions and nevertheless came to the conclusion that the reference to specific
performance was not confined to specific performance arising out of contract.
The Magistrates' Court Act, 1944 (Act 32 of 1944) retained the jurisdictional scheme
of the 1917 Act. Sections 28, 29 and 30 were retained with the same section numbers.
Section 44 of the 1917 Act became section 46 in the 1944 Act. In section 46(2)( c),
also dealing with an exclusion of jurisdiction in the case of claims for specific

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performance, the wording is as follows: " A court shall have no jurisdiction in
matters …
(c) in which specific performance is sought without an alternative of payment of
damages..." In the Afrikaans text, which is the signed one, the term for "specific
performance" is "daadwerklike vervulling". The significant changes in the 1944 Act
are that the words "of an act" in the English text and "van een verbintenis" in the
Dutch text of the 1917 Act were deleted from the 1944 Act.
The changes in section 46(2)(c) of Act 32 of 1944 led Dowling J in Wiles v Praeg
1952(1) SA 87 (T) at 90 question whether the judgment in Sydney Clow's case supra
was still applicable.
He found that a party could claim a right of way in the
Magistrate's Court without an alternative claim for damages. As he pointed out,
section 29(1)( c) specifically granted jurisdiction in respect of rights of way
notwithstanding the provisions of section 46.
In Maisel v Camberleigh Court (Pty) Ltd 1953(4) SA 371 (C) at 379 C-H the court
expressed doubt as to whether the judgment in the case of Sydney Clow supra still
held good under the 1944 Act. It expressed the view that the words "specific
performance" standing alone should be given their well- known meaning of specific
performance of a contract.
In Francis v Roberts 1973(1) SA 501 (RAD) the court had to apply the Rhodesian
Magistrates' Court Act, which was based on the South African Act of 1917. It held
that a magistrate had the jurisdiction to grant a mandatory interdict ( the cutting of
overhanging branches) in spite of the absence of an alternative prayer for damages.

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The court found that the equivalent of the present section 46(2)(c) in the Rhodesian
Act (section 12) had no application to the equivalent of the present section 30 (section
11).
In Olivier v Stoop 1978(1) SA 196 (T) at 202C the court found that" daadwerklike
vervulling " in section 46(2)( c) of Act 32 of 1944 referred to the specific performance
of a contractual obligation. The court arrived at that finding after a consideration of
the Act and the decisions in the cases of Sydney Clow supra, Wiles v Praeg supra
and Maisel supra. The court found that the magistrate had the power to order the
appointment of a liquidator- a mandatory interdict.
In my view the conclusion of the court in Olivier v Stoop supra was correct. It is
supported by the authors of Jones and Buckle, The Civil Practice of the
Magistrates' Courts in South Africa 9th edition at 191-192 and Pretorius,
Burgerlike Prosesreg in die Landdroshowe volume 1 pp 53-54.
It is undeniably so that the normal context of the concept" specific performance" is
the field of contract. Where section 30 confers jurisdiction in respect of interdicts on
magistrates' courts, it would largely nullify that jurisdiction if it would be subject to
the restriction that an interdict can only be sought if there is an alternative prayer for
damages. Interdicts in the High Court are rarely, if ever, sought on that basis.
Section 30 of the Act empowers a Magistrate's Court to grant interdicts.
It is
accepted nowadays that jurisdiction in respect of interdicts extends to prohibitory and
mandatory interdicts. See Pretorius op cit volume 2 at 728, Jones and Buckle op cit

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at 80, Francis v Roberts supra and Weepner v Kriel 1977(4) 212 (C) at 218D. If,
however, the interdict is aimed at the enforcement of a contractual obligation, the
court will have no jurisdiction unless there is an alternative prayer for damages. See
Badenhorst v Theophanes 1988(1) SA 793 (C) at 801G. It must be pointed out that
in this appeal the issue of whether the magistrate could grant a mandatory interdict 
as opposed to a prohibitory interdict - was not raised.
Ms Bosch, who appeared for the defendant, also argued that the summonses did not
disclose a cause of action for the relief claimed. She submitted that it did not follow
from the allegations of ownership that the plaintiffs were entitled to a removal of the
encroachments. The simple answer to this argument is that it was not raised in the
notice of appeal. If the defendant wanted to raise this argument, he had to raise it by
way of exception.
In the result I come to the conclusion that the defendant's first special pleas were
correctly dismissed in both actions.
The following order is made:
1. The appeal is dismissed with costs.
2. The matters (being cases 828/2005 and 829/2005) are remitted to the
magistrate.

C BOTHA

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JUDGE OF THE HIGH COURT
JMN POSWA
JUDGE OF THE HIGH COURT

HEARD ON:  1/10/2007
FOR THE APPELLANT:  C L H Harms
INSTRUCTED BY:  Henderson, Kuiper-Isaacson and Rooseboom Attorneys, Pta
		Instr by: Ferreira's Attorneys, Witbank
FOR THE RESPONDENT:  Adv J S Stone
INSTRUCTED BY:  Couzyn Hertzog & Horak Attorneys, Pta
Instr by: Van Heerden & Brummer Inc, Witbank
I agree