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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

CASE NO: 29929/2017

29930/2017

16/8/2017

In the matter between:

ABSA BANK                                                                                                      APPLICANT

and

F C E MEYER                                                                                                RESPONDENT

 

JUDGMENT

 

KUBUSHI J

 

INTRODUCTION

[1] There are two opposed summary judgment applications before me, under case number 29929/2017 and case number 29930/2017. The issues raised in the applications are similar in nature even though there are two different motor vehicles sought to be repossessed and the amounts due and payable also different in each application. The parties have agreed that, for purposes of exigency, the two applications should be heard together.

 

FACTUAL BACKGROUND

[2] The applicant and the respondent entered into certain separate written instalment sale agreements ("the agreements"). In terms of the agreements the applicant sold two motor vehicles to the respondent, namely - a certain 2013 TOYOTA HILUX 3.0 D-4D RAIDER 4X4 A/T P/U D/C motor vehicle with engine number 1KDA144619 and chassis number AHTFZ29G209096904, in respect of case number 29929/2017 and a certain 2014 TOYOTA LAND CRUISER 200 VS TD VX SPECIAL ED motor vehicle with engine number 1VD0222304 and chassis number JTMHVOSJ804122491, in respect of case number 29930/2017 ("the motor vehicles"). The motor vehicles were delivered to the respondent upon conclusion of the said agreements. Despite delivery of the motor vehicles ownership thereof remained vested in the applicant. It is alleged that the respondent has breached the agreements in that she failed to make payments due in terms of the agreements. It is common cause that the respondent was, at the time the summonses were issued, in arrears and is still in arrears.

[3] Due to the respondent's breach of the agreements the applicant terminated the agreements, alternatively the agreements were terminated by the issue of the summonses against the respondent. In the summonses the applicant prays for an order confirming termination of the agreements and the return of the motor vehicles, respectively. The respondent entered appearance to defend in both matters which resulted in the applications for summary judgment by the applicant. In resisting the summary judgment applications the respondent raised, on the papers, a preliminary issue of non-compliance with Uniform Rule 18 (1) and a defence of lack of jurisdiction on the merits. From the bar, the respondent raised another preliminary point in respect of non-compliance with s 129 (1) of the National Credit Act 34 of 2005 ("the National Credit Act"). In this judgment, I deal, respectively, first with the preliminary points but it remains important that I deal with the defence of jurisdiction as same may be dispositive of the applications.

 

PRELIMINARY POINTS

 

Non-Compliance with Uniform Rule 18 (1)

[4] The submission by the respondent is that the applicant's combined summonses do not comply with Uniform Rule 18 (1) which requires a summons to be signed by both an advocate and an attorney or, in the case of an attorney who, under s 4 (2) of the Rights of Appearance in Court Act 62 of 1995, has the right of appearance in the High Court, by such an attorney. The defect complained of as to the non-compliance is that copies of the applicant's particulars of claim served upon the respondent are unsigned. On page 10 of the particulars of claim where lines are drawn for such signatures, no signature appears. The contention is that such a failure amounts to non-compliance of the Rules as described in Uniform Rule 30A. The respondent, as such contends that she be given an opportunity to deliver an application in terms of the Rules to strike out the applicant's particulars of claim. In the ultimate, she contends that she should be granted leave to defend the matters and the applicant be ordered to pay the cost of the applications on an attorney and client scale.

[5] The applicant's counsel, in argument before me, objected to the respondent's submission on the basis that the applicant's summonses comply with the requirements of Uniform Rule 18 (1) in that the original summonses filed of record were duly signed. In support of this submission, counsel relied on the judgment in Protea Assurance Co.Ltd v Vinger.[1] The judge in that case dealt in the main with an issue of whether the service of summons was defective in circumstances where a copy of a summons was served on the defendant and did not bear the Registrar's signature. That court concluded, at 667H to 668A of that judgment, after considering a long line of judgments, that the Registrar is not obliged to sign copies of a summons which may be presented to him, and that it is not necessary that the copy of the summons served should bear the signature or name of the Registrar, provided the original that is exhibited does do so.

 

Issue

[6] The issue to be determined on this point is whether a summons does not comply with the requirements of uniform rule 18 (1) in circumstances where the served copy of the summons is unsigned.

 

Law Applicable

[7] As far as the signing of a summons is concerned, Uniform Rule 17(3) provides that:

"Every summons shall be signed by the attorney acting for the Plaintiff ... and shall thereafter be signed and issued by the Registrar ..."

Uniform Rule 18 (1) also provides for the signing of a summons and stipulates that:

"A combined summons . . . shall be signed by both an advocate and an attorney or, in the case of an attorney who, under section 4 (2) of the Right of Appearance in Courts Act 62 of 1995 (Act 62 of 1995), has the right of appearance in the Supreme Court, only by such attorney or, or if a party sues . . . personally, by that party."

As far as service of a summons is concerned Uniform Rule 4 (1) (a) (i) provides that:

"Service of any process of the court directed to the sheriff ... shall be effected by the sheriff ... by delivering a copy thereof to the said person ..."

 

Application of the Law

[8] The respondent's counsel argued that what the sheriff served on the respondent was not true copies of the original summonses and service was, therefore, defective. The applicant should have applied for condonation as the unsigned copies contained insufficient information - lacked the signature of the attorney or advocate of the applicant, so it was argued.

[9] It is my view that the principle enunciated in Vinger finds application in circumstances where a copy of the summons served has not been signed by the attorney and advocate or attorney who has a right of appearance in the High Court in terms of Act 62 of 1995, acting for the plaintiff. The principle is that service of a true copy is not required as long as there is substantial compliance with the provisions of the applicable Rules.

[10] Similarly as in Vinger, the attorney or advocate acting for a plaintiff is not required to sign copies of the summons. The submission of the respondent's counsel that true copies of a summons should be served to avoid abuse is noted. But, the Rules do not require service of a true copy only a copy of the summons.[2] A served unsigned copy of a summons does not invalidate the summons nor does it render such service defective. As a result no condonation is required.

 

Conclusion

[11] It is not in dispute that the original summonses are duly signed, as such, absent any other defect and/or irregularity in the summonses (I am not aware of any and non was brought to my attention), I have to hold that they (the summonses) comply with the requirements of Uniform Rule 18 (1). The preliminary point stands to be dismissed.

 

Non-Compliance with Section 129 (1) of the National Credit Act

[12] The respondent's counsel raised another point in limine from the bar in respect of the notice in terms of s 129 (1) of the National Credit Act.

[13] It is common cause that the agreements between the parties are governed by the provisions of the National Credit Act. The National Credit Act requires that if the consumer is in default under the credit agreement, the credit provider must draw the default to the notice of the consumer in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement to date. The credit provider may not commence any legal proceedings to enforce the agreement before first providing notice to the consumer.[3]

[14] The requirement that a credit provider provide notice in terms of section 129 (1) (a) of the National Credit Act to the consumer must be understood in conjunction with section 130 thereof, which requires delivery of the notice. The statute, though giving no clear meaning to 'deliver', requires that the credit provider seeking to enforce a credit agreement aver and prove that the notice was delivered to the consumer. Where the credit provider posts the notice, proof of registered despatch to the address of the consumer, together with proof that the notice reached the appropriate Post Office for delivery to the consumer, will in the absence of contrary indications, constitute sufficient proof of delivery. If, in contested proceedings the consumer avers that the notice did not reach him or her, the court must establish the truth of the claim.[4]

[15] It is the applicant's case that the notice was posted to the address provided by the respondent in the credit agreements. In support thereof proof that despatch was per registered post and that the notice reached the appropriate Post Office - original receipts from the Post Office and the track and trace reports in respect of both letters - are attached to the summonses, respectively.

[16] The respondent's contention is that it is not evident from the track and trace reports that the letters reached the correct Post Office. Iam therefore enjoined by Sebola to establish the truth of such claim. The two letters sent to the respondent are posted to the same postal address but the track and trace reports indicate that they went to two different Post Offices. The letter in case number 29929/2017 went to the Steiltes Post Office whereas the letter in case number 29930/2017 went to the Sonpark Post Office. It is submitted on behalf of the respondent that both Post Offices cannot be correct, that is, one of the letters must have gone to the wrong Post Office. It cannot be ascertained which of the two letters went to the wrong Post Office. I am, as such, constrained to agree with the respondent's counsel that one of the letters must have gone astray. Consequently, I have to conclude that it is possible that either one of the notices or both of them might not have come to the notice of the respondent.

 

Conclusion

[17] Where a credit provider has not complied with the requirements of s 129 (1) of the National Credit Act the court is enjoined to adjourn the matter before it and make an appropriate order setting out the steps the credit provider must complete before the matter may be resumed.[5] The provisions of section 130 (4)  (b) are per se peremptory with no discretion available to the court for deviation and the applicant must comply. I have, therefore to order compliance. The matter should be adjourned and the applicant ordered to issue fresh notices. This preliminary point stands to be dismissed as well.

 

THE MERITS

[18] The applicant pleads, in its particulars of claim that the respondent resides in Nelspruit, Mpumalanga. The respondent, however, alleges in her opposing papers that this is no longer the case as she has relocated to Ballito since entering into the agreements with the applicant. The applicant pleads further that the cause of action, that is, the conclusion of the agreement, arose in Nelspruit, Mpumalanga.

[19] The respondent submits that this court does not have the necessary jurisdiction to hear these matters. She in this regard, relies on clause 2.1 of the Practice Directive issued in terms of s 7 (1) of the Superior Courts Act 10 of 2013 ("the Act") by the Judge President of the High Court Gauteng Division, Pretoria on 29 January 2016 ("the Judge President's Directive"), determining the Mbombela and Middleburg circuit courts as the relevant courts vested with the jurisdiction to entertain all actions and motion proceedings including urgent applications in any· area in Mpumalanga Province. She also relies on the unreported judgment of Legodi J in First National Bank v Lukhele and Seven Others.[6]

[20] The applicant's counsel objected to the respondent's submission on the ground that a Directive issued in terms of s 7 (1) of the Act cannot establish or alter the area of jurisdiction of the Division. According to counsel, s 7 (1) of the Act does not empower the Judge President of a Division to establish, amend or withdraw areas of jurisdiction of any Division of the High Court. In support of his argument, he referred me to the following sections of the Act: sections 50 (2) and 6 (1) and (3) (a); and Notice No. 30 published in the Government Gazette No. 39601 on 15 January 2016 ("the Minister's Notice").

[21] Counsel further argued that the judgment in Lukhele is distinguishable to the matters before me in that that court mainly dealt with the issue whether the two circuit courts in Mpumalanga, established by the Judge President's Directive, had concurrent jurisdiction or not. That court did not deal specifically with the jurisdiction vested in the Gauteng Division, Pretoria over Mbombela circuit court by the Minister's Notice, as is the case in this instance, so it is argued.  In opposition to Lukhele, counsel referred me to an unreported judgment of Khumalo J in Nedbank Limited v Petrus Steyn Rossouw N.O & Others.[7]

[22] I pause to point out that the two judgments quoted by the parties are distinguishable from the matters before me. Both those judgments did not deal with the question of whether the Judge President of a Division can, by means  of a Directive issued in terms of s 7 (1) of the Act, establish, alter and/or amend the area of jurisdiction of the Division. As already stated, Lukhele dealt with the issue of whether the two circuit courts in Mpumalanga, established by the Judge President's Directive, have concurrent jurisdiction or not. Rossouw on the other hand dealt with the issue of whether the Minister's Notice and the Judge President's Directive confer on the Gauteng Division, Pretoria concurrent jurisdiction over the two circuit courts:­ ln essence Lukhele considered the effect of the Judge President's Directive on the two circuit courts whilst Rossouw considered the effect of the Minister's Notice and the Judge President's Directive on the Gauteng Division and the two circuit courts. To the contrary, this court is to consider the effect of the Judge President's Directive on the Gauteng Division and the Mbombela circuit court.

 

Issue

[23] The issue in this instance is whether the Judge President of a Division can by means of a Directive issued in terms of s 7 (1) of the Act establish, alter and/or amend the area of jurisdiction of the Division. In other words, the question is whether s 7 (1) of the Act empowers the Judge President of a Division to establish, alter and/or amend an area of jurisdiction of the Division.

 

Law

[24] Section 7 of the Act empowers the Judge President of a Division to establish circuit courts and/or circuit districts for the adjudication of civil or criminal matters within the area under the jurisdiction of such Judge President's Division. Section 7 provides as follows:

"Circuit Courts

7 (1) The Judge President of a Division may by notice in the Gazette within the area under the jurisdiction of that Division establish circuit districts for the adjudication of civil or criminal matters, and may by like notice alter the boundaries of any such district.

(2) In each circuit district of a Division there must be held, at least twice a year and at such times and places as may be determined by the Judge President concerned, a court which must be presided over by a judge of that Division.

(3) A court referred to in subsection (2) is called a circuit court of the Division in question."

[25] In this instance, the Judge President of the Gauteng Division, in accordance with the section, issued a Practice Note (Directive) No. 1 of 2016 on 29 January 2016 ("the Judge President's Directive"). In terms of the Directive two civil circuit courts, namely Mbombela and Middleburg, were established. Importantly, clause 2.1 of the Directive states the following:

"All actions and motion proceedings including urgent applications in any area in the Mpumalanga Province shall, with effect from 1 February 2016, be issued through designated officials and at the offices situated at the Mbombela and Middleburg courts specified in clause 4 below which shall operate as the Registrar's office of the circuit court."

[26] The two circuit courts are referred to as the Gauteng Division of the High Court of South Africa functioning as the Mpumalanga Division of the High Court of South Africa sitting either in Mbombela or in Middleburg. The two circuit courts are referred to as such under the following circumstances:

[27] The High Court of South Africa is divided into nine Divisions, one for each Province. The High Court and its Divisions are constituted in their current format by the Superior Courts Act -section 6 (1) thereof. The Divisions which are relevant for purposes of this judgment, namely, the Gauteng Division with its seat in Pretoria and the Mpumalanga Division with its seat in Nelspruit (now known as Mbombela) were established in terms of s 6 (1) (c) and (h) respectively.

[28] Section 50 (2) of the Act, provides as follows:

"(2) notwithstanding section 6 (1), the Gauteng Division shall also function as the Limpopo and Mpumalanga Divisions, respectively, until a notice published in terms of section 6 (3) in respect of those Divisions comes into operation."

[29] Section 6 (3) (a) on the other hand provides thus:

"(3) (a) The Minister must after consultation with the Judicial Service Commission, by notice in the Gazette, determine the area under the jurisdiction of a Division, and may in the same manner amend or withdraw such a notice.

(b) The area under the jurisdiction of a Division may comprise any part of one or more provinces.

(c) …”

[30] The Minister published the notice in accordance with s 6 (3) (a) of the Act, Government Notice No. 1226, in Government Gazette No. 39601 dated 15 January 2016 ("the Minister's Notice"), wherein certain magisterial districts within the Mpumalanga Division are determined as falling under the area of jurisdiction of the Gauteng Division. The magisterial district of Mbombela is one of the areas determined by the Minister to fall under the jurisdiction of the Gauteng Division.

[31] It means, therefore, that even though the Mpumalanga Division was constituted, in effect it is not yet operational or functional. Until it is operational, the Gauteng Division will continue to function as the Mpumalanga Division in respect of all the areas determined in the Minister's Notice. In other words, in determining the magisterial districts in the Mpumalanga Province as areas falling under the jurisdiction of the Gauteng Division, the Minister's Notice issued in terms of s 6 (3) (a) of the Act, has enabled the Gauteng Division to function as the Mpumalanga Division. It means further that, Mpumalanga Division (or Province), or at the very least the magisterial district so determined, is an area falling under the area of jurisdiction of the Gauteng Division. Technically speaking, Mpumalanga Division can be regarded as a circuit court of the Gauteng Division. Consequently, the Judge President of Gauteng Division is able in terms of s 7 of the Act to establish circuit district or courts within the area of the Mpumalanga Division.

[32] Does that mean that by issuing the Directive in terms of s 7 (1) of the Act, the Judge President of Gauteng Division established a separate area of jurisdiction falling under the Mbombela circuit court? I do not think so.

 

Application of the Law

[33] In this instance, the applicant instituted action in these matters against the respondent in the Gauteng Division, Pretoria, whilst the cause of action in both actions arose in Mbombela. As already alluded earlier in this judgment, the Mbombela magisterial district is an area forming part of the Mbombela circuit court. The complaint by the respondent is that the Gauteng Division, Pretoria, does not have the necessary jurisdiction to hear these matters. The respondent's first contention is that the allegations by the applicant in its particulars of claim that she (the respondent) resides in Nelspruit, Mpumalanga, are not correct as she has relocated to Ballito since entering into the agreements. It is not in dispute that Ballito falls within the jurisdiction of the KwaZulu-Natal Division.

[34] Secondly, the respondent's submission is that based on the  applicant's further averments that the agreements were entered into at Nelspruit (Mbombela) on 18 February 2015 and that as a result the causes of action arose in Nelspruit, Mpumalanga, the applicant should have issued the summonses in the Mbombela circuit court and not in the Gauteng Division, Pretoria. The respondent's contention is that in terms of the Judge President's Directive the Mbombela circuit court is the relevant court vested with the necessary jurisdiction to hear these matters.

[35] The jurisdiction of a Division [of a High Court] is established in terms of s 21 of the Act. The section provides thus -

"Persons over whom and matters in relation to which Divisions have jurisdiction:

21. (1)  A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all other matters of which it may according to law take cognisance, . . ."

[36] It is common cause that in founding jurisdiction in these proceedings the applicant firstly relied on the respondent's chosen domicilium citandi et executandi. As per the agreements between the parties the respondent chose her domicilium citandi et executandi as 124 A Uitsig Estate, Dr Enos Mabusa Drive, Nelspruit. It is evident from s 21 of the Act that domicilium is not provided for as founding jurisdiction. The section refers to residence. The residence of a litigant and not domicile confers jurisdiction upon a court.[8] In any event, the respondent's submission is that she does no longer reside at the given address.

[37] It is clear from the reading of s 21 (1) of the Act that a place where a cause of action arose is enough to vest jurisdiction. The applicant, as such, relies also on this ground. What requires determination is, which, of the two courts is vested with the necessary jurisdiction to hear and determine these matters. The applicant says the Gauteng Division, Pretoria has the necessary jurisdiction whereas, the respondent's assertion is that Mbombela circuit court is so vested.

[38] There is no doubt in my mind, that the Judge President cannot establish, alter and/or amend an area of jurisdiction of the Division in terms of s 7 (1) of the Act. I do not understand the section to be conferring such powers on the Judge President. Section 7 of the Act, only confers on the Judge President the power to establish circuit districts and/or circuit courts for the adjudication of civil or criminal matters and to determine the times and places for such courts.

[39] The Supreme Court of Appeal in Gallo Africa[9] defines 'jurisdiction' as 'the power vested in a court to adjudicate upon, determine and dispose of a matter'. The power is said to be purely territorial; it does not extend beyond the boundaries of, or over subjects or subject matter not associated with the court's ordained territory.[10] In other words each Division of the High Court has general jurisdiction over a defined area in which it is situated. Circuit courts are part of the High Court and thus fall under the jurisdiction of the Division of the High Court in which they have been established or are situated. The Mbombela circuit court has been established and is situated in an area falling under the Gauteng Division. Consequently, it is my conclusion that the Judge President's Directive does not establish a separate area of jurisdiction falling under the Mbombela circuit court or any other circuit court, to the exclusion of the Gauteng Division. As already stated earlier in this judgment, s 7 (1) of the Act empowers the Judge President to establish circuit districts or courts, only. It is also worthy to note that the Act does not confer a Division with concurrent jurisdiction over circuit courts. As such, the Mbombela circuit court falls under the jurisdiction of the Gauteng Division and the summonses, in this instance, could be said to have been issued in the correct court, the Gauteng Division, Pretoria.

 

Conclusion

[40] Nevertheless, s 173 of the Constitution confers on the High Court the inherent power to protect and regulate their own processes in the interest of justice. In the Supreme Court of Appeal[11] it was held that -

"[20] It follows that a high court can only exercise its inherent jurisdiction in relation to the regulation of its own process when confronted with a case over which it already has jurisdiction and when faced with procedures and rules of the court which do not provide a mechanism to deal with an instant problem. A court will, in that case, be entitled to fashion the means to deal with the problem to enable it to do justice between the parties."

[41] One sees a hierarchy within the legislative framework (the Superior Courts Act) which, in my view, is aimed at the attainment of justice by bringing the courts closer to the people. That is, each Division of the High Court shall have a main seat for the adjudication of cases. A local seat or seats of a Division in addition to the main seat may be established and an area or areas under the jurisdiction of such a local seat or seats may be determined. It must be assumed that, in trying to streamline the court's services, a Judge President of each Division is better placed to know where and when a service is required within a Division, for this, she or he is given the latitude in terms of s 7 of the Act to establish circuit districts or courts within her or his Division and may determine an area or areas falling under the jurisdiction of such circuit courts.[12]

[42] When explaining the rationale in establishing the two circuit courts in Mpumalanga, Legodi J in Lukhele had this to say:

"[12] Mpumalanga is the only Province in the country which up to date does not have its division of the high court functioning. The interim arrangement as envisaged in section 50 (2) read with section 6(3). is in effect, maintaining the status quo. That is, matters in the whole of Gauteng Division of the High Court as it had been the case for many years. It would be fair to conclude that the arrangements which existed for so many years long before the Superior Courts Act and thereafter, had brought about hardships to many litigants who were denied easy and reasonable access to our courts until the establishment of the two circuit courts. Accepting that this is so, one must also accept that, the High Court of South Africa which consists of divisions in each province as envisaged in subsection (1) of section 6 of the Act, is to ensure that our people have access to courts and that the interest of justice is enhanced by bringing courts for adjudication of matters closer to the people. This notion appears to be in line with what is provided for in the Act. For example, subsection (3) (c) of section 6 provides that the Minister may after consultation with the Judicial Services Commission, by notice in the Gazette establish one or more local seats of a division, in addition to the main seats referred to in subsection (1), and he or she may determine the area or areas under the jurisdiction of such local seat. and may in the same manner amend or withdraw such a notice. (My emphasis) For these proceedings, it suffices to mention that the subsection (3) (a) is silent on the concurrent jurisdiction of the main seat over the local seat.

[13] ….

[14] The determination of an area or areas of a local seat of the Division can only be aimed at ensuring that access to courts and attainment of justice is achieved when  courts are brought closer  to the  people. Now, using the same reasoning in the present matters, it must be accepted, as was also conceded by Advocate  Roelofse on behalf of Mpumalanga Society of Advocates, whom the court allowed to address at his request, although not representing any party, that the establishment of two circuit courts was aimed at ensuring that access to courts and attainment of justice. are achieved. In paragraph 47 of Advocate JH Roelofse's written heads, is stated:

"It is appreciated that the result of what is set out regarding the current jurisdiction of the Mpumalanga Court and the manner in which proceedings are currently issued in terms of the directive defeats the whole objective of the establishment of the  Mpumalanga civil circuit court. namely to give effective access to justice to the residents of Mpumalanga ." (My emphasis)

[15] The statement was made in the context of the submission that clause 2.1 of the practice directive allows the issuing of the eight matters in Mbombela and that until clause 2.1 is amended, parties are free to sue in any circuit court of their preference. Whilst I agree in part with the statement quoted above. I cannot agree that the problem is with the practice directive. The problem. as I see it. is with the litigants and or practitioners who seek to adopt a hostile attitude  towards the defendants by wanting the defendants to follow them. instead of the plaintiffs or their attorneys following the defendants. Whilst clause 2.1 did not determine the area, or areas of jurisdiction for each circuit. it is not like it is difficult to  determine which area and circuit are closer to a particular defendant. The determination is based on territorial concepts. In other words, it cannot be difficult to establish that the defendant has a connection and or is closer to a geographical area in Mbombela or Middelburg where the circuit court seat is."

[43] I am, with respect, inclined to align myself with what Legodi J stated in the aforementioned passages. The establishment of circuit courts are meant to bring litigants closer to the courts which serve them thus ensuring access to courts and the attainment of justice.

[44] Section 7 of the Act refers to a 'notice in the Gazette' by which a circuit district may be established. It is notable that for the purposes of establishing the two circuit courts the Judge President opted for a Practice Note (Directive) instead. Practice Directives are, from time to time, issued, to streamline services and to improve service delivery thus enabling the Division to deliver a better service to litigants. The Directive issued by the Judge President serves such a purpose. Iam, as well, with respect, in agreement with Khumalo J in Rossouw when she concluded as follows:

"[16] The answer lies in the phrasing or wording of the JP's directive. It is actually notable when reading clause 2.1 of the directive that he used the word "shall" and also determined the effective date. So in terms of the language used, the directive is mandatory and not discretionary or optional. The Judge President of the Court determines practicality and functionality of the courts through the powers vested upon him by the Act. It is therefore reasonable that the directive would be mandatory."

[45] My view is that even though the Gauteng Division, Pretoria is vested with jurisdiction over the Mbombela circuit court, the Judge President's Directive seeks to inform how the circuit court is to function; it also seeks to obtain uniformity amongst the litigants in the area determined by the Judge President for the circuit court. Most importantly, as explained in Lekhule it gives effective access to justice to the residents of Mpumalanga.

[46] The assertion, in this instance, is that the cause of action arose in the area of jurisdiction of Mbombela and, as such, the proceedings ought to be conducted in the Mbombela circuit court. I am inclined to accept that due to the considerations of convenience, justice and good sense the  roceedings, in such  circumstances , should, generally , be conducted from the Mbombela circuit court rather than Gauteng Division, Pretoria.[13] However, for purposes of this judgement, since the respondent is no longer resident in Mbombela having relocated to Ballito, my view is that, for the proceedings to be conducted in the Mbombela circuit court will not assist the respondent's case. As such her defence falls to be dismissed.

[47] The respondent did not raise any other defence to the merits as such the summary judgment applications ought to be granted but because of my findings on the s 129 (1) of the National Credit Act, the applications are to be postponed sine die.

[48] I make the following order

1. Application under case number 29929/2017 is postponed sine die.

2. The applicant is ordered to issue a fresh notice in terms of section 129 (1) of the National Credit Act 34 of 2005.

3. Costs are reserved.

4. The application under case number 29930/2017 is postponed sine die.

5. The applicant is ordered to issue a fresh notice in terms of section 129 (1) of the National Credit Act 34 of 2005 .

6. Costs are reserved.

 

______________________

E.M.KUBUSHI

JUDGE OF THE HIGH COURT

 

Counsel for Applicant: Adv. C. Van Heerden

Instructed by: Delport Van Den Berg Inc.

Counsel for Respondent: Adv. Van Gass

Instructed by: Steenkamp·Attorneys

Date heard: 19 July 2017

Date of judgment: 16 August 2017

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