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REPORTABLE CASE NO AR 386/2007

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

In the matter between

GARDENER’S GRAPEVINE CC Appellant

t/a THE GRAPEVINE

and

FLOWCRETE PRECAST CC First Respondent

M. A. CORNALI Second Respondent

_______________________________________________________

Delivered :

29 February 2008

J U D G M E N T

LEVINSOHN DJP :

[1] This is an appeal from a decision of the Magistrate’s Court Durban upholding a special plea to jurisdiction. For ease of reference I shall refer to the parties to this appeal by their respective designations in the Court a quo.

[2] The plaintiff, a publisher, carries on its business at Durban. The defendants are both resident in Queensburgh which is in the Pinetown Magisterial area.

[3] Alleging that the whole cause of action arose within the jurisdiction of the Durban Magistrate’s Court the plaintiff in its summons claimed payment of an amount of R42 943,80 from the defendants.

[4] In their plea the defendants in limine raised a special plea to the jurisdiction of the Durban Court and thereafter pleaded over on the merits of the claim. When the matter came to trial the Magistrate was asked to decide the special plea in limine in terms of Rule 19(12) of the Rules of the Magistrate’s Court.

[5] No oral evidence was adduced. The only evidentiary material that was introduced were two documents, exhibits A and B respectively. It was common cause that exhibit A was prepared by the plaintiff. The front of the document sets out the name and address of the “advertiser” (the first defendant), the duration of the contract, the price and details of the advertising service as well as the terms of payment. At the bottom of the page there then appears the following : -

“I, the undersigned M. A. Cornali ID No 3608045051007 in my capacity as Director □ Member □ Owner □ Partner □ Manager □ of Flowcrete do hereby agree to the terms and conditions of the Agreement of which terms I am fully aware. In the event of the Advertiser being a company or a close corporation the person signing this contract, by his/her signature below binds himself/herself as surety for payment of any amounts outstanding by the Advertiser should the advertiser fail to comply with the payment terms set out in this contract.

*Date : …………………………………. Signature : …………………………………………*

By its/his/her signature thereof the advertiser accepts that the order is subject to the terms and conditions overleaf and accepts the responsibility of the content thereof whether read or not.”

[6] There appears an asterisk at the place where the date was to be inserted and one where there is provision for a signature. The rear of exhibit A contains various contractual terms and conditions.

[7] Exhibit B is identical to exhibit A, save that this document has been signed and dated and importantly the fax imprint at the top of the document indicates that it was faxed by the plaintiff to the first defendant.

[8] It was common cause before the Magistrate that the aforesaid signed copy exhibit B was faxed back to the plaintiff.

[9] The Magistrate characterised the issue before him as follows : -

“Of great concern is the jurisdiction as to which court has jurisdiction, is it at the stage when the offeror (sic) signed the fax to indicate acceptance of the offer or is it at the stage when the offeror receives the acceptance.”

[10] In my view this was an incorrect approach. The issue was whether the whole cause of action arose wholly within the area of jurisdiction of the Durban Magistrate’s Court. In McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD page 16 at page 23, the meaning of the phrase “if the cause of action arose wholly within the district” was defined : -

“…every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

[11] Commenting on McKenzie’s case, supra, the learned authors of Jones & Buckle, 9^th Edition (Volume 1), write as follows : -

“The application of this definition has given rise to difficulties, and it has been suggested that most difficulties will in practice be resolved if, in applying the definition to any given case, it is borne in mind that the definition relates only to ‘material facts’, and if at the same time due regard be paid to the distinction between the facta probanda and the facta probantia. This distinction is of great importance and care must be taken in any given case to distinguish the facts which must be proved in order to disclose a cause of action (the facta probanda) from the facts which prove them (the facta probantia).”

[12] A very useful case which illustrates the application of these principles is Herholdt v Rand Debt Collecting Co 1965 (3) SA 752 (T). The headnote adequately summarises the facts of that case and reads as follows : -

“The appellant had been sued in a magistrate's court in Johannesburg for the payment of a sum of money alleged to be due in terms of a contract entered into between him and a correspondence college, which claim had been ceded to the respondent. It appeared that an agent of the college had approached the appellant in Pietermaritzburg (sic - should be Pietersburg) and had persuaded him to complete a form of offer to receive instructions from the college in return for certain payments. The agent had no authority to conclude contracts. The offer was accepted in Johannesburg and the communication of the acceptance and the breach of contract relied upon had taken place there. The appellant, in a special plea in bar, had put the jurisdiction of the court in issue. A magistrate's court having overruled such plea, in an appeal,

Held, as the material fact was the existence of a signed and operative offer in Johannesburg at the time of acceptance, that the magistrate's conclusion was correct.”

[13] Applying these principles to the instant case it is necessary to quote in full the averments made in the plaintiff’s summons : -

“Plaintiffs claim against Defendants is for payment of the sum of R42 943,80 being

1. Advertising services rendered by Plaintiff to the First and Second Defendants at the latter’s special instance and request and which sum is now due, owing and payable;

2. Interest on the aforesaid sum at the rate of 15,5% per annum calculated from date of service of summons to final date of payment;

3. The whole cause of action arose within the jurisdiction of the Above Honourable Court.”

[14] It seems to me that the elements of the plaintiff’s cause of action as alleged above are dependent on proof, firstly, that the parties concluded a contract in terms of which the plaintiff would tender advertising services to the first defendant (this is a clear inference from the allegation in paragraph 1 of the particulars of claim above). Secondly, that the plaintiff has rendered the services (in other words it has performed its obligations) and it follows that payment is now due.

[15] It is undisputed that exhibit A was an offer made to the first defendant. All the material terms of the proposed contract were contained in exhibit A. In my opinion the first defendant was required to signify its acceptance of the offer in two ways. Firstly, by signing and dating the document and secondly, by communicating that acceptance to the plaintiff by means of fax transmission. Mere signature and dating of the document would not in my opinion have established consensus ad idem necessary for a contract to come into operation. This view is wholly consonant with the legal principles set forth by the Supreme Court of Appeal in the case of Jamieson v Sabingo 2002 (4) SA 49 at 54 where Farlam JA said : -

“In my opinion, this concession was correctly made. Parties who communicate by telephone, telex or telefacsimile transmission are 'to all intents and purposes in each other's presence' (to use an expression used by Parker LJ in Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 (CA) ([1955] 2 All ER 493) at 337) and the ordinary rules applicable to the conclusion of contracts made by parties in each other's physical presence apply, viz the contract comes into existence when and where the offeree's acceptance is communicated to and received by the offeror. This has been held to be the legal position in the case of contracts concluded over the telephone (Tel Peda Investigation Bureau (Pty) Ltd v Van Zyl 1965 (4) SA 475 (E), approved by this Court in S v Henckert 1981 (3) SA 445 (A) at 451B) and contracts concluded by telex (Entores Ltd v Miles Far East Corporation (supra), approved by the House of Lords in Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34). By parity of reasoning the same principle must apply where the parties are in communication with each other by telefacsimile transmission (see Gunac Hawkes Bay (1986) Ltd v Palmer [1991] 3 NZLR 297 (HC)).

[6] It follows from this concession that when the rule nisi was granted it was competent for the appellant to have sought the attachment of the respondent's property only in order to confirm jurisdiction and not to found it.”

[16] It is overwhelmingly probable and in accordance with good business common sense that the plaintiff would need to be made aware of the acceptance so that it in turn could commence to perform its part of the bargain. It follows therefore that the contract in question was concluded when the signed exhibit B was received by the plaintiff in Durban.

[17] The next aspect required to establish the cause of action is the rendering of the services. As indicated above, the allegation is made that same have been rendered. This allegation must be read with the contract, which is part of the evidentiary material before the Court. This stipulates as follows : -

“PLEASE BOOK THE FOLLOWING ADVERTISING SPACE : Section : ………HHN……………………

Number of Months : …12 (twelve)Size :½ Landscape teal Portrait □ Material Supplied □

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

MONTH



a

a

a

a

a

a

a

a

a

a

a

YEAR

2006

06

2006

COVER

2005

05

05

05

05

05

05

2005

[18] There is nothing to contravert the allegation made by the plaintiff that it rendered the service undertaken in the written contract by having “booked advertising space” on behalf of the first defendant for the abovementioned time periods. This obligation must as a matter of probability have been performed at the plaintiff’s place of business in Durban. Performance aforesaid would trigger off the reciprocal obligation to make payment which in turn had to take place in Durban where the plaintiff had its bank account.

[19] Aspects relating to the preparation and submission of the offer as well as distribution of the plaintiff’s publication appear to me to be “facta probantia” as understood in the case law mentioned above and not facts which are necessary to prove the cause of action.

[20] In my view the Magistrate incorrectly upheld the special plea. I would accordingly allow the appeal with costs and substitute the following order : -

The special plea is dismissed with costs.

SWAIN J : I agree.

DATE OF JUDGMENT : 29 FEBRUARY 2008

DATE OF HEARING : 22 FEBRUARY 2008

COUNSEL FOR APPELLANT : MR F. ABRAHAM

INSTRUCTED BY : FEISAL ABRAHAM ATTORNEYS, DURBAN

C/O CAJEE, SETSUBI, CHETTY INC, PIETERMARITZBURG

COUNSEL FOR RESPONDENTS : MR C. W. HAVEMANN

INSTRUCTED BY : C. W. HAVEMANN & ASSOCIATES, DURBAN

C/O DAWSON INCORPORATED, PIETERMARITZBURG

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