Mayne v Main

Last updated

Mayne v Main [1] [2] is an important case in South African law. It was heard in the Supreme Court of Appeal (SCA) on 1 March 2001, with judgment handed down on 23 March. Smalberger ADCJ, Nienaber JA, Farlam JA, Mpati JA and Mthiyane AJA presided. A. Subel SC appeared for the appellant and JPV McNally for the respondent. The appellant's attorneys were Knowles, Husain Inc, Sandton, and McIntyre & Van der Post, Bloemfontein. The respondent's attorneys were Webber, Wentzel, Bowens, Johannesburg, and Webbers, Bloemfontein. The case was an appeal from a decision of the Full Court in the Witwatersrand Local Division (Stegmann J, Blieden J and Malan J).

Contents

The issue was whether or not the High Court had jurisdiction, in terms of the Supreme Court Act, [3] on grounds of residence. [4] Central to this issue was the meaning in that statute of the phrase "residing [...] in." The SCA restated the basic principles of jurisdiction. Although a person can have more than one residence, for the purposes of the relevant section of the Act a person could only reside in one place at any given moment. Residence as a concept, the court held, conveys a certain sense of stability or something of a settled nature. Some greater degree of permanence than a mere fleeting or transient presence is needed to satisfy the requirement of residence. The court advocated what it described as a "common-sense and realistic approach" when considering residence, [5] as modern-day conditions and attitudes, and the tendency to a more transient lifestyle, might otherwise lead to persons to avoid too easily the jurisdictional nets of the courts. The subjective belief of a person whose residence is in issue, furthermore, cannot detract from the justifiable inference to be drawn from the relevant facts and circumstances.

Facts

The appeal turned on whether the Witwatersrand Local Division (WLD) had had the jurisdiction to entertain an action by the appellant against the respondent for the payment of certain sums of money and ancillary relief. In particular, it had to be decided whether the respondent had, on 18 April 1995 (the date of service of summons), been a person "residing [...] in" the area of jurisdiction of the WLD within the meaning of that phrase in section 19(1)(a) of the Supreme Court Act. Both a single judge and a full bench of the court, on appeal, had decided against the appellant's standpoint that the respondent had resided within the jurisdiction of the WLD at the relevant time.

The respondent was a South African citizen involved in corporate finance consulting. The nature of his job entailed extensive travel to many countries. He conducted his business in a highly mobile manner without being tied down by conventional office and secretarial needs. From around 1993, however, the respondent's work had required him to spend more and more time in South Africa, although he still travelled to, and continued to work in, various other parts of the world.

The respondent owned property in the UK, but from 1994 spent very little time in that country. In fact, during the years 1994 and 1995, the majority of the respondent's time was spent in South Africa, particularly in Johannesburg. The respondent had set up an office in Johannesburg, was leasing a motor vehicle for his personal use and was cohabiting with one Mrs Rowand in Inanda.

The respondent contended that, despite his near-constant presence in the country over the time period in question, he had no intention of making South Africa his home and staying there permanently. The respondent argued that the doctrine of effectiveness had relevance to the issue of residence and contended that he could only be considered to have been resident in the trial Court's area of jurisdiction if his presence there at the relevant time had been of a nature which would enable the Court to grant a judgment which would normally be effective against a person in his position.

Judgment

In a further appeal, Smalberger ADCJ held—and Nienaber JA, Farlam JA, Mpati JA and Mthiyane AJA concurred—that the basic principles regarding jurisdiction were as follows:

The court held further that, although a person could have more than one residence, for the purpose of section 19(1)(a) of the Act a person could only be residing in one place at any given moment. There had to be some good reason for regarding a particular place as the place of ordinary habitation for the respondent at the date of service. Residence as a concept conveyed a certain sense of stability or something of a settled nature; accordingly a greater degree of permanence than a merely fleeting or transient presence was necessary to satisfy the requirement of residence. [7]

Smalberger advocated a "common-sense and realistic" approach when considering residence. Modern-day conditions and attitudes, and the tendency towards a more itinerant lifestyle, particularly among business people, required this. Not to do so might allow certain persons to avoid the jurisdictional nets of the courts and escape legal accountability for their wrongful actions. [8]

The evidence revealed, to Smalberger's mind, that the respondent was essentially a peripatetic businessman, but that he nonetheless remained free to choose what work to accept and where. The evidence pointed to a heightened degree of stability and permanence in relation to the respondent's presence in South Africa and particularly in Johannesburg, where he spent the greater portion of his time. The overall duration of his stays over the relevant period of time indicated more than temporary visitations. There was no indication that the respondent was conducting substantial business elsewhere at the time. Because of the respondent's romantic involvement and cohabitation with Mrs Rowand, it was further acceptable that the respondent was not in Johannesburg simply for the purpose and duration of his work. [9]

Any mental reservation which the respondent might have had about residing in Johannesburg could not, the court held, detract from the justifiable inference, having regard to all the relevant facts and circumstances, that he was so residing for the purposes of section 19(1)(a). For the purposes of jurisdiction, South African courts did not recognise the concept of a vagabundus. Accordingly, the respondent had to have been residing somewhere on 18 April 1995. The mere fact that the respondent may have maintained a residence in London did not mean that he was residing there; nor was his presence in London indispensable to the way in which he conducted his business. [10]

The court decided, accordingly, that the appellant had succeeded in establishing a strong prima facie case on the facts that the respondent had been residing in Johannesburg when the summons was served upon him on 18 April 1995. His prolonged presence there, the ongoing nature of his work and his romantic attachment to Mrs Rowand all contributed to the required degree of stability and permanence being present at that time. No acceptable alternative place suggested itself where the respondent could have been residing at the relevant time. Whatever the respondent's subjective belief might have been, the objective facts led to a different conclusion. Johannesburg was accordingly the respondent's "place of ordinary habitation" on 18 April 1995; he was residing there for the purposes of section 19(1)(a) of the Act. The trial Court therefore had the jurisdiction to entertain the appellant's action. [11] The appeal was thus allowed and the decision of the full court of the Witwatersrand Local Division, in Mayne v Main, reversed.

Related Research Articles

NEHAWU v Tsatsi is an important case in South African law, in particular the law of delict. It was heard before the Supreme Court of Appeal (SCA) on 14 November 2005, with judgment handed down on 1 December.

Afrox Healthcare Ltd v Strydom, an important case in South African contract law, was heard in the Supreme Court of Appeal (SCA) on May 13, 2002, with judgment handed down on May 31.

KPMG Chartered Accountants (SA) v Securefin Ltd and Another, potentially a landmark case in South African contract law, was heard in the Supreme Court of Appeal (SCA) on 17 February 2009, with judgment handed down on 13 March. It could herald a new era in the interpretation of contracts in South Africa.

Barkhuizen v Napier is an important case in South African contract law, decided by the Constitutional Court on 4 April 2007, having been heard on 4 May 2006. The judges were Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J.

First National Bank of SA Ltd v Rosenblum and Another is an important case in South African contract law, heard in the Supreme Court of Appeal (SCA) by Marais JA, Navsa JA and Chetty AJA on May 21, 2001, with judgment handed down on June 1. Counsel for the appellant was MD Kuper SC ; PM Wulfsohn SC appeared for the respondents.

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd is an important case in South African law. It was heard in the Supreme Court of Appeal on 5 November 2008, with judgment handed down on 26 November. The judges were Scott JA, Farlam JA, Brand JA, Lewis JA and Jafta JA. JH Dreyer SC appeared for the appellant, and AC Ferreira SC for the respondent.

<i>Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council</i> South African legal case

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others is an important case in South African law, heard in the Constitutional Court on 18 and 20 August 1998, with judgment handed down 14 October. The bench was occupied by Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J and Yacoob J. DJB Osborn appeared for the appellants, RM Wise for the first respondent, and CZ Cohen for the second, third, fourth and fifth respondent.

True Motives 84 (Pty) Ltd v Mahdi and Another is an important case in South African law, heard in the Supreme Court Of Appeal on 28 August 2008, with judgment handed down on 3 March 2009. PM Kennedy SC appeared for the appellant. There was no appearance for the first respondent, while AE Franklin SC appeared for the second respondent and PJ Olsen SC for the amicus curiae.

Truter and Another v Deysel is an important case in South African law, with particular resonance in the area of civil procedure and medical malpractice. It is also frequently quoted or invoked for its definition of "cause of action." It was heard in the Supreme Court of Appeal by Harms JA, Zulman JA, Navsa JA, Mthiyane JA and Van Heerden JA on 24 February 2006; judgment was delivered on 17 March. Counsel for the appellants was JG Dickerson SC; AC Oosthuizen SC appeared for the respondent. The case was an appeal from a decision in the Cape Provincial Division by Mlonzi AJ.

Minister of Police v Rabie is an important case in the South African law of delict. It was heard in the Appellate Division on September 3, 1984, with judgment handed down on September 27, 1985. The presiding officers were Jansen JA, Joubert JA, Cillié JA, Van Heerden JA and Vivier AJA. The appellant was represented by the State Attorney, Johannesburg. The respondent's attorneys were Mather & Sim, Johannesburg, and McIntyre & Van der Post, Bloemfontein.

K v Minister of Safety and Security is an important case in the South African law of delict and South African constitutional law. It was heard by the Constitutional Court on May 10, 2005, with judgment handed down on June 13. Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J presided. W. Trengove SC appeared for the applicant; PF Louw SC appeared for the respondent. The applicant's counsel was instructed by the Women's Legal Centre, Cape Town. The respondent's attorney was the State Attorney, Johannesburg.

Minister of Safety and Security v Luiters is an important case in the South African law of delict. It was heard in the Supreme Court of Appeal (SCA) on March 7, 2006, with judgment delivered on March 17. Mpati DP, Farlam JA, Navsa JA, Cloete JA and Van Heerden JA presided. RT Williams SC appeared for the appellant and HM Raubenheimer SC for the respondent. The appellant's attorneys were the State Attorneys, Cape Town and Bloemfontein. The respondent's attorneys were Smith & De Jongh, Bellville; Milton de la Harpe, Cape Town; and Honey Attorneys, Bloemfontein. The case was an appeal from a decision in the Cape Provincial Division by Thring J. A subsequent application to appeal it further to the Constitutional Court was rejected.

Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd is an important case in South African property law and civil procedure, as well as in the area of legal interpretation. It was heard in the Supreme Court of Appeal on November 5, 2009, with judgment handed down on December 3. Mpati P, Brand JA, Snyders JA, Malan JA and Bosielo JA presided. Counsel for the appellants was BC Wharton; CHJ Maree appeared for the respondent in case No. 483/08 and M. Verster for the respondent in case No. 007/09. These were appeals from two decisions in the High Court, Cape Town. The appellants' attorneys were RP Totos, Cape Town, and Symington & De Kok, Bloemfontein. The respondent's attorneys in case No. 483/08 were Van der Spuy & Vennote, Cape Town, and Phatshoane Henney Ing, Bloemfontein. The respondent's attorneys in case No. 007/09 were JC Van der Berg Attorneys, George, and Hill, McHardy & Herbst Ing, Bloemfontein.

Murray v Minister of Defence is an important case in South African labour law. An appeal from a decision in the Cape Provincial Division by Yekiso J, it was heard in the Supreme Court of Appeal (SCA) on 18 February 2008. Mpati DP, Cameron JA, Mlambo JA, Combrinck JA and Cachalia JA presided, handing down judgment on 31 March. Counsel for the appellant was KPCO von Lieres und Wilkau SC ; NJ Treurnicht SC appeared for the respondent. The appellant's attorneys were Van der Spuy Attorneys, Cape Town, and Hill McHardy & Herbst Ing, Bloemfontein. The respondent was represented by the State Attorney, Cape Town, and the State Attorney, Bloemfontein.

Automotive II Tooling Systems (Pty) Ltd v Wilkens & others was an important case in South African labour law, in which the Supreme Court of Appeal of South Africa confirmed the principle that a restraint of trade would be considered unreasonable and contrary to public policy, and thus unenforceable, if it does not protect some legally recognisable interest of the employer and merely seeks to exclude or eliminate competition.

Memory Institute SA CC t/a SA Memory Institute v Hansen and Others is an important case in South African law, heard in the Supreme Court of Appeal. The judges were Harms JA, Schutz JA, Cameron JA, Conradie JA and Heher JA, who heard the case on May 8, 2003, handing down judgment on May 16, 2003. PJ Heymans appeared for the appellant; MH Wessels SC for the respondents.

Administrator, Transvaal v Theletsane is an important case in South African law, heard in an Appellate Division comprising Botha JA, Smalberger JA, MT Steyn JA, FH Grosskopf JA and Nicholas AJA. The case was heard on November 5, 1990; judgment was delivered on November 30. The respondents' attorneys were SV Khampepe, Johannesburg, and EG Cooper & Sons, Bloemfontein. The appellants had the State Attorney.

Wightman t/a JW Construction v Headfour (Pty) Ltd and Another is an important case in South African law, heard in the Supreme Court of Appeal on February 27, 2008. Mpati DP, Cameron JA, Heher JA, Ponnan JA and Mhlantla AJA presided. Judgment was handed down on March 10, 2008. Counsel for the appellant was EJJ Spamer; SC Goddard appeared for the respondents. The appellant's attorneys were Kyriacos & Co, Cape Town, and Webbers, Bloemfontein. The respondents' Attorneys were EQM Hunter, Cape Town, and Honey Attorneys, Bloemfontein. The case was an appeal from a decision of the full bench in the Cape Provincial Division regarding spoliation.

Peterson v Minister of Safety and Security is an important case in South African criminal law. For the appellant appeared J Whitehead SC, instructed by JL Martinson & Company, Cape Town; for the respondents, A Schippers SC and S O'Brien, instructed by the State Attorney, Cape Town.

Chartaprops 16 (Pty) Ltd and Another v Silberman is an important case in the South African law of agency. It was heard in the Supreme Court of Appeal by Scott JA, Nugent JA, Ponnan JA, Maya JA and Leach AJA on May 14, 2008. They delivered judgment on September 25. The case was an appeal from a decision in the Witwatersrand Local Division by Boruchowitz J.

References

Books

Cases

Statutes

Notes

  1. ↑ 2001 (2) SA 1239 (SCA).
  2. ↑ Case No. 182/99.
  3. ↑ Act 59 of 1959.
  4. ↑ s 19(1)(a).
  5. ↑ Para 6.
  6. ↑ Para 3.
  7. ↑ Paras 4–5.
  8. ↑ Para 6.
  9. ↑ Paras 23–25.
  10. ↑ Paras 26–28.
  11. ↑ Paras 30–31.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.