THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE

In the matter between :

Case No:  543/06
1)
ROAD ACCIDENT FUND

APPELLANT
and

ISHWARDUTT RAMPUKAR

RESPONDENT

Case No:  314/07
2)
ROAD ACCIDENT FUND

APPELLANT

and

JENNIFER BUSIE GUMEDE

RESPONDENT

CORAM :

SCOTT, BRAND, MAYA JJA HURT et MHLANTLA AJJA
HEARD :

8 NOVEMBER 2007
DELIVERED :
28 NOVEMBER 2007

Summary:

Section 3(1)(a) of Act 41 of 2001 – jurisdiction under s 19 of
Supreme Court Act 59 of 1959 on part of transferring court
not a requirement – operation of section not limited to areas
affected by change of jurisdiction under s 2 of the Act.

Neutral citation:
This judgment may be referred to as Road Accident Fund v
Rampukar/Road Accident Fund v Gumede [2007] SCA 148
(RSA)

BRAND JA/

BRAND JA:

[1] These two appeals were heard together because the issues they raise are
substantially the same. In essence they turn on the interpretation of s 3(1)(a) of
the Interim Rationalisation of Jurisdiction of High Courts Act 41 of 2001. By the
nature of things, I am bound to return to the provisions of the Act in more detail
when evaluating the opposing contentions. Broadly stated for introductory
purposes, however, s 3(1)(a) affords a High Court the authority to order the
removal of civil proceedings instituted in that court to another High Court if it
appears to the former that such proceedings should have been instituted in the
latter.

[2] The appellant in both matters is the Road Accident Fund (‘the RAF’) which
has its principal place of business for purposes of s 19(1) of the Supreme Court
Act 59 of 1959 (in the sense contemplated, eg in K Bisonboard Ltd v K Braun
Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A) at 496A-C) within the
area of jurisdiction of the Pretoria High Court. Another feature common to both
matters is that the motor vehicle accidents that gave rise to the respondents’
claims against the RAF occurred in the province of KwaZulu-Natal. Yet, the
respondents did not institute their actions against the RAF in the Pretoria High
Court or in the High Courts of KwaZulu-Natal, which would appear to be the
options indicated by s 19(1) of the Supreme Court Act. While Mr Rampukar’s
action was launched in the Johannesburg High Court, Mrs Gumede brought hers
in the Cape. In each case the RAF raised the special plea that the court had no
jurisdiction, whereupon both the respondents conceded the validity of this special
defence.

[3] After making the concession that the Johannesburg High Court had no
jurisdiction, Mr Rampukar brought an application in that court, based on s 3(1)(a)
of the Act, for an order that his action be transferred to the Pretoria High Court
where the RAF has its principal place of business. Despite opposition by the
RAF, the application was granted by Willis J. Mrs Gumede brought the same
application in the Cape High Court, save that she wanted her action to be
transferred to the Pietermaritzburg High Court within whose area of jurisdiction

the accident giving rise to her claim occurred. Relying inter alia, on the judgment
of Willis J in Rampukar, Van Reenen J granted her application as well. The
appeals against these two judgments are with the leave of the court a quo in
each case.

[4] I think the issues that arose on appeal will best be understood against the
background and the relevant provisions of the Act. The background appears from
the comprehensive preamble to the Act. In essence it amounts to this: by virtue
of item 16(4)(a)(1) of Schedule 6 to the Constitution, Act 108 of 1996, all
provincial and local divisions of the erstwhile Supreme Court of South Africa as
well as the superior courts of former homelands, became High Courts under the
Constitution without any alteration in their areas of jurisdiction. Item 16(6)(a) of
the same Schedule 6 provided, however, that there should be a comprehensive
rationalisation of various matters concerning these newly created High Courts,
including their areas of jurisdiction, as soon as possible after the Constitution
took effect. But the legislature foresaw that the finalisation of the comprehensive
rationalisation process would require considerable time. In the meantime, interim
changes to the areas of jurisdiction of some High Courts were urgently
necessary. Consequently, so the preamble to the Act explains, the legislature
decided to promulgate the Act in order to facilitate these interim changes.

[5] The relevant provisions of the Act are contained in ss 2, 3 and 4. They
read as follows:
‘2
Minister may alter area of jurisdiction of any High Court

(1) Notwithstanding the provisions of any other law, the Minister [of Justice] may, after
consultation with the Judicial Service Commission, by notice in the Gazette -
(a)
alter the area of jurisdiction for which a High Court has been established by including
therein or excising therefrom any [magisterial] district or part thereof;
(b)
amend or withdraw any notice issued in terms of this section.

(2) Any notice referred to in subsection (1) must be approved by Parliament before
publication thereof in the Gazette.

(3) The publication of a notice referred to in subsection (1) does not affect any
proceedings which have been instituted but not yet completed at the time of such publication.
Transfer of proceedings from one High Court to another

(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.
Repeal of laws and saving

(1) Subsections (1) and (4) of section 6 of, and the First Schedule to, the Supreme Court
Act, 1959, are hereby repealed.

(2) Notwithstanding the repeal of the laws referred to in subsection (1), the seats and the
areas of jurisdiction of the High Courts referred to in the said First Schedule shall, subject to any
alteration under section 2, remain as they were immediately before the commencement of this
Act.’

[6] To complete the picture: the provisions of the Supreme Court Act which
are repealed by s 4(1) and saved by s 4(2) of the Act, are those defining the
geographical areas of jurisdiction of the divisions of the Supreme Court. After the
Act came into operation on 5 December 2001, the Minister of Justice on more
than one occasion, effected alterations to the areas of jurisdiction of different
High Courts by way of notices in the Government Gazette as contemplated in
s 2. These alterations are conveniently set out in Erasmus, Superior Court
Practice, at A1-106B to A1-106C. Suffice it to say for present purposes, however,
that neither Pretoria – where the RAF’s principal place of business is situated –
nor any of the areas in KwaZulu-Natal – where the two accidents in question
occurred – were affected by any of these alterations. Conversely stated, the
Johannesburg High Court and the Cape High Court, where the present matters
were instituted, never had jurisdiction to entertain these cases.

[7] In the Rampukar appeal, the RAF limited itself to the contention that, on a
proper interpretation of s 3(1)(a) of the Act, the court a quo was not authorised to
transfer the proceedings to another High Court. In Gumede it raised the same
argument, but contended, in the alternative, that even if the court a quo had the

power to do so, it should not have exercised the discretion it derives from the
section in favour of the respondent.

[8] The RAF’s first argument in support of its main contention raised in both
matters departed from the premise that, as a matter of basic principle, a court
that has no jurisdiction to decide a particular case, also has no jurisdiction to deal
with that case by transferring it to another court. And, so the RAF’s argument
proceeded, there is nothing in s 3(1)(a) which is indicative of an intention to
change that basic principle. For the proposed basic principle pivotal to this
argument, the RAF sought to rely on a long line of cases relating to s 9(1) of the
Supreme Court Act and the similarly worded predecessors to that section in
earlier legislation (see eg Van Dijk v Van Dijk 1911 WLD 203 at 204; Ying Woon
v Secretary for Transport 1964 (1) SA 103 (N) at 108C-F; Welgemoed and
another NNO v The Master 1976 (1) SA 513 (T) at 523A-D).

[9] The wording of s 9(1) of the Supreme Court Act closely resembles
s 3(1)(b) of the Act. In fact, the provisions of these two enactments are so similar
that it gives rise to the suggestion that the latter had superseded the former
without express repeal (see eg Nongovu NO v Road Accident Fund 2007 (1) SA
59 (T) para 10; L T C Harms, Civil Procedure in the Supreme Court, A-34).
Whether this is so or not, is not necessary to decide. Of significance for present
purposes, however, are two things. First, s 3(1)(a) of the Act is new. It has no
counterpart in the Supreme Court Act or any of its predecessors. Secondly,
s 3(1)(a) and s 3(1)(b) deal with completely disparate situations.

[10] As I see it, s 3(1)(a), on its own wording, deals with the situation where the
proceedings should have been instituted in ‘the other court’, ie the transferee
court. This can only mean that they should not have been instituted in the court
where they were in fact instituted, ie the transferring court. Admittedly the section
suggests no reason why they should not have been so instituted. But, in the
context of an act dealing with jurisdiction, the only reason I can think of is that the
transferring court lacked jurisdiction to determine the dispute between the parties
under s 19(1) of the Supreme Court Act. In these circumstances, s 3(1)(a) does
not bestow the transferring court with jurisdiction to entertain and decide the main

dispute; all the section does is to afford the transferring court the limited
jurisdiction – which otherwise it would not have had – to transfer the matter to the
‘right’ court, ie the court with proper jurisdiction to determine the dispute under
s 19(1) of the Supreme Court Act. Thus understood, I think the situation that
s 3(1)(a) seeks to address is obvious. It is the one where a plaintiff has wrongly
instituted proceedings in the transferring court instead of the transferee court and
now seeks a transfer from the former to the latter.

[11] Stated somewhat differently; if both s 3(1)(a) and s 3(1)(b) require original
jurisdiction on the part of the transferring court – as the RAF will have it – I
cannot see what purpose s 3(1)(a) could possibly serve in addition to s 3(1)(b).
Why would a court with jurisdiction to determine the matter transfer that matter to
another court, unless it is convenient or appropriate to do so, as contemplated in
s 3(1)(b)? As I understand s 3(1)(a), it complements s 3(1)(b) in that the two
sections provide for what are, in a sense, converse situations. According to the
interpretation previously given to s 9(1) of the Supreme Court Act – which must
as a logical necessity apply to s 3(1)(b) as well – this section deals with the
situation where the transferring court has jurisdiction to determine the main
dispute. Yet it is asked to transfer the matter to the transferee court for the sake
of convenience and it matters not whether the transferee court has original
jurisdiction or not (see eg Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in
liquidation) 1987 (4) SA 883 (A) at 888A-B). In s 3(1)(a), on the other hand, it is
the transferee court that must have original jurisdiction and not the transferring
court. In this light, the RAF’s first contention as to why the courts a quo could not
transfer the proceedings under s 3(1)(a), ie because they had no original
jurisdiction under s 19(1) of the Supreme Court Act to determine the main
disputes, is in my view unsustainable.

[12] I turn to the RAF’s second contention as to why s 3(1)(a) did not empower
the courts a quo to transfer the proceedings. According to this contention the
section is only available to parties in matters which are affected by changes in
jurisdiction under s 2 of the Act. Since the matters under consideration were not
so affected, the RAF contends, s 3(1)(a) found no application at all. In broad
outline, the argument in support of this contention proceeds as follows: the whole

Act was intended as a temporary measure to facilitate the interim rationalisation
of the areas of jurisdiction of the High Courts, pending finalisation of the more
comprehensive rationalisation process contemplated by the Constitution. That
much appears from the preamble. The mechanism for realising this goal is
created in s 2. Read in this context, s 3 constitutes no more than an ancillary
provision. It deals with the transfer of matters in the affected areas as part of the
alteration process. The interpretation of s 3(1)(a) contended for by the
respondents and endorsed by the courts a quo, so the argument goes, is far too
wide. It would result in the negation of s 19(1) of the Supreme Court Act which
specifically bestows territorial jurisdiction on the different High Courts in respect
of prescribed geographical areas. It will enable litigants to choose the court in
which they wish to institute proceedings, in total disregard of the defined and
extant areas of jurisdiction. Having regard to the limited and temporary nature of
the act, so the argument concludes, it is highly unlikely that the legislature would
have intended s 3(1)(a) to have these drastic and far reaching consequences.

[13] I do not agree that the wider interpretation of s 3(1)(a) adopted by the
courts a quo results in a negation of s 19(1) of the Supreme Court Act. On the
contrary, I believe that the wider interpretation is premised on a recognition of the
generally accepted principles of territorial jurisdiction underlying s 19(1). As I
have said before, in accordance with the wider interpretation, s 3(1)(a) does not
bestow jurisdiction on a court which has no jurisdiction under s 19(1) of the
Supreme Court Act to decide the case on its merits. All it does is to afford the
‘wrong’ court – ie the transferring court – limited jurisdiction to transfer the case
to the ‘right’ court which does have jurisdiction under s 19(1).

[14] In this light the RAF’s suggestion that the wider interpretation of s 3(1)(a)
would enable litigants to institute their actions in the courts of their choice, is
difficult to understand. It begs the question why litigants would knowingly institute
proceedings in a court with no original jurisdiction when at best for these
perverse litigants the section would enable them to seek a transfer to the right
court. This could only result in an expensive, wasteful exercise for the litigant
who will receive no perceivable benefit in return. What is more, under s 3(1)(a) a
transfer is not just for the asking. The transferring court has a discretion to refuse

the application and will presumably do so if the applicant had chosen the wrong
court for no acceptable reason.

[15] What also seems clear to me is that s 3(1)(a) was not intended for the
situation where a party instituted proceedings in a court which had jurisdiction at
the time of institution but then lost that jurisdiction due to an alteration of its area
of jurisdiction under s 2 of the Act. This situation is adequately covered by s 2(3)
which specifically provides that the publication of a notice under s 2(1) does not
affect any proceedings which were instituted prior to the publication of that
notice.

[16] Hence it can, in my view, be accepted with confidence that s 3(1)(a) was
intended to alleviate the predicament of a litigant who mistakenly instituted
proceedings in the wrong court. Once this is appreciated, an analysis of the
RAF’s argument seems to show that the essential difference between the wider
and the narrower interpretation of s 3(1)(a) turns on the reason for the mistake.
According to the narrower interpretation, there must be some link between the
reason for the mistake and a change in jurisdiction under s 2 of the Act.
Consequently, on the narrower interpretation, s 3(1)(a) only applies where the
litigant mistakenly instituted proceedings in a court which at one time had
territorial jurisdiction to decide the case, but which at the time of institution no
longer had jurisdiction due to an alteration under s 2(1). By contrast, the wider
interpretation imposes no restriction on the reason for the mistake. If a litigant
had mistakenly instituted action in the wrong court, that court has a discretion to
come to his or her aid and it matters not why the mistake was made.

[17] An appropriate starting point in deciding between these divergent
interpretations is, in my view, that as a matter of everyday language, the plain
meaning of the section imposes no limitation on the type of mistake. On the
contrary, the language seems to be as wide as it can possibly be. Yet, the RAF
contended that such limitation is indicated by the context of the preamble and the
other provisions of the Act as a whole. Read in this context, so the RAF argues,
the words ‘any High Court’ in the introductory part of s 3(1)(a) should therefore
be understood as if they were notionally qualified by the phrase ‘which had

jurisdiction prior to an alteration under s 2(1)’. This argument, of course,
immediately gives rise to the question why, if this was indeed the legislature’s
intention, it failed to take the relatively simple step of introducing the restricting
phrase.

[18] Apart from this, I have a twofold problem with the qualification contended
for by the RAF. On the one hand, it will only provide assistance to litigants whose
mistake was that they did not realise that they had been affected by a change in
jurisdiction. Litigants who made the same type of mistake by thinking that they
were affected by a change in jurisdiction while they were not, will derive no
assistance from the section, simply because the court never had any jurisdiction
to hear the case. Conversely, the section would, upon acceptance of the RAF’s
qualification, provide relief to litigants who were affected by a change in
jurisdiction, even when their mistake did not relate to the change in jurisdiction  at
all, ie where they realised there had been a change in jurisdiction but for some
other reason made the mistake of initiating proceedings in the wrong court.

[19] In the end it becomes apparent, in my view, that the narrower
interpretation of s 3(1)(a) would lead to arbitrary – and sometimes even absurd –
differentiations between situations which are indistinguishable in principle. It
would permit a litigant who mistakenly instituted proceedings in the wrong court
to have the matter transferred to the right court if the mistake is excusable and of
a particular kind. But if the mistake was brought about by some other equally
excusable reason, a transfer would not be possible. More often than not this will
have the result – as in the present matters – that litigants who have made one
type of mistake may lose their claims through prescription while the claims of
other litigants who made some other mistake may be saved. I can find no
indication in s 3(1)(a) that the legislature intended to bring about this irrational
discrimination between different litigants in the same predicament.

[20] The further consideration relied upon by the RAF in support of the
narrower interpretation is that the Act was intended to be of limited duration only.
I find this proposition equally unconvincing. The mere fact that it is an interim
measure cannot, in my view, make any difference as to how it should be

understood. While it is in operation, effect must be given to it. What will happen if
and when it is repealed, is not for us to divine. The end result is that I am not
persuaded by any of the arguments advanced by the RAF that the courts a quo
were wrong in adopting the wider interpretation of s 3(1)(a).

[21] This brings me to the alternative argument raised by the RAF in Gumede,
namely that the court a quo should not have exercised the discretion bestowed
upon it by s 3(1)(a) in favour of the respondent. The evaluation of this argument
requires a somewhat more detailed account of the background facts. Mrs
Gumede’s claims against the RAF, in her personal capacity and on behalf of her
two minor children, are for the loss of support that they suffered when their
breadwinner died as a result of the injuries he sustained when the motor vehicle,
in which he travelled as a passenger, was involved in an accident with another
vehicle. The accident occurred in Mtubatuba, KwaZulu-Natal on 11 December
1998. It is common cause that, if she has to institute action anew in the
Pietermaritzburg High Court, the claim in her personal capacity – which is by far
the largest of her claims – would be lost through prescription, though the claims
of her two minor children will probably survive.

[22] In an affidavit filed in support of Mrs Gumede’s application for the transfer
of the matter, her attorney gives the reason why her action was instituted in the
Cape High Court. It appears that the reason flows directly from a directive issued
by the RAF, which was published in the June 1997 edition of De Rebus (at 383).
According to the directive, claimants were invited to lodge their claims at any of
the three offices of the RAF in Pretoria, Randburg or Cape Town. In addition, it
informed claimants that a claim would normally be administered at the office
where it was lodged and that, if legal proceedings were to follow, these should be
instituted in the High Court with jurisdiction over the area in which the
administering office is situated. This invitation was confirmed in a newsletter
distributed by the legal advice department of the RAF in October 1997. Though
Mrs Gumede’s claim had been lodged at the Randburg office of the RAF, it was,
for reasons unknown, administered by its Cape Town office. That was the sole
reason, Mrs Gumede’s attorney explained, why  her  action  was  instituted in the

Cape High Court. In fact, the attorney stated, it would be far more convenient for
her and her legal advisors to institute the action in Pietermaritzburg.

[23] Prior to the close of pleadings in the matter, judgment was handed down
by the Cape High Court in the case of Ex Parte Kajee 2004 (2) SA 534 (C) where
it was held, inter alia (at 542B), that the RAF is not entitled to consent to
jurisdiction in respect of a court which has no jurisdiction to entertain the action in
accordance with s 19 of the Supreme Court Act. Since the present appeals were
argued on the basis that Kajee was correctly decided, I specifically refrain from
expressing any view as to whether this is so. Of relevance, however, is that it
was the decision in Kajee which led to the filing of the RAF’s special plea – which
eventually proved to be successful – that the Cape High Court had no jurisdiction
to entertain Mrs Gumede’s claims.

[24] The main reason advanced by the RAF as to why the court a quo should,
in the exercise of its discretion, have refused to transfer the matter, is that, in the
event, the RAF will be deprived of the opportunity to plead prescription in respect
of Mrs Gumede’s personal claim. It appears, however, that, in the present
context, the issue of prescription is a two edged sword. It raises the question
whether in the circumstances it would be fair that Mrs Gumede should lose her
personal claim. I think not. It is clear that the confusion with regard to jurisdiction
which led to the institution of her action in the wrong court, was induced by the
RAF’s own conduct. In these circumstances, I believe, it does the RAF no credit
to rely on that very confusion to avoid Mrs Gumede’s claim. What is more, with
regard to the claims of Mrs Gumede’s minor children, a refusal to transfer the
proceedings will require a re-institution of the action in the Pietermaritzburg High
Court with the consequent waste of time and money, from which no one –
including the RAF – will derive any perceivable benefit. I therefore believe that
the court a quo cannot be criticised for the way in which its discretion was
exercised. On the contrary, I think in its position I would have done exactly the
same.

[25] In the result, both appeals are dismissed with costs.

……………….
F D J BRAND
JUDGE OF APPEAL

Concur:

SCOTT JA
MAYA JA
HURT AJA
MHLANTLA AJA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

In the matter between
Case No:  543/06
1)
ROAD ACCIDENT FUND

APPELLANT
and

ISHWARDUTT RAMPUKAR

RESPONDENT

Case No:  314/07
2)
ROAD ACCIDENT FUND

APPELLANT

and

JENNIFER BUSIE GUMEDE

RESPONDENT

From:
The Registrar, Supreme Court of Appeal
Date:
2007-11-28
Status:
Immediate

1.
On 28 November 2007 the SCA dismissed the appeals of the
Road Accident Fund (RAF) in these two matters. The appeals turned on
the interpretation of s 3(1)(a) of the Interim Rationalisation of Jurisdiction
of High Courts Act 41 of 2001. Broadly stated, the section affords the
High Court the authority to order the removal of civil proceedings
instituted in that court to another High Court if it appears to the former
that such proceedings should have been instituted in the latter.

2.
The two respondents both instituted their actions – arising from
motor vehicle accidents – against the RAF in what turned out to be the
wrong High Court. They then successfully applied for the transfer of their
cases to the right courts under the provisions of s 3(1)(a) of the Act. The
RAF’s contention was, however, that in the context of the Act as a
whole, the relief afforded by the section is available only to litigants
whose mistake arose from a change in the jurisdiction of the High Court
in which the action was wrongly instituted, pursuant to the other

provisions of the Act. Since the reasons why the respondents in the two
appeals instituted their actions in the wrong High Courts had nothing to
do with any change in the jurisdiction of those courts, so the RAF
argued, these actions should not have been transferred to the right
courts. This would effectively mean that the claims of both the
respondents against the RAF would have been extinguished by
prescription.

3.
The SCA did not agree with the RAF’s interpretation of s 3(1)(a),
essentially for two reasons. Firstly, because the plain language of the
section does not allow for the limitation relating to the reason for the
litigant’s mistake contended for by the RAF. Secondly, because any
restriction in the operation of the section which depended on the reason
why the litigant mistakenly instituted action in the wrong court, would
lead to an irrational and unfair discrimination between litigants whose
mistakes, though originating from different reasons, are equally
excusable. An intention to cause such irrational discrimination, so the
SCA held, cannot be attributed to the legislature.

4.
In consequence the transfers of the actions ordered by the High
Court in both matters were upheld.