THE SUPREME COURT OF APPEAL OF SOUTH
AFRICA

REPORTABLE

CASE NO:   550/2003

In the matter between

LUCKY ARTHUR NDLOVU

APPELLANT

and

SANTAM LIMITED

RESPONDENT

CORAM:
ZULMAN, CAMERON, MTHIYANE, LEWIS
JJA and COMRIE AJA

HEARD:
18 MARCH 2005
DELIVERED:
13 MAY 2005

Summary: Jurisdiction of a magistrate’s court in terms of s 28(1)(d) of Act 32
of 1944 - dismissal of special plea to jurisdiction under the section is appealable –
unaccepted repudiation of contract is not a material fact to be proved by a party
suing on contract.

JUDGMENT
MTHIYANE JA:

MTHIYANE JA:

[1] The appellant’s private residence in Witpoortjie, Roodepoort was
broken into on 17 October 1997 and his household contents and personal
effects (household goods) to the value of R101 986 were stolen. At the
time of the incident the appellant had a policy of insurance with the
respondent, an insurer, to cover his household goods against the risks
mentioned in the policy, one of which was theft. The appellant claimed
indemnity under the policy but the respondent did not pay, for reasons
that are not relevant for present purposes. Consequently the appellant
instituted action in the magistrate’s court for the district of Roodepoort
for payment of R100 000. The respondent filed a special plea objecting to
the court’s jurisdiction. It contended that it did not have a registered
office or principal place of business within the district of Roodepoort and
that the appellant’s cause of action had not arisen within that district as
contemplated in s 28(1)(d) of the Magistrate’s Court Act 32 of 1944 (the
Act).1

1 Magistrates’ Courts Act 32 of 1944 s 28:
‘(1) Saving any other jurisdiction assigned to a court by this Act or by any other law, the persons in
respect of whom the court shall have jurisdiction shall be the following and no other –

…

(d) any person, whether or not he resides, carries on business or is employed within the
district, if the cause of action arose wholly within the district;

…’

[2] At the request of the parties the jurisdiction point raised in the first
special plea was adjudicated upon separately in terms of rule 19(12)2 of
the Magistrates Courts’ Rules (‘the Rules’). A special plea of prescription
taken by the respondent stood over for determination at a later stage. The
appellant was called to give evidence to prove that his cause of action had
arisen within the magisterial district of Roodepoort. He testified that at
the relevant time there was a policy of insurance with the respondent; that
the policy had been taken out in Roodepoort; and that the break-in and
theft and the subsequent loss of his household goods had occurred at his
residence in Witpoortjie, Roodepoort. The respondent did not dispute the
appellant’s evidence and did not lead any evidence. After hearing
evidence and argument the magistrate reserved judgment. On 23 March
2002 the special plea was dismissed and reasons therefor were handed
down on 28 March 2002.

[3] The respondent successfully appealed to the Johannesburg High
Court (Schwartzman and Masipa JJ). The court upheld the special plea,
set aside the magistrate’s order and replaced it with an order dismissing
the appellant’s action with costs. The question of the appealability of the
magistrate’s order was not raised initially in the court a quo and Masipa J,

2 The rule provides:
‘. . .  Any defence which can be adjudicated upon without the necessity of going into the main case
may be set down by either party for a separate hearing upon 10 days’ notice at any time after such
defence has been raised’.

who wrote for the court, dealt only with the appeal as to jurisdiction.
Appealability was raised for the first time during the hearing of the
application for leave to appeal. Schwartzman J held that the magistrate’s
order that he had jurisdiction was clearly appealable. The point was
disposed of, so everybody thought, at that stage when the application for
leave to appeal was refused. However at the commencement of argument
in the appeal before us (leave for which this court granted), the point was
revived when counsel for the appellant indicated that appealability had
been incorrectly conceded before Schwartzman J. Counsel submitted that
since making the concession he had become aware of a judgment of the
Cape High Court in Robbetze en ‘n ander v Garden Route Resort Services
BK.3 In Robbetze Thring J (Meer J concurring) held that the dismissal of
the special plea by a magistrate was not appealable as it was not a rule or
order having the effect of a final judgment as contemplated in s 83(b) of
the Act.

[4] The concession made was one of law, which counsel was entitled
to withdraw as it was made on a mistaken view of the law. We
accordingly heard argument on the point.4 There was no objection by the

3 2004 (4) SA 406 (C).
4 See Mostert NO v Old Mutual Life Assurance Co (SA) Ltd 2001 (4) SA 159 (SCA) para 44.

respondent and we allowed both counsel to present written argument on
appealability.

[5] In this court there are now two issues to be considered: the
question of the appealability of the order dismissing the special plea and
whether the appellant’s cause of action arose within the magisterial
district of Roodepoort. I deal with the two points in turn.

[6] First, appealability: relying on the decision of this court in
Steenkamp v SABC5 counsel for the appellant submitted that the order
made by the magistrate was not appealable as it was not a rule or order
having the effect of a final judgment as contemplated in s 83(b) of the
Act. This argument was rejected by Schwartzman J who found that the
decision in Steenkamp did not assist. After considering Steenkamp and
Durban’s Water Wonderland (Pty) Ltd v Botha and Another6 (to which
reference is made in Steenkamp), the learned judge concluded that the
defence raised in the special plea existed independently of the appellant’s
case. The judge reasoned that if the defence stood alone, and if it had
been dismissed, the magistrate would have granted judgment for the

5 2002 (1) SA 625 (SCA).
6 1999 (1) SA 982 (A).

appellant. Consequently, he held that the special plea had every hallmark
of a final judgment and was therefore appealable.

[7] In this court counsel for the respondent also relied on the decision
in Robbetze. In that case the defendants raised a special plea in a civil
trial before a magistrate’s court that the particular court did not have
jurisdiction to adjudicate the matter. After hearing evidence and argument
the magistrate dismissed the special plea. After discussing Steenkamp
amongst others, Thring J held that the decision of a magistrate dismissing
a special plea was not appealable as it was not a rule or order having the
effect of a final judgment within the meaning of s 837 of the Act. The
learned judge held that the magistrate’s order was nothing more than a
ruling of a mere procedural nature and the real issues between the parties
relating to the merits of the plaintiff’s case were not influenced by it.
Thring J held further that the position was analogous to the situation in a
delictual claim for damages where the defendant’s liability towards the
plaintiff was dealt with separately and prior to the issue of quantum in

7 Section 83 reads:
‘Appeal from magistrate’s court
Subject to the provisions of section 82, a party to any civil suit or proceeding in a court may appeal to
the provincial or local division of the Supreme Court [now High Court] having jurisdiction to hear the
appeal, against –
(a)
. . .
(b)
any rule or order made in such suit or proceeding and having the effect of a final judgment…’

terms of Rule 29(4).8 In such a case, this court held in Steenkamp, the
magistrate’s ruling on liability is not appealable.

[8] In my view Thring J went further than Steenkamp and the
correctness of the decision in Robbetze cannot be accepted. In Steenkamp
the court dealt with an appeal from a decision of a magistrate in a
delictual claim for damages where the issues of liability and quantum had
been separated in terms of rule 29(4). Steenkamp did not deal with a
defence raised entirely outside the claim. The defence raised in the
present matter is independent of the appellant’s claim. It concerns not the
elements of the claim, but the competence of the court to determine it –
jurisdiction. If the plea as to jurisdiction had been upheld it would have
disposed of the matter finally as contemplated in s 83(b) of the Act. The
decision in Robbetze may be taken to suggest that Steenkamp is to be
understood as having laid down that in every case where the issues have
been separated in a magistrate’s court pursuant to either rules 29(4) or
19(12), an order made subsequently would not be appealable simply
because of the separation. I do not think that this is correct. In my view
the question as to whether an order issued by a magistrate is appealable to

8 This rule provides:
‘If, in any pending action, it appears to the court mero motu that there is a question of law or fact which
may conveniently be decided either before any evidence is led or separately from any other question,
the court may make an order directing the disposal of such question in such manner as it may deem fit
and may order that all further proceedings be stayed until such question has been disposed of, and the
court shall at the request of any party make such order unless it appears that the questions cannot
conveniently be decided separately.’

be is answered by reference to the order itself. Upon examination of the
order one determines whether it has the effect of a final judgment as
provided in s 83(b). In the present case, the issues were not separated as
such: what the court did was to determine first the validity of a challenge
to its competence to hear the claim at all.

[9] Finality of orders is a question that has been discussed by this court
with respect to a ‘judgment or order’ made under s 20(1) of the Supreme
Court Act 59 of 1959. In Zweni v Minister of Law and Order9 it was said
that an order that is final in effect has three attributes: first, the decision
must be final in effect and not susceptible to alteration by the court that
made it; second, it must be definitive of the rights of the parties; and
third, it must have the effect of disposing of at least a substantial portion
of the relief claimed in the main proceedings.10 In deciding whether an
order made by a magistrate is final in effect there is in my view no sound
reason in principle not to follow and apply the approach referred to in
Zweni. In Durban’s Water Wonderland (Pty) Ltd v Botha and Another11
Scott JA appears to have done so when considering whether the orders
made by the magistrates in Santam Bpk v Van Niekerk12 and Raubex

9 1993 (1) SA 523 (`A) at 532J–533A.
10 See also Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569
(A) at 532J–533A.
11 1999 (1) SA 982 (SCA) at 992G-H.
12 1998 (2) SA 342 (C).

Construction (Pty) Ltd h/a Raumix v Armist Wholesalers (Pty) Ltd en ‘n
Ander13 were final in effect. That is to be deduced from the following:
‘In terms of s 83(b) of the Magistrates’ Courts Act 32 of 1944 any “rule or order”, to
be appealable, has to have “the effect of a final judgment”. The difficulty that arises in
relation to the kind of order considered in the Santam and Raubex Construction cases
is that it does not finally dispose of any portion of the relief claimed.’
The ‘relief claimed’ referred to in the passage quoted is not to be
understood to be confined to the relief claimed by the plaintiff/applicant.
It also includes the relief claimed by the defendant/respondent, more
particularly where the defence (such as prescription or lack of
jurisdiction) arises entirely outside the cause of action. Thus in Durban’s
Water Wonderland a contractual disclaimer of liability, pleaded in
response to a delictual claim for damages, was held to fall within this
category.14 Indeed in Caroluskraal Farms (Edms) Bpk v Eerste Nasionale
Bank van Suider-Afrika Bpk15 Hefer JA pointed out that it is not just the
relief claimed by the plaintiff/applicant that matters, but also the relief
claimed by the defendant/respondent. There the respondents a quo
(appellants on appeal) relied on certificates issued under the Agricultural
Credit Act as a bar to liquidation proceedings. This defence in my view in
effect went to jurisdiction. The court a quo ruled finally on this issue,
dismissing the defence. This court held that the judgment of the court a

13 1998 (3) SA 116 (O).
14 See Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) at 36B-H.
15 1994 (3) SA 407 (A) at 415B-416A; cf Steytler NO v Fitzgerald 1911 AD 295 at 304, 313.

quo was final and appealable. (The appeal failed on the merits.) It follows
therefore that if the magistrate’s order has the effect of finally disposing
of some of the relief claimed by one of the parties16 the third attribute
referred to in Zweni is met and the order is appealable.

[10] It is apparent from what I have said that the present matter is quite
different from Steenkamp, and the reasoning in Robbetze cannot in my
view be supported. The respondent’s defence raising lack of jurisdiction
in the present matter was a defence that existed independently of the
appellant’s case. As to this type of defence the following was said in
Labuschagne v Labuschagne17 cited with approval by Scott JA in
Durban’s Water Wonderland (Pty) Limited v Botha and Another18:
‘. . . this Court held that an order dismissing a special plea embodying a substantive
defence which existed dehors the plaintiff’s claim was a “judgment or order” and not
an “interlocutory order” within the meaning of s 20 of the Supreme Court Act 59 of
1959 (as it then read) as the order was, . . .“’n finale en onherstelbare afhandeling van
‘n selfstandige en afdoende verweer wat eerste verweerder geopper het as grondslag
vir die regshulp wat hy in die spesiale pleit aangevra het.”’
As I have said in Durban’s Water Wonderland the defendant had raised a
disclaimer based on contract in a delictual action. The magistrate
dismissed the defendant’s defence in relation to the disclaimer. Scott JA

16 Constantia Insurance Co Ltd at 36E.
17 1967 (2) SA 575 (A).
18 1999 (1) SA 982 (SCA) at 992(j)–993(d).

said that to the extent that the order of the magistrate dismissing the
appellant’s defence in relation to the disclaimer had the effect of finally
and irreversibly disposing of a self contained defence which existed
independently of the respondent’s case the order was appealable. I agree
with Schwartzman J that the decision in Steenkamp, which as I have said
is different, does not assist the appellant. I also agree with the learned
judge that the respondent’s special plea had every hallmark of a final
judgment and was therefore appealable.19 Robbetze is accordingly
overruled.

[11] I turn to the merits of the special plea. The respondent’s main
contention is that it repudiated liability in Krugersdorp. It says so because
its letter repudiating liability was posted in Krugersdorp and was
delivered to the appellant’s broker in Krugersdorp. The respondent argues
that the appellant’s claim is based on repudiation and since this took place
in Krugersdorp, the magistrate for the district of Roodepoort had no
jurisdiction to adjudicate.

[12] In her reasons for judgment the magistrate, Ms Pienaar, found that
all the elements necessary to prove that the ‘whole cause of action’ arose
within the district of Roodepoort as contemplated in s 28(1)(d) of the Act

19 See also Malherbe v Britstown Municipality 1948 (1) SA 676 (C).

had been established. The appellant was resident in Witpoortjie,
Roodepoort; the contract of insurance was concluded in Roodepoort; and
the event giving rise to the claim - the break-in and the theft – took place
at his residence in Roodepoort. The magistrate concluded that it was these
facta probanda that were essential to establish the appellant’s cause of
action and not the repudiation of liability relied on by the respondent. The
magistrate followed and applied African Guarantee & Indemnity Co Ltd v
Couldridge20  in which it was said:
‘It seems to me that there were two facts necessary to be proved to support the
plaintiff’s action, (a) a contract of insurance and (b) the occurrence of a risk insured
against, involving damage to the insured motorcar. As to (b) the fire which destroyed
the motor car occurred within the district of Uitenhage, but this, by itself, would not
be sufficient to give the magistrate jurisdiction. It is only one of the elements going to
make up the cause of action, and unless the other element also arose within the
district, it would not be said that the cause of action arose wholly within the district.’

[13] Masipa J declined to follow and apply African Guarantee which
she distinguished on the facts. The learned judge found that the appellant
had ‘instituted action [against the respondent] . . . because of the
repudiation’. She said that the appellant had alleged a refusal to
indemnify and thus a repudiation by the respondent. To succeed, said the
judge, the appellant ‘had to prove that the repudiation (breach) took place

20 1922 CPD 2 at 4.

within the jurisdiction of the court. Since the repudiation took place in
Krugersdorp the learned magistrate should have found that the court [in
Roodepoort] had no jurisdiction to hear the matter.’

[14]  In my view the starting point of the enquiry, when dealing with a
challenge to jurisdiction under s 28(1)(d) of the Act, is to determine the
presence or absence of facts which have to be proved by a plaintiff to
succeed in his or her cause of action (facta probanda) as opposed to facts
tending to prove such facta probanda (facta probantia). Thereafter one
has to establish whether the facta probanda arose wholly within the
particular magesterial district. In the present matter the appellant did not
accept the respondent’s repudiation and sued the respondent for specific
performance on the agreement. It follows therefore that the repudiation
was not a material fact which the appellant had to prove to establish his
cause of action. The fact that the repudiation  might may have taken place
outside the district of Roodepoort is accordingly irrelevant. The
repudiation was therefore merely ‘a thing writ in water’.21

[15] Masipa J considered herself bound to follow and apply Erasmus v
Unieversekerings-Adviseurs (Edms) Bpk,22 a judgment of Bresler J

21 See Culverwell & Anoher v Brown 1990 (1) SA 7 at 28B-F; see also the remarks of Asquith LJ in
Howard v Pickford Co Ltd [1951] 1 KB 417 [CA] at 421.
22 1962 (4) SA (T) 646 at 648H-649A.

concurred in by Snyman J. There, the cause of action appears to have
been a claim for payment (by Erasmus) of a premium disbursed by Unie
on his behalf to the insurance company. The contractual basis seems to
have been the promise by Erasmus to refund such disbursements. What
the plaintiff (Unie) had to prove, therefore, for jurisdictional purposes,
were the following facta probanda:
(i)
that the promise was given within the jurisdiction;
(ii)
that the disbursement was made within the jurisdiction; and
(iii)
that the refund was payable within the jurisdiction.
Requisites (ii) and (iii) appear to have been met. Requisite (i) was open to
debate. However, Bresler J brought in the idea of a breach (at 649D-E)
relying on Phipson, who apparently was dealing with breach and
damages. However, what Unie seems to have claimed was specific
performance.

[16] A failure specifically to perform, properly and on time, constitutes
breach of contract. This, I believe, may be the source of confusion. So
characterised, the enquiry for purposes of jurisdiction remains: Where
should the defendant, in terms of the contract, have performed? If, as
would seem to be the case, Erasmus had to pay Unie in Pretoria, then that

is where he had to perform and where his breach (failure to pay/perform)
occurred.23

[17] Where Bresler J erred, with respect, was to couple breach with
repudiation, and then to hold that the repudiation took place in
Waterberg. Erasmus’s refusal to pay and his denial of the whole contract
were in my view part of the facta probantia. Once Unie had established
the underlying contract, a disbursement in accordance with the terms
thereof, and Erasmus’ failure to pay (which was surely admitted on the
pleadings), Unie’s cause of action was complete. That the evidence
revealed that the failure was coupled, on the facts, with a refusal to pay
pursuant to a complete repudiation, does not change the analysis. These
facts were simply evidence: facta probantia. In McKenzie v Farmers’ Co-
operative Meat Industries Limited24 this court said in relation to a
statutory provision defining the geographical limits of the jurisdiction of a
magistrate’s court, ‘cause of action’ meant ‘every fact which it would be
necessary for the plaintiff to prove, if traversed, in order to support his
right to 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.’ To the extent that Bresler J held otherwise, I

23 Cf Patel v Desai 1928 TPD 443 at 449-450.
24 1922 AD 16 at 23; see also Imprefed (Pty) Ltd v National Transport Commission 1990 (3) SA 324
(T) at 328G-H; Dusheiko at 656G-H; Herholdt v Rand Debt Collecting Co 1965 (3) SA 752 (T) at 754
A-D.

think that he erred and his decision in Erasmus is incorrect. I can well
understand the importance for jurisdictional purposes of the place of the
breach,25 but in my view the repudiation relied on by the respondent was
not material; it did not form an integral part of the appellant’s cause of
action; it was not one of the facta probanda on which the appellant relied
and it did not prevent the cause of action from arising wholly in the
district of Roodepoort. To the extent indicated above Erasmus is
overruled.

[18] The appeal is accordingly upheld with costs. The order of the High
Court is set aside. In its place there is substituted:
‘The appeal is dismissed with costs.’

__________________

KK MTHIYANE

JUDGE OF APPEAL

CONCUR:

ZULMAN JA
CAMERON JA
LEWIS JA
COMRIE AJA

25 Cf Dusheiko v Milburn 1964 (4) SA 648 (A).