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Law of Civil Procedure 371 Case Summaries
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Mayne v Main 2001 2 SA 1239 (SCA)[Meaning of residence]
Notes
Whether the Witwatersrand Local Division (WLD) had the jurisdiction to entertain the action
by the appellant against the respondent for payment of certain sums of money and ancillary
relief
Was the respondent (defendant) on the date of service of the summons (18 April 1995) a
person “residing in” the area of jurisdiction of WLD within the meaning of S 19(1)(a) of the
Supreme Court Act
Facts
The respondent was a South African citizen who worked in corporate finance consolation.
o The nature of his job entailed extensive travel to many countries, and he conducted
his business in a highly mobile manner.
From around 1993, work required him to spend more time in South Africa, but he still
travelled to and continued to work in other parts of the world.
Respondent owned property in UK but from 1994 spent little time there.
1994-1995 majority of respondent’s time spent in South Africa – especially Johannesburg
o Set up office in JHB
o Leased a motor vehicle for his personal use
o Cohabitating with one R in Inanda
Respondent argued:
o 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 here permanently.
- 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 Court’s area of jurisdiction if his presence at the relevant time
had been of a nature which would enable the Court to grant a judgment
which would normally be effect against a person in his position
Legal Question
Whether the increased presence in South Africa results in residence?
In High Court jurisdiction is determined by domicile and residence. Domicile is def for Magistrates’
Court jurisdiction.
Basic principles regarding jurisdiction
In giving a court statutory jurisdiction over a person residing in its area, the Legislature had
simply followed the common-law rule of actor sequitur forum rei Ex Parte Minister of
Native Affairs 1941 AD 53:
o Question of jurisdiction was one of residence, not domicile.
o It is not possible for a person to claim that he does not reside anywhere.
- “For the purpose of jurisdiction our courts do not recognise the concept of a
vagabundus”
, o Person could have more than one residence, in which case they had to be sued in
the court having jurisdiction at the place where that person was residing at the time
summons was served.
- Cannot have more than one domicile.
o Person could not be said to reside at a place he/she was temporarily visiting nor
could a person cease to reside at a place even though he/she was temporarily
absent on certain occasions and for short periods of time.
o There was no precise or exhaustive definition of the word “resides” and the fact of
residence depended on all the circumstances of the matter at hand seen in the light
of all the applicable general principles.
o Although a person could have more than one residence à for the purpose of
S 19(1)(a) of the Act a person could only be residing in one place at any given
moment.
o 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 (Beedle & Co v Bowley)
- “When it is said of an individual that he resides at a place it is obviously
meant that it is his home, his place of abode, the place where he generally
sleeps after the work of the day is done.”
- Needs to be a measure of stability and consistency in establishing residence
o Residence as a concept conveyed a certain sense of stability or something of a
settled nature and accordingly a greater degree of permanence than a merely
fleeting or transient presence was necessary to satisfy the requirement of residence.
Test for residence: Common sense and realistic approach to be adopted when considering
residence (with consideration of all the facts)
o Modern-day conditions and attitudes and the tendency towards a more itinerant
lifestyle, particularly among businesspeople, required this as to not do so might
allow certain persons to avoid the jurisdictional nets of the courts and escape legal
accountability for their wrongful actions.
Ratio Decidendi
Court found that the respondent was resident in Johannesburg and therefore in terms of the
SCA the court had jurisdiction
Evidence showed:
o The respondent was essentially a peripatetic businessman, but he did remain free to
choose what work to accept and where to work
o A heightened degree of stability and permanence in relation to the respondent's
prolonged presence in SA and particularly in JHB where he spent the greater portion
of his time
o Overall duration of his stays over the relevant period of time indicated more than
temporary visitations and there was no indication that the respondent was
conducting substantial business elsewhere at the time
o No acceptable alternative place suggested itself where the respondent could have
been residing at the relevant time
o The respondent's romantic involvement/attachment and cohabitation with R
showed that the respondent was not in JHB simply for the purpose and duration of
his work
o There is a degree of stability and permanence
, Any mental reservation/subjective belief which the respondent might have had about
residing in JHB could not detract from the justifiable inference from the objective facts that
he was so residing for the purposes of S 19(1)(a).
Mere fact that the respondent may have maintained a residence in London did not mean
that he was residing there and his presence in London was not indispensable to the way in
which he conducted his business.
Therefore, the appellant had succeeded in establishing a strong prima facie case on the facts
that the respondent was residing in JHB when the summons was served
o JHB was accordingly the respondent's “place of ordinary habitation” and he was
residing there for the purposes of S 19(1)(a) of the Act
Decision
The trial court therefore had the jurisdiction to entertain the appellant’s action.
Appeal is allowed.
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