Boltman v Abrahams (1926) 47 NPD 113

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Boltman v Abrahams (1926) 47 NPD113

Natal Provincial Division 1926. April 13. DOVE-WILSON, J.P., CARTER, J., TATHAM, J.

Flynote Magistrate's Court. --- Jurisdiction in reconvention. --- Withdrawal of claim in convention. --- Objection to reconventional claim. --- Act 32, 1917, Section 28 (1) (f). --- Order VII. R. 7. Headnote The jurisdiction of a Magistrate to hear a claim in reconvention is not affected by the withdrawal of the claim in convention. The Magistrate may, after such withdrawal, proceed to hear the claim in reconvention even though the defendant is outside his district, and the cause of action did not arise wholly within it. Innes-Grant v Kelsey (1924), N.P.D., 268, applied. Case Information Appeal from a decision of the Magistrate of Pietermaritzburg. The facts were that the respondent Abrahams, who resided and carried on business at Clocolan, O.F.S., sued the appellant Boltman, a doctor of medicine, residing in Maritzburg, for recovery of 43 6s. 10d. for goods supplied. The defendant, who formerly lived in Clocolan, pleaded to the action and filed a claim in reconvention, alleging that the plaintiff had agreed to pay a commission on all medicines prescribed by the defendant and dispensed by the plaintiff, and claiming an account and debate thereof. The plaintiff thereupon withdrew his claim in convention, and under section 28 of the Magistrate's Court Act filed objections to the jurisdiction of the Magistrate upon the grounds (a) that he, as defendant, did not reside or carry on business in the district of Maritzburg and (b) that the cause of action did not arise there. The Magistrate upheld the objections and dismissed the action. The plaintiff appealed.
(1926) 47 NPD at Page 114

F.N. Broome for the appellant: the case of Innes-Grant v Kelsey (supra) establishes that the Magistrate had jurisdiction to hear the claim in reconvention. By common law he also had jurisdiction, Van Leeuwen, R.D.L., 5.8.5: if he had jurisdiction at the beginning of the suit he had it to the end, see Voet 2.1.46 and Norman v Davis, 9 NLR 220. See also Order VIII. R. 7. See also Maadt v Hickson, 12 CSC 448. A.E. Carlisle for the respondent: As to the common law see further Voet 5.1.78, but the common law is no guide as this question depends on the Act. The two claims were quite independent, see Grasop v Levi 1923 SWA 65, and when the conventional claim is withdrawn, the reconventional claim is not "incidental" to it. The defendant can then object under Section 28 (1) (f) of the Act, otherwise that section is meaningless. Broome replied. Judgment TATHAM, J.: The plaintiff in the Court below (the respondent here) resides in the Orange Free State. The defendant (appellant here) resides in Pietermaritzburg. The plaintiff began an action in the Court of the Magistrate at Pietermaritzburg for the recovery from the defendant of a sum of money. The defendant filed a plea denying the indebtedness, and on the same day filed a claim in re-convention. The plaintiff, acting under Order 19, Rule 1, gave notice of withdrawal of his claim in convention. The defendant (plaintiff in re-convention) persisted in his claim in re-convention notwithstanding the withdrawal of the claim in convention. The plaintiff in convention then objected to the jurisdiction of the Magistrate to try the claim in re-convention on the ground that he was not resident within the jurisdiction of the Magistrate. The Magistrate upholding that contention, dismissed the claim in re-convention. The defendant appeals. It was decided in Innes-Grant v Kelsey, 1924 NPD 268, following the decision in Salkinder v Van Zyl and Buissinne, 1922 CPD 59, that under Common

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Boltman v Abrahams (1926) 47 NPD 113

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(1926) 47 NPD at Page 115

Law if a plaintiff sues, and the defendant files a claim in re-convention, objection cannot be taken by the plaintiff to the jurisdiction of the Court in which he himself has taken proceedings merely on the ground that he lives outside the jurisdiction. The plaintiff, by suing in the Court of the Magistrate, thereby submitted himself to the jurisdiction, though himself resident in the Orange Free State, and the Magistrate accordingly had jurisdiction to adjudicate on the claim in re-convention, at the date upon which it was filed. But it is said for him here that he ceased to be subject to the jurisdiction in respect of the claim in re-convention upon the abandonment by him of the claim in convention. The question which arises for determination is this: Can the plaintiff, by the simple expedient of withdrawing his claim in convention, destroy the jurisdiction of the Magistrate to pronounce upon the re-conventional claim, which admittedly existed at the date upon which the re-conventional claim was filed? As to the Common Law on the subject, there can, I think, be no doubt upon the authorities that he cannot (Van Leeuwen, R.D.L., 5.8.5 and 6, and Voet 1.2.1.23., and 1.2.1.46.). The Magistrate, however, seems to have taken the view that the Common Law was impliedly abrogated by the Magistrates' Courts Act (32 of 1917, Section 28 (1) (f), but I am unable to take that view, and I understand Mr. Carlisle does not support it, but he argued that the decision in Innes-Grant v Kelsey, 1924 NPD 268, lays down that the claim in re-convention must be something incidental to the claim in convention, and that after the claim in convention has been withdrawn there can be nothing "incidental" to it for it no longer exists. I cannot take that view. The claims in convention and reconvention are distinct and separate actions, neither, being dependent on the other, as would be the case in set off. This view is confirmed by reference to the Rules of Magistrates' Courts. Order 19, rule 2, provides how a claim in convention may be withdrawn. Order 8, rule
(1926) 47 NPD at Page 116

7 provides "Where an action is withdrawn, stayed, discontinued or dismissed it shall nevertheless be competent to proceed separately with the claim in re-convention, if any." That rule is not limited by any restriction as to the defendant in re-convention being within the jurisdiction at the time of the hearing of the claim in re-convention. In determining the question of jurisdiction, the crucial date is the date of the institution of the action. A claim in re-convention is instituted at the date of the filing of it, and I do not think that any act of a defendant in re-convention whether that of removing himself from the jurisdiction, or abandoning his claim in convention, can suffice to destroy the jurisdiction which existed at the date of the institution of the claim in re-convention. For these reasons I think the Magistrate's view that the case was outside his jurisdiction, merely on the ground that the defendant in re-convention had withdrawn his claim in convention is wrong, and the appeal will be allowed with costs. DOVE-WILSON, J.P., and CARTER, J., concurred. Appellant's Attorney: J. Hershensohnn. Respondent's Attorneys: Von Gerard & Chapman.

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