REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE ) 
CAPE TOWN

CASE NO.: 9400/07

In the matter between:

ROGALLA VON BIBERSTEIN INVESTMENT

and

JUDGMENT DELIVERED THIS 10th DAY OF NOVEMBER, 2009. 
THRING. J,:-

The defendant has raised a special plea to the jurisdiction of this Court. In terms of Rule 33(4) I ordered that the issues arising from this defence be decided separately from the other issues, before any evidence was led on such other issues, and that the decision of the remaining issues should be stayed until the matter of jurisdiction had been disposed of.

In consequence of certain formal concessions made for the purposes of the special plea by Ms. Fisher, for the defendant, there are no disputes of fact on the special plea, and so no evidence was led on it, but I heard argument from counsel on both sides.

The following facts are common cause:

claim;

(4)	The deed of sale on which the plaintiff sues was concluded in Berlin, Germany;
(5)	In the deed of sale no provision is made for a place where the purchase price, or any portion thereof, is to be paid;
(6)	In clause 18 of the deed of sale the plaintiff, as seller, gave certain warranties pertaining to the property, including a warranty of written approval by "the local authority" for its development in a certain manner; it was conceded on behalf of the defendant that -

(a) the local authority referred to is the Bitou Municipality, which is within this Court's area of jurisdiction;
(b) the 'relevant authorities" referred to in clause 18 of the deed of sale are also all within this Court's area of jurisdiction;
(c) the ordinance pursuant to which a re-zoning of the property was granted and conditions imposed in relation thereto was the Land Use Planning Ordinance, No. 15 of 1985 (Cape); and
(d) performance of all the obligations under clause 18 of the deed of sale was to take place within the Court's area of jurisdiction;

9)	
10)	

Section 19(1)(a) of the Supreme Court Act, No. 59 of 1959 provides in its material parts as follows:

"A provincial or local division shall have jurisdiction over all persons residing or being in and in relation to all causes arising and all offences triable within its area of jurisdiction and all other matters of which it may according to law take cognizance	"

'in all causes 	 arising within the said Colony, with

"The case is only briefly reported but the ratio decidendi is that the court could not give an effective judgment on the first claim, but could, by reason of the land being in the Cape, give an effective judgment on the second. Both claims were actiones in personam, but in the first claim the relief prayed for was such that the court had no jurisdiction to grant it, while in the second claim the relief prayed for was such that the court had jurisdiction. Jurisdiction was thus determined according to the nature of the relief claimed."

"a claim to rescind a contract for the sale of immovable property can be effectively dealt with by the Courts of the State in which the property is situate. Such State has complete control over the property and can therefore effectively release a person from his obligation to transfer or to take transfer of the property. It follows that in an action in which a judgment rescinding a contract to transfer immovable property is claimed it is a sufficient basis for jurisdiction that the property is situate within the State in whose Court the action is brought."

For these reasons I am of the view that in the circumstances, the mere situation of the immovable property which is the subject-matter of the sale in this matter within the area of this Court's jurisdiction is insufficient, in itself, to clothe this Court with the jurisdiction which is required to enable it to entertain the claims advanced by the plaintiff against the defendant; so is the fact that the obligations set out in clause 18 of the deed of sale were to be performed within the area of this Court's jurisdiction.