L4301: UNIT 3, JURISDICTION

INTRODUCTION:

This Unit is divided into Parts according to sub-topics considered under it. We
begin with the definition of jurisdiction and its relevance to providing guidance
as to where to institute a particular case.

3.1 LEARNING OUTCOMES: At the end of this Unit you should:

(a) Be able to define jurisdiction.

(b) Appreciate the centrality of jurisdiction to the decision of prospective

litigants about where to institute their cases.

(c) Know the different kinds of jurisdiction possessed by different courts.

(d) Know and be able to apply the principles to be borne in mind when
deciding on where to institute a case.

PART A

3.2 JURISDICTION DEFINED:

3.2.1 In the Translator’s Note to Voet’s Commentary on the Pandects, 1

jurisdiction is defined in two senses: first as the area or scope of subject-matter
of judicial authority (for example, the Labour Court is in terms of section 24 of
the Labour Code given jurisdiction over labour disputes – that is the scope of
that court’s judicial authority); and also as the actual exercise of that authority
to investigate and determine legal disputes – we often speak of a court
assuming jurisdiction or declining jurisdiction when it either proceeds to hear
and determine a legal dispute or when it refuses to do so, as the case may be.

Voet himself defines jurisdiction as the public power of deciding cases, both
civil and criminal and putting the decisions into execution. I have emphasised
execution as forming part of the exercise of judicial authority because, as we
shall see later,2 one of the factors that exercise the mind of the court in

1
Voet, Being a Commentary on the Pandects, Translation by Gane, Vol 1, Book II, Title 1, page 202.
2
We will see this when dealing with the general principle of effectiveness as one of the guiding principles in
determining whether a particular court would or would not have jurisdiction over a particular dispute.

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deciding whether to assume jurisdiction or not, is the question whether the
court would be able to give effect to (execute) its decision.3

In Ewing McDonald & Co Ltd v M & M Products4 jurisdiction is defined as “the

power vested in a court by law to adjudicate upon, determine and dispose of a
matter.”

In Wright v Stuttaford & Co5 the court approved of the definition of jurisdiction as “a
lawful power to decide something in a case, or to adjudicate upon a case, and to give
effect to the judgment, that is, to have the power to compel the person condemned to
make satisfaction.” This definition is in line with that cited above from Voet’s
Commentary on the Pandects.

3.3 IMPORTANCE OF JURISDICTION:

Once a prospective litigant has decided to sue, they must decide where to institute their
case. Their decision will be guided by what court would be qualified to hear their matter
– a court that has jurisdiction.

Instituting a case in the wrong court can be disastrous for a litigant who instituted the
case; the court can mero motu or at the instance of the other party throw the case out
with costs on the ground of lack of jurisdiction. In time bound cases such as insurance
claims, the claim may have prescribed by the time it is determined that the court does not
have jurisdiction. This is exactly what happened in Andre Vernon Oosthuizen v Road
Accident Fund.6

It is to be noted that even though in terms of section 119(1) of the Constitution of

Lesotho, 1993, the High Court is conferred with the “jurisdiction to hear and determine
any civil ... cases,” this authority is not limitless as the Court of Appeal stated in Shale v
Shale.7 For example, cases within the jurisdiction of a subordinate court may not
be instituted in or removed into the High Court except by a judge acting on his
own motion or on an application for leave to bring the matter before the High
Court. We will see later other circumstances under which the High Court may
not be a proper forum to hear particular types of cases. The same applies to
subordinate courts; these have their powers circumscribed by statute 8 and it is
3
This will be considered under the doctrine of effectiveness.
4
1991 (1) SA 252 (A) at 256G.
5
1929 EDL 10 at 42.
6
(258) 2011 ZASCA 118 (6 July, 2011).
7
C of A (CIV) 35/19 LSCA 45 para [11].
8
See for example, the Subordinate Courts Order, 1988 as amended by the Subordinate Courts (Amendment)
Act of 1998.

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important for a party intending to bring a case before a subordinate court to first
decide whether that court would have the authority to deal with such a matter.

We will over the course of the next few days be looking at different kinds of
jurisdiction and the principles applicable to deciding whether a particular court
has jurisdiction or not.

THINGS TO DO:

PLEASE READ THE AUTHORITIES CITED IN THESE NOTES.