Preliminary questions:

Jurisdiction
The power or competence which a particular court has to hear and
determine an issue between parties brought before it
Be able to describe…
• Exclusive jurisdiction
• Inherent jurisdiction
• Concurrent jurisdiction
• Incidental jurisdiction
• Cumulative jurisdiction
General-What type of court? Which one?
• Jurisdiction may depend on:
• 1. Monetary value of claim
• 2. Nature of matter (nature of relief)
• 3. Where parties, defendant are? Residence and domicilium.
• 4. Where cause of action arose?
• 5. Where property, subject of dispute, is.
• RATIONES JURISDICTIONES
Jurisdiction Small Claims Court
• Monetary jurisdiction - R20 000.00
• Only natural persons sue- “juristics” may be sued.
• State may not be sued.
• No cross examination.
• No appeals.
• No legal representation.
Supreme Court of Appeal
• 1. Never court of first instance
• 2. Only appeals.
• 3. Later in module-principles of jurisdiction when appeals are dealt
with.
Exclusive jurisdiction Constitutional Court.
• Please see section 167(4) Constitution for the exclusive subject
matter. (6 types of cases)
• But, the court may sit as court of first instance; when sufficiently
serious and urgent. C’s consent must be obtained first.
• We will deal with this again under appeals.
General-Jurisdiction HC and MC’s
• Value of claim:
• R0-R20 000=Small Claims Court
• R0-R200000=District
• R200001-R400000=Regional
• R400000 upwards=HC’s
• MC’s matter may be heard in HC, BUT costs!
• Subject to conditions, parties may consent to jurisdiction where
monetary value is MORE than limit
Jurisdiction-nature of claim
• Section 46 MCA excludes certain matters from MC jurisdiction; MUST
go to HC.
• That is even if the value is less than R400000.00
WHEN IS Jurisdiction determined?
• =Instituted
• =“Instituted” when summons or application served on other party.
Jurisdiction-why get it right?
• Special plea of “Lack of jurisdiction”, with
• Costs
• Time wasted
Jurisdiction- Magistrates’ Courts
• =Creatures of Statute
• NB-Sections 26-50 MCA 32/1944
• Value: R0-R400000
• Nature: Section 46 exclusions.
• Sec 28- deals with persons or entities over which court has
jurisdiction.
• Sec 29-causes of action: Delivery or transfer property (any)=within
R200…- R400 limits
Jurisdiction
• 29:Ejectment=within money limits=right of occupation=not necessarily always
just based on rental such as special premises for special service-cost to seek
alternative premises.
• 29:Right of way 29(1)(c)-value not relevant here.
• 29:Liquid document or mortgage bond-29(1)(d):actions based on-within
monetary limits
• Liquid document: a document, which without extrinsic evidence
(unconditionally) shows (a) acknowledgment of indebtedness (b) in an
ascertained amount of money; (c) payment due to creditor and (d) when due.
• Unconditional
• But…simple condition will not destroy liquidity
• “Simple”=does not give rise to dispute or if does=easily proved.
Jurisdiction
• Based on Credit Agreement 29(1)(e)
• Matrimonial Property Act - consent marriages in COP 29(1)(f)
• Liquidation Closed Corporations 29(1)(Fa)
• All other actions 29(1)(g)
• Divorce and related matters 29(1B): Regional courts
Calculating money limits
• Sec 40: splitting claims not allowed. (Eg.R198 000, R3000)
• Sec 43(1): combining separate claims allowed: cumulative jurisdiction
• Section 37(1)+(2) only amount in issue taken into account, despite postings on
open account. INCIDENTAL JURISDICTION
• Section 37(3): interest and costs not taken into account.
Exceptions to money limits rule
• Consent-45-(a)in writing- (b)instituted or on the point of being-
particular MC.(c) not on claim excluded ito 46
• Abandonment: 38-TO BRING WITHIN jurisdiction.
• Deduction admitted debt 39.
• In all these cases this must be pleaded in the particulars of claim!!!
Abandonment-Section 38
• Study examples on page 77 and further.
• Important to remember that percentage fault is applied to amount
before abandonment-example 3 page 78.
One example to demonstrate section 38.
• A’s claim was R215 000.00. He abandoned R15 000.00 in order to
bring the claim within the MC court’s jurisdiction. The Court, in terms
of the Apportionment of Damages Act awarded him 95% of his
damages.
• The question is now how much is A entitled to? Is it 95% of R215
000.00 or 95% of R200 000.00? In other words is the apportionment
percentage applied to the amount before or after ABANDONMENT?
• Answer is to the amount before abandonment.
• However, 5% of R215 000.00=R204 250.00. THEREFORE, A will get
R200 000.00 being maximum in Court’s jurisdiction.
Section 46 exclusions
• 46(2) Matters beyond the jurisdiction: A court shall have no jurisdiction in
matters-(a) in which the validity or interpretation of a will or other
testamentary document is in question;(b) in which the status of a person in
respect of mental capacity is sought to be affected;(c) in which is sought
specific performance without an alternative of payment of damages,
except in- (i) the rendering of an account in respect of which the claim does
not exceed the amount determined by the Minister ) the delivery or
transfer of property, movable or immovable, not exceeding in value the
amount determined by the Minister from time (iii) the delivery or transfer
of property, movable or immovable, exceeding in value where the consent
of the parties has been obtained in terms of section 45; (d) in which is
sought a decree of perpetual silence
Section 46 exclusions
• “Status claims”-divorces however allowed.
• Wills-validity and interpretation
• Mental capacity-for curator bonis
• Order for “perpetual silence”
• Specific performance without alternative claim damages, but with
exceptions…
Exceptions to specific performance without
damages claims
• If specific performance do not arise from contract, not excluded.
• Rendering account=OK but must be within limit.
• Delivery transfer property is OK provided….value…consent in writing.
Area
• I said AREA plays a role in determining MC jurisdiction.
• Two basic questions: (a) does defendant reside, carry on business or
is he employed within particular court’s area of control? (b) Did cause
of action arise wholly within particular court’s jurisdiction?
• A “YES’ to anyone of the two means that court has jurisdiction.
Where are people and entities “resident”?
• Place of abode. Where he sleeps after work.
• Some people may have more than one residence.
• COMPANY OR CLOSED CORPORATION
• Place of central control as well as
• Place where registered HO is.
• RESIDENCE OF PARTNERSHIP
• Place of central management or actual control: where its principal place of business
is situated.
• WHERE DOES STATE RESIDE?
• Pretoria
• No absolute certainty currently.
Cause of action arising “wholly”-28(1)(d)
• Mc Kenzie v Farmer’s Co-op:
• “Every fact which it would be necessary for plaintiff to prove, …in order to
support his right to judgment of the court. It does not compromise every piece
of evidence which is necessary to prove each fact, but every fact which is
necessary to be proved.”
• This refers to facta probanda and facta probantia
• Important to distinguish between facta probanda and probantia
• Facts which must be proved to constitute valid cause of action=facta probanda
• All the different bits of evidence necessary to form the facta probanda called
facta probantia.
• NB See discussion of Kings Transport v Viljoen, page 90
King’s Transport…
• Explains difference between probanda and probantia.
• Collision-Somerset West.
• Def’s vehicle driven by employer-course+scope-vicarious liability-jurisdictional ground
“wholly arose within Somerset West Dstrict
• Def argued since plaintiff was suing vicarious liability, had to prove everything arose
within SW district, including employment contract.
• Thus: Salt River- argument was it only partly arose.
• Court said latter was facta probantia-a “piece of evidence”.
• See page 91 and discussion.
• Factors such as WHERE offer, acceptance, performance, breach all play a role as to
which MC will have jurisdiction.
• USUALLY, place where concluded and place where it must be performed, will be
sufficient determinants.
Causes of action…incidental to main claim
• MC has jurisdiction over any person in respect of proceedings
incidental to any action instituted by that person against another.
• “Incidental” is arising out of the same facts.
• Note however: every counter-claim does not always necessarily have
to be incidental to main claim.
Interpleader proceedings: see Glossary
(p.697) for what it is.
• If the judgment creditor as well as the claimants reside or are
employed or carry on business within the district or regional division,
that court will have the jurisdiction to hear the interpleader
proceedings.
• If the goods are attached in another district than the one from which
the warrant was issued, both courts will have jurisdiction-Concurrent
jurisdiction.
Consent - 28(1)(f)
• Called “submission”/subrogation common law
• When as defendant you no not object to jurisdiction, you cannot do so
later. So, if as defendant you have an objection to jurisdiction:
• 1.Enter appearance
• 2.File special plea on lack of jurisdiction
• 3.Then a plea on merits
Immovable property - 28(1)(g)
• MC has jurisdiction-any person who owns immoveable property within
district or region IN ACTIONS in respect of such property or in respect of
mortgage bond over it.
• “The honourable court has jurisdiction to hear this matter due to the
location of the immoveable property, the subject of this claim.”.
Jurisdiction High Courts
• Embedded in section 169 of Constitution: to decide any matter except
specifically excluded.
• Only cases excluded which by legislation are assigned to another court.
• See section 21 Superior Courts Act (10/2013)!
Common law principles of jurisdiction
• Three grounds of jurisdiction, called “rationes”.
• Ratione domicilii
• Ratione res gestae-cause of action arising
• Ratione rei sitae-where property is.
• These rationes arise mostly in context of PROPERTY and MONEY claims.
Doctrine of effectiveness
• Study!
• “An effective judgment is one which can be enforced”.
• To “enforce” a court needs to have control over the judgment debtor’s
person or property.
• Enforcements takes place by WRIT of EXECUTION or WRIT of ARREST.
Common law grounds of jurisdiction HC
• Ratione domicilii, ratione res gestae, ratione rei sitae.
• RATIONE DOMICILII is underlain by the principle of “actor sequitur forum
rei”= is a legal maxim in Latin. It states that the plaintiff must follow the
defendant to their domicile or place of residence.
• “Forum domicilii” is constituted by either domicile or residence.
Rationes…
• Domicile acquired by (a) physical presence or (b) an intention to remain.
• See discussion on page 101
• RATIONE RES GESTAE
• Where critical events or facta probanda occurred which constitutes cause of
action.
• This is the forum rei gestae
Rationes-contractual cause of action
• Be aware that there are often difficulties in this area of jurisdiction.
• However-contractual cause of action arises:
• (a) where contract was concluded (locus contractus) AND
• (b) where contract was to be performed (the locus solutionis)
Rationes…
• Therefore: two courts may have CONCURRENT JURISDICTION: you can choose
where to proceed.
• See discussion on p 103 and further
• DELICTUAL CAUSES OF ACTION:
• Place where delict was committed or occurred.
• RATIONE REI SITAE: study meaning on 104.
• TWO MOST COMMON TYPES OF CLAIMS (a) claims relating to property and (b)
money claims.
• PROPERTY CLAIMS: can be FOR
• (a) Title claims immoveable
• (b) Transfer claims
• (c) Title moveable property
Rationes
• →Study pages 106-107 (3.4.1 & 3.4.2)
• CLAIMS SOUNDING IN MONEY
• See page 108 [3.4.2(a)] and be able to give examples of money claims in
contract, in delict, as alternative to specific performance, as WELL as
specific performance!!
• Money claims-grounds of jurisdiction
• Depends on whether defendant is an incola or pergrinus of SA
• Local or foreign peregrinus
• Know what these are!
• In money claims where defendant is incolae of SA, USE either ratione
domicilii or ratione rei gestae-including ratione contractus and ratione
delicti commissi
Jurisdictional principles certain additional
claims
• Money claims against peregrini:
• Local peregrini: Section 42(2) Superior Courts Act, civil process runs
throughout SA. This means: defendant may be served within other
jurisdiction, judgment or order is enforceable in any other jurisdiction
of HC in SA.
• The court may therefore exercise control over the defendant or his
property.
Jurisdictional principles - foreign peregrini
• But: where defendant is a foreign peregrinus neither he or his
property may be in SA. This would render a court’s judgment
ineffective.
• Therefore, an attachment of such property, “ad fundandam or
confimandam-jurisdictionem”, must occur.
• Study the steps on page 111-112 [3.5.1(a)].
Jurisdiction-consent
• Consent to jurisdiction often is applicable where defendant is a
foreign peregrinus.
• Where a foreign peregrinus consents to jurisdiction, an attachment to
find or confirm jurisdiction is impermissible.
• Where he consents after writ was issued before it was executed, he is
entitled to a discharge of the order.
• Where the writ has been executed, not entitled to a discharge of the
order.
• Remember however: consent cannot confer jurisdiction when there is
no other link between the parties.
Divorces
• “Action” includes related matters and relief.
• Jurisdiction if the parties are or either is
• (a) domiciled within the court’s jurisdiction on date action is
instituted; or
• (b) is ordinarily resident in the court’s area of jurisdiction on said date
AND ordinarily resident RSA one year prior to date.
Interdicts
Self study-dealt with later in module.
Inherent jurisdiction-what does it mean?
• Is a discretionary power of a superior court.
• It can be described as an “unwritten “ power.
• 1. To regulate its proceedings and prevent abuse of process.
• 2. To protect its dignity and authority-compliance with lawful orders
• 3. Control and supervise its officers.
• 4. Restrain irregularities inferior courts.
• 5. Restrain irregularities in proceedings of administrative and similar
authorities.
• 6. To imply and modify remedies. “Ubi ius ibi remedium”.