CIVIL PROCEDURE

GENERAL INTRODUCTION

THEME ONE

PLACE OF CIVIL PROCEDURE IN SA LAW

 National law
 Procedural law (formal law)
 Law of evidence, Criminal Procedure, Civil Procedure
 Substantive law definition
- Describes what a person’s rights, duties and remedies are in a given situation
- Determines the content and scope of a natural and juristic persons’ rights, duties and
remedies
 Procedural law definition
- Civil procedure is a part of this
- Indicates how these rights, remedies and duties may be enforced
- Provides the procedure for the enforcement of these rights, remedies and duties
 Civil procedure differs from criminal procedure
 Criminal procedure definition
- enables the State, acting on behalf of the general public, to take action against persons who
infringe rules of criminal law
- purpose is to protect the public against threats to safety and security, and one of the
objectives of criminal proceedings is to punish wrongdoers
- parties = the State (acting on behalf of the public) and the wrongdoer
 Civil procedure definition
- Act on their own behalf in enforcing or defending claims
- Usually private parties, but the State may litigate as a party on its one behalf
- Civil litigation takes on the form of
~ action procedure – litigating parties are known as the plaintiff and the dependent
~ application procedure- the applicant and the respondent
 Terminology on p2 of textbook
- Civil- legal practitioner, plaintiff, defendant
- Criminal- police service, prosecution, complainant and accused
 Principles that underlie civil procedure (p2-4)
- S34 of the Constitution states that everyone has the right to have any dispute that can be
resolved by the application of the law decided in a fair public hearing before a court or,
where appropriate, another independent and impartial tribunal or forum
a) All persons must have equal and effective access to an independent and impartial
judiciary and costs and the duration of litigation must be reasonable
b) Parties must be afforded an equal opportunity to present their respective cases to the
court. Ensures that, the defendant is notified of the proceedings, both parties are
notified of the nature of the ither’s case and the grounds on which it is based. Both
parties are afforded the opportunity to present their respective cases to the court
 c) The decision to institute or defend an action and to determine the scope of the dispute
rests with the parties, and the parties decide on the evidentiary material to be
presented as proof of their respective cases. This is referred to as party control.
d) During the presentation of the parties’ respective cases, provision must be made for
direct oral communication between the parties (personally or by means of their legal
representatives) and the court. However, this does not exclude the possibility that
important elements of the presentation, such as some types of evidentiary material,
may be in writing.
e) The main proceedings (trial or the hearing of an application) must, in principle, take
place in public.
f) The court must consider the evidentiary material on objective and rational grounds.
g) The court must give a reasoned and legally motivated judgment8 and furnish it
expeditiously.
h) The decision of the court is final and binding, but provision exists for appeal or review. A
rescission of judgment is also possible in certain specific circumstances.

 Sources of civil procedure (p5)

- the Constitution of the Republic of South Africa:
- the Constitutional Court Complementary Act17 and the Rules of the Constitutional
- Court;
- the Superior Courts Act;
- the Rules of the Supreme Court of Appeal;
- the Uniform Rules of Court applicable in the High Court;
- the Magistrates’ Courts Act;
- the Magistrates’ Courts Rules;
- the Small Claims Court Act;
- the common law underlying the rules of procedure and jurisdiction in the High Court;
- other legislation and regulations relevant to specialized courts;
- practice arrangements and directives applicable in the respective divisions of the High Court;
- case law.
- Superior Courts Act and the Magistrates’ Courts Act may be amended only by parliament,
but the Rules of Court may be amended or repealed by a statutory body called the Rules
Board

 ADR (p7-8)
- negotiation, mediation or arbitration may be used as alternatives to civil procedure.
- Negotiation is a structured form of bargaining between parties locked in a dispute.
- Mediation involves an impartial third party employed to assist the parties in their
negotiations with the aim of reaching an agreement.
- To make justice more accessible a voluntary mediation process has introduced in the
Magistrates’ Courts and the High Court
- Also referred to as court-annexed mediation
- Court sponsored mediation was a bid to reduce litigation time and costs
 - Arbitration consists of a formal structure in which an impartial 3rd party, the arbitrator,
adjudicates on a dispute after taking evidence and hearing arguments from the parties.
- The decision of the arbitrator is final and binding on the parties (unless the parties have
agreed to allow for and appeal)
- The decision can always be taken for review
- Parties may agree to arbitration by inserting an arbitration clause or arbitration agreement
into a contract, in which case any contractual dispute that may arise and is covered by the
arbitration agreement will be subject to arbitration.
- If the arbitration agreement is in writing, it is subject to the Arbitration Act.
- A body that conducts arbitration proceedings is the Arbitration Foundation of South Africa
- However, ADR is not suitable for all types of disputes

 New developments (p9)

-
 Electronic online system
- A way to make action and application process more efficient and less time consuming an e-
platform for law firms and litigants was implemented by the Office of the Chief Justice
- File documentation electronically online anywhere and anytime w/o being physically present
at the court building
- Assists with managing court diaries and the setting down of matters for trial
 Virtual online court hearings/video conferences
- Virtual/online court hearing conducted e.g. video conferencing
- Hearings on paper, namely appeals and applications, may be heard in open court or via
CaseLines or e-mails
- Receiving evidence on Affidavit and the utilization of video conferencing
- Discretion in video conferencing on which part should set up the meeting, as well as
determining liability for the costs attendant upon such a meeting
 Hierarchy of courts
- Constitutional court (s167 of the Constitution p13-14)
 S167(1)- CC is presided over by the Chief Justice, Deputy Chief Justice and nine other
judges
 Has its seat in JHB
 A matter before the court must be heard by at least 8 judges
 S167(3)- highest court in all matters
 May adjudicate constitutional matters as well as any other matters if CC grants leave to
appeal (matter raises an arguable point of law of general public importance that ought
to be considered)
 Final decision maker on whether a matter is within its jurisdiction
 Exclusive jurisdiction on matters regarding
 disputes between organs of State in the national/provincial sphere concerning
constitutional status, competence or duties of said organs
 on the constitutionallity of any parliamentary/provincial bill
 Application declaring all/part of an Act unconstitutional in terms of s80 or s122
 Constitutionality of any amendment to the Constitution
  Decide whether Parliament/President has failed to comply with a constitutional
obligation
 Certify a provincial constitution in terms of s144 of the C
 No order of unconstitutionality made by the SCA, HC or a court with similar status is
valid until that order has been confirmed by the CC
- Supreme court of appeal (p14 – 15)
 May decide appeals on any matter arising from the HC or court of similar status
 Court of appeal and not first instance
 Court sits in Bloemfontein
 President, deputy president and a number of judges of appeal
 Quorum= 5 judges
 If a judge becomes unavailable (death, absence etc.) then the trial continues with the
remaining judges
 If no majority then the matter is adjourned and commenced de novo before a new court
as composed and determined by the President of the court.
- High courts (p15-17)
 The previously independent HCs have been consolidated into a single HC of SA


  First instance (court a quo)
 Court of appeal for Magistrates’ Courts within its jurisdiction
 2 judges= quorum for an appeal from MC
 Appeal court for a decision made by one judge in the HC (issue of fact)
 Appeal to SCA if issue of law
 Judge and as many judges as the President of SA may appoint on the advice of the
Judicial Service Commission
 Usually 1 judge if court a quo of a civil matters
 If a judge dies etc, the trial with continue only if the remaining judges consist of the
majority
 If not then the trial must commence de novo unless the parties agree unconditionally
and in writing to abide by the ruling of the majority of the remaining judges or by the
1 judge
- Magistrates’ courts (p17-18)
 Creatures of statute and operate within the parameters of the Magistrates court act
 Each district court has at least one magistrate but larger centers have more
 District courts exercise both civil and criminal jurisdiction
 Regional divisions have been created to deal with civil matters as well as criminal
matters
 S170 of the constitution= MC may decide any matter determined by an Act of
Parliament but does not possess the power to enquire into or rule on the
constitutionality of any legislation or any conduct of the president
- Other courts (Courts of chiefs and headmen p18)
- Traditional courts bill, based on restorative justice principle
- Initiation of proceedings in a traditional court
- Bill sets out the composition of the court, customary court procedures, the orders which may
be granted by the court, review of court proceedings by the HC and transfer of dispute to a
small claims court or MC
- Appeals go to MC

 Special courts
- Labor courts
 Same power, authority and standing as HC
 Exclusive jurisdiction in respect of all matters in terms of the LRA or any other law
relevant to the Labor Court
 Concurrent jurisdiction with civil courts to hear and determine any matter concerning
a contract of employment
 May refuse to adjudicate a dispute if not satisfied that an attempt has been made to
resolve the dispute through conciliation
 Same status as SCA in relation to matters within its jurisdiction
- Land claims court
 Same status as the HC
 Exclusive jurisdiction to determine, inter alia, a right to restitution of any land in
accordance with the Act, to determine issues of compensation in respect of the
 appropriation or acquisition of such land, to determine the title to such land and to
determine whether compensation received at the time pf dispossession of land was
just and equitable
 Exclusive jurisdiction= matters about the interpretation/ application of Land Reform
act and Extension of Security of tenure Act
 Appeals go to SCA and when appropriate, the CC
 Seat in Randburg
- Special income tax court
 For persons dissatisfied with the decisions made by the commissioner of SARS
 Judge/acting judge of HC, an accountant of not less than 10 years standing and a
representative of the commercial business community
 Proceedings are commenced by a notice of appeal served on the commissioner
within the time period specified in s83(7) of the Act
- Competition appeal court
 Responsible for the investigation, control and evaluation of restrictive practices,
abuses of dominant position and mergers
 Also establishes a Competition tribunal to adjudicate these matters
- Elections court
 Same status as HC
 Judge of the SCA and two HC judges plus two other members who are SA citizens
 Review any decision of the Electoral Commission relating to an electoral matter
 Hear certain appeals against decisions of the Electoral Commission
- Special consumer court

- Divorce courts

- Children’s court

- Maintenance court

- Equality court
 Officers of the court
 Judges
 Magistrates
 Registrar of the High Court
 Clerk and Registrar of the Magistrate’s Court
 The Sheriff
 Master of the high Court
 Legal Practitioners
LECTURE TWO

Chapter 3

MC rule 52

S56 of MCA
 First consultation
- An attorney deciding whether to represent a prospective litigant must take into account the
following factors
 Whether they may act on behalf of the client
 Whether to proceed by action or application
 Whether to appoint an advocate in the matter
 The cost implications of the proceedings
- A number of formal meetings between the client and attorney are arranged
- Confidential
- Taking proper instruction
- Administrative arrangements
- Open a file on behalf of the client
- Names of parties must be clearly indicated on the outside of the file so that a chronological
record may be kept
- Advisable to draw up a column wherein telephone calls made and received may be noted
(easy to determine costs) (date, time and to whom or from whom, duration and main points
of discussion)
- Important to note all relevant dates such as prescription dates and trial dates clearly on the
outside of the file in order to ensure that the case is properly administered.
- Many law practices use online legal-practice management tools for the generation of invoices
and billing of clients
- Account number must be allocated to the client so that the account may be debited with fees
and disbursements in respects of professional services rendered
- Discuss possible cost implications of the case with the client
- In certain circumstances it may be necessary to obtain a deposit from the client in order to
cover intial expenses
 Information from client
 Decisions to be made by attorney
 Administrative matters
- Open file with certain info
- Important dates
- Account number
- Strategy?
- Appoint advocate?
- Diarise dies
 Legal representation of parties
- General principles
 Right to legal representation = s35(2) and (3) of the Constitution
 Relationship between client and attorney is one of representation by agency
  An attorney may request a special power of attorney from the client in order to
establish the attorney’s mandate but such a special power of attorney is not
obligatory, except when commencing an appeal
 Special power of attorney authorizes an attorney to institute or defend a specific legal
proceeding on behalf of the client and to conduct any other function that is incidental
to such a legal proceeding
 Execute with diligence, skill and care expected from a reasonable attorney
 A person who is not a legal practitioner has no right of appearance in court and the
court will not allow such a person to appear
- Representation in the HC
 A party with locus standi may instruct and be represented by an attorney and an
advocate or an attorney alone where the attorney has a right of appearance in the HC
 A party can represent themselves but cannot get a 3rd party who is not a legal
representative to represent them.
 A juristic person cannot be represented by an employee and must be represented by
an attorney and an advocate or by an attorney alone if there have a right of
appearance in the HC
 Board of directors of a company or members of a CC must pass a resolution
authorizing an attorney to institute or defend legal proceedings
 Municipal/other authorities= standing resolution usually delegates power to institute
or defend legal proceedings to a specified official
 In appeal cases, it is essential for the legal representative to file a power of attorney
in order to establish authority to proceed with the appeal on behalf of the client
 It must be filed when the appeal date is applied for.
 It must be signed by the client, if not then 3rd party with proof to the registrar of the
entitlement to sign on behalf of the original party
 If a party terminates the attorney’s mandate and decides to conduct the case
personally, they must furnish an address within 15 km of the court building for the
service and delivery process
 If a client does not pay or gives improper instructions, an attorney may decide to
withdraw
 Attorney must notify client, opposing party and registrar of their withdrawal
 Notice of this served by hand and acknowledgement/receipt will be sufficient proof
of withdrawal
 Can keep clients files in the case of non-payment as a retention right
- Representation in the MC
 Personally or by means pf a legal practitioner institute or defend legal proceedings
and carry it to completion
 Local authority, company or other incorporated body may act through an officer
nominated by it for the purpose
 Partnership/group pf persons associated for a common purpose may act through a
member nominated by it for that purpose
 No person acting in terms of the above 3, other than a legal practitioner is entitled to
recover any costs other than necessary disbursements
  Advocate not entitled to sign any Magistrates’ Court pleading and must be briefed by
an attorney before drafting pleadings or appearing in court
 Candidate attorney may, with certain limitations appear before a Magistrate’s Court,
board or tribunal but not before the HC
 Unnecessary to file for power of attorney for the MC however, the opposing party
may challenge the authority of this person before judgement and with good cause
shown
 Court may even postpone the trial/trial cannot continue until proof of power of
attorney shown
 The state attorney, deputy state attorney, professional assistant to the state attorney,
deputy state attorney or any attorney instructed in writing/telegram by/on behalf of
the SA or DSA in any matter that they are acting in in official capacity
 If a party dies/incompetent to proceed, action is suspended until an executor, curator,
guardian or other competent person is appointed/incompetence ceases to exist
- Indigent persons
 Person who cannot afford legal representation
 Legal aid institutions
 Legal aid SA and other legal aid clinics e.g. universities
 HC ito HCR 40- in forma pauperis proceeding
 MC ito MCR 53- pro deo proceeding

Application v action

-
 - an attorney must determine the correct type of proceedings to be used and the correct court
to be approached
- Client may be penalized if wrong procedure is selected
- Action procedure is characterized by prescribed time periods for the exchange of pleadings,
followed by prescribed tie periods for the preparation for trial
- The actual trial is a forum for the admission of oral viva voce evidence which may be a time-
consuming process and a trial may therefore be postponed on good cause shown
- The application procedure is said to be more time effective and cheaper when compared with
the action procedure as evidence is presented on the papers (affidavit) and orally

 Demand
- First act of a prospective plaintiff= send a letter of demand to a prospective defendant before
summons is issued
- To request from the recipient payment/performance of a legal obligation and to persuade
them to pay or settle the dispute without the necessity of expensive time-consuming
litigation
- Usually in writing but can be oral
- Proper demand
 Clear reference that the attorney is acting on behalf of the client
 Clear explanation of reason for demand -client’s version (+ relevant dates and
amounts)
 Clear indication of the action expected from the recipient
 Time period within which to comply
 Consequences if failure to comply
- When is demand necessary? (p38-42)
 When a contract contains a clause stating that an amount is payable on demand. LoD
necessary to complete the cause of action
 Cause of action based on breach of contract and the terms of the contract require a
letter of demand. Action only complete when party gives notice of an intention to sue
for breach
 Creditor intends to cancel an agreement, especially when the original agreement
contains no right to an automatic cancellation
 No date of performance agreed on- LoD places debtor in mora
  Party wishes to claim mora interest- LoD placing opposing party in mora. Interest
levied on the expiration of the date for payment as stated in the LoD
- Send by registered post- can only recover costs of demand if sent this way
- LoD- Statutory Notice of intention to litigate is necessary:
 S29 of Small Claims Court- before legal action may be taken
 S96 of the Customs and Excise Act- intention to sue delivered one month before legal
action is instituted
 Organ is State is sued- give notice in writing within 6 months from the date on which
the debt became due
- NCA- s129 notice
 NCA- preliminary notices and other procedures before debt enforcement. Then
litigation can be initiated for debt enforcement.
 S129(a)= draw the default to the notice of the consumer in writing and
propose that the consumer refer the credit agreement to a debt counsellor,
alternative dispute resolution agent, consumer court or ombud with
jurisdiction, with the intent that the parties resolve any dispute under the
agreement or develop and agree on a plan to bring the payments under the
agreement up to date.
 S129(b)= credit provider may not commence any legal proceedings to enforce
a credit agreement before first giving the consumer notice as contemplated
in section 129(1)(a) or 86(10), as the case may be, and meeting any further
requirements set out in section 130. Credit provider must prove that the
notice was delivered
 Notice to be delivered by registered mail or to an adult person at the location
designated by the consumer and consumer must in writing indicate the preferred
manner of delivery
 Prescription
- Two acts -1943 (applies only to debts arising before 1 December 1970) and 1969 (regulates
majority of cases)
- 1969- extinctive prescription depending on the type of debt an in some cases the type of
debtor
 Period of 30 years
 Debt secured by a mortgage bond
 A judgement debt
 Debt in respect of tax levied in terms of any statute
 Debt owed to the State regarding the prospecting for and mining of minerals
or other substances
 Period of 15 years
 Debt owing to the State arising from a loan of money/sale/lease of land
unless longer period from above applies
 Period of 6 years
 Bill of exchange/any other negotiable instrument (cheque pr promissory note
etc.)
 Period of 3 years
  Any other debt, unless specifically provided for by statute
 How do you calculate prescription period
- Calendar days
 Must be specifically pleaded and court will not take notice of prescription mero motu.
- Judgement may still be granted if prescription not formally raised by the defendant.
- Payment of a prescribed debt cannot be reclaimed subsequently
 Interruption
- By means of acknowledgement by the debtor to the creditor of a liability to pay the debt, or
when creditor serves summons on debtor (any process where creditor claims payment for
debt)
- LoD does not interrupt the running of prescription
 Suspension
- S13(1) Prescription Act
- Granted when the creditor is a minor, insane or under curatorship
- For one year from the date on which the impediment ceases to exist
 Organs of state
- Legal Proceedings against Certain Organs of State Act
- Procedure
 First written notice of intention to institute legal proceedings must be delivered/
organ consents in writing to the institution of a legal proceeding within 6 months on
date debt due
 Organ can consent w/o required notice or accept notice that does not comply with
the requirements
 Condonation of non-compliant notice possible
 Action instituted by issuing and serving summons (30 days from the date notice
given, if so then deemed to have been served on 1st day after expiry date)
 Hand delivery/certified mail/electronic mail or fax
 Contain summary of the facts that gave rise to the action and all particulars within
the knowledge of the plaintiff
 Act does to apply to prescribed/had legal proceedings instituted before 28 November
2002
 RAF
- Prescribes 3 years from the date upon which the cause of action arose
- S24(6) of RAF Act- litigation cannot commence 120 days after delivery of claim to fund
- Prescription does not run against minors, persons held in terms of mental health legislation,
persons under curatorship
- No claim lodged in terms of s24 shall prescribe before 5 years from the date on which the
cause of action arose
 Apportionment of Damages Act
- 12 months prescription from date of judgement or after the judgement on appeal
 Superannuation of summons
- No provision dealing with superannuation in the HC
- Generally accepted that a HC summons does not lose its validity merely because a period
time has elapsed
 -Court has discretion to refuse to grant judgement in certain circumstances
 NCA
- In any court proceedings in which a credit agreement is being considered and in which it is
alleged that the consumer is over-indebted, the matter may be referred to a debt counsellor
tot evaluate the financial circumstances of the debtor and to make recommendations to the
court.
- Recommendation- credit agreement declared reckless credit and agreement must be
suspended or one/more of consumer’s obligations rearranged
- Reckless credit/restructuring of a credit agreement/application for debt review= credit
provider cannot enforce rights in terms of the credit agreement
- Notice to terminate debt review S86(10)
- S129(1)
- Proposing a debt counsellor, alternative dispute resolution agent, consumer court or an
ombud with jurisdiction in order to agree to a payment plan
 CPA
- Any person may approach the court, National Consumer Tribunal or the National Consumer
Commission, ombud, alternative dispute resolution agent when a consumer right has been
infringed
- When all remedies exhausted, consumer ay litigate in a civil court with jurisdiction (e.g. unjust
or unreasonable contract terms)
- Can approach court in terms of s52 in order to enforce fair conduct/fair and just ts and cs in a
transaction or agreement
- S10 accredited groups or any person contemplated in s20(1) of the Promotion of Equality and
Prevention of Unfair Discrimination Act may institute an action before the Equality Cout or file
a complaint with the National Consumer Commission

LECTURE 3: JURISDICTION- GENERAL PRINCIPLES

CHAPTER FOUR

 Introduction
- Jurisdiction refers to the authority or competence of a particular court to hear a matter that
has been brought before it and to grant relief in respect of that matter
- Wrong court= refuse to adjudicate and dismissal/order plaintiff to pay wasted courts
- Must be determined at the time when legal action is commenced
 Jurisdiction entails two-stage enquiry
- Can court hear a specific matter?
 Lower court or exclusively HC
 Monetary value of claim-
 small amounts = Small claims court,
 below R200 000= District MC,
 more than R200 000 but less than R400 000= Regional MC and
 more than R400 000 = HC
 Nature of the claim- certain matters are statutorily excluded from Small claims court
and MC and must be heard by HC. Certain matters by a specific court e.g. labor
matters before Labor Court and tax matters before tax court.
 - Link- cause of action, defendant, property (territorial jurisdiction)
 Link the claim and geographical area of jurisdiction of a particular court.
 Link may be found in one or more of a number of common-law jurisdictional grounds
called rationes jurisdictions in the HC and statutorily prescribed jurisdictional grounds
in the Small Claims court and MCs

General Principles

- Actor sequitur forum rei

 Plaintiff/Applicant must follow Defendant/Respondent to the
Defendant’s/Respondent’s forum and institute proceeding there (where they reside)
 Application of the rule that the court should exercise jurisdiction only in respect of
matters in which it can give effect to its judgement
 Mayne v Main- residence and domicile are two different concepts
- Reside v domicile
 Effectiveness
- Court must be able to enforce its judgement/ensure that judgement can be carried out
- Does not require that court must be fully able to enforce its judgement
- Simply requires that judgement must have the potential to be enforced
- A court will not adjudicate a matter against a foreigner unless the foreigner has been arrested
or the foreigner’s property has been attached to s=ensure the effectiveness of its order
- The arrest of a foreigner to found or confirm jurisdiction for a SA court is no longer permitted
- Thermos Radiant case
 Convenience
- Convenient basis- cause of action arose within jurisdictional area of court
- Convenient because most likely that most of the evidence will arise from area and that most
of the witnesses will be resident/domiciled there
- Concurrent jurisdiction
 Consent (prorogation)-
- if a court normally is not competent to exercise jurisdiction over that defendant
- Court can exercise jurisdiction in certain circumstances where defendant consents to court’s
jurisdiction
- May be expressly conferred or tacitly inferred by defendant’s conduct or failure to act
- Consent not enough to confer jurisdiction in all cases
- Cannot consent where no link between court and the matter
- Consent may be given to increase monetary amount of MC (by allowing a claim beyond its
monetary jurisdiction to be heard by MC)
- However if expressly excluded from the jurisdiction of the MC in terms of s46 of the MC Act,
consent will be ineffective
- Onus on plaintiff/applicant to prove such consent or submission
 Terminology
- Incola- person domiciled or resident within jurisdictional area of specific court
- Peregrinus- person domiciled or resident outside the jurisdictional area of a specific court
 - Local peregrinus- person domiciled/resident outside the jurisdictional area of a specific court
but within the RSA as a whole
- Foreign peregrinus- person domiciled or resident outside the RSA as a whole
-
 Domicile v Residence
- Natural persons
 Domicile- person must have the intention to remain within the area permanently or
at least indefinitely (animus manendi)
 Residence- physical presence but does not require animus manendi and does not
have to be continuous. More than transitory or momentary presence. However, does
not require the same level of permanence as domicile
 Mayne v Main- more than one residence but reside only at one place at any given
time for purpose of legal proceedings. Jurisdiction at the place where the person is
residing at the time summons are served
- Companies and CC’s
 Principle place of business- reside (central management)
 Registered office- reside (concurrent jurisdiction)
 Where company/cc carries on business- various viewpoints but central management
 Maybe more than one place = reside
- Foreign companies
 Will be regarded as resident in RSA if:
 It has its principal place of business in RSA
 It has a branch office in RSA and cause of action arose from activities of that
branch
- Partnerships
 S21(2) Superior Courts Act- gives the court jurisdiction over parties joined in an action
in respect of which the court has jurisdiction
 Sue in its own name
- State
 HC- where cause of action arose (whole of RSA)
 MC- Pretoria as seat of gov regarded as ‘residence’ or ‘place of business’/ where
cause of action arose
- Inherent and prescribed jurisdiction
 HC- inherent jurisdiction
 MC- creature of statute
- General limitations on Jurisdiction
 Area
 Value of claim
 Type of claim
- Specific Provisions
 S149 of Insolvency Act
 HC has jurisdiction over every debtor and in regard to the estate of every
debtor who on the date on which a petition for the acceptance of the
surrender or for the sequestration of the estate is lodged with the registrar of
 the court, is domiciled or owns or is entitled to property situated within the
jurisdiction of the court or at any time within 12 months immediately
preceding the lodging of the petition ordinarily resided or carried on business
within the jurisdiction of the court
 S12 of Companies Act
 Company resides at its registered office for purposes of winding-up and
business rescue
 Similar to s7 of CC Act
 S7 of Close Corporations Act
 Similar to s7 of CC Act

LECTURE 4

JUSRIDICTION OF THE HIGH COURT

CHAPTER 5

 Introduction
- Inherent jurisdiction means the High Court has the power to:
 regulate its own procedure
 not constrained by the rules of court
 if a matter is not prescribed by the HC rules then the court, in so far as the
rules are deficient, grant orders which further the administration of justice
 court’s inherent jurisdiction is a sub-category of innate jurisdiction
 HC may thus mero motu order a party to furnish particulars of an allegation in a
pleading, it can strike out certain parts of pleadings, join further defendants or order
interim relief in order to prevent hardship
 Can also prevent abuse of court procedure and prevent vexatious litigation
 Inherent disciplinary competence in respect of legal practitioners with regard to
misconduct or unprofessional behavior
 HC can transfer a case to the MC or to another division of the HC mero motu if it is in
the interests of justice to do so
 Jurisdiction with regard to value of claim
- No limitation with regard to value
 No upper or lower limit
 Should hear a matter properly before it and within its jurisdiction unless the matter
amounts to an abuse of the court’s process
- Discretion regarding costs
 HC has always discouraged plaintiffs from bringing before it, matters that are within
the jurisdiction of the MC’ Courts by granting costs on only the Mc’ scale to
successful plaintiffs who could just as easily have pursued their claims in a civil MC
 Standard Credit Corporation Ltd v Bester and others- appropriate orders as to costs
should be used to discourage litigants from approaching the HC in respect of matters
falling within the jurisdiction of the MCs
  Except where the defendant or respondent is awarded costs, the civil mc tariff of
maximum fees for advocates on a part-and-party basis will apply if the amount or
value of the claim falls within the jurisdiction of the civil mc unless court directs
otherwise
- Removal of matter to a Magistrate’s Court
 Amount claimed falls within the jurisdiction of the MC then matter may be
transferred to the MC by consents of the parties
 If defendant refuses, plaintiff may withdraw the action and reinstitute it in a MC
 HC may also do this in certain instances
 Jurisdiction with regard to nature of claim
- May hear any matter unless curtailed by statute
- Court’s power to grant civil relief may also be expressly or impliedly limited where a statute
provides for a specific remedy
 Jurisdiction with regard to territory
- Area of jurisdiction for each division usually determined by provincial boundary
- Main seat in the provincial capital
- Division can be divided into one or more local seats
- Section 21(1) of the Superior Courts Act:
 Limits jurisdiction to defined geographical areas
 A person “residing or being in” area of jurisdiction
 Fact that cause of action arose within area of jurisdiction
- Ratio jurisdictiones Link or reason for jurisdiction such as (i) locality of defendant, (ii) locality
of property that forms the subject of litigation (iii) cause of action
 Divorce Actions
- Section 2(1) of the Divorce Act 70 of 1979:
- Court shall have jurisdiction if the parties to the action are, or if either party to the action is:
 domiciled in the area of jurisdiction of the court on the date on which the action is
instituted or
 Ordinarily resident in the area of jurisdiction of the court on date on which the action
is instituted and have or has been ordinarily resident in South Africa for one year
immediately prior to that date
- HC Rule 43 application –pending divorce action (interim relief)
 Maintenance pendente lite
 Interim care and primary residence of minor child
 Interim contact of minor child
 Contribution to legal costs
 Proceedings relating to property
- The court in whose area the property is situated will have jurisdiction to determine matters
that affect property rights
- Immovable property
 Forum rei sitae seemingly exclusive jurisdiction in respect of:
 Proceedings to determine title to property
 Obtaining of declaratory order to effect that a real right is held in the
property / property is free of alleged real right
  Claims for handing over of occupation /possession of property
- Forum rei sitae concurrent jurisdiction in respect of
 Claims for transfer / partition of immovable property
 Registrar of dees is called upon to make a change in the Deeds Registry
 Claims for the rescission of a contract for the sale of immovable property (unclear if
any other court will also have jurisdiction)
 Proceedings for a declaration that property is executable (two different viewpoints on
other courts)
 Mortgagee suing on a debt secured by a mortgage bond asks for such an
order
 On line of authority= the court hearing the money claim may declare
property situated outside its area executable
 Other= only the forum rei sitae may do so
 S42(2) of the Superior Courts act seems to permit this
 Application to sell or mortgage a minor’s immovable property usually brought before
court of minor’s domicile (not even clear whether forum rei sitae has jurisdiction)
 Movable property
- Forum rei sitae has jurisdiction
- Not clear if this is an exclusive jurisdiction (control)
- May sometimes be exclusive on the basis that the court where the property is located is the
only one with control over the property
 Incorporeal property
- Law attributes to it a fictional locality or situs
- Court of the area that fictional locality will have jurisdiction to determine claims regarding
that property
- In almost all cases, this is an exclusive jurisdiction
- Examples
 (i) ordinary debts exist where the debtor is resident,
 (ii) shares are generally regarded as being situated at the place where they are
registered or where the share certificates are located for the time being,
 (iii) trademarks and patents are deemed to be situated where they are registered– an
application for cancellation or variation of a trade mark can be heard only by the
Gauteng Division, Pretoria, since the national register of trade marks is kept in that
court’s area of jurisdiction,
 (iv) copyright is not registered and is deemed to be situated in the place where it
came into existence, and (v) negotiable instruments are treated in the same way as
ordinary debts – that is, they are deemed to be located where the drawer/debtor on
the instrument is resident.
 Concurrent jurisdiction
- Exercised by two or more courts
- Main division has concurrent appeal jurisdiction over the area of any local seat of that
division
- Reverse does not apply
-
  Counterclaims
- Plaintiff who has instituted proceedings in a particular court is subject to that court’s
jurisdiction in respect of counterclaims brought against the plaintiff by the defendant of the
same action
- Forsyth suggests that the normal rule should not apply if the claim and counterclaim are so
disparate as to involve completely different jurisdictional considerations

 Causae continentia doctrine

- Common law doctrine of cohesion or continuity of a cause of action
- Allows court with jurisdiction over part of a cause to exercise jurisdiction over the whole
cause on the basis of the considerations of convenience and good sense
- Can be applied where causes of action flow from a main cause

 Removal of a matter to another division

- S27(1) of the Superior Courts Act provides that if, in any civil proceedings instituted in a
division, it appears to the court that the matter may more conveniently be determined in
another division, the court may, on application by any party and after hearing all the other
parties, order removal to that other division
- Division that case is moved to need not be originally competent but the court in which the
matter was first instituted must itself have had jurisdiction

LECTURE 5

FOUNDING AND CONFIRMING JURISDICTION IN THE HIGH COURT

 Money Claims
- Determining jurisdiction where a sum of money is claimed, depends on whether the
Defendant is an Incola or foreign peregrinus.
- If the plaintiff claims a sum of money from an Incola or a local peregrinus, the plaintiff can
institute the matter where:
 a) the Defendant resides; or
 b) the cause of action arose.
- But where a Plaintiff claims a sum of money from a foreign peregrinus, the court will not
automatically assume jurisdiction.
- The Plaintiff must first bring an application to attach that Defendant’s property (if that
Defendant owns property in SA), to either found or confirm jurisdiction; or
- If that Defendant does not own property in SA, the summons must be served on that
defendant personally while they are still in SA, provided there Is an adequate connection
between the suit and the area of jurisdiction of that particular court

 Purpose of applications for attachment to found or confirm jurisdiction

 - Provides an asset in respect of which execution can be levied, in the event that judgment is
granted in favour of the Plaintiff
- Gives effect to the doctrine of effectiveness

 Against whom, can an application for attachment be brought

- You can only bring an application for attachment to found or confirm jurisdiction where the
Defendant is a foreign peregrinus
- You cannot bring an application for attachment to found or confirm jurisdiction where the
defendant is an Incola or a local peregrinus
- Important to note that you also cannot bring an application for attachment where the
defendant, although a foreign peregrinus, enjoys protection under the Diplomatic Immunities
and Privileges Act (e.g. foreign heads of state and foreign ambassadors

 Applications for attachment to FOUND jurisdiction

- Used to created jurisdiction where no other ground of jurisdiction exists at all. Attachment is
therefore necessary in order to establish jurisdiction.
- Available only to an Incola of that particular court. Meaning that if you want to found
jurisdiction, you need to do so at the court where you are an incola