Chapter 4- Jurisdiction

Question 0

Why is jurisdiction NB?

Answer 0

Is NB for plaintiff to select correct court in which to litigate, because litigating in court without the jurisdiction will allow opposing party to defeat claim without entering into ,writs or substance of claim.

Question 1

What does jurisdiction mean?

Answer 1

Jurisdiction refers to the authority or competence of a particular court to hear a matter which has been brought before it and to grant relief in respect of that matter.

Question 2

What will happen in action proceedings if the court doesn’t have jurisdiction?

Answer 2

The defendant can raise a special plea of lack of jurisdiction.

Question 3

What happens in application proceeding ps when the court lacks jurisdiction?

Answer 3

A court will not hear the matter if the applicant hasn’t satisfactorily established jurisdiction on the facts in the founding affidavit.

Question 4

What happens if the initial ground on which jurisdiction was founded changes during proceedings?

Answer 4

Once jurisdiction is successfully established at beginning of proceedings it will exist throughout the proceedings.

Question 5

What does the term De bonis propriis mean

Answer 5

It means that if the attorney fails to establish jurisdiction correctly then he is liable to pay for the proceedings out of his own pocket.

Question 6

What are the 2 questions that must be asked when determining whether a court has jurisdiction in a certain matter?

Answer 6

1) The monetary value of the claim

2) The nature of the claim.

Question 8

What are the general principles that must be weighed up when determining jurisdiction?

Answer 8

1) Principle Actor sequitur forum rei
2) Principle of effectiveness
3) Principle of consent
4) Principle of Convenience

Question 10

What does the principle of effectiveness entail?

Answer 10

In terms of this principle the court should ordinarily assume jurisdiction only in those cases where it is able to give effect to the order which it makes so as to make that order meaningful. This concept is derived from Roman Law, where court would exercise jurisdiction where it was able to control outcome of its judgment by ensuring that judgment was carried out.

Question 11

What has the doctrine of effectiveness led to in our law in terms of adjudicating a matter against a foreigner?

Answer 11

It has led to a general rule where court won’t adjudicate a matter against a foreigner unless the foreigner has been arrested or foreigners property has been attached to ensure effectiveness of its order.

Question 12

Does effectiveness require the court to be fully able to enforce its judgment?

Answer 12

No, it only requires that the judgment must the potential to be enforced. Courts will allow attach,met of foreigners goods even if the value of goods not equal to amount being claimed.

Question 13

If the court is able to enforce its judgment does it have to ensure jurisdiction?

Answer 13

No, even if court is able to enforce judgment it can decline jurisdiction.

Question 14

What does the principle of convenience entail?

Answer 14

A court may be inclined in the circumstances to assume jurisdiction on the basis that it would be most convenient to do so. The court will therefore often assume jurisdiction on basis that cause of action arose within its area of jurisdiction.

Question 15

If a cause of action arises from a contract, where is the area in which the cause of action arose?

Answer 15

Either the area in which the contract was concluded or where the performance of the contract was to have taken place.

Question 16

Why is it convenietpnt for a court to ensure jurisdiction in matters where cause of action arose in their area of jurisdiction?

Answer 16

It is likely that most of the evidence will arise from that area and that most witnesses will be domiciled or resident within that jurisdiction.

Question 17

What does the principle of consent entail?

Answer 17

A court which would not be ordinarily competent to adjudicate a matter brought against a defendant may, in certain circumstances, exercise jurisdiction of paver that defendant if that defendant consents or submits to the court’s jurisdiction. Such consent may be expressly inferred, or the party’s consent may be tacitly inferred by his conduct or failure to act.

Question 18

When has a person consented to a courts jurisdiction?

Answer 18

Whether a person has consented depends on the facts of the case.

Question 19

What does it mean that the HC has inherent jurisdiction?

Answer 19

It means that HCs don’t derive their powers and capacities only from statute. A HC may therefore hear any matter that isn’t excluded from its jurisdiction in statute.

Question 20

How is the jurisdiction of MC determined?

Answer 20

Magistrates’ Courts have prescribed jurisdiction, which means that they are strictly limited to the terms of the MC Act and MCR, as MC are creatures of statute. Civil MC’s may hear only matters that they are permitted to hear by statute.

Question 21

When determining jurisdiction by monetary value, where must a claim below R12000 be heard?

Answer 21

Small Claims Court

Question 22

When determining jurisdiction by monetary value, where must a claim below R100 000 be heard?

Answer 22

District Magistrates Court

Question 23

When determining jurisdiction by monetary value, where must a claim for more than R100 000 but less than R300 000 be heard?

Answer 23

Regional Magistrates Court

Question 24

When determining jurisdiction by monetary value, where must claims for more than R300 000 be heard?

Answer 24

High Court

Question 25

In the second step, how do we establish which provincial or local division of the High Court or District Court or Court of a Regional Division of the MC has jurisdiction?

Answer 25

This stage is determined by establishing a link or nexus between a claim and the geographical area of jurisdiction of a particular court. This link may be found in one or more of a number of common law jurisdictional factors called Rationes Jurisdictiones in the HC and statutorily prescribed jurisdictional factors in the SCC and MC.

Question 26

What is an Incola?

Answer 26

It is a person domiciled or resident within the jurisdictional area of a specific court. Eg person resident in PTA is an Incola of North Gauteng High Court.

Question 27

What is a Peregrinus?

Answer 27

It is a person domiciled or resident outside the jurisdictional area of a specific court. Eg person resident in PTA and person resident in UK both peregrini of WC HC.

Question 28

What is a local Peregrinus?

Answer 28

A person domiciled or resident outside the jurisdictional area of a specific court but within RSA. Could be said that person Incola of RSA but not an Incola to the specific SA court in question.

Question 29

What is a Foreign Peregrinus?

Answer 29

A person domiciled or resident outside RSA as a whole and is therefore foreigner to all SA courts.

Question 30

What is the difference between a person’s domicile and residency?

Answer 30

Domicile requires a persons intention to remain in that area permanently or indefinitely.
In terms of residence not intention is required, it just requires that the person be physically present in that area for more than a brief period, and it doesn’t even have to be continuos.

Question 31

What is required for a natural person to obtain domicile in a specific area?

Answer 31

Intention or animus manendi is required in order for a person to acquire a domicile within an area. The person must intend to remain within the area permanently or at least indefinitely.this is a specific requirement in order to obtain a domicile of choice in terms of s1(2) of the Domicile Act.

Question 32

What did the court rule in regards to residence in Mayne vs Main?

Answer 32

The SCA held that it was possible for a person to have more than one residence. However, according to s19(1)(a) of the Supreme Court Act, for the purpose of legal proceedings a person can reside in only one place at any given moment. Therefore the area in which the person was residing at the time of the serving of the summons will be that persons residence for the purpose of the legal proceedings.

Question 33

Is consent alone sufficient to confer jurisdiction on a court?

Answer 33

No, where there is jurisdictional link at all between the court and the matter, consent will not be effective.

Question 39

What is the general rule regarding the institution of legal proceedings?

Answer 39

Actor sequitur forum rei- it requires that the plaintiff/applicant follow the defendant/respondent to the defendants forum and institute proceedings there.