Chapter 5- Jurisdiction Of The High Courts Flashcards
In terms of the HC’s inherent jurisdiction, what does the court’s power to regulate it’s own procedure entail?
The HC is not constrained by the Rules of Court. Therefore if a matter isn’t prescribed by the HCR, the HC may, in so far as the rules are deficient, grant orders which further the admin of justice.
What does inherent jurisdiction of the HC refer to?
This means that the HC possesses the discretion to make any order or to undertake any procedural step as long as the law doesn’t prohibit it. In other words the court has the power to
(i) regulate its own procedure and;
(ii) adjudicate any unlawful interference with rights.
What are examples of the HC exercising its power to regulate its own procedure?
The HC may mero motu:
1) - Order a party to furnish particulars of an allegation in a pleading;
2) - Strike out certain parts of a pleadings;
3) - Join further defendants;
4) - Order interim relief in order to prevent hardship;
5) - It may also prevent abuse of court procedure and prevent
vexatious litigation.
What does the HC’s inherent disciplinary competence entail?
The HC has an inherent disciplinary competence in respect of legal practitioners with regard to misconduct or unprofessional behaviour.
What is the SCA’s stance on exercising it’s powers of inherent jurisdiction in respect of regulating its procedure?
The SCA has held that it will deviate from the ordinary rules of procedure on.y in exceptional circumstances and where the requirements of justice so demand, and even then, the court will attempt to deviate from existing procedure as little as possible.
What are the 3 limitations on the HC’s jurisdiction in matters brought before it?
1) Value of the claim (monetary);
2) Nature of the claim (substantive);
3) Area/ territory over which court has jurisdiction (geographical).
How is the HC’s jurisdiction limited with regard to the value of the claim?
The jurisdiction of the HC is not limited with regard to vote amount of the claim. There is no upper limit, and in theory, no lower limit (confirmed in Standard Credit Corp. v Bester case). It was held that the HC should hear a matter properly before it and within its jurisdiction unless the matter amounts to an abuse of court’s process.
With regards to jurisdiction based on value, why has the HC always discouraged plaintiffs from bringing matters before it, which are in the MC’s jurisdiction?
In these cases the HC have granted costs on only the MC’s scale to successful plaintiffs who could just as easily have pursued their claims in a civil MC.
Can a matter which is instituted in the HC, but falls within the monetary jurisdiction of the MC, be transferred from the HC to the MC?
In terms of HCR 39(22), a case can be transferred from the HC to the MC by consent of the parties. However, if the defendant refuses to consent to the transfer of the matter, the plaintiff may withdraw the action in terms of HCR 41(1) and re-institute in the MC.
What is the Is the limitation on the HC’s jurisdiction in regards to the nature of the claim?
The HC may hear any type of matter unless its authority to do so is curtailed by statute. Special tribunals such as the Land Court, Labour Court and court for Income Tax Appeals have been created, and the HC’s power to hear matters falling within the jurisdiction of these courts has been correspondingly limited. Matters falling within the CC’s excl. jurisdiction also excluded.
How must legislation that purports to deprive the the HC of jurisdiction be interpreted?
Such legislation must be restrictively interpreted. There is a presumption against legislative interference.
How is the HC’s jurisdiction limited with regard to area/territory?
In terms of s19(1) of the Supreme Court Act, the jurisdiction of each division of the HC is limited territorially. The jurisdiction of each division is determined according to common law principles as amended by statute. S19(1)(a) provides 2 grounds for determining jurisdiction:
1) Person residing/being in area of jurisdiction;
2) Cause of action arose within area of jurisdiction.
In terms of common law principles, what 2 questions must be asked in order to determine HC jurisdiction by area?
1) Whether there is a recognised link/nexus between the court and the matter;
2) Whether an order given by the court would be meaningful or effective.
In terms of the common law rule that a court will assume jurisdiction only if there is a recognised link between it’s territorial area and the matter before it, what are the different links (rationes jurisdictiones) that can exist?
1) Ratione Domicilii- in terms of principle actio sequitur forum rei, plaintiff/applicant must institute proceedings in defendant/respondent’s forum Domicilii.
2) Ratione rei Gestae- a court (forum rei gestae) will have jurisdiction if cause of action arose within its area of jurisdiction.
3) Ratione rei Sitae- plaintiff will institute proceedings for all claims to property in court’s area of jurisdiction of which property geographically situated.
What are the two kinds of Rationes rei Gestae?
1) Contractual (Ratione contractus)- contractual cause of action can arise in court’s area of jurisdiction where contract concluded (locus contractus), where contract is to be performed in whole or in part (locus solutiones) or where contract was breached. If all in different areas, can choose most convenient.
2) delict (Ratione delicti commissi)- when delict occurs in particular court’s area, that court will exercise jurisdiction. Usually area where wrongful act took place (locus delicti) will have jurisdiction.
At common law, how was jurisdiction in divorce proceedings determined?
At common law only court that had jurisdiction was area in which parties domiciled at time of instituting proceedings (The wife adopted the domicile of her husband. Sometimes resulted in hardship for woman and rule was changed.
