Slide 4- Jurisdiction Flashcards
Describe Jurisdiction
Jurisdiction can be described as the power or competence of a court to hear and determine the issues between two parties brought before it
What factors will determine jurisdiction?
- Where the cause of action arose
- Domicilium and residence of the parties involved
- The nature of the matter or relief sought
- The monetary value
- Where property is involved, the subject of the dispute.
What are the characteristics of small claims court?
The monetary value should not exceed R20 000, there is no representation and thus no cross-examination done, the presiding officer will lead the proceedings inquisitorially.
There are no appeals against judgements of this court. Only natural persons sue, however, companies may be sued.
In which instances would the Constitutional Court have exclusive jurisdiction?
- Disputes between organs of the state in the national or provincial spheres concerning the constitutional status, powers and functions of those organs of state
- the constitutional, provincial Bills
- Declaring an Act of parliament or particular legislation, upon application, unconstitutional.
- amendment of the Constitution
- Failure of parliament or president to fulfil constitutional obligations
- certification of provincial constitution.
The CC may be a court of first instance when the matter is urgent and serious, however permission from CC would have to be obtained.
What are the 3 exceptions to the general rule relating to the cut-off amounts in Regional/District Courts?
- The parties may consent in writing for either the Regional/District Magistrate court to exercise jurisdiction, despite the fact that the monetary value is excess
- Plaintiff or applicant may choose to abandon the portion of the claim that exceeds R400 000 or R200 000 limit
- The plaintiff/applicant may decide to deduct from his claim the amount of a debt which he admits he owes the defendant/respondent and bring his matter to the court within the specified limits
Two ways to determine which particular division of the HC/MC must hear the matter?
In deciding this, one would have to determine the geographical area of the court and this is done in two ways:
1. You may be able to show that the person against whom you are instituting action against either lives or works in that area.
2. You may be able to show that the incident took place in that area (cause of action)
What is the significance of Section 46 of the MCA?
Hint: matters excluded in MC
It excludes certain matters from the MC and refers them to the HC, regardless of their monetary value.
These include, the interpretation of a will or other testamentary document in question in which the status of a person in respect of mental capacity is sought to be affected,
a claim for specific performance without the alternative of damages.
and lastly, order for perpetual silence.
When is jurisdiction determined?
At the time that the proceedings are instituted. Proceedings are deemed to have been instituted once the papers initiating such proceedings have been served to the other party.
Why is it important to get jurisdiction right?
- Your opposition will be in a position to defeat your client’s claim on the point of lack of jurisdiction, without dealing with the substantive claim
- In an action, your opponent will be entitled to a special plea of lack of jurisdiction
- in an application, court may not hear the matter if it is not satisfied that it has jurisdiction.
What are the two fundamental questions should one ask when determining Jurisdiction?
- What is the value of the claim?
- What is the nature of the claim?
- The particular court to hear this matter (Geographical location)
Discuss section 29 of the MCA with relation to jurisdiction?
It deals with the different types of claims within the monetary value limits.
a) Delivery or transferring of immovable or movable property (D-R200 000. R-400 000)
b) Ejectment- right of occupation should not exceed limits the value of this right is determined by the rent payable by the occupier. in a case of business place- calculation is based on the amount of profit that the occupier expects to make over the period for which he claims the right to occupy the land.
c) Right of way- it does not have a monetary value, the courts merely need to confirm the existence thereof and create a necessary access route.
d) Liquid Documents or mortgage bond
e) Credit Agreement (it doe snot have monetary limits)
f) Matrimonial Property Act
g) Liquidation Closed Corporations (designed to fit the needs of small business entities)
h) All other actions
i) Divorce and related matters (Regional court has the same jurisdiction as the HC in divorce matters, it disregards the limitation)
How to calculate the R200 000 and R400 000 limits?
Rule 1: Splitting single claims NOT allowed, section 40.
- Combining separate claims is allowed, section 43. Different claims, arising from different COA may be combined, as long as they do not exceed the limits individually. They may exceed limits altogether though. THIS IS KNOWN AS CUMULATIVE JURISDICTION
- Only amounts in issue will be taken into account, section 37(1) & 37(2). This means that in actions where sum is claimed, being within jurisdiction, only the amount in dispute is taken into account, despite postings on an open account. INCIDENTAL JURISDICTION
- Interests and costs are not taken into
Discuss Consent as an exception to the general rule?
Consent should be given in writing to either the District or Regional court for them to exercise their jurisdiction. However, this does not include the excluded matters in section 46.
Explain the provisio of section 38(2) in terms of abandonment?
It states that abandonment shall be deemed first to take effect upon that part of the claim which is not upheld. Basically means that damages must be calculated positively ; you get what you manages to prove up to the maximum of the limit.
TOTAL DAMAGES= R210 000
ABANDONMENT= R10 000
UNPROVED DAMAGES= R20 000.
Therefore, R20 000-R10 000
180 000-what client will be entitled to.
What is the general rule for claims for specific performance in the Magistrates Court?
Magistrates’ Court shall have NO jurisdiction in matter in which is sought specific performance without an alternative of payment of damages.
EXCEPT:
- the delivery or transfer of property not exceeding limits
- delivery or transfer of property exceeding limits in value where the CONSENT of the parties has been obtained in terms of section 45
- the rendering account within limits