Slide 4- Jurisdiction Flashcards

1
Q

Describe Jurisdiction

A

Jurisdiction can be described as the power or competence of a court to hear and determine the issues between two parties brought before it

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2
Q

What factors will determine jurisdiction?

A
  1. Where the cause of action arose
  2. Domicilium and residence of the parties involved
  3. The nature of the matter or relief sought
  4. The monetary value
  5. Where property is involved, the subject of the dispute.
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3
Q

What are the characteristics of small claims court?

A

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.

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4
Q

In which instances would the Constitutional Court have exclusive jurisdiction?

A
  1. Disputes between organs of the state in the national or provincial spheres concerning the constitutional status, powers and functions of those organs of state
  2. the constitutional, provincial Bills
  3. Declaring an Act of parliament or particular legislation, upon application, unconstitutional.
  4. amendment of the Constitution
  5. Failure of parliament or president to fulfil constitutional obligations
  6. 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.

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5
Q

What are the 3 exceptions to the general rule relating to the cut-off amounts in Regional/District Courts?

A
  1. 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
  2. Plaintiff or applicant may choose to abandon the portion of the claim that exceeds R400 000 or R200 000 limit
  3. 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
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6
Q

Two ways to determine which particular division of the HC/MC must hear the matter?

A

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)

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7
Q

What is the significance of Section 46 of the MCA?
Hint: matters excluded in MC

A

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.

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8
Q

When is jurisdiction determined?

A

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.

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9
Q

Why is it important to get jurisdiction right?

A
  1. 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
  2. In an action, your opponent will be entitled to a special plea of lack of jurisdiction
  3. in an application, court may not hear the matter if it is not satisfied that it has jurisdiction.
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10
Q

What are the two fundamental questions should one ask when determining Jurisdiction?

A
  1. What is the value of the claim?
  2. What is the nature of the claim?
  3. The particular court to hear this matter (Geographical location)
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11
Q

Discuss section 29 of the MCA with relation to jurisdiction?

A

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)

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12
Q

How to calculate the R200 000 and R400 000 limits?

A

Rule 1: Splitting single claims NOT allowed, section 40.

  1. 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
  2. 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
  3. Interests and costs are not taken into
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13
Q

Discuss Consent as an exception to the general rule?

A

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.

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14
Q

Explain the provisio of section 38(2) in terms of abandonment?

A

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.

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15
Q

What is the general rule for claims for specific performance in the Magistrates Court?

A

Magistrates’ Court shall have NO jurisdiction in matter in which is sought specific performance without an alternative of payment of damages.
EXCEPT:

  1. the delivery or transfer of property not exceeding limits
  2. delivery or transfer of property exceeding limits in value where the CONSENT of the parties has been obtained in terms of section 45
  3. the rendering account within limits
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16
Q

What happens if a person has more than one place of residence?

A

You use the place he was residing at when the legal proceedings were instituted, this is when the notice of motion was served.

17
Q

What is the place of residence for companies and closed corporations?

A

This is the place of central control and place where the Head Office is registered.
before the enactment of the companies act 2008, the business was allowed to have two places of residence, but now, it is one place.
Section 23(3) requires every company operating in SA to continuously maintain 1 office in the country and register the address of it’s office or principal office if they have more than one office.

18
Q

What is the effect of Companies Act on jurisdiction?

A

it requires the registered office of a company tp be it’s principal office, with the ‘‘principal office’ indicating the place of control or head office or the principal place of business.

19
Q

Where does a natural person reside?

A

The court uses the approach from Beedle & Co v Bowley, which states that a place of residence of an individual is obviously meant by his home, his place of abode, where he sleeps after work.

20
Q

Where does a partnership reside?

A

if the principal place of business of a partnership is located within the area of jurisdiction of a particular court, that should be sufficient to confer the jurisdiction on that court, this was held by the SCA.

20
Q

What are the 3 grounds of jurisdiction in the High Court?

A
  1. Ratione Domicilii
  2. Ratione res gestae- this means where the cause of action arose
  3. Ratione rei sitae- where the property is in claims relating to property.

These rationes arise mostly from claims relating to property and money.

21
Q

Where does the state reside?

A

There is no place of certainty but Pretoria is the place where many department’s head offices are and a lot of administrative work is done.

22
Q

What does “carries on business” mean?

A

According to Jones and Buckle, it means that the operations of the business concerned must in each case be determined (what the business does), and once that has been established, the place where the day to day activities take place, that will be the “carrying of business”

23
Q

What two questions would one have to ask to find a particular court? GEOGRAPHICAL LOCATION

A
  1. Where the defendant lives or works?
    2, Where the cause of action arose?
24
Q

What does “is employed” mean?

A

Permanence is requires, with regards to jurisdiction, the date of service of summons is what determines jurisdiction; not the issue of summons.

25
Q

Section 28(1)(d) states that the MC shall have jurisdiction over any person if the cause of action arose wholly within the district or regional division.

What does “ cause of action arose wholly” mean?

A

This was defined in McKhenzie v Farmer’s Co-operative, it was defined as every fact which it would be necessary for plaintiff to prove, in order to support his right to judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but ever fact which is necessary to be proved.

This refers to the facta probanda: These are all the facts which must be proved to constitute valid cause of action.

facta probantia- These are all different bits of evidence necessary to form the facta probanda.

Simply put, all the facta probanda must occur within the court’s jurisdiction.

26
Q

Discuss Section 28(1)(c) of the MCA with regards to Incidental proceedings?

A

it means that if you start legal proceedings in a particular MC, you cannot object to the jurisdiction of that court in respect of any proceedings that may be incidental (any other issues that may arise from the main issues/same set of facts).

27
Q

Explain incidental jurisdiction in simple terms

A

Incidental jurisdiction means that a court can decide on smaller, related issues that come up during a case, even if those issues are not the main focus of the case.

28
Q

Explain Cumulative Jurisdiction

A

It refers to a situation where a court’s authority to hear a matter can be “added up” across multiple related claims. For example, if you have multiple claims and they do not meet the court’s monetary minimum requirement individually, they can be combined (cumulate) to meet the minimum requirement.

29
Q

Explain Concurrent Jurisdiction

A

This usually happens in interpleader proceedings, where judgement creditor as well as the claimants reside/employed/carry on business within the
district, the court will have jurisdiction, if good attached are in another jurisdiction, both courts will have jurisdiction.

30
Q

As a defendant, how will you object to the jurisdiction of a particular court?

A

You would firstly enter an appearance to defend, to prevent the other party from applying for a default judgement against you.
Then you would file a special plea on the lack of jurisdiction and then lastly plea on the merits of the case. Failure to object will lead to the assumption that you have consented to jurisdiction.

31
Q

Discuss the doctrine of effectiveness.

A

The basic idea behind this doctrine is that you should not waste the court’s time by bringing a particular matter before it if it is clear from the outset that the court’s judgement will not be effective, an effective judgement is one that can be enforced.

To enforce this judgement, a court needs to have control over the judgement debtor/property thereof. Judgement can be enforced by WRIT or Execution or Writ of Arrest, where judgement debtor is arrested and charged for contempt of the court.

32
Q

Explain Rationes Domicilii as a ground for jurisdiction in the HC?

A

It means that the plaintiff/applicant must follow the defendant to his place of domicile or residence and institute an action against him there.
In this case, domicile of choice shall be acquired by a person who is lawfully present at the particular place and intends to settle there for an indefinite period.

33
Q

Discuss Rationes Res Gestae (cause of action) as a ground for jurisdiction in the HC.

A

Can be used to refer to the act or transaction in issue in a particular case or the critical events. This basically means that a court will have jurisdiction to hear the matter where the facta probanda arose.

  1. Contractual cause of action- this will arise where the contract was concluded and where the contract was to be performed either in whole or partly (locus contractus)
  2. Delictual cause of action- arises where the delict occurred (forum delicti commissi)
  3. Other causes of action- jurisdiction is determined according to where the res gestae and whether there are sufficient connecting factors between the matter in question and relevant court to enabale the court to here and determine the matter.
34
Q

Discuss Res sitae as a form of grounds of jurisdiction in HC

A

The court which exercises territorial jurisdiction over the area within which is situated moveable or immovable property, which is the subject matter of the claim. Basically the property being claimed needs to be within the area of jurisdiction.

  1. claim involving title= forum sitae will be applicable
  2. claim involving transfer of property= forum sitae will be applicable
34
Q

What is an incola?

A

is a person who is either domiciled or resides within the court’s area of jurisdiction.

35
Q

what is a peregrinus?

A

a person who is not domiciled and does not reside within the court’s area of jurisdiction.
another form of peregrinus is a foreign, this is a person domiciled in a foreign country.

36
Q

What happens when you have a claim involving money against a local peregrini?

A

Section 42(2) of the Superior Courts Act provides that the process of a division runs throughout SA, this means that the process issued by a particular division may be served within the jurisdiction of any other division in the Republic.

Therefore, if the defendant or his property is situated outside the jurisdiction of a particular division, that court is able to exercise control over the person/property provided he is an incola of SA.

37
Q

What would you do if you have a claim involving money against a foreign peregini?

A

In a case like this, the court’s judgement would be ineffective normally. Therefore, an order to establish jurisdiction in the case of claim involving money against a foreign pereginus, an attachment of property is required.

There are 4 steps:
1. Confirm that defendant is a foreign pereginus of SA
2. Two questions to be asked:
a) within which court
of territorial jurisdiction did the cause of action arise?
b) within which court of territorial jurisdiction does the plaintiff or applicant reside/domiciled?

  1. Depending on the answers above, an applicant can apply to court for an order of attachment on either:
    a) an application for the attachment to confirm jurisdiction may be brought in any court which exercises territorial jurisdiction over an area within which part of the cause of action arose== Confirmation based on ratione res gestae

b) application for attachment to found jurisdiction may be brought in court which exercises territorial jurisdiction over area within which pplaintiff resides or is domiciled. Confirmation based on Ratione rei domicilii.

  1. For attachment to be carried out, defendant’s property must be within RSA.
    Consent may be given by foreign pereginius.