INTRODUCTORY STUDIES
Question 1
(a) When determining why a magistrate’s court has jurisdiction to hear a matter,
the question is answered by reference to sections 28, 29 and 46 of the
Magistrates’ Courts Act, 32 of 1944, and not on the grounds of common law
jurisdiction. Explain why this is the case. (6)
Magistrates’ courts are creatures of statute, so therefore the Magistrates’ Courts Act
32 of 1944 contains the various grounds for exercising jurisdiction in a particular
instance. Sections 46 and 29 of the Magistrates' Courts Act 32 of 1944 set the
boundaries of jurisdiction of the district and regional magistrate's courts with regard to
causes of action in respect of their value and their nature. Common law jurisdiction
grounds apply only to superior courts (in particular, the High Court), and never to the
magistrates’ courts. These common law jurisdiction grounds may thus never be used
to describe jurisdiction grounds in a magistrates’ court.
(b) Briefly discuss an application to set aside irregular proceedings. (6)
The required procedure to set aside an irregular step in the High Court is set out in
rule 30(2)–(4) of the High Court Rules and rule 60A(2)–(4) of the Magistrates’ Courts
Rules, respectively:
1. The applicant may not himself take a further step in the matter after becoming
aware of the irregular step.
2. Instead, within 10 court days of the applicant’s becoming aware of the step, he
must send a written notice to the opposing party pointing out the irregularity,
and giving that party 10 court days to remove the irregularity.
3. If the opposing party does not remove the irregularity within the ten-day period,
the applicant must serve the application papers on the opposing side within 15
court days after the expiry of the ten-day period.
4. Once the court has heard the application, it will make an order as to what is to
be done about the irregular proceedings. It has a wide discretion in terms of
rule 30(3) to set the irregular proceedings aside in whole or in part, grant leave
to amend, or make any other suitable order. The court will not set aside an
irregularity that does not substantially prejudice the applicant.
, 5. In terms of rule 30(4), until a party has complied with the order of the court in
respect of the irregular proceeding, that party may not take any further steps in
the matter.
(c) What is the meaning of the term “whole cause of action”? (4)
Section 50(1) of the Magistrates' Court Act allows for a defendant to request a transfer
of a case from a magistrate’s court to a high court having jurisdiction. A plaintiff
chooses the forum in which to litigate and therefore he or she must bear the
consequences of doing so. A plaintiff who has instituted an action in the magistrate’s
court is free to change his or her mind and abandon the action in the lower court,
and commence proceedings in a High Court, with resulting cost implications.
(d) Does the plaintiff have a recourse to the transfer of a case from lower courts
to the High Court? (4)
The words 'the whole cause of action arose within the district or region mean that every
material fact which the plaintiff has to prove at the hearing of the case in order to
succeed, must have taken place within the district or region. Where the plaintiff relies
on this ground of jurisdiction, the summons must contain an averment that the whole
cause of action arose within the district or region of the court, and set out the
particulars in support thereof.
HIGH COURT JURISDICTION AND PROCEDURE
QUESTION 2
(a) J learns that K, who is a journalist for Sunday Times newspaper, is in
possession of J’s photos in a very comprising situation and is about to publish
them the following day. Answer the following questions:
(i) Name the type of application that J must use in order to prevent K from
publishing the photographs.
Prohibitory interdict by way of application.
(ii) Name the affidavits that must be exchanged between the parties.
Founding Affidavit, supporting affidavit and answering affidavit.
Question 1
(a) When determining why a magistrate’s court has jurisdiction to hear a matter,
the question is answered by reference to sections 28, 29 and 46 of the
Magistrates’ Courts Act, 32 of 1944, and not on the grounds of common law
jurisdiction. Explain why this is the case. (6)
Magistrates’ courts are creatures of statute, so therefore the Magistrates’ Courts Act
32 of 1944 contains the various grounds for exercising jurisdiction in a particular
instance. Sections 46 and 29 of the Magistrates' Courts Act 32 of 1944 set the
boundaries of jurisdiction of the district and regional magistrate's courts with regard to
causes of action in respect of their value and their nature. Common law jurisdiction
grounds apply only to superior courts (in particular, the High Court), and never to the
magistrates’ courts. These common law jurisdiction grounds may thus never be used
to describe jurisdiction grounds in a magistrates’ court.
(b) Briefly discuss an application to set aside irregular proceedings. (6)
The required procedure to set aside an irregular step in the High Court is set out in
rule 30(2)–(4) of the High Court Rules and rule 60A(2)–(4) of the Magistrates’ Courts
Rules, respectively:
1. The applicant may not himself take a further step in the matter after becoming
aware of the irregular step.
2. Instead, within 10 court days of the applicant’s becoming aware of the step, he
must send a written notice to the opposing party pointing out the irregularity,
and giving that party 10 court days to remove the irregularity.
3. If the opposing party does not remove the irregularity within the ten-day period,
the applicant must serve the application papers on the opposing side within 15
court days after the expiry of the ten-day period.
4. Once the court has heard the application, it will make an order as to what is to
be done about the irregular proceedings. It has a wide discretion in terms of
rule 30(3) to set the irregular proceedings aside in whole or in part, grant leave
to amend, or make any other suitable order. The court will not set aside an
irregularity that does not substantially prejudice the applicant.
, 5. In terms of rule 30(4), until a party has complied with the order of the court in
respect of the irregular proceeding, that party may not take any further steps in
the matter.
(c) What is the meaning of the term “whole cause of action”? (4)
Section 50(1) of the Magistrates' Court Act allows for a defendant to request a transfer
of a case from a magistrate’s court to a high court having jurisdiction. A plaintiff
chooses the forum in which to litigate and therefore he or she must bear the
consequences of doing so. A plaintiff who has instituted an action in the magistrate’s
court is free to change his or her mind and abandon the action in the lower court,
and commence proceedings in a High Court, with resulting cost implications.
(d) Does the plaintiff have a recourse to the transfer of a case from lower courts
to the High Court? (4)
The words 'the whole cause of action arose within the district or region mean that every
material fact which the plaintiff has to prove at the hearing of the case in order to
succeed, must have taken place within the district or region. Where the plaintiff relies
on this ground of jurisdiction, the summons must contain an averment that the whole
cause of action arose within the district or region of the court, and set out the
particulars in support thereof.
HIGH COURT JURISDICTION AND PROCEDURE
QUESTION 2
(a) J learns that K, who is a journalist for Sunday Times newspaper, is in
possession of J’s photos in a very comprising situation and is about to publish
them the following day. Answer the following questions:
(i) Name the type of application that J must use in order to prevent K from
publishing the photographs.
Prohibitory interdict by way of application.
(ii) Name the affidavits that must be exchanged between the parties.
Founding Affidavit, supporting affidavit and answering affidavit.
