Chapter 4- Jurisdiction Flashcards
Why is jurisdiction NB?
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.
What does jurisdiction mean?
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.
What will happen in action proceedings if the court doesn’t have jurisdiction?
The defendant can raise a special plea of lack of jurisdiction.
What happens in application proceeding ps when the court lacks jurisdiction?
A court will not hear the matter if the applicant hasn’t satisfactorily established jurisdiction on the facts in the founding affidavit.
What happens if the initial ground on which jurisdiction was founded changes during proceedings?
Once jurisdiction is successfully established at beginning of proceedings it will exist throughout the proceedings.
What does the term De bonis propriis mean
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.
What are the 2 questions that must be asked when determining whether a court has jurisdiction in a certain matter?
1) The monetary value of the claim
2) The nature of the claim.
What are the general principles that must be weighed up when determining jurisdiction?
1) Principle Actor sequitur forum rei
2) Principle of effectiveness
3) Principle of consent
4) Principle of Convenience
What does the principle of effectiveness entail?
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.
What has the doctrine of effectiveness led to in our law in terms of adjudicating a matter against a foreigner?
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.
Does effectiveness require the court to be fully able to enforce its judgment?
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.
If the court is able to enforce its judgment does it have to ensure jurisdiction?
No, even if court is able to enforce judgment it can decline jurisdiction.
What does the principle of convenience entail?
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.
If a cause of action arises from a contract, where is the area in which the cause of action arose?
Either the area in which the contract was concluded or where the performance of the contract was to have taken place.
Why is it convenietpnt for a court to ensure jurisdiction in matters where cause of action arose in their area of jurisdiction?
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.
