Chapter 5 - Jurisdiction of the High Court

Question 1

In what three respects can the jurisdiction of the High Court be determined ?

Answer 1

• Monetary Value.
• Nature of the Claim.
• Area or Territory over which the court has jurisdiction.

Question 2

What types of cases are outside the High Court’s jurisdiction ?

Answer 2

• Cases that must be heard by specialized courts (e.g., Labour Court).
• Matters that fall under the exclusive jurisdiction of the Constitutional Court.

Question 3

What are the two alternative grounds of jurisdiction under Section 21(1) of the Superior Courts Act ?

Answer 3

• A person ‘residing or being in’ the court’s area of jurisdiction.
• The cause of action arose within the court’s area of jurisdiction.

Question 4

What are the possible links for jurisdiction under the ratio jurisdictionis doctrine?

Answer 4

• Locality of the defendant/respondent.
• Locality of the cause of action.
• Contractual.
• Delictual.
• Locality of the property in dispute.

Question 5

How did the Divorce Act change the jurisdiction for divorce cases ?

Answer 5

• Section 2(1) of the Divorce Act provides jurisdiction if either party is domiciled in the area at the time of institution.
• Ordinarily resident in the area and has been so for at least one year before filing.

Question 6

What is the general jurisdictional rule for property-related matters ?

Answer 6

The court where the property is located (forum rei sitae) has jurisdiction.

Question 7

What property matters fall under exclusive jurisdiction ?

Answer 7

• Determining title to property.
• Declaring real rights in property.
• Handing over occupation or possession of property.

Question 8

What property matters have non-exclusive jurisdiction ?

Answer 8

• Transfer or partition of immovable property.
• Rescission of a property sale contract.
• Declaring property executable.
• Selling or mortgaging a minor’s immovable property (in their domicile’s court).

Question 9

How is jurisdiction determined for incorporeal property ?

Answer 9

• Ordinary debts = Residence of debtor.
• Shares = Place of registration.
• Trademarks and Patents = Registration location.
• Copyright = Place of creation.
• Negotiable instruments = Same as debts.

Question 10

What does Section 6(4)(a) of the Superior Courts Act say about concurrent jurisdiction ?

Answer 10

A division’s main seat has concurrent appeal jurisdiction over any local seat’s area.

Question 11

What is the general rule for counterclaims ?

Answer 11

A plaintiff who sues in a court submits to that court’s jurisdiction for any counterclaim.

Question 12

What is an exception to the counterclaim rule ?

Answer 12

If the counterclaim is completely unrelated to the original claim.

Question 13

What must be considered when suing a foreign peregrinus ?

Answer 13

• The claim must be for money.
• Jurisdiction must be founded or confirmed.
• The plaintiff follows the defendant’s location.

Question 14

How can jurisdiction be founded or confirmed ?

Answer 14

• Found at the court where the plaintiff is an incola.
• Confirmed where the cause of action arose.
• Attachment of property belonging to the foreign peregrinus.

Question 15

What happens if a foreign peregrinus does not own property in South Africa ?

Answer 15

• Previously, they could be arrested, but this was ruled unconstitutional by the Malachi v Cape Dance Academy case.
• Instead, jurisdiction can be confirmed by serving summons while they are in South Africa.

Bid Industrial Holdings (Pty) Ltd v Strang case.

Question 16

When is attachment of property unnecessary ?

Answer 16

If the foreign peregrinus consents to jurisdiction.

American Flag Plc v Great African T-shirt Corporation CC case.

Question 17

What happens if a foreign peregrinus leaves South Africa and has no property here ?

Answer 17

The plaintiff must pursue them in their home country.