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SU1 Substantive and Adjective Law
Classification National classified into substantive and adjective law. Adjective law covers law of evidence, civil procedure and criminal procedure
Differences and distinctions Substantive law: the rules of substantive law define the rights and duties of persons in their ordinary relationship with each other. Adjective law: Is accessory to substantive law ie. the existence of substantive law creates the need for the rules of procedure to enforce the substantive provisions. therefore adjective law provids the procedures through which the courts may enforce compliance with the provisions of substantive law.
SU2 Enforcing the law
Intro Civil proceedings, liability not guilt is established, "The defendent is liable for damages"is correct.
Function of the courts is to resolve disputes between legal subjects or between legal subjects and the state. Both civil and criminal proceedings may be described as formal systems of dispute resolution, enforced/sanctioned by the state.
Subject matter of court proceedings can be civil or criminal nature Civil proceedings relate to a dispute between legal subjcts (one of which may be the state or an official of the state), described as a claim. Criminal proceedings are between the state and an ordinary citizen. State acts through a prosecutor in the magistrates' courts or the state advocate in the High Courts (on behalf of the complainant.) It is quite possible for a person to lay criminal charge and institute civil proceedings on the same cause of action (different areas of substantive law nased differnt procedures.)
Parties State and the accused. The person who has suffered is the complainant, state prosecutes on behalf of the complainant. accused known as appellant when case goes on appeal at the instance of the convicted person. The person who starts the proceedings by issuing a summons is known as the plaintiff, person against whom the summons is issues is called the defendant. If proceedings brought by application, known as applicant and the opposite pary is called respondent, person who lodges appeal is known as apellant and the other party is the respondent.
Objectives THe object of civil proceedings is to establish the laibility of the defendant/respondent to compensate the plaintiff or to perform or not to preform certain acts in relation to the plaintiff/applicant. In criminal proceedings the objective is to establish whether the accused is guilty of a crime, and if so to impose a penalty.
Compulsion Civil proceedings are voluntary, aggrieved party not cmpelled toc commence these proceedings. If defendent chooses not to defend or respond then judgment will be granted in his/her abscence (default judgment) - judgment without "e" is used in law to distinguish between a legal ruling and 'moral judgement'. Parties can reach an out of court settlement by negotiation. During pretrial stage court will not interefere except upon application by one of the parties. During pre-trial parties, exchange pleadings, pleadings close and then parties prepare for trial. In civil proceedings parties are compelled to follow rules of court; which perscribe the minimum standards for the conduct of proceedings.
In criminal proceedings there is a very strong element of compulsion, the accused has to appear before the court to hear and defend the criminal charge.
Onus of Proof Civil proceedings; balance of probability. Criminal Proceedings; Beyond reasonable doubt.
SU3 Inherent juristiction
Superior and lower courts the superior courts are the Consitutional court, the High courts and the Supreme court of appeal The subordinate courts, known as lower courts, include the magistrates court established in terms of the Magistrates court act 32 of 1944, small claims courts that have limited justistiction and are conducted according to simplied procedure to hear minor claims in terms of the small claims court act 61 of 1984.Custumary courts other bodies vested with judicial powers, established by virtue of particular legistlation for ex. childrens courts and liscencing bodies.
Meaning of inherent juristiction Civil procedure as applied in superior courts does not depend solely of statuetory provisions and the rules of court. "Inherent juristiction" means that its juristiction is derrived from common law and not from statue, one of the implications of a superior court exercising its juristiction is that it has a discretion in regard to its own procedure, in opther words it may condone any procedural mistakes or determine any point of procedure. Consitution confirms this common law power, s173 states "The Constitutional court, the Supreme Court of Appeal and the High Courts have the inherent power to protect and regulate their own process"
"Creates of Statue" Lower Courts have no inherent juristiction, they derrive their powers from the particular statute that created them cosequently each enabling statute must be carefuly interpreted in order to determine the scope of the jusrictiction so confered.
SU4 Sources of Procedural Law
Intro: Civil procedure of the High court does not consist solely of statutory provisions and rules of court. A substantial part of it consists of common-law rules.
Statutory law Supreme Court Act 59 of 1959. (pertinent to the High Courts) Magistrates' Courts Act 32 of 1944 Small Claims Courts Act 61 of 1984
Rules of Court Until 1965 each division of the then Supreme court had different rules of court. Uniform Rules of Court then took effect from 15 January 1965 (Sumpreme Court Act of 1959). Magistrates' Courts Act of 1944 similarly came into operation on 30 August 1968. The Rules board established 1985 was conferred with the power to make rules for the various high courts and the Supreme Court of Appeal. Members of the rules board are appointed by the Minister of Justice for a period of five years and are eligible for reappointment; they are meant to makem, amend or repeal rules "for the efficient, expeditious and uniform administration of justice", compedence to make rules for all these courts vests with the rules board. s16 of the constitutional court complementary act 13 of 1995 provides that the president of the contitutional court in consultation with the chief justice may make rules relating to the manner in which that court may be engaged and for all matters relating to the proceedings of and before that court. The present rules of the Constitutional court came into operation on the 23 October 1998, the minister of justice may make rules that regulate the proceedings in small claims court.
whether or not to commence the proceedings and the defendent has the choice whether to consent to the judgment, defend the action, or ignore the summons and accept the default judgment. Both parties may also negiotiate an out of court settlement. However, both litigants must conduct proceedings according to certain minium standards prescribed by the rules of court. Party representation, refers to competence of litigants to investigate, formulate issues in dispute, present facts and prove these facts and raise a legal arguement in support of these facts before a court. This supports the idea that litigants should be masters of their rights.
Role of the court Role of the judicial officer is passive, except in small claims court. In that the judicial officer is restricted to evidence that litigants have chosen to present, the judical officer is not responsible for ensuring that each litigants case is complete, reaches a desicion based purely on what litigants present, may not participate in pre-trial stage- this may only occur when it is requested by one of the litigants. However principles of party procedure and representation do not have unqualified application, the judicial officer may direct the case within the confines of the issues presented by the parties during the trial stage. There is a growing tendency to promote judicial activism.
The legal profession In principle ever litigant is entitled to appear personally before the court, however because conduct of litigation is so specialized litigants instruct agents on their behalf, members of the legal profession. This occurs within the context of adverseial procedure, consequently legal representatives are duty bound to promote and protect clients interests'.
Critial appraisal ~Litigants In theory both litigants have equal oppertunity to present a case, however dont always have same financial resources, nor are the skills of legal council equally matched, rivarly caused by the competative approach does not ensure that litigants will fully disclose facts, in pyschological terms an adverserial approach to litigation does not reconcile the litigants but tends to excentuate their differences and consequently hightens the confict. ~Competative representation Because of the technical nature of procedure, and competativeness of proceedings, lawyers must reinterpret litigants rights and interests into procedural terms, consequently the lawyers meet the demands of the system but very often do not represent litigants human needs. Divorce increases animosity. ~Public proceedings Courts are public institutions because they have a public function, proceedings are conducted in open court, consequently private grievances and highly confidential commercial matters are made public. ~Delay "Justice delayed is justive denied", delayed is caused by technical nature of procedure, formality of proceedings and competative tactics and strategies that are the inevitable result of adverserial litigation. This has serious personal and financial consequences for the litigants. ~Costs of litigation Access to the courts is free, court administration and time is provided by the state at no cost, problem lies with transactional costs of litigation. owing to the complexity of legal issues represenation by a lawyer is normally essential, lawyers charge a fee that is often beyond the means of an average citizen, the result of this is that recourse to the courts is restricted mainly to those who can afford it or who qualify for legal aid. ~Adjudicatory process The judicial officer decides the matter impersonally. Attention focuses on the weight of evidence and merits of the legal arguements, because adjucation occurs in an adverserial setting, judgement is granted in favour of one of the litigants unless absolution of the instance is granted. The system does not permit a method of decision making that reconciles the litigants, which increases the tension between litigants, especially where they are bound to each other in long term relationships, the judgment of the court is enforced by execution procedures that are sanctioned by the state. Compliance with the judgement is ensured by means of coersion not by means of consent of the parties concerned.
~Reforming civil procedure The first way to reform civil procedure by means of continual revision of the rules of court, primary responsibility of the rules board. Another method; increase the juristictional limits of lower courts to give more people access to court at lower costs, another method is to exclude specific types of dispute from the court system, for example, the labour relations act 66 of 1995 which prescribes dispute resolution procedures and also establishes courts that deal only with labour matters Establishing alternative fora; the small claims courts have been established as alternatives to litigating in the magistrates court, to extend access to justice in cases of small claims relating to consumer matters and minor disputes that are not worth the cost of litigating in a higher court. The final method encourges resolution of disputes outside of the court system through use of informal dispute resolution processes. This means that informal processes have been incorperated into the rules of court to encourage the settlement of disputes by means of arbitration or mediation so as to save costs avoid delays or make allowances for personal interests.
SU7 Small Claims Courts
Objectives and underlying principles Regulated by the small claims court act 61 of 1984 they were introduced in order to achieve the following objectives .Making administration of justice more accessible, provide a forum for the settling of minor civil disputes, remove time consuming formalistic and expensive procedures, introduce informal and simplified procedures, further reduce the cost of litigtation, by prohibiting legal represenatives, establising a consumer orientated court. The purpose of the act is to solve problems experienced by litigants in other existing courts, it extends the basis of every citizens right to have access to justice, this is facilitated by self representation, simplified pre-trial procedures and granting the commissioner an iquisitorial function. This does not give small claims courts an inferior status. They are part of the structures of the court system, recognised in terms of s166 (e) of the Consitution, their judgements are binding and execution of the judgment is enforced by the state. The short commings of the small claims court should be recognised, the very low juristictional limits restricts it to extremely minor claims, certain claims are totally excluded, only natural persons may appear, review of proceedings is permitted, but appeal is prohibited.
Differences: Small claims courts and other courts Representation by member of a legal profession is disallowed, pre-trial proceedings are informal, the rules of evidence have been relaxed, the roll of the judicial officer has been radically modified. Relationship between the litigants remains adverserial, in other courts, the judicial officer has a passive role
Establishment and nature Minister of justice may by notice in the government gazzette establish small claims courts in any district of a magistrates court S2 (small claims court act), the officer presiding is called the "commissioner for small claims" and is appointed by the minister ss8 and ss9 (1). Its not a court of record, ie. proceedings during a trial are not put into writting, one exception, the commisser must record the judgment/order and sign it, s3(1-2), like all other courts the proceedings take place in open court except in extraordinary circumstances s4. Process of small claims courts is effecive through the republic ss3(4).
Right of appearance Only natural persons are allowed to commence an action, juristiction person may become a party to an action as a defendent s7(1), this restriction maintains small claims courts as consumer courts, which would otherwise be used by juristic persons to collect small debts, defeating the itention and purpose of the court. Litigants must appear in person and may not be represented by any other person during the trial s7(2) however, it is important to consider the provisions of s7(4) that a juristic person may be represented by its authorised officer or other officer, in practice this means that as a defendent in an action a juristic person could be represented by one of its in house attorneys, this would place the plaintiff at a dissadvantage.
Juristiction The area of juristiction of small claims court is that area or district in which it has been established s12.
instituted in another court.
Concept of territoriality in consitututional terms south africa is a unitery state, however the organisation of the superior courts is closer to that of a federation since various high courts exist each serving a specific geographical area, each of these courts is largely indepdent of the other high courts. This territorial indepdance of various high courts causes juristictional problems. In other unitery states juristictional issues usually deal with whether a superior or lower court may hear a matter or where different superior courts exist to hear different types of litigation, it must be decided whether the correct court has been chosen in light of the type of claim concerned in South africa, each high court has original juristiction over all causes arising in its territorial area
Definition of juristiction ~As regards civil procedure The definition of the term juristiction in context of civil procedure given in Halsbury laws of England "By juristiction is meant the authority which a court has to decide that are litigated before it or to take cognisance of matters presented in a formal way or decision". In Ewing mcdonald and co Ltd. v M&M products, the court defined juristiction as follows "Juristiction... means power vested in a court to adjuicate upon, determine and dispose of a matter" In both definitions the following 2 requirements are emphasized, 1 The court must have authority to hear the matter 2 The court must have the power to enforce its judgment The first, namely authority to hear a matter requires the prescence of some link or nexus between the court and the parties or the cause of action (ratio juristictionis) the power to enforce a judgment is derrived from the docterine effectiveness.
SU9 The structure of the superior court system
The various courts The Constitutional court, the highest court of appeal in Constitutional cases. Court of first instance in respect of certain constitutional issues. The supreme court of appeal, used to be known as the appellate division of of the supreme court. High courts; these comprise the former provincial and local divisions of the supreme court.
The function of the various courts ~The consitutional court in Jo-burg the matter which comes before the constitiutional court must be heard by at least 8 judges, its juristiction is set out in s167 (3)-(7) of the Constitution. It has 4 functions, Highest court of appeal in respect of Consitutional matters, s167(3), it is the only court, which may hear disputes between organs of state at a national or provincial level hear certain applications by the legistlature, over the constitutionality of the parlimentary and provincial bills and acts, take decisions on whether parliment/president has failed to comply with a Constitutional duty and to certify provincial constitutions. As regards these matters the constitutional court has exclusive juristiction. This court may in exceptional circumstances grant anyone direct access if it is in the interest of justice to do so s167(6a). The final function of the constitutional court is to confirm orders made by other courts, in which parlimentary or provincial legistlation is declared invalid, until the constitutional court confirms an order of invalidity, it has no force s167(5). Therefore it can function as a court of first instance or a court of appeal. ~Supreme court of appeal Situated in Bloemfontein, functions only has court of appeal, it hears appeals from the various high courts. May hear appeals on constitutional and non-constitutional matters, it is the highest court of appeal in non-constitutional matters, and its decision is final. In constitutional matters a further appeal may lie to the Consititutional court. ~High courts situated in various major centres in south africa, courts of first instance in litigation where the amount concerned or the nature of the claim is outside the juristiction of the magistrates courts. Also function as courts of appeal and review in respect of magistrates courts decisions. A full bench of the hgih court is also a court a appeal in repect of a decision of single judge of that court.A high court may hear any matter
that it is not prohibited from hearing by the constitution or any other legistlation.
Juristiction of the various courts ~Constitutional court, is concerned only with constitutional matters, its juristction is set out in s167 of the Constitution, s176(3)- Consitutional court hears only constitutional matter and also has the final say on whether a matter is Constitutional or not. s176(4)- sets out matters in which the constitutional court has exclusive juristiction, s176(5)- Authorises the supreme court of appeal and high courts to make decisions on the consitutionality of legistlation, however this decision has no force until confirmed by the Constitutional court. ~the supreme court of appeal juristiction is set out in s168(3) of the constitution, and s21(1) of the supreme court act, leave to approach this court is always required. ~High courts Juristiction of these courts is set out in the following legistlation; s169 of the constitution, s19(1a) of the supreme court act provides that every high court may adjudicate on any cause arising within its territorial area of juristiction, except where exclusive juristiction has been vested in another court of tribunal, also have juristiction of all persons residing in their territorial area. s173 of the constitution refers to the juristiction that derrives from common law and from the unwritten powers that the court possesses to exercise its judicial functions , appeal jurisiction in terms of s19(1i-ii) and 20(1) of the supreme court act, the result is that high courts are limited territorially only, within these limits, jurisitction is exercised in accordance with common law principles except where statute provides otherwise.
SU10 Terminology
Latin terms ~Actor sequitur forum rei, this roman law rule means a plaintiff must insititute the action in the area which the defendent is domociled, or in the area in which the defendant is domociled or resident, such rule is merely one of the accepted rationes juristictionis, if the actor sequitur forum rei rule is followed such a court is said to have jurisitction ratione domicilii ~Dominus litis More than one court may be able to exercise juristiction if various rationes juristictionis exist in respect of different court, in such instance, a plaintiff may as dominus litis (literally master of the suit) choose in which of these courts he wishes to institute the action. ~Incola and peregrenius Both these terms come from roman law, originally peregrenius meant a foriegner and incola was a resident of a particular city or province of the empire, in South African law they have special meanings,
- an incola is a person who is either domiciled or resident within a courts area of juristiction
- an peregrenius is a person who neither domociled nor resident within that courts area of jurisitction these too terms apply to each high court as a seperate entity and not to south africa as a whole, citizenship is of a country is not relevent
- when dealing with a peregrenius a distinction is drawn between a person who does not live within the jurisitctional area of a specific court but elsewhere in south africa, a local peregrenius and a person who lives outside south africa, a foriegn peregrenius ~Nexus means link, in a jurisitictional context it is the link or connection which gives a specific court juristiction over a particular person or cause of action ~Rationes jurisictionis juristictional connecting factors or rationes juristictiones, are links between the courts juristictional area and the defendant, the links accepted by our courts include domocile or residence of the defendent, commission of a delict, conclusion or breach of contract, submission in certain circumstances and the location of property where such property is the subject of the dispute. ~Ratione rei gestae Under common law a court will be vested with jurisitction in respect of monetary claims in the following instances,
- if the contract was concluded or was to be performed or was breached within the courts area, any of
In terms of common of law prinicples it was where parties were domociled , this principle has now been altered by statue.
Constitutional matters s167(3) of the consitution, defines a constitutional matter as including any issue involving the interpretation protection or enforcement of the consitution.
SU12 General principles of Jurisitction, claims sounding in money
General principles Essential question when determing juristiction in respect of monetary claims is: where does the defendant live?, different rules of whether the defendant lives inside south africa or outside the country. You must bear in mind that the courts where the defendant is resident or where the cause of action arose will all have jurisitiction to hear the action and no other requirement needs to be met, also remember s28(1) provides that no defendant that is an incola may be attachment for juristictional purposes. Where the defendant is domociled outside of south africa, two courts will have juristitction, court of domocile, court where action arose, however both courts will only have jurisiction if attachment takes place within the borders of south africa.
SU13 Where is the defendent is an Incola of some south african court
Where the defendant of the court concerned, this ground of juristiction is known as ratione domicilii, is based on the roman law maxim actor sequitor forum rei, a court has juristiction over a defendant who is an incola of its area at the time when the action is instituted, the problem encountered with this juristictional connecting factor is a procedural one, the rule states, that the defendant must be domiciled in the area at the time the action is instituted, pollak states that the action is instituted when the summons is issued and served, this was confirmed in Mills v Starwell finance (pty)Ltd. From a juristictional point of view the defendent need not be physically present in the courts area of juristiction when the action is instituted, a person may be domiciled at a place where he is not currently resident and such a court will still have ratione domicilii. If a defendant is domiciled in the area of one court and resident in the area of another, both courts may exercise juristiction on this ground.
Where the defendent is a peregrenius of the court concerned, but an incola of another court in south africa when a defendant is a local peregrenius of the relevent court, they will only have juristiction if the course of action arose within its juristictional area, this ground derrives from roman law principles and is known as ratione rei gestae, it is essential that the defendant is a local not foreign peregrenius. When does a course action arise within a courts juristictional area? All claims which are instituted are based on some cause of action, a cause of action usualy arises from a contract (ex contractu), or a delict (ex delictu) a court will be vested with juristiction because the cause of action arose within its juristictional area in the following instances: 1. Where the contract is the subject of the litigation was concluded or breached within the courts area, or where performance of the contract was intended to be effected within the courts area. The court is then said to be vested with juristiction ratione contractus. 2. Where the delict on which the claim is based is committed within a courts area, the court then has ratione delictu commissi.
It is not possible for juristiction to be confirmed or extended by attached of the defedant in contrast to the distinction of foreign peregrini defendants because s28(1) prohibits attachment of persons domiciled or resident anywhere in South Africa. This has broaded the basis of juristiction in that attachment has been rendered unneccessary and juristiction can be assumed on the ground of the cause of action. On the other hand, the power of the court to exercise juristiction has been diminished because attachment is prohibited and therefore a court cannot exercise juristiction on the ground of attachment ad fundandam juristictionem, that is attachment alone will not vest a court with juristiction.
SU14 Where the defendant is a peregrenius of all south african courts
Where the defendant is a foriegn peregrenius and the plaintiff is a incola of the court concerned, the court will assume jurisitction if the paintiff is an incola of the court and if attachment of the defendants property has taken place, this is known as attachment ad fernadum juristitctionem. The order for attachment founds juristiction, it is not neccessary that the cause of action should have arisen within the courts area of jurisitction, attachment ad fernandum juristictionem alone founds juristiction, this principle is based upon considerations which evolved through a series of court decisions, attachment ad fernandum juristictionem is not permissionable if the plaintiff is a peregrenius, courts will not adjudicate an action between peregrenii unless there is a suffiecent nexus with the area of the court, thus in the case of attachment ad fernandum jurisitictionem, the plaintiff must be incola of the court aswell.
To summersize attachment to found jurisitiction the defendant is a peregrenius of the whole republic, attachment of the defedants proeprty has taken place, the plaintiff is an incola of the court concerned
Where the defedant is a foreign peregrenius and the cause of action arose within the area of the court concerned, where the defedant is a peregrenius of the whole republic a court will be competent if, one the cause of action arose within its area, and two, the attachment of the defendants property has taken place within south africa, this is known as attachment ad confirmandam juristictionem ie. the attachment confirms the partial juristiction which a court has by reason of the fact that the cause of action arose within its area. Where a court exercise jusrisitction based on attachment ad confirmandam juristictionem, the nature of the proceedings is irrelevent provided that money is claimed, the most common grounds are ratione contractus and ratione delicti, it makes no difference to the above rules whether the plaintiff is an incola or peregrenius of the court
Attachment under the provisions of s19(1)c of the supereme court act 59 of 1959 s19(1)c provides that attachment to found or confirm jurisitction may take place anywhere in the Republic.
Procedural issues concerning attachment Attachment of the defendants property proceeds the commencement of the main action, ie. before main action an application on notice of motion is brought requesting the attachment of defedants property, onus is on the applicant to show that they have a cause of action because it is a seperate order it is decided seperately and so the court will not go into the merits of the main action, if attachment is ordered the defendants property will be subjec to attachment until judgment has been given in the main action unless such a defendant furnishes security
SU15 When submission will vest a court with juristiction
Intro Submission to juristiction although one of the general principles of our law is relevent only where montary claims are concerned. In roman dutch law and roman law, and limited form of submission was available to parties. In South African case law, submission developed until it was viewed as a further ground on which a court could exercise its juristiction, there is dispute concerning the circumstances in which submission will be sufficient to vest a court with jurstiction, position is still not entirely clear.
Person who may submitt to juristiction ~where the defendent is an incola of the court submission to juristiction by an incola defendent will never occur since the court already is vested with juristiction ratione domicilii ~Where the defendant is the peregrenius of the court concerned but an incola of some other south african court, previously assumed that such defendants could submitt to the juristiction of the court other than the court where the cause of action arose, however, in veneta mineraria spa v carilina collieries (pty)Ltd. Court held that despite submission one of the traditional grounds of juristiction still had to be present, the defendent in this matter was a local peregrenius and the court refused to accept that submission vested it with jurstiction. Since the cause of action had not arisen within its area of jurstiction. It therefore appears that a local peregrenius cannot submitt to juristiction but that the action must be instituted in the court within whose area the cause of action arose. ~Where the defendent is a peregrenius of south africa and the plaintiff the incola of the court concerned,
General principles Unlike the position regarding monetery claims, the jursitictional principles that govern issues of status are not based on the concept of effectiveness but the degree of recognition which will be given to the judgment of courts in other countries, a money judgment is seldom enforced outside the country where it was granted in contrast a judgment which changes status often requires international recognition. The basic common law principle regarding divorce is that the court of common domicile of the parties has juristiction, this makes sense as the court where the parties had their home is the court which has the greatest interest in their status and future arrangements. Private international law determines this to be the most appriopriate court, although in the past the common domocile rule was generally appropriate it caused it servere hardship to the wife. First the the "common domocile" was viewed as that of the husband, secondly in South Africa the structure of the High Courts meant that a party who wished to obtain a divorce was not able to rely on a country wide jursitiction but had to prove jurstiction within the area of a particular court, the result was that a deserted wife often found it difficult or impossible to insititute divorce proceedings, this lead to the introduction of a series of legislative changes culminating in the changes to the divorce act and the introduction of the domocile act 3 of 1992.
The concepts of domocile and residents in the context of divorce juristiction, in terms of common law a woman automatically adopted and followed the domocile of her husband throughout the substistance of her marriage she therefore lost the domocile which had prior to the marriage and forfeited her competence to aquire a domocile of choice, the wifes domocile of dependence was abolished by the provisions of the domicile act, and independent domocile for married woman is now confered under section 1(1) of the act. The divorce act 70 of 1979 Established both domocile and residence as seperate grounds for the exercise of divorce jurstiction. Accordingly the current legistlative position is that the domocile or ordinary residence of either spouse in the area of the particular high court is enough to confer juristiction. The word "domocile" when used in the context of divorce juristiction must be interpreted in accordance with s1(1) of the domocile act and not as its common law definition. The phrase "ordinarly resident" is not defined in the act, it is therefore neccessary to refer to judicial interpretation, the then appellant division described it as "His usual or principle residents... his real home" Cohen v CIR. Ordinary residence does not require the party to be continually present in the area.
Current legistlation regulating divorce juristiction The divorce act determines whether a particular high court has juristiction, the most important principle is that a court may exercise juristiction on the basis of the independant domocile or residence of either the husband or the wife. Alternatively court may exercise jursitiction if both or either of the parties are ordinarly resident in this area on the date on which the action is instituted, and have been ordinarly resident in the republic for a period of not less than 1 year, immediately prior to the institution of the action s2(1)b. A court may exercise juristiction if only one of the parties is domociled or resident in its area or juristiction, this has a number of implications. 1 Domocile resident of one spouse is sufficient to confer the competence to exercise divorce jurstiction over the other spouse 2. The domocile residence of one spouse is suffient to confer the juristiction even if the other spouse is domociled or resident outside the republic. The time with must ellapse before domocile or residence has been estbalished is unclear, s2(1)a provides if either of the parties are within the area of the court, such a court will be competent irrespective of the period of domocile. This contrasts with the provisions of s2(1)b which require a period of residence of a year within the republic. s2(2) provides that a court which has juristiction to adjudicate a claim for divorce in terms of s2(1) also has juristiction in respect of a claim in reconvention or an application in the divorce action concerned s2(3) deals with choice of law, it determines that, a court must apply its own law when adjudicating a divorce action.
Juristiction in respect of nullity and annulment Both the annulment and declaration of nullity of marriages fall outside the scope of the definition of divorce action in the dicorce act. Our law distingiushes between void and voidable marriages, an action for the declaration of nullity does not alter the status of the parties, because in reality it merely of a declaritory nature, because no valid marriage in fact existed, parties are merely seeking legal confirmation of this fact. In accordance with our common law, the following courts have jurstiction: The Forum loci celebrationis, the court where the marriage was entered into, the court where the plaintiff or
the defendant is domiciled at the time the nullity proceedings are instituted. In an action for the anullment or dissolution of a marriage which is not void but voidable, status does change, until such time as the marriage is set asside, it is in all respects a valid marriage. As soon as it is set asside the status of the parties changes and the parties are placed in a position which they were at the time of the marriage was entered into, since the provisions of the divorce act do not apply to actions to set asside voidable marriages the common law is applied; originally only the court of common domocile at the time of the inistitution of the action had juristiction, however, the domocile act of 1992 now provides that the woman can aquire her own domocile of choice during the marriage it can therefore be argued that he current position is that the domocile of either spouse can be suffiecent for juristiction.
SU18 Consitutional jurisction
Jurisitction of the consitutional court hears only consitutional matters, consitutional matter is defined as "Any issue involving the interpretation protection or enforcement of the constitution" this court has the final decision, on whether or not the matter is a constitutional one, so will itself determine what matters it is prepared to hear. As regards other matters it exercises concurrent juristiction with the high courts, the matters in respect of which it has exclusive juristiction are listed in s167(4) include disputes between organs of state, the consitutionality of parlimentary or provincial bills and certification of provincial consitutions. Unlike the position under the interim constitution, no longer has exclusive juristiction to determine whether an act of parliment is invalid and a high or supreme court may also make such a finding, it remains neccessary however for the constitutional court to confirm such a finding before the order has any force. It is possible in exceptional circumstances to approach the consititional court directly the consititional court must give leave for an approach and the applicant must show that it is in the interest of justice that the court be approached direct.
Juristiction of the supreme court of appeal This court may decide appeals on any matter, if an appeal deals with both constitutional and non-consitutional issues, appeal must be noted first to the supreme court of appeal, juristiction of the high courts and the supreme court of appeal may grant temporary relief in order to assist the party requiring relief until such time as the constitutional court has confirmed the final order.
Constitutional jurisitiction of the magistrates court s170 of the constitution does not confer any constitional juristiction but provides that other legistlation may confer juristictional on these courts, provided that is does not confer juristiction to determine the validty of "Any legislation or any conduct of the president" s110(2) of the Mag court act, provides that if it is allegded during proceedings that any law or conduct of the president is invalid, the court must continue the proceedings on the assumption that it is valid, any consititutional issue may then be raised on appeal in the high court.
SU19 Juristiction in the magistrates court general introduction
Distinction between juristiction in the high courts and jurstiction in the magistrates courts ~High courts inherent juristiction result of inherent juristiction is high court may hear any matter which it could hear at common law unless expressly exluded by statute ~Magistrates courts creates of statute This means that not only have they been created by statute but also that they can only do what some statute permits them to do. Because magistrates court may exercise statutory juristiction common law principles applied when determining juristiction in the high courts are not relevent.
Limitations on juristiction of magistrates courts ~High courts: geographical limitation, the only general limitation placed on the exercise of juristiction in the high court is geographical ~Magistrates court
2)Could payment of money in terms of a contracual debt (ad pecuniam solvendam) ever amount to specific performance, or was Specific performance limited to performance of a particular action (ad factum praestandum)? ~The first question was decided in Masisel v Camberleigh Court (Pty)Ltd 1953, the court held that the words were liited to the traditional meaning of speicfic performance in terms of a contract (and could not be wideneded to include any order to perform a particular action eg. an interdict) ~The second question question was finally decided in Tuckers Land and development corporation stated a claim sounding in money, whether the debt arose from a contract or not, could never be a claim for specific performance.
It must be borne in mind however that the courts (including the high courts) are reluctant to grant orders for specific performance, especially where: ~specific performance is impossible or contra bonos mores ~the court will have difficulty in enforcing the order ~damages provide an adequate and convenient remedy ~the same result could be achieved by means of an interdict
note s30 gives the court the power to grant interdicts, and this may APPEAR to contradict s46(2)(c), as s30 is not qualified by s46(2)(c).
Section 46(2)(c)(i): "rendering of an account" in Victor products (SA) Lrd V Lateulere Manufacturing Lrd 1975; "the right at common law to claim a statement of account is, of course, recognised in our law, provided the allegations in support thereof make it clear that the said claim is founded upon a fiduciary relationship between the parties or upon some statue or contract which has imposed upon the party sued, the duty to give an account". only when one party is in a position of trust, or when it is provided by statue, that the "rendering of an account" can be requested.
Section 26(2)(d): perpetual silence A decree of perpetual silence is a court order instructing someone who has threatened to institution ltigiation to do so within a set period. or the person is barred from ever insituting action on those factsw. In garber NO v Witwatersrand Jewish Old Age Home 1985 consider the following facots: ~ the nature and subject-matter of the claim ~prejudice to the parties ~balance of convenience ~the period of delay since the threat of litigation had commenced ~whether the threats of litigation constituted a disturbance of the applicants rights.
SU21 s29 limitations on the amount of the claim
Magistrates court act 32 of 1944* print and read General In this study unit we discuss the financial limitiations placed on the magistrates court, which mean that even if a plaintiff has an action which a magistrates court may hear he cannot institute that in a magistrates court if the amount claims exceedings the financial limits imposed by s29.
The provisions of s
~Section 29(1): Subject to the provisions of this act This refers to other sections of the act dealing with jurisdiction, remember s45 which sets out how to consent to a claim which exceeds the limits of s
~Section 29(1): ...causes of action... action... In section 29 we refer to cause of action and action the word action must be interpreted broadly and not restricted to mean proceedings instituted by way of summons only. The word refers to all proceedings in
the mag courts and includes all applications and all proceedings in terms of s30.
~Section29(1)a: ...delivery or transfer of any property... "value" in this section is actualy market value of the property. The plaintiff need not state what the value of the property is, the defendant must allege that the juristictional limit is exceeded.
~Section29(1)b: ...actions of ejectedment... where the right of occupation is in dispute between the parties... Action for eviction is not a claim for specific performance, its difficult to lay down general rules to determine whether "right of occupation exceeds R100,000 in clear value to the occupier" but note the following:
1 rental for the premises is not always correct criterion for calculating value.
2 capital value of the premises is not neccessarily an indication of the value of the value of occupation.
3 Where premises are occupied for residential purposes the right of occupation is probably equal to the rental of similar premises calculated over the same time period of occupation.
4 If premises are being occupied for business purposes, the value of the right of occupation is probably equal to either: a) cost of renting other premises on which the occupier can expect to make the same profit b) the amount of profit which the occupier is reasonably expected to make on the premises in dispute
~Section 29(1)c actions for the determination of the right of way notwithstanding the provisions of s Provisions of s46 are excluded here, so it is irrelevent where the right of way is in order for specific performance, also not neccessary to determine value of right of way, as no limit is placed on the value thereof, so magistrates courts may create or confirm any right of way irrespective of tis value to the parties.
~Section 29(1)d ...Liquid document or morgage bond... Liquid document is a document in which a debtor admits that he is liable for a fixed/ascertainable sum of money, note that a financial limitation relates to the amount that may be claimed in a summons, not amount of liquid document or bond
~Section 29(1)e ...credit agreement as defined in s1 of credit agreements act 75 of 1980... Credit agreement is an agreement for isntallment sale/lease transaction, found when purchaser cannot pay the full amount but recieves the goods and pays the amount due in payments over a period of time, plaintiff in such an action may seek either recovery of property he sold, or payment of money owing in terms of the agreement if he seeks recovery, the value of the property at the time of the claim does not exceed the financial limit, if the plaintiffs claim is for one or more of the outstanding payments each one must not exceed the financial limit although, the total amount may exceed the limit.
~Section 29(1)f ...actions in terms of s16(1) of the Matrimonial property act 88 of 1984... Section 16(1) of this act provides where a spouse refuses to or cannot give consent to transactions which require the consent of both parties either spouse may approach the magistrates court for assistance, court is approached by way of application and may authorise the transaction, in all those instances the matrimonial property act provides that court (high court) this exception was presumably introduced to enable the spouse requiring consent to avoid the cost of launching an application in the high court
~Section 29(1)fA Actions including an application for liquidation in terms of the closed corperations act 69 of 1984 This is the only insolvency application that a magistrates court may hear.
~Section 29(1)g ...Actions other than those already mentioned... This is relevent when claims in the alternative are adopted, neither the value of the claim nor of the
jursiitction in terms of s28(1)(f). ~s28(1)(d): ...cause of action arose wholly within the district Juristiction is determined by where the cause of action arose, not where the defedant is found, common law juristiction may be exercised ratione rei gestae in the high courts. However in the high courts the cause of action need only have arisen partially for a court to be vested with jursitiction, in the mag courts the act provides the cause of action must arise wholly in the relevent area before a court will be vested with juristiction. Wholly in the context of the act means: describe in Abrahamse & sons v SARH as the "entire set of facts which give rise to an enforable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim, it includes all the plaintiff must set out in his declaration in order to disclose a cause of action" the facto probanda must all have occured within the juristictional area of the court concerned but not the facta probuntia. note the following rules 6(5)(f) provides that should the plaintiff sue in terms of capacity confered by s28(1)(d) the summons must state that the cause of action arose wholly within the district to this subjection cannot be used to establish juristiction in respect of claims based on credit agreements in such instances juristiction must be founded on one of the other sub sections of s28, the only instance in which jursitction may be established in terms of 28(1)(d) is in respect of claims based on credit agreements, is when the credit reciever no longer resides in the republic. ~s28(1)(e): any party to interpleader proceedings... interpleader is a form of procedure by which a person in possession of property which is not their own and which is claimed from them by 2 or more other persons is able to call upon the rival claimants to such property to appear before the court in order that the right to such property be determined. This procedure is followed where the sherriff of the mag court has attached property and more than one person claims a right to the property. ~s28(1)(f): any defedant who appears and makes no objection this is a restatement of common law, ito s28(1)(f) we are dealing witht he failure to object to the courts juristiction. ~s28(1)(g) any person who owns immovable property the effect of this section is to extend juristiction to persons who own immovable property within the area of the court, but who are otherwise not subject to the courts juristiction in terms of any other provision of s28(1). The action must be in respect of that particular property or it must be in respect of a morgage bond registered over such property, it must be stated in the summons that the property concerned is situated within the district rule 6(5)(g). ~s28(2) The state as defendant the words person and defedant also include the state, minister of law of order v Patterson had to decide which mag court was competent to entertain an action against the state, Pretoria is regarded as "the seat of government of the Republic" thus the "place of business" of the state ito s28(1) is Pretoria.
The provisions of s30 bis Whether this implies that a person who is domociled in south africa but currently resident here may be subject to arrest or attachment in the mag court has not been decided yet. This section must be interpreted in the light of the equivilent common law position in the high courts, therefore if a plaintiff whishes to arrest someone or attach his property in order to found juristiction, the plaintiff must be resident in the district of the mag court concerned, similarly if a person wishes the court to grant arrest or attachment in order to confirm juristiction the whole cause of action must have arisen in the courts jurisitictional district ito s28(1)(d).
The procedure for obtaining an order for an arrest or attachment mag court rule57 gives detailed instructions, the application make ex parte, once the arrest or attachment has been ordered, the respondent is given an oppertunity to approach the court to discharge or alter the order the rule also provides that the court may require the applicant to give security for any damages that may be caused to the respondent by the order if it later appears that the order should have not been granted.
SU23 Other provisions that determine whether a magistrates court may exercise jursitiction
General
Following sections all deal with question of whether any magistrates court is competent to hear an action and make the required order. s30 provides a magistrats court may grant interdicts, s31 and s32 forms of interdicts. s37determine a matter which a magistrates court may hear and decide on matters outside its juristiction. s50 deals with how a defendent can transfer matters to the high court.
Provisions of s30 interdicts ~Intro Section30 provides that magistrates courts have juristiction of various kinds of orders which are otherwise excluded in terms of s46(2)c, in terms of s30, may grant interdicts, attachment orders, mandamentem van spolie and arrests tanquan suspectus defuga ~Interdicts An order that someone must not perform an act is a prohibitory interdict, that someone must perform an act is a mandatory interidict, a final interdict is an order that remains permanently valid, temporary interdicts are granted either for a particular period of time or as an interim measure. It is clear that a mandatory interdict could be viewed as a form of specific performance prohibited by s46(2)c however in Bardenhorst v Theophanous 1988 it was held that the magistrates courts may nevertheless grant mandatory interdicts provided that it does not amount to "orders ad factum praestandum in terms of a contractual obligation", it is difficult to determine the financial value which must be placed on an interdict, it seems that if nothing appears to the contrary in the pleadings or in evidence or if the defendent does not dispute the paintiffs obligation that the matter falls within the limits set by s29 the court will have juristiction, however if the plaintiff decides to institute action in the high court this court will not penalise a plaintiff by making an order for costs in the lower magistrates court scale or grant costs on the high court scale. ~Mandamatum van spolie Is a form of interdict known as a restitutionary interdict because it forces someone to return property that they have taken from another unlawfully, a person applying for the order need not be the owner of the property or even be in lawful possession of the property. The object of Mandamentum is to prevent people from taking the law into their own hands, therefore the court doesnt go into the merits until a person whose possession was disturbed regains possession, for this form of order appears to contravene s46(2)c, however the order is not open "in terms of a contractual obligation" held that mandamatum does not contravene the provisions because s46 is not concerned with "extraordinary remedies of a temporary nature" Zinman v Miller. The value of the property will determine whether the magistrates court is prohibted by s29. ~Arrests "tanquam suspectus defugo" When a debtor owes money to a creditor, creditor cannot enforce payment until there is a judgment against the debtor therefore a debtor sometimes tries to leave South Africa before a judgment has been given, the arrest tanquam suspectus defugo was available at common law, but has been included in both the uniform rules of the high court and in the magistrates court act and rules. In terms of this procedure, the debtor who tries to leave can be arrested and compelled to give security for the expected judgment in the case, this has a two fold advantage, the debtor pays an amount so that the creditor is reasonable certain of recovering the debt, or the debtor remains under arrest until judgment. ~Attachments In actions where the payment of money or relief in regard to property is sought, it is possible to attach property of the defendant to obtain security, attachment of property in terms of s30 is not always available, a person applying with an attachment, must show that it is likley that the respondent will dispose of property or abscond with his assests, attachments are also granted when a person fails to keep up payments on a credit agreement and the creditor wants to protect his position by attaching the goods which he sold to the debtor to safeguard them.
The provisions of s31 and s32: rent interdicts ~Intro When a lessor falls behind on his rental, the landlord requires a tacid hypothec over household effects (In vecta et illata) which are on the property for which the rent is owed, the moment household effects are removed tacid hypothec falls away, the landlord must therefore ensure that the household goods remain on the premises in order to maintain the hypothec, this is done by obtaining a special form of interdict, an attachment order which prohibits the removal of goods from the leased premises.
