Discuss the procedure to be followed by a prospective litigant before

instituting action against an organ of State. You are also required to refer
to the applicable time frames. (6)

In terms of section 3 of the Legal Proceedings Against Certain Organs of

State Act a person must a person must, before instituting action against an
organ of state, give notice in writing 6 months from the date on which the
debt became due.

The organ may however consent to the institution of the action without
notification or may accept a notice that does not comply with the
requirements.

The notice must be served on the organ of state by delivering it by hand or

by sending it by certified mail or in certain instances by means of
electronic mail or by fax.

The notice must contain a brief summary of the facts giving rise to the debt
and the particulars of such debt as are within the knowledge of the
creditor.

The action must be instituted by serving the summons, in the ordinary

way, as provided for by the rules of court.

However, the action may only be instituted after 30 days have elapsed
from the date on which the notice was given.

What is meant by the term “locus standi”? (6)

This term is used in two senses. First, the term may be used to refer to
the capacity of a natural or juristic person to institute or defend legal
proceedings, i.e. capacity to litigate.
 Every natural legal person may sue or be sued if he is of full legal
capacity.

Certain types of natural persons do not, however, enjoy full legal capacity
and may not appear as parties in legal proceedings without appropriate
assistance. So, for example, a minor lacks locus standi and has to be
assisted by his guardian.

Secondly, the term is used to refer to the right of a party to claim the relief
and the interest which a party has in the relief claimed.

In this sense a plaintiff or applicant would be said to lack locus standi if his
claim was not enforceable by him. In order to establish this, one has to
ask:

whether the claim is based on a legally enforceable right; and

whether the particular plaintiff or applicant who has brought the claim is
interested closely enough to enforce that right

Discuss and illustrate the differences between the action and application
procedure. (6)

The action procedure is marked by a fairly extensive period of the exchange of

pleadings followed by a period to prepare for trial and then the trial until judgment
is given

The application procedure is said to be a relatively short procedure when

compared to the action procedure. As a rule, evidence is presented to court by
means of affidavits

In the action process the parties are called plaintiff and defendant and in
applications they are called applicant and respondent.
The action process commences with the issuing of a summons and applications
commence with the issuing of a notice of motion and supporting founding
affidavit.
In most case the action process deals with a substantial dispute of fact and one
cannot use the application process if a substantial dispute of fact is foreseen.
Further pleadings are exchanged in the action process if the matter becomes
defended. Further affidavits are exchanged if an application becomes opposed.
In the action process there is a stage called preparation for trail and this process
is not used in the application process.
The defended action process ends in the trial court where oral evidence is
presented. The opposed application process is determined mostly by the court
considering the affidavits and argument by all parties. Oral evidence is only
presented in exceptional cases.

What is meant by extinctive prescription and what are the different time
frames prescribed in the Prescription Act of 1969. (12)

The Prescription Act of 1969 provides for different extinctive prescription time-
periods, depending on the type of debt and in some instances the type of debtor.
Thirty years in respect of:

a debt secured by a mortgage bond;

a judgment debt;
any debt in respect of tax levied in terms of any statute;
any debt owing to the state, regarding the prospecting for and mining of
minerals or other substances.

Fifteen years in respect of a debt owing to the state arising from a loan of money
and the sale or lease of land, unless a longer period applies under (a) above.

Six years in respect of a debt arising from:

a bill of exchange or any other negotiable instrument (for example, a

cheque or promissory note); or
 a notarial contract unless a longer period applies under (a) or (b) above.

Three years in respect of any other debt, unless specifically provided for by
statute.1

The time-periods are calculated by making use of the ordinary civil method of
computation in this respect.

It must be noted that prescription must be pleaded specifically and the court will
not take notice of prescription mero motu. Thus, even where a claim has become
prescribed judgment may still be granted if prescription is not formally raised by
the defendant.

Under what circumstances will a letter of demand be required to complete

the cause of action? (5)

Where the cause of action is based on a breach of contract and the terms of the
contract require a letter of demand.

It will also be essential to place a debtor on terms when a creditor intends to

cancel an agreement, where the original agreement contains no right to
automatic cancellation as well as to place a debtor in mora where no date for
performance has been agreed upon

Where a party wishes to claim in mora interest in the latter case, he will have to
indicate that he did send a demand to the counterparty placing him in mora.
Interest will then be levied from the date on which the period for payment as
mentioned in the letter of demand, expires.

Where return of a vehicle is claimed in accordance with the National Credit Act, a
notice in terms of section 129 of the said Act must first be forwarded to the
consumer.

1
See for example, s 135 of the Liquor Act 87 of 1977.
Where for instance, an organ of state like the Ministry of Safety and Security is
sued on the basis of a delict committed by a person in the police services, then
the prospective plaintiff must, before instituting action against such an organ, give
notice in writing 6 months from the date on which the debt became due, usually
as from the date on which the delict was committed

Your client claimed that he was unlawfully arrested by members of the

South African Police service and detained for 72 hours before he was
released on 12 January 2021. He consulted with you as his attorney today
and his instructions are to issue a summons against the police for unlawful
arrest and detention. What will be the first step for you to take? Discuss
briefly what you will do and time limits, if any, applicable. (5)

Firstly you need to consult properly to obtain all the relevant information as to the
exact circumstances of the assault, the place where and if known the identity of
the police officers or whether your client will be able to identify them.

Open a file for your client with an account number and make extensive notes of
the consultation.

Obtain names and or identities of any prospective witness.

Issue a letter of demand to the Commissioner of Police and have it served by

way of registered post, email or hand delivery.

The letter of demand must be served before the expiry of 6 months from the
incident. Where you file it late you may request the Commissioner to condone
the late filing and if they fail to condone or to respond bring an application to court
to condone it.
Ensure that the summons is issued 30 days after the letter of demand but before
the expiry of 3 years because your claim will become prescribed thereafter.
 Discuss the factors to be considered in order to establish whether a
particular court has jurisdiction to hear a matter in terms of the common
law. (10)

At common law, in order to determine whether a particular court has jurisdiction

in any matter brought before it, it will consider the following two factors:

Whether one or more rationes jurisdictionem apply to the circumstances of the

matter.

Whether an order given by the court would be meaningful (or effective).

At common law, the general rule is that a court will assume jurisdiction only if

there is a recognized link between it and the matter before it. The link may relate

to the locality of (a) the defendant (or respondent); (b) property which is the

subject matter of the litigation; or (c) the cause of action. Therefore, the

existence of such a link will depend largely on the nature of the action and/or the

subject matter of the action. Such a link is often referred to as a ratio

jurisdictionis.

The principle of effectiveness is an important consideration in the determination

of whether a court has jurisdiction to adjudicate a matter. 2

The following principles are also important in terms of the common law

The principle of ‘actor sequitur forum rei.

The general rule regarding the institution of legal proceedings, actor sequitur

forum rei, entails that the plaintiff (or the applicant) follows the defendant (or the

respondent) to his forum and institute proceedings there.

2
See ch 4 where the principle of effectiveness is discussed in more detail.
The principle of effectiveness

The basic theme underlying the territorial jurisdiction of our courts is the doctrine

of effectiveness. In terms of this principle, a court should ordinarily assume

jurisdiction only in those cases where the court is able to give effect to the order

which it makes so as to make that order meaningful.

The principle of convenience

A court may be inclined to assume jurisdiction on the basis that it is most

convenient for it to so in the circumstances. A court will therefore, often assume
jurisdiction on the basis that the ‘cause of action’ arose within its area of
jurisdiction. The area in which the cause of action arose is the area where the
facts, upon which the plaintiff’s claim is based, occurred. It will be convenient for
that court to entertain the matter because it is likely that most of the evidence will
arise from that area and that most of witnesses will be domiciled or resident
within that jurisdiction.

Discuss the basis of jurisdiction of the High Court with regard to territory
as set out in section 21 of the Superior Courts Act. (7)

Section 21(1) specifically mentions two alternative grounds of jurisdiction:

The fact that a person is “residing or being in” its area of jurisdiction; and

The fact that the “cause” arose within its area of jurisdiction.

Section 21(1) does not set out how that territorial limitation is to be determined.

Such territorial limitations are, therefore, determined according to the common

law principles. At common law, in order to determine whether a particular court

has jurisdiction in any matter brought before it, it will consider the following two

factors:

Whether one or more rationes jurisdictionem apply to the circumstances of the

matter.

Whether an order given by the court would be meaningful (or effective).

Discuss jurisdiction of the High Court in in respect of proceedings relating

to immovable property. (12)

The general rule is that the court, in whose area the property is situated (forum
rei sitae) will have jurisdiction to determine matters which affect the rights in such
property. Therefore, as a general rule, it will be less important whether the
plaintiff or defendant is either domiciled, resident or physically present within the
court’s area of jurisdiction. However, the question is whether the forum rei sitae
has exclusive jurisdiction.

It seems clear that the forum rei sitae will have exclusive jurisdiction in respect
of:

Proceedings to determine title to the property;

Proceedings aimed at obtaining a declaratory order to the effect that a real right
is held in the property or that the property is free of an alleged real right; and

Claims for the handing over of occupation or possession of property.

It appears that, in respect of the following types of claims, the forum rei sitae will
have jurisdiction, but not exclusive jurisdiction:
Claims for the transfer or partition of immovable property. This involves claims in
which the Registrar of Deeds is called upon to effect a change in the Deeds
Registry. In such a case, a court may assume jurisdiction on the ground that the
defendant is an incola of its area because it then has the power to compel him to
execute a deed of transfer.

Claims for the rescission of a contract for the sale of immovable property.
Although, it seems clear that the forum rei sitae will have jurisdiction in such a
case, it is unclear whether any court, other than the forum rei sitae, will have
jurisdiction.

Proceedings for a declaration that property is executable. This will often arise
where a mortgagee, suing on a debt secured by a mortgage bond, passed in his
favour, asks for such an order.

An application to sell or mortgage a minor's immovable property is usually

brought before the court of the minor's domicile. In fact, in such matters, it is not
even clear whether the forum rei sitae has jurisdiction.

You are an attorney in Bizana and your client Vuyani approached you to
claim the sum of R250 000,00 from Nomfundo. Both of them are residing in
Bizana and Vuyani approached you to advise him as to whether he can
institute action in Bizana Magistrates’ Court. Advise him as to his options
with regard to the court in which proceedings can be instituted and the
consequences of the different options. (5)

The Magistrates’ Court may in principle hear a case involving amounts not
exceeding R200 000.
The client may abandon R50 000 and then claim R200 000 only. In that case he
may not claim the R50 000 later.
Therefor he can institute proceedings in Bizana Magistrates’ Court

In terms of section 28(1)(a) of the Magistrates’ Court Act a court has jurisdiction
over any person who resides within the district or regional division of that court.
“Any person” relates to the defendant only.

If the client is not prepared to abandon the R50 000 then proceedings must be
instituted in the regional division.

He can also institute proceedings in the High Court but then he will only be
entitled to costs on the lower court scale.

Your client resides in Mthatha and he wants to sue Zoleka who resides in
Mqanduli for payment of goods sold and delivered to Zoleka in Mthatha for
R150 000.00. Which court/s will have jurisdiction and give reasons.
(3)

The Mqanduli Magistrate’s Court has jurisdiction because Zoleka resides within
that district in terms of section 28(1)(a).

The Mthatha Magistrate’s Court will only have jurisdiction only if the cause of
action arose wholly within that district in terms of section 28(1)(d). In this case it
will depend as to whether the agreement to sell was entered into in Mthatha and
if payment had to made in Mthatha. If that is the case then summons can be
issued here as well.

John and Stephen entered into a contract for the sale of a house situated
in Mthatha. The purchase price of the house is R800 000.00. John resides
in Durban and Stephen in Cape Town. John paid the purchase price, but
Stephen refuses to transfer the property to John. John approached you as
his attorney to claim transfer of the property. In which court/s will you
institute the proceedings and give reasons for your answer. (4)
The case has to go to the High Court as of the value of the property exceeds the
jurisdiction amount of the lower court.

Summons can be issued in Western Cape Division as the defendant (Stephen)

resides there.

As the property is situated within Mthatha the proceedings can be instituted in

the Eastern Cape Division, Mthatha or In Makhanda as the last mentioned court
has concurrent jurisdiction with Mthatha.

John and Sarah are married to each other and stayed together in Mthatha
for 5 years. John moved out of the house and moved to Durban where is
now staying for the last year. Sarah stayed behind in Mthatha. She
approached you as her attorney and instructed you to obtain a divorce. In
which court/s will you institute the divorce action and give reasons for
each answer. (5)

In terms of section 2(1) of the Divorce Act shall have jurisdiction if the parties, or
either party is”

domiciled within the area of the court on the date when the action is instituted or’

ordinarily resident in the area of jurisdiction of the court instituted and have or
has been ordinarily resident in the Republic for one year immediately prior to that
date.

It will be more convenient for Sarah to institute proceedings in the Eastern Cape
Division Mthatha as she is domiciled or resident in the area.

She can also issue summons out of the Natal Provincial Division as Stephen is
residing there,

She can also issue summons out of the Regional Division, Mthatha or Durban for
the same reasons set out above.
You issued summons on behalf of a client out of the High Court Mthatha
against a defendant who, at the time of service of the summons, resided in
Mthatha. The cause of action arose in Durban. The defendant filed a
notice of intention to defend and thereafter moved to Durban. Once he had
moved, he filed a plea in which he claims that the Mthatha court does not
have jurisdiction. Will he succeed in his special plea? Motivate your
answer. (2)

He will not succeed in his special plea as jurisdiction is determined at the time of
the issue of the summons. When the court assumes jurisdiction on the basis
that the defendant is resident within its area of jurisdiction, it is sufficient that the
defendant was resident within the jurisdiction at the time of institution of action
and it does not matter that, while the trial is pending, the defendant moves out of
the court’s area and takes up residence elsewhere.

Discuss jurisdiction of the magistrate’s court with reference to the ways

provided for in the Magistrate’s Court Act in which the parties to an action
may extend the jurisdiction of the court so that actions involving higher
amounts than those set out in section 29 may be adjudicated upon by the
magistrate’s court. (5)

When the plaintiff’s claim exceeds the jurisdiction of the Magistrates’ Courts, the
plaintiff may, in his summons or at any time thereafter, explicitly abandon portion
of the claim in order to bring it within the jurisdiction of the court. This is dealt
with in terms of section 38 of the Magistrates’ Courts Act.

It is important to note that if the abandonment is made after the issue of

summons, the summons should be amended, in terms of MCR 55A, to include
the particulars of the abandonment.

If any part of the claim is abandoned it shall be deemed to be extinguished.

In order to bring a claim within the monetary jurisdictional limit of the Magistrates’

Courts, a plaintiff may in terms of section 39, in his summons or at any time

thereafter, deduct from his claim, any amount admitted by him to be due by

himself to the defendant, irrespective of whether that amount is liquidated or

unliquidated.

The parties may consent in terms of section 45 to increase the monetary

jurisdictional limit of the Magistrates’ Courts. In such a case a matter may be

adjudicated in the Magistrates’ Courts, even if the amount claimed exceeds

R200 000 or R400 000 in respect of Regional Courts.

Discuss the types of claims where the magistrate’s court will never have
jurisdiction at all, even where both parties have attempted to consent to
such jurisdiction. (5)

Section 46 excludes the following types of claims from the jurisdiction of the
Magistrates’ Courts:

matters in which the validity or interpretation of a will or other testamentary

document is in question,

matters in which the status of a person in respect of mental capacity is sought to

be affected;

matters in which a decree of perpetual silence is sought; and

claims for specific performance without an alternative claim for the payment of
damages.

A magistrate’s court also has no jurisdiction in respect of divorce proceedings.

The regional division has jurisdiction however.
A magistrates’ court does not have jurisdiction to decide a constitutional issue on
the basis that the constitutional issue was incidental to the main relief claimed.