CIP 2601 Portfolio Sem 2 2015

Question 1

1(a) (i) – Small Claims Court

This type of court is known as a subordinate or lower court. Based on the statement from Herbstein and Van Winsen (The Civil Practice of the Superior Courts in South Africa, 49), the question is whether this type of court can exercise inherent jurisdiction, or is the court a “creature of statute”. The term “inherent jurisdiction” refers to whether the court derives its jurisdiction from common law or from statute. Lower courts derive their jurisdiction from the specific statute that created the court in question. Consequently lower courts are sometimes referred to as “creatures of statute”. The enabling statute governs the extent of the jurisdiction that can be exercised by the lower courts.

1(a) (ii) – Labour Court

This type of court is known as a superior court. Labour Courts in South Africa, according to section 151 of the Labour Relations Act (LRA), have the same status as a high court in respect of matters that fall within the court’s jurisdiction. The Labour Court adjudicates matters relating to labour disputes. Based on the statement from Herbstein and Van Winsen (The Civil Practice of the Superior Courts in South Africa, 49), the question is whether this type of court can exercise inherent jurisdiction, or is the court a “creature of statute”. The term “inherent jurisdiction” refers to whether the court derives its jurisdiction from common law or from statute. A High Court exercises inherent jurisdiction and they may condone any procedural mistakes and determine any point of procedure. Consequently a Labour Court can’t be classified as a “creature of statute” but rather enjoys “inherent jurisdiction” as a High Court should. Section 157 of the LRA deals with the jurisdiction of the Labour Court and should be taken into account when defining “inherent jurisdiction” of a Labour Court specifically.

1(a) (iii) – Equality Court

Every magistrate’s court (lower court) and High Court (superior court) within its area of jurisdiction can be classified as an equality court. This court hears any matter relating to unfair discrimination, hate speech or harassment. This court was created in terms of section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Equality Courts are therefore “creatures of statute” which derives its powers from the empowering statute. Although the High Court sits as an Equality Court as well, the Equality Court exists “distinct and separately” from the High Court (Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape and another (no 1) 2009 (6) SA 574 (SCA)).

1(b)

In the case of Bid Industrial Holdings (Pty) Ltd v Strang and Another 2008 (3) SA 355 (SCA), the court held that a new practice regarding when to commence with an action in order to determine jurisdiction, is to issue or service a summons while the defendant is still in South Africa. In the case of Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N) the procedural problem regarding the ground of jurisdiction where the defendant is an incola of the court (ratione domicilii) was discussed. According to the rule, the defendant must be a resident or at least be domiciled within the court’s area of jurisdiction at the time of instituting the action. The court held that the action is to be instituted when the summons is issued and served. This view was further confirmed in Baren en ‘n Ander v Lottering. It is important that the defendant has to be physically present in the courts area of jurisdiction at the time the action is instituted.

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Question 2

In order to answer the question whether court-annexed mediation is a better option to resolve disputes than the process of litigation based on a critical analyses, I will be laying out the positives and negatives of both options respectively.

Court-Annexed mediation is remains a form mediation whereby the court will order that the matter be resolved by way of mediation entered into by the disputants. The mediation in this instance will be treated as a settlement process governed by the rules of court. The only exception in this instance, because of the rules of court, is that the disputants might be ordered to divulge private and confidential information as it would normally happen in a public trial during a litigation process. This in effect, removes the private and voluntary elements of the definition of mediation as a way of resolving a dispute.

Litigation

Positive Aspects Negative Aspects

1 Mainstream module of dispute resolution – legal certainty and

procedural fairness

Will only contain one method of resolving a specific issue (Pre-defined

Rules.)

2 Litigation is a state sponsored public process.

It is a more formal process compared to mediation.

3 Formal & Technical – It protects the procedural rights of the litigants.

Litigation can become very costly for litigants if the process is long.

4 Regulated & Controlled by External Rules (Rules of Court)

Litigation is prone to delay due to process that has to be followed.

5 A Command Process – Final decision is in a form of a judgment which

makes the resolution binding and enforceable through sanction of state

which establishes legal certainty.

It concentrates on rights and not personal interests of the litigants.

6 The only process used to determine all possible civil disputes.

Litigants can resist courts orders which eliminates legal certainty.

7 The aim of litigation is to resolve a specific type of civil dispute.

Litigation focuses on past-wrongs & could lead to biased decisions.

8 All proceedings are on record for future reference and disputes.

9 Technically all court access and court time is free.

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10 The guarantee of a final resolution.

Court-annexed Mediation

Positive Aspects Negative Aspects

1 Private & Confidential Process (Unless the courts order the disputants to divulge private and confidential

information)

Lack of process formalities.

2 Informal Process (Unless certain procedural rules of court apply as a

result of being court-annexed)

No guarantee exists on procedural rights of disputants (informal process)

3 Regulated by internal rules (Unless certain rules of court apply as a result

of being court-annexed)

Not all proceedings are on record for future reference and disputes.

4 Consensual Process (Unless certain rules of court apply as a result of being

court-annexed)

The final decision is only contractually binding.

5 Disputants control the outcome and content of the mediation process.

(Unless certain rules of court apply as a result of being court-annexed)

Reliance on maturity and goodwill for compliance.

6 The mediator is impartial and neutral to the process (Unless certain rules of

court apply as a result of being court-annexed)

It can be more costly as the 3rd party costs (mediator) and other related costs

need to be accounted for.

7 Mediation can be more cost effective if the process does take too long until a

resolution is reached.

No guarantee on a final resolution and litigation might have to be used at the

end of the mediation process.

8 Various processes to choose from to resolve the dispute.

If no mutual decision is reached, more costs will be accumulated in the

litigation process.

9 There is the option to choose from informal and private processes.

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An alternative to the mainstream module of litigation.

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Addresses the interests of the disputants and avoids aggressive

bargaining about legal rights.

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Mutually beneficial which leads to voluntary compliance.

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Focus on problem solving and future relationships.

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Efficient methods to resolve issues outside of court.

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Quick and Efficient

Based the facts and comparisons stated above, the outcome of my analyses would be that mediation remains a better option for resolving a dispute, even in the event of a court-annexed mediation. In coming to this conclusion, I must add that depending on the circumstances of a unique situation, the litigation process may be a better option to resolve a dispute, however, the benefits of the mediation process far outweigh the benefits of the litigation process.

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Question 3

3(a) (i) – KwaZulu-Natal Local Division, Durban (“this court”)

The question is whether the court in question has jurisdiction in this matter. The Renaming of High Courts Act 30 of 2008 states that one of the High Court divisions is in fact the KwaZulu-Natal Division, with its local seat in Durban. The two questions to be answered when determining whether a court has jurisdiction on a matter is:

1. Does the court in question have the authority to hear the matter?2. Does the court have the power to enforce its judgment?

High courts function as courts of first instance if the amount concerned or the claim in question places the matter within the jurisdiction of a High Court. High Courts may hear matters over R4000 000.00 in value. These amounts can be referred to as financial jurisdictional limits. In this scenario, Y suffered damages to the value of R450 000.00 and wishes to sue X for the damages suffered. This matter will therefore fall within the jurisdiction of the High Court.

Section 21(1) of the SCA states that every High Court Division may hear any legal proceeding duly arising within its territorial area of jurisdiction, except if exclusive jurisdiction is vested in another court or tribunal. The proceedings need to be part of the proceedings in which the court has jurisdiction under common law.

The High Court further also has jurisdiction over persons that reside or are domiciled within the territorial area of the court, even if the person resides somewhere else temporarily during that period.

X is domiciled in London, England. Y resides in Bloemfontein, Free State. Neither X nor Y resides or are domiciled in Durban, which is the territorial area of the High Court in question; as X is merely there for business and Y is there on holiday. With regards to residence, in the case of Ex parte Minister of Native Affairs, the court stated that a person does not reside in a place if that person only temporarily visits that place. However, the accident occurred in Durban, KwaZulu-Natal. The question now stands whether the fact that the accident occurred in Durban will vest jurisdiction in this court for hearing the matter between X and Y. We need to look at a few common law definitions in order to determine the outcome of this question.

Nexus: A link has to exist that gives a specific court jurisdiction over a person or cause of action.

Incola: A person who is either domiciled or resident in the courts area of jurisdiction.

Peregrinus: A person who is neither a resident nor domiciled in the courts area of jurisdiction.

Citizenship is irrelevant with reference to these terms.

- Y (the plaintiff) is a local peregrinus of this court.- X (the defendant) is a foreign peregrinus of this court.

Rationes jurisdictionis: There must be a link between the defendant and the courts area of jurisdiction. One of the links accepted in accordance with this rule is the commission of a delict. In respect to monetary claims, a court will be vested with jurisdiction if the delict on which the claim is based was committed in the

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courts area of jurisdiction. In this instance the court will be vested with jurisdiction ratione delicti commissi.

Where the defendant is a foreign peregrinus, it is always necessary to acquire some sort of hold over that person. This is usually done by attaching the defendants’ property. This is to ensure that the courts judgment will be effective. The following rules will apply if the defendant is a foreign peregrinus (X) and the cause of action (the collision) arose within the area of the court in question (Durban). This court will have jurisdiction over the matter if all these requirements are met for this scenario. This will confirm/ strengthen the partial or imperfect jurisdiction the court will have. The last two requirements for this court to have jurisdiction is that attachment ad confirmandam jurisdictionem had to have taken place and that the claim is for money. It does not matter whether the plaintiff (X) is an incola or peregrinus of this court.

In conclusion, this court will have jurisdiction once the attachment has taken place.

3(a) (ii) – Free State Division, Bloemfontein (“this court”)

The question is whether the court in question has jurisdiction in this matter. The Renaming of High Courts Act 30 of 2008 states that one of the High Court divisions is in fact the Free State Division, with its main seat in Bloemfontein. The two questions to be answered when determining whether a court has jurisdiction on a matter is:


High courts function as courts of first instance if the amount concerned or the claim in question places the matter within the jurisdiction of a High Court. High Courts may hear matters over R4000 000.00 in value. These amounts can be referred to as financial jurisdictional limits. In this scenario, Y suffered damages to the value of R450 000.00 and wishes to sue X for the damages suffered. This matter will therefore fall within the jurisdiction of the High Court.



X is domiciled in London, England. Y resides in Bloemfontein, which is the territorial area of the High Court in question. The question now stands whether the fact that Y resides in Bloemfontein arises to this court having jurisdiction in this matter. We need to look at a few common law definitions in order to determine the outcome of this question.



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Citizen is irrelevant with reference to these terms.

- Y (the plaintiff) is an incola of this court.- X (the defendant) is a foreign peregrinus of this court.

Rationes jurisdictionis: There must be a link between the defendant and the courts area of jurisdiction. In this instance, no grounds (ratione rei gestae) exist in regards to this courts area of jurisdiction and the defendant.

Attachment to found or confirm jurisdiction

For purposes of jurisdiction, attachment refers to one of the grounds upon which the court justifies its exercise of jurisdiction with regards to monetary claims. This term is applicable in the event of the defendant being a foreign peregrinus. The claim has to be one that sounds in money.

We need to look at the attachment to confirm jurisdiction in the light of where the defendant is a foreign peregrinus and the plaintiff is an incola of the court concerned. The order of attachment therefore founds jurisdiction and constitutes the ground on which the assumption of jurisdiction is justified. It is not a requirement that the cause of the action arose within the courts area of jurisdiction. The plaintiff has to be an incola of the court concerned.

The principle based upon policy considerations evolved though a series of court findings. In the case of Einwald v German West African Co 1887(5) SC 86, the court held that the cause of action had to arise within the courts area of jurisdiction. In the case of Halse v Warwick 1931 CPD 233 the court reversed the decision of the Einwald case by adopting the approach taken in Lecomte v W and B Syndicate of Madagascar Ltd 1905 TS 295, 1905 TS 696 where the court established that if the plaintiff is an incola of the court concerned could be granted an order for attachment, even if the cause of the action arose outside the courts area of jurisdiction. As per the Einwald case, the plaintiff has to be an incola of the court for the attachment ad fundandum jurisdictionem to be permissible. This requirement ensures that there is always a connection or link to the area of the court.

In conclusion based on the facts, this court will have jurisdiction in this matter, but only once the attachment of the defendant’s property has taken place.

3(a) (iii) – Western Cape Division, Cape Town (“this court”)

The question is whether the court in question has jurisdiction in this matter. The Renaming of High Courts Act 30 of 2008 states that one of the High Court divisions is in fact the Western Cape Division, with its main seat in Cape Town. The two questions to be answered when determining whether a court has jurisdiction on a matter is:


High courts function as courts of first instance if the amount concerned or the claim in question places the matter within the jurisdiction of a High Court. High Courts may hear matters over R4000 000.00 in value.

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These amounts can be referred to as financial jurisdictional limits. In this scenario, Y suffered damages to the value of R450 000.00 and wishes to sue X for the damages suffered. This matter will therefore fall within the jurisdiction of the High Court.



X is domiciled in London, England. X also owns a holiday home in Cape Town. Y resides in Bloemfontein, Free State. The question now stands whether X resides in Cape Town because he owns a holiday home in Cape Town and if yes, does the Cape Town High Court have the jurisdiction in this matter. We need to look at a few common law definitions in order to determine the outcome of this question.

Nexus: A link has to exist that gives a specific court jurisdiction over a person or cause of action.



Citizen is irrelevant with reference to these terms.

- Y (the plaintiff) is a local peregrinus of this court.- X (the defendant) is a foreign peregrinus of this court.

Rationes jurisdictionis: There must be a link between the defendant and the courts’ area of jurisdiction. One of the links accepted in accordance with this rule is the domicile or residence of the defendant.



X is domiciled in London, England. We need to therefore at least determine whether X resides in Cape Town at his holiday home for purposes of attachment. In the case of Ex parte Minister of Native Affairs 1941 AD 53, the following principles were laid down regarding the residence of a person:

1. There has to be a distinction between domicillium and residence. X is domiciled in London but he may reside in Cape Town.

2. A person may also have more than one residence, but they need to be sued in the jurisdictional area of the court they are residing in at the time of the service of the summons.

3. If a person only visits a place temporarily, they can’t be considered to be residing at that place.

In the question it is stated that X owns the property in Cape Town. The question is whether X is an incola of this court. By owning the property it allows for X’s property to be attached as described above, however the

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question does not state that X ever resides at his property in Cape Town but merely that he owns the property. X was also not residing in Cape Town at any point as he was on in Durban for business purposes. There is also no evident fact that X ever resides at his holiday home in Cape Town. Based on the facts I would be of the opinion that X is foreign peregrinus of this court.

Ratione domicilii

This rule of common law states that the court where the defendant is either domiciled or resident, where the claim in question sounds in money, will always have jurisdiction to hear the claim.

It is irrelevant whether the plaintiff is an incola or peregrinus or where the cause of action arose in order for attachment to apply in this instance. The requirement is that the defendant must be resident within the court’s area of jurisdiction at the time the action is instituted. The defendant does not have to be physically present in the court’s area of jurisdiction at the time the action is instituted.

In conclusion based on the facts, this court will not have jurisdiction in this matter as none of the requirements were met regarding the common law rule of ratione domicilii.

3(b)

The question to be answered in this instance is, which manner can be used by Y to attach the property of X in Cape Town. It was already stated in the previous question that X is a foreign peregrinus of the Cape Town High Court. Therefore in order to answer this question, we need to look at alternative methods of attaching the property of a defendant who is a foreign peregrinus, the plaintiff is not an incola of that court and the cause of action also did not arise in the jurisdictional area of that court.

There are a couple of statutory provisions that can be discussed for purposes of this question:

1. Section 26(1) of the Supreme Court Act 59 of 19592. Section 19(1)(c) of the Supreme Court Act 59 of 1959 (later replaced by section 21(3) of the

Supreme Court Act)

It is always an essential common law requirement that a link exists between the cause of the action and the particular court or the parties and the particular court. Where the defendant is a foreign peregrinus, the link vests in the fact that the defendants property is attached.

In the case of Ewing v McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A), the court found the following regarding the impact of section 26(1) on the common law requirement:

1. It is always a requirement that the common law rule has to be met in addition to the requirement that the judgment must be effective;

2. Section 26(1) cannot be used to confirm jurisdiction but is merely a procedural enactment that makes the execution and service process more convenient.

Section 26(1) states the following:

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“The civil process of a provincial or local division shall run throughout the Republic and may be server or executed within the jurisdiction of any division.”

This section therefore means that when a process is issued by a particular court, it may be served in any other jurisdiction of any other High Court in South Africa. The process referred to can be a summons or a notice of motion. Consequently the judgment or order is also enforceable in the jurisdiction of any other High Court in South Africa. What this results to is the fact that the court is able to exercise control over the specific person (defendant) or his property even if the defendant or his property is outside the jurisdiction of the particular court. One requirement for this to be possible is that the defendant has to be an incola of the Republic. We already established that X the defendant is a foreign peregrinus which rules out the effectiveness of the judgment.

In the event of the defendant being a foreign peregrinus of the whole of South Africa and the claim sounds in money, in order to determine the jurisdiction in such a claim against the defendant (X), the attachment of the defendant’s property is a requirement. In the case of Bid Industrial Holdings (Pty) Ltd v Strang and Another 2008 (3) SA 355 (SCA), the court also had to consider alternative options where attachment was not possible.

Section 21(3) replaced section 19(1) (s) of the Supreme Court Act. Section 21(3) provides that the attachment to confirm jurisdiction may take place in any division. The contents of the two provisions are essentially the same.

Section 19(1) (c) states the following:

“A provincial or local division shall also have jurisdiction over any person residing or being outside its area of jurisdiction who is joined as a party to any cause in relation to which such provincial or local division has jurisdiction or who in terms of a third party notice becomes a party to such a cause, if the said person resides or is within the area of jurisdiction of any other provincial or local division”.

In short it states that an attachment to found or to confirm jurisdiction may take place anywhere within South Africa. The attachment does not have to take place within the jurisdictional area of the court where the action is instituted, but it may be affected in any other courts jurisdictional area of which the property is situated.

Section 19(1) was implemented to bypass the common law rule and enables the plaintiff to proceed with an action where the peregrinus defendant’s property is situated in the Republic and the property is situated and is outside the jurisdictional area of the court concerned.

Section 21(3) is subject to section 28 which prohibits the attachment of property to a found jurisdiction against a person resident in South Africa e.g. a local peregrinus. The attachment therefore does not have to take place within the jurisdiction of the court in which the action is instituted, but may occur within the division or jurisdictional area of any other court in South Africa where the property is situated.

Y can therefore approach any High Court in the Republic for an order of attachment to found or confirm jurisdiction. It is very important that Y institutes the order for attachment before he institutes the main action (for the claim). The onus is on the applicant to show that on a prima facie basis, he has a cause of action.

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3(c)

Section 42(2) of the SCA provides the following:

“A civil process of a division runs throughout the Republic and may be served or executed within the jurisdiction of any Division”

Therefore the process issued by a particular court may be served within the jurisdiction of any division of the High Court. The judgment is therefore also enforceable within the jurisdiction of any division of the High Court. Even if the defendant is situated outside of that jurisdiction and his/ her property is situated outside of that jurisdiction of the particular court, that court is still able to exercise control over the person or property. The only requirement is that the defendant is an incola of the Republic. If the defendant is however a peregrinus of the Republic, neither the defendant nor his/ her property may be in the country when the judgment is serverd which renders the judgment ineffective. Therefore, as a result of this scenario, an attachment of the defendants property is usually required where the claims is one that sounds in money and the defendant is a foreign preregrinus, for purposes of determining jurisdiction.

With regards to the facts of the case, it was already established that X is a foreign peregrinus of the Republic. Therefore as a result of this fact, an attachment of X’s property will be required in order to determine the jurisdiction of the court in question.

3(d)



We need to look at the attachment to confirm jurisdiction in the light of where the defendant is a foreign peregrinus and the plaintiff is an incola of the court concerned. The order of attachment therefore founds jurisdiction and constitutes the ground on which the assumption of jurisdiction is justified. It is not a requirement that the cause of the action arose within the courts area of jurisdiction. The plaintiff has to be an incola of the court concerned.

The principle based upon policy considerations evolved though a series of court findings. In the case of Einwald v German West African Co 1887(5) SC 86, the court held that the cause of action had to arise within the courts area of jurisdiction. In the case of Halse v Warwick 1931 CPD 233 the court reversed the decision of the Einwald case by adopting the approach taken in Lecomte v W and B Syndicate of Madagascar Ltd 1905 TS 295, 1905 TS 696 where the court established that if the plaintiff is an incola of the court concerned could be granted an order for attachment, even if the cause of the action arose outside the courts area of jurisdiction. As per the Einwald case, the plaintiff has to be an incola of the court for the attachment ad fundandum jurisdictionem to be permissible. This requirement ensures that there is always a connection or link to the area of the court.

In conclusion based on the facts, this court will have jurisdiction in this matter, but only once the attachment of the defendant’s property has taken place.

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Question 4

(i) Gauteng Division, Pretoria

The question is whether the court in question has jurisdiction in this matter. The Renaming of High Courts Act 30 of 2008 states that one of the High Court divisions is in fact the Gauteng Division, with its main seat in Pretoria. The question whether a particular High Court has jurisdiction to divorce matter is determined by the Divorce Act 70 of 1979.

The most important principle in answering this question is that the court may exercise jurisdiction on basis of the independent domicile of either the wife or the husband. Domicile and residence for purposes of jurisdiction are established as independent and alternative jurisdictional grounds.

Section 2(1) of the Divorce Act states the following:

A court may exercise jurisdiction for divorce proceedings if both or either of the parties are domiciled in the courts area of jurisdiction on the date which the action is instituted. (s 2(1)(a))

A court may also exercise jurisdiction in its jurisdictional area if both or either of the parties are/ is ordinarily a resident in that area on the date the action is instituted. The parties must have already been ordinarily resident in South Africa for a period of not less than a year immediately prior to the institution of the action. (s 2(1)(b))

In referring back to the facts of the case, Q is domiciled in Pretoria which is the High Court in question. Q was a resident in the Republic for a period of a full year before considering to institute divorce proceedings. On the date Q wanted to institute divorce proceedings, she was domiciled and resident in Pretoria. Q has also been resident in South Africa for a period of one year immediately prior to instituting divorce proceedings.

S is domiciled and resident in Australia. Although the court may exercise jurisdiction if only one party is domiciled or resident within the courts area of jurisdiction, there are a few implications that need to be discussed.

Based on section 2(1)(a) – the mere fact that Q is domiciled in the Republic and in the jurisdictional area of the court in question, makes the court competent to exercise divorce jurisdiction.

Base on the facts stated above, in conclusion this court will have the jurisdiction in this matter of divorce proceedings.

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(ii)

Section 2(1)(b) requires a period of residence of 1 year within the Republic prior to instituting divorce proceedings. This section however only applies if both or either of the spouses are not domiciled within the jurisdictional area of the court in question.

The fact that Q has only been resident in the republic for 10 months will not affect the provisions stated in section 2(1)(1) where the only requirement is for the party or parties to be domiciled in the jurisdictional area of the court.

My answer will therefore not differ from the answer supplied in question 4(i).

(iii)

A court may exercise jurisdiction in the case of divorce proceedings if only one party is either domiciled or resident in the courts area of jurisdiction. (s 2(1)(a) and s 2(1)(b)) There are a few implications around this statutory provision.\

1. The domicile or resident of one spouse is sufficient to confer competence over a court to exercise jurisdiction over the other spouse.

2. The domicile or resident of one spouse is sufficient for enabling the court to exercise jurisdiction over divorce proceedings.

Based on these two facts stated, the plaintiff who is domiciled outside of the Republic may institute divorce proceedings in the Republic in the particular High Court where the respondent or spouse is domiciled or resident within that court’s jurisdiction. The period of domicile is irrelevant in this matter.

In conclusion, S may institute divorce proceedings the court in question (Gauteng Division, Pretoria) as Q is domiciled within the area of jurisdiction of this court.

(iv)

In order to answer the question of whether Q has a choice between instituting divorce proceedings in a High Court and a regional magistrate’s court, I will be referring to various statutory provisions regarding this matter.

The Jurisdiction of Regional Courts Amendment Act 31 of 2008 (JRCAA) extended the jurisdiction of regional courts to include civil and divorce matter. This act also extended the divorce jurisdiction of regional magistrate’s courts by repealing s 41(1) of the Magistrate’s Courts Act. Prior to this amendment, the jurisdiction regarding these matters vested in the High Court and the Central Divorce Court.

Section 1 of the Divorce Act of 1979 was amended to extend the definition of “court” to also include the regional magistrate’s division.

Jurisdiction relating to the regional magistrate’s court relating to divorce matters can described as follows:

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Section 28(1A) of the Magistrate’s Court Act provides that the regional magistrate courts will now also have jurisdiction over divorce matters where the same provisions are applicable as in s 2(1)(a) and 2(1)(b) of the Divorce Act.

Lastly, section 29(1B)(b) states that a regional magistrates court hearing a divorce matter in terms of s28(1A) of the same Act, shall be deemed to have the same jurisdiction as any High Court regarding the same matter.

In conclusion based on the facts, S will have the option to choose in which court to institute the divorce proceedings as both courts will be deemed to have the same competency and jurisdictional authority as a High Court in the same situation.

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Question 5

(a)

Both Homehelp and Sipho seek advice as to how they can stop Mike from removing the goods from Sipho’s premises. In order to obtain a court order for preventing someone from performing a certain act, one will have to look at applying to the magistrate court for a court order in the form of an interdict.

An order to prevent a person from performing a certain act is referred to as a prohibitory interdict. Furthermore one would have to look at getting a final interdict for the order to remain valid indefinitely.

Referring back to the question, Homehelp is the supplier of the materials. Sipho received the goods but he has not paid for the goods as yet. The goods still belong to Homehelp.

I will be looking at a specific form of an interdict called the “mandament van spolie” which is a specific order forcing someone to return property that belongs to another that they have unlawfully taken from them. The requirements for applying for such an order is the following:

1. The person that applies for this type of interdict has to be the owner of the property (or at least have a claim to the property) that was unlawfully taken.

2. The person applying for the interdict does not have to be in possession of the property.

The question to who can apply for this interdict will be whether the person seeking to apply has been affected in such a way that their possession was disturbed.

In the event of this type of interdict being applied for, there is usually no need to look at the contraventions regarding section 46(2)(c) of the Magistrates’ Courts Act as according to the case of Zinman v Miller, the mandament van spolie does not contravene the provisions of this section because of the nature of the remedy.

Based on the facts stated above, Homehelp as the owner of the property that was unlawfully taken by Mike (the owner of the construction firm), as well as Sipho, who had a vested interest in the property and whose possession has been disturbed can apply for this specific type of restitutionary interdict if the property was taken already or they can apply for a prohibitory interdict which will prevent Mike from taking any more of the property unlawfully.

(b)

In order to answer the question whether both claims can be instituted in the same summons, I will be referring to the following statutory provisions:

1. Section 43 of the Magistrates’ Courts Act

2. Section 40 of the Magistrates’ Courts Act

Section 43 contains the provisions regarding cumulative jurisdiction. In terms of this section, the court would, in the event where there is one summons for more than one claim, each with a different cause of

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action, have the same jurisdiction in respect of each of the claims that it would’ve had for each claim separately, if the claims were instituted as separate actions. This would apply even if the total amount of both claims exceeded the court’s jurisdiction in terms of section 29 of the Act. The requirements related to this provision is as follows:

- The claims within the same summons must exist between the same parties.- The two or more claims need to be founded on different causes of action (section 43(1)).

Referring back to the facts of the case, the first claim to be instituted by W is the claim for damages to the value of R250000 and the second claim is for iniuria for the amount of R80000 in the same summons. Based on section 43, these are two separate causes of action and both claims exist between the same parties (W & V respectively).

Section 40 further provides that the summons has to be based on different causes of action. This section therefore aims to prevent one single cause of action (better defined as a “substantive claim”). In the case of McKenzie v Farmers Cooperative Meat Industries Ltd 1922 AD 16 (at 23), the cause of action is defined in order to determine whether a claim would arise from a single cause of action. The definition is also used to determine whether the claims were split in order to bypass the limitations on the financial jurisdiction of the court in question. The definition reads as follows:

“every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

In the case of Mohamed & Son v Mohamed 1959 (2) SA 688 (T), it is illustrated how the definition can be applied to a factual circumstance. It was held in this case that no splitting of claims would occur if the claims are based on different causes of action. When claims arise out of one and the same cause of action, it must not be split but should be sued for as one claim. The objective of the plaintiff should not be to recover an amount owed to him/ her in more than one action as this would result in the defendant being able to rely on a defense based on section 40. Based on the last finding as a result if this is the case, the court’s jurisdiction can be questioned.

Based on the facts stated above, it is possible for both claims to be instituted within the same summons by W as the claims arose from different causes of action. W first suffered damages as a result of the malfunctioning software. W later went to the see V regarding the software where V swore at him and called him derogatory names. In saying this, I would still advise W to rather institute a summons for each claim separately in order to avoid the risk of the defendant questioning the jurisdiction of the court, as a result of the total amount of both claims exceeding the limit imposed by section 29 of the Magistrates’ Act when it is established that both claims arose from the same cause of action.

(c) Ran out of Time

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(d)

The question in this scenario is how and where W can proceed to institute an action against V and whether a particular magistrate’s court may determine a matter in question.

W and V are equal partners in a partnership. W is of the opinion that the value of the partnership is more or less in the region of R160000, however V informs him that the profits amount to R60000. They have agreed to split the profits of the partnership on an equal fifty-fifty basis. Therefore, if what W states is true, the claim from W would be R80000 for his share. If what V states is true in his counter claim, the claim would resound to R30000. The question is therefore, which court can be approached when instituting an action for the claim by W specifically.

If a claim is R100000 or less, then the matter falls within the jurisdiction of the district magistrate’

(e) Ran out of time

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DECLARATION OF AUTHENTICITY I, Riaan van Greunen (Full name/s and surname) Student number: 56371454 declare that I am the author of this examination in CIP2601. I further declare that the entire examination is my own original work and that where I used other information and resources, I did so in a responsible manner. I did not plagiarise in any way and I have referenced and acknowledged all legal resources that I have consulted and used to complete this examination. By signing this declaration I acknowledge that I am aware of what plagiarism is, and what its consequences are. Furthermore, I acknowledge that I am aware of Unisa’s policy on plagiarism and understand that if there is evidence of plagiarism in this document, Unisa will take the necessary action.

Date: 19 October 2015

Place: Germiston

Signature: RIAAN (provide an electronic signature or type or write your name or surname again)

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CIP 2601 Portfolio Sem 2 2015

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Transcript of CIP 2601 Portfolio Sem 2 2015