Lecture 1: General Introduction

Place of Civil Procedure in South African Law

Public law: Where there is an unequal relationship between the state and another
party
Private law: The rights between private parties

General Introduction

• Substantive law - A person’s rights, duties and remedies in any given

situation.
• Procedural law - The enforcement (mechanisms) of these rights, duties

and remedies.
• Civil procedure differs from criminal procedure
• Criminal procedure – Where the state, acting on behalf of the general

public, take action against the person who infringes the rule of the
criminal law. The main purpose is to punish wrongdoers. The two
parties involved is the state who prosecutes, and the accused who is
prosecuted.
• Civil procedure – Entitles a person to take action to enforce rights and

claim remedies or to defend actions brought against them in terms of

the civil law. There are basically two broad procedures in terms of
which a person can approach the court: action procedure, where the
person who brings the action is referred to as the plaintiff, and the
person who wants to defend the action is referred to as the defendant;
and the application procedure where the person who brings the
application is referred to as the applicant ant the person who wants to
oppose the application is the respondent.
• The same set of facts can give rise to both a civil and criminal claim.
• The state can also play a part in civil procedure, eg where the state is party to a
contract.
• Action: Notified by summons

• Terminology on p 2 of textbook
• Principles that underlie civil procedure:p 2-4 of textbook
o All persons must have equal and effective access to an independent and
impartial judiciary, which includes the requirement that the cost and the
duration of litigation must be reasonable
o Audi altarem partem: Both parties must be afforded an equal opportunity
to present their respective cases to the court.
▪ The defendant is notified of the proceedings (action=summons,
application= notice of motion with a founding affidavit). Both
parties must be informed of the nature of the opposing party’s
case as well as the grounds on which it is based. Defendant must
raise his/ her defence (action= defendant’s plea, application=
opposing affidavit)
▪ Both parties must be afforded the opportunity to present their
respective cases to the court. This is when the matter proceeds
to a civil hearing.
 ▪ The decision to institute/ defend and action and to determine the
scope of the dispute rests with the parties themselves, and the
parties themselves will decide on what evidentiary material to
present to the court in each instance. This is referred to as party
control. No one can be forced to institute an action, and if a person
decides to institute an action that person cannot be forced to
present certain evidence.
▪ During the presentation of the parties’ respective cases
provisions must be made for direct oral communication between
the court and the parties, there are however also provisions made
for written evidence that can be presented to the court.
▪ The main proceedings must in principle take place in public.
▪ The court must consider evidentiary material on objective and
rational grounds
▪ The court must give a reasoned and legally motivated judgement
and furnish it expeditialy.
▪ The decision of the court is final and binding but there is provision
for appeals, reviews and also recission of judgement in certain
instances.
• Principles received recognition in Bill of Rights
o S34 of the BoR- Anyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public hearing before
a court or where appropriate another independent and impartial tribunal
or forum.
o Cornerstone of access to justice in civil matters.
• Sources of civil procedure:p 5 of textbook
o Constitution- All laws must comply with the C
o The Constitutional Court Complimentary Act and the rules of the CC
o Superior Court’s Act (replaced the Supreme court’s Act)
o Rules of the Supreme Court of Appeal
o Uniform rules of the court, applicable in the High Court
o Magistrate’s Court Act
o Magistrate Court’s Rules
 o Small claims court Act
o Common law
o Other legislation and regulations relevant to specialised courts
o Certain practice arrangements and directives
o Case law

Rest of p 5 and 6 read through

• ADR – p 7-8 of textbook: Alternative mechanisms for solving civil disputes. (Not
important for assessment).

• New developments – p 9 of textbook

• Para 1.6. Electronic Court online system
o In order to make the whole litigation process more efficient and less time
consuming the office of the Chief Justice is implementing a court online
system and creating an e platform for law firms and litigants. This means
pleadings, notices, and affidavits can be filed electronically and it’s not
necessary for attorneys to go to court to file these documents.
• Virtual online court hearing/ video conference

Hierarchy of Courts
 CC highest court in any matter, not only constitutional matters.
Small claims court: Under magistrate’s court created by legislation. Deals with claims
to a maximum of R20 000.

General Introduction

Know: Where the courts are situated, functions, decision making and quorum
• Other courts:
o Constitutional Court (s167 of Constitution)
▪ p13-14 of textbook para 2.2.1.
o Supreme Court of Appeal para 2.2.2.
▪ p14-15
o High Courts
▪ p15-17 of textbook (don’t need to know names for assessment
purposes)
o Magistrates’ Courts
▪ p17-18 of textbook
o Courts of Chiefs and Headmen para 2.2.5.
▪ p18 pf textbook
o Small claims court- separate lecture

Court CC Appeal High Magistrate Chiefs

Where Johannesburg Bloemfontein One high court Divided into
Separated into regional courts
divisions and district
Each province courts
has a main
seat and a
local seat.
Functions a) Highest court Can only Court of first
in all matters. decide on instance
b) May appeal, not a
adjudicate on cc court of first
matters as well instance.
as on any other
matter if the CC
grants leave to
appeal on the
grounds that
such other
matter raises an
arguable point of
law of general
public
importance that
ought to be
considered by
that court.
Decision making c) Is the final S 13 of the Usually one
and quorum decision maker Superior judge
on whether a Court’s Act,
matter is within quorum of
its jurisdiction. judges for both
civil and
criminal
matters is
generally 5.
Uneven
number to
create a
majority and
minority.
If uneven
number and a
split decision is
reached,
matter is
adjourned and
commence de
novo before a
new court as
composed and
determined by
the president of
the court.
Extra Presided over by President, Judge
chief justice, deputy p and a president and
deputy cj, and 9 number of as many
other CC judges. judges judges the
president of SA
may appoint on
the advice of
the judicial
services
commission.

Special Courts (self study)

Summarise: How was this court created, what are the main functions of these courts
(2-3 marks)
• Labour courts
• Land Claims Court
• Special Income Tax Court
• Competition Appeal Court
• Elections Court
• Special Consumer Court
• Divorce Courts
• Children’s Court
• Maintenance Court
• Equality Court

Officers of the Court

Not for assessment p27
• Judges
o Presiding officer in the high court, SCA or CC
• Magistrates
o Presiding officer in magistrate’s court
• Registrar of the High Court
o Chief of the administrative court staff in a division or a local division of the
High Court.
o Deals with issues of processes, filing of documents, enrolment of matters
on the court roll, court orders, writs of execution, taxation of bills of costs,
etc.
• Clerk and Registrar of the Magistrate’s Court
o Same as registrar.
• The Sheriff
o Office responsible for the service of documents.
• Master of the High Court
o Matters relating to deceased and insolvent estates, liquidation and judicial
management of companies, and the interests of people who are
incompetent to manage their own affairs
• Legal Practitioners
o Attorneys
▪ Administrative part
o Advocates
▪ Court specialist
o Advocates with trust accounts
Study Theme 3: Consultation,
Representation, Demand and Prescription
Lecture 2
Chapter 3 p 31

Consultation, Representation, Demand and Prescription

• Further reading material – Marnewick Litigation skills for lawyers; Daniels

Technique in litigation
• Onset
o Can you represent your client? E.g. is there conflict of interest?
o Whether to proceed by action or application.
o Are you going to appoint an advocate to act in the matter?
o The cost implications.
• First consultation
o Advise whether client has a valid claim. Refer to substantive law and see if
all elements are complied with.
o Proper preparation prevents poor performance
o First fix fees
• Information from client
• Decisions to be made by attorney

• Administrative matters (not for exam)

• Open file with certain info
o Important dates
o Account number
o Strategy?
o Appoint advocate?
o Diarise dates (e.g. when you want to see the file again)
o Personal info of client
o Time spent on time

• Legal representation of parties p33

• General principles
• High court
o Any party with locus standi can appear on his own before the high court,
representation is not needed
 o If legal representation, must be an attorney as well as an advocate, or an
attorney with right of appearance in the high court.
▪ Take admittance certificate, LLB certificate as well as certificate of
good standing from LPC to the registrar of the high court who writes
your name in a register.
o Cannot be represented by a third party who is not a legal representative
o A juristic person cannot be represented by an employee of that juristic
person.
o No longer to obtain a power of attorney to act on behalf of client but can do
so if right of appearance is disputed by opponent. The exception is however
matters of appeal where a power of attorney is necessary.
• Magistrate’s court
o Can once again act on own behalf
o Juristic person may act through an officer (employee) nominated by it for
this purpose
o Partnership/ group may act through a member nominated for that purpose
o If acting on own behalf a person is not entitled to any legal costs other than
expenses or imbursements.
o Power of attorney is not necessary unless matter is disputed.
• Indigent persons
o A person that cannot afford legal representation

• Application v action
o Know differences and requirements NB
Action Application
Parties are referred to as “plaintiff” and Parties are referred to as “applicant” and
“defendant”. “respondent”.
An action is based on a real and material An application is based on a factual
factual dispute. dispute of such a nature that it may be
Usually in cases where oral evidence is easily dealt with on affidavit or on paper.
needed to clear up a dispute. An application may also be used for
disputes of law.
Commences with the issuing of a Commences with the issuing of a notice
summons by the plaintiff. of motion and supporting founding
affidavit by the applicant.
Further pleadings are exchanged by the Further affidavits are exchanged,
parties, namely: namely:
defendant’s plea and counterclaim; the opposing affidavit;
plaintiff’s reply to defendant’s plea the replying affidavit (if applicable).
plaintiff’s plea to defendant’s
counterclaim.
After the exchange of pleadings a stage There is no written “preparation for trial”
called “preparation for trial” follows. stage.
Certain preparatory steps are then
taken, that is, discovery, expert notices,
 medical examinations, pre-trial
conference, etc.
The action procedure ends in the trial The motion procedure ends in the motion
court, where mainly oral evidence by the court. In principle, no oral evidence is
parties and their witnesses is presented presented and the parties do not testify.
The case is argued by legal
representatives on the papers before the
court. Limited oral evidence allowed in
certain cases.

• Demand/ statutory notice

o Where you start out litigation
o First step is to draft a letter of demand to keep cost as low as possible (take
a chance, perhaps a summons is not necessary)
o Instances where a letter of demand is necessary in terms of common law:
▪ Where a contract contains a clause stating that an amount is payable
on demand
▪ Where the course of action is based on a breach of contract and the
terms of the contract requires a letter of demand
▪ When a creditor wants to cancel an agreement
▪ Where there is no date for performance agreed upon by the parties
a letter of demand is used to place the party in mora
▪ If the party wants to claim mora interest
o Instances where a letter of demand is necessary in terms of legislation:
▪ In terms of the Small Claims Court Act, if you want to institute a matter
in the small claims court
▪ In terms of the Customs and … Act
▪ When there’s an organ of state
▪ In terms of the National Credit Act, if there’s a debt in terms of this
Act
▪ The prevention of illegal eviction of unlawful occupation of land Act

• NB know requirements of a letter of demand and be able to draft one.

• Requirements – see p38 in textbook
o A clear reference that the attorney is acting on behalf of the client
o A clear explanation for the reason for the letter of demand
o A clear indication what action is expected form the person receiving the
letter of demand (defendant) which is dependant on the instructions from
your client and the course of action
o An indication of a time period in which the defendant must adhere
o An explanation of the consequences if the defendant does not comply with
the letter

• When is demand necessary? – see p38-42 in textbook

• NCA - Section 129 notice

• Prescription
• Two acts – 1943 and 1969 Acts
• 1969-Act – extinctive prescription
• Period of 30 years
• Period of 15 years
• Period of 6 years
• Period of 3 years (only one that’s important)
o The court will not take notice of prescription mera morto- meaning that the
court will not from its own accord take cognisance of any prescription if not
raised by the defendant. In essence, a plaintiff can obtain a judgement in
his/ her favour on a prescribed claim if the defendant did not raise this by
way of a special plea of prescription.

• How do you calculate prescription period?

o Two dates to go on:
o The date on which the debt becomes due and payable
▪ If it is a contractual dispute it will depend on the terms of the contract.
▪ If it is a delict it will be on the date the delict was committed.
o The date on which prescription is interrupted
▪ Acknowledgement of liability by the defendant
▪ Service of a summons
o Calculated on calendar days
• Must be specifically pleaded
• Interruption
• Suspension
o E.g. when the creditor is a minor, insane or under curatorship
o One year from the date on which this impediment ceases to exist.

• The Institution of Legal Proceedings Against Certain Organs of State Act NB

o Applicable where the defendant is an organ of state
o Organ of state is any state institution
o 6 months to give written notice of the intention
o If 6 month period has passed you can make a request for condemnation
o Summons may only be issued within 30 days after the written notice was
given
• Procedure
o Notice must be served to the organ of state by hand delivery or certified mail
or in certain instances by electronic mail or fax
o Notice must contain a brief summary of the facts that gave rise to the cause
of action and/or particulars of knowledge by the plaintiff
Leave RAF and apportionment of damages
• Prescription
• RAF
• Apportionment of Damages Act

• A judgement debt only prescribes after a period of 30 years

• Judgement can be executed by warrant or writ of execution, send it to the sheriff
who will then attach assets that belong to the defendant and then these assets will
be sold on a public auction.
• Execution can only happen within 3 years

• Superannuation of summons
o A summons would lapse if it was issued but not served within one year, or
it was served but no further steps in prosecution was taken

• National Credit Act (NA)

• Consumer Protection Act (NA)

• Time period for the delivery of pleadings

o When referring to a time period in an Act we usually refer to calendar days.
A calendar day includes every day (Saturdays, Sundays, Public holidays)
o If a time period is refer to in the magistrate court rules/ high court rules we
are referring to court days. Court days exclude Saturdays, Sundays and
public holidays. The first day is excluded and the last day is included.
Lecture 3: Jurisdiction- General Principles
General Principles

Jurisdiction is the authority/ competence of a specific court to hear a

specific matter and grant relief with regards to that matter before the court.

1. Introduction
• Jurisdiction entails two-stage enquiry:
o Can court hear that specific matter? (type of case, amount claimed involved
etc)
▪ Small claims court R0 – R20 000
▪ District Magistrate’s Court R0 – R200 000
▪ Regional Magistrate’s Court R200 000 – R400 000
▪ High Court Above R400 000
o Link to specific court– cause of action, defendant, property (territorial
jurisdiction)

2. General principles (originate from common law) NB

a) Actor sequitur forum rei p56
• Plaintiff/Applicant must follow Defendant/Respondent to the
Defendant’s/Respondent’s forum and institute proceedings there (where he or she
resides)
• Reside v domicile

b) Effectiveness
• Court must be able to enforce its judgement / ensure that judgment can be carried
out
• Does not require that court must be fully able to enforce its judgment, only needs
the potential
• Simply requires that judgment must have the potential to be enforced
• Thermo Radiant case (don’t have to know case)

c) Convenience
• Convenient basis – cause of action arose within jurisdictional area of court
o Delict: Where occurrence took place
o Contract: Where the contract was entered into but also where performance
must take place ito the contract and also where the breach of the contract
took place.
• Convenient because most likely that most of the evidence will arise from area and
that most of the witnesses will be resident/domiciled there
• Concurrent jurisdiction

d) Consent (prorogation)
• Court can exercise jurisdiction in certain circumstances where defendant consents
to court’s jurisdiction
• May be express or tacitly inferred by defendant’s conduct or failure to act
• Cannot consent where no link
• Consent may be given to increase monetary amount of magistrates court

3. Terminology

a) Incola: Person domiciled or resident within jurisdictional area of specific

court.
b) Peregrinus: Person domiciled or resident outside the jurisdictional area
of a specific court
c) Local peregrinus: Person domiciled or resident outside the
jurisdictional area of a specific court but within the RSA as a whole
d) Foreign peregrinus: Person domiciled or resident outside the RSA as
a whole

4. Domicile v residence p60

a) Natural persons
• Domicile – person must have intention to remain within the area permanently or at
least indefinitely (animus manendi)
• Residence – physical presence but does not require animus manendi
• Residence – Ex parte Minister of Native Affairs
• Mayne v Main – more than one residence but reside only at one place at any given
time for purpose of legal proceedings (then you decide where the person resides
and will be the place person is when summons is served)

b) Companies and CC’s

• Principal place of business – “reside” (central management)
 o New legislation states that company must be registered at the principle
place of business, so no longer choice between registered place and
principle place.
• Registered office – reside (concurrent jurisdiction)
o CC registered office or principle place of business
• Where company /cc carries on business – various viewpoints but central
management
• Maybe more than one place “reside”

c) Foreign companies
• Will be regarded as resident in RSA if:
o It has its principal place of business in RSA
o It has a branch office in RSA and cause of action arose from activities of
that branch
o S23(3) of Companies Act however states that external/ foreign companies
carrying on non-profit activities in SA must now maintain and register an
office.

d) Partnerships
• Partnership can be sued in its own name. this doesn’t mean that the partnership is
a juristic person
• Section 21(2) Superior Courts Act – join partners
• Lika Trading Limited and Others v Commision South African Traders Revenue
Services: The SCA obiter dictum held that the location of the principle place of
business of a partnership within the jurisdictional area of a specific court would be
sufficient to confer jurisdiction on that specific court.

e) State
• High Court – where cause of action arose (whole of RSA)
• Magistrates Court – Pretoria as seat of government regarded as “residence” or
“place of business” / where cause of action arose

f) Inherent and prescribed jurisdiction

• High Court – “inherent jurisdiction”
• Magistrates Court – “creature of statute”

g) General limitations on jurisdiction

• Area
• Value of claim
• Type of claim

h) Specific provisions
• S149 of Insolvency Act
• S12 of Companies Act
o If a company has a principle place of business the company must then
register that principle place of business
• Section 7 of Close Corporations Act
o Can sue the CC at its registered address or where the principle place of
business is
Lecture 4: Jurisdiction of the High Court
Introduction

Inherent jurisdiction- p71 and 72

High Court has the power to:
• Regulate its own procedure, therefore is not constrained by the rules of court. So
if there is a situation before the court and the court is of the opinion that a rule is
not in the interest of justice, the court can go outside of the ambit of the rules and
allow something. High court can also prevent abuse of the legislation procedure
and vexatious litigation (e.g. when there is no cause of action)
o In contrast is the magistrate’s court which is a creature of statute. A
magistrate’s court can only do something if its constituent Act or the rules
allow for that. If there is nothing in the Magistrate’s Court Act that authorizes
the court to do something specifically. The M court cannot do something not
specifically included in the Act.
• Adjudicate any unlawful interference with rights

Three steps in deciding which court has jurisdiction:

• Value of the claim- claim amount= monetary jurisdiction
• Nature of the claim= substantive jurisdiction
• Area/ territory= territorial jurisdiction
Jurisdiction with regard to value of claim
P 72 para 5.1.4. Power to adjudicate non-procedural matters
• Monetary jurisdiction
• Technically R400 000 and above
• No limitation with regard to value (no upper limit)
• In theory no lower limit BUT
• Discretion regarding costs
o H court will want to discourage litigants that should actually apply to
magistrate’s court (lower than R400 000) from applying in the H court
o Only awards cost on a magistrate’s court scale to discourage, which is
much lower than a H court scale
• Removal of matter to a Magistrate’s Court read through
o Parties can with consent transfer
o If defendant refuses the plaintiff can withdraw the claim that was
instituted in the high court and reinstitute in m court with necessary
jurisdiction.
Client must give instructions on which court to approach
Jurisdiction with regard to nature of claim
• Substantive jurisdiction
• May hear any matter unless curtailed by statute
o E.g. land claims court matters
o Labour court matters

Jurisdiction with regard to territory

• Territorial jurisdiction
• What specific high court will have jurisdiction (Pretoria, Johannesburg)
• Section 21(1) of the Superior Courts Act:
o A person “residing or being in” area of jurisdiction of a specific court
o Fact that cause of action arose within area of jurisdiction
o Common law principles:
▪ Aque sequitum forum rei: plaintiff must follow the defendant to his/
her forum and institute the matter there
▪ Principle of convenience: where the cause of action arose
• Ratio jurisdictiones – Link or reason for jurisdiction such as
o (i) locality of defendant,
o (ii) locality of property that forms the subject of litigation
▪ Where there is a claim in relation to property, it will usually be the
court where the property is situated.
o (iii) cause of action (arose)

Divorce Actions
Previously only the high court but now regional court as well
• At common law the only court that had jurisdiction grant a divorce order was the
court of the parties of the area in which the parties were domiciled at the time of
the institution of action. So domicile was the only grounds on which a South African
court would assume jurisdiction in a divorce action. This rule resulted in hardships
for wives because they had to adopt the domicile of their husbands
• In terms of the domicile Act every person can now acquire a domicile of choice
• Divorce Act extended the grounds on which a party can institute a divorce action
• Section 2(1) of the Divorce Act 70 of 1979:
o Court shall have jurisdiction if the parties to the action are, or if either party
to the action is:
▪ domiciled in the area of jurisdiction of the court on the date on which
the action is instituted; or
▪ ordinarily resident in the area of jurisdiction of the court on date on
which the action is instituted and have or has been ordinarily resident
in South Africa for one year immediately prior to that date
o Two grounds on which you can base territorial jurisdiction
 ▪ Domicile: of the parties to the action are, or if either party to the action
is- exception to the rule of actio sequetum forum rei because now
also the plaintiff can institute a matter where he/she is domiciled.
▪ Ordinarily resident:

• Rule 43 application – pending divorce action (interim relief)

o Present in contested divorce
o Maintenance pendente lite (until divorce is finalized)
o Interim care and primary residence of minor child
o Interim contact of minor child
o Contribution to legal costs

Proceedings relating to property

Immovable property
• Forum rei sitae seemingly exclusive jurisdiction in respect of:
o Proceedings to determine title to property
o Obtaining of declaratory order to effect that a real right is held in the property
/ property is free of alleged real right
o Claims for handing over of occupation / possession of property
• Forum rei sitae concurrent jurisdiction in respect of:
o Claims for transfer / partition of immovable property
o Claims for the rescission of a contract for the sale of immovable property
(unclear if any other court will also have jurisdiction)
o Proceedings for a declaration that property is executable (two different
viewpoints on other courts)
▪ To sell at an auction
▪ General rule is that forum rei sitae should be the only court who has
jurisdiction to declare the property executable
▪ S42(2) of Superior court Act the court is allowed to command a sheriff
of another area to sell and attach immovable property, court can
therefore declare property outside its jurisdiction as executable
o Application to sell or mortgage a minor’s immovable property – usually
brought before court of minor’s domicile (not even clear whether forum rei
sitae has jurisdiction)

Movable property
• Forum rei sitae has jurisdiction
• Not clear if this is an exclusive jurisdiction (control)

Incorporeal property (self study)

• Law attributes to it a fictional locality or situs
• See examples on p 79 of Textbook
Concurrent jurisdiction
See p 90-91 of Textbook n/a

Counterclaims
See p 91 of Textbook n/a

Causae continentia doctrine NB

See p 91-92 of Textbook
Will allow courts with jurisdiction over a part of a cause of action to exercise jurisdiction
over the whole cause of action on the basis of considerations of convenience, justice
and good sense. Doctrine may therefore be applied where causes of action continue
from a main cause. So if the court has jurisdiction over the main cause of action the
court will also be allowed to exercise jurisdiction on any other matters relating to this
cause of action.
Sonja Pty Ltd V Wheeler is a good example of this doctrine where it was held that
because the court had jurisdiction in respect of a claim for the cancellation of a contract
for the sale of land within the court’s jurisdiction it could also assume jurisdiction in
respect of a claim for the refund of the purchase price on the basis that it was
convenient to do so.

Removal of a matter to another division

See p 92 of Textbook n/a
Lecture 5: Jurisdiction over a foreign
peregrinus
Jurisdiction over a foreign peregrinus
The following is a question from one of the previous semester tests for SIP 400. It
relates to the situation where a plaintiff, who is resident and domiciled in South Africa
(an incola of South Africa), wants to institute a money claim in a South African court
against a defendant who is resident or domiciled outside of South Africa (a foreign
peregrinus).
1. Ms Goody Two-shoes, a 4th year law student at the University of Pretoria, who
resides in Hatfield, comes to see you for legal advice. She informs you that on the
night of 19 March 2020, she attended the Premier League soccer match between the
University of Pretoria and Ajax Cape Town, at the sports grounds of Cape Town
Stadium, with some of her friends. She informs you that during the evening she only
drank 100% pure aloe juice as she is very conscious of driving fully sober at all times
and because too much sugar makes her hyperactive. At approximately 9 o’clock that
night, Goody Two-shoes and her friends got into her white Porsche Carrera motor
vehicle on which is sprayed in large letters the words “TUKS OR NOTHING”, and
drove off to a guest house in Cape Town where they would sleep the night. While they
were on their way to the guesthouse, a certain Mr Brad Loser, an old student of the
University of Cape Town, who is now resident and domiciled in Sydney, Australia,
(who was only temporarily in South Africa for business purposes), and who was
excessively under the influence of Tassenberg wine, forced Ms Two-Shoes of the road
in his built-up Ford Cortina while shouting out “Tuks is nothing!” Ms Two-shoes lost
control of her motor vehicle and collided with a jumping castle next to the road. The
damage to Goody’s motor vehicle amounts to R477 000,00. Goody wants to sue Brad
Loser, who is still present in South Africa, in a South African court for damages, if in
any way possible. Enquiries bring to light that Brad Loser owns a number of
thoroughbred ostriches in the Free State and a bachelor’s flat in Johannesburg.

The following principles are applicable in deciding which Division of the

High Court will assume jurisdiction over this matter (you only have to study
this document for assessment purposes and not any part of the textbook):

1. These principles only apply where the plaintiff claims a sum of money from the
defendant. It is therefore not applicable where the claim is, for example, one for
specific performance or for eviction of a foreign peregrinus from a lease premises.
2. In deciding which court will assume jurisdiction over a money claim you always
look at the defendant and not the plaintiff.

3. If the defendant resides anywhere in South Africa, the following principles will
apply:
a. the plaintiff can institute the matter where the defendant resides (actor
sequitur forum rei); or
b. where the cause of action arose.

4. In the question above - if Brad Loser was, for example, a South African incola who
resided in, let's say, Pretoria, the following Divisions of the High Court will have
jurisdiction to hear the matter:
a. Gauteng Division of the High Court Pretoria - because the defendant
resides in Pretoria.
b. Western Cape Division of the High Court, Cape Town - because the cause
of action arose in Cape Town.

5. However, if the defendant qualifies as a foreign peregrinus (as in the question

above), the following principles will apply:
a. A Division of the High Court will not automatically assume jurisdiction over
a money claim instituted against a foreign peregrinus - the plaintiff must
first found or confirm jurisdiction over the foreign peregrinus.
b. A plaintiff can found jurisdiction (ad fundandam jurisdictionem) at the court
where he or she is an incola. In the question above, Goodie Two-Shoes
resides in Hatfield, Pretoria (she is an incola of Pretoria) and she can
therefore found jurisdiction in the Gauteng Division of the High Court,
Pretoria.
c. A plaintiff can, alternatively, choose to confirm jurisdiction (ad
confirmandam jurisdictionem), where the cause of action arose. In the
question above, the cause of action arose in Cape Town and she can
therefore confirm jurisdiction in the Western Cape Division of the High Court,
Cape Town.
d. In addition the plaintiff must also attach property belonging to the foreign
peregrinus, which can be situated anywhere in South Africa, in order to
found or confirm jurisdiction over the foreign peregrinus. In the question
above, Goodie Two-Shoes will therefore have to attach Brad Loser's
ostriches in the Free State or his bachelor's flat in Johannesburg.
e. Please note: the court where the property is situated will not assume
jurisdiction if the plaintiff is not an incola of that court or if the cause
of action did not arose within the jurisdictional area of such court!!!
Therefore Bloemfontein and Johannesburg will not have jurisdiction.
f. Please also note that, in terms of the provisions of section 28 of the
Superior Courts Act, it not permissible to attach the property of a
resident of South Africa, in order to establish jurisdiction.
 g. If the foreign peregrinus defendant does not own any property in South
Africa - previously the foreign peregrinus could have been arrested to found
or confirm jurisdiction. The arrest procedure to found or confirm jurisdiction
over a foreign peregrinus was however declared unconstitutional by the
Supreme Court of Appeal in Bid Industrial Holdings (Pty) Ltd v Strang.
Only method of arrest was declared unconstitutional.
h. The Supreme Court of Appeal in Bid Industrial Holdings (Pty) Ltd v Strang
held that, as an alternative to the arrest procedure (and where the foreign
peregrinus defendant does not own any property in South Africa),
jurisdiction can be found or confirmed by the service of a summons
personally on the foreign peregrinus while he or she is still present in
South Africa and where there is an adequate connection between the
court and the suit before it. The court did not specifically state what such
an adequate connection would entail, but it can be assumed that it would be
the Division of the High Court where the plaintiff is an incola or the court in
which jurisdiction the cause of action arose. If Brad Loser, in the question
above therefore did not own any property in South Africa, Goodie Two
Shoes can apply to the Gauteng Division of the High Court, Pretoria for an
order to found jurisdiction or the Western Cape Division of the High Court,
Cape Town for an order to confirm jurisdiction by way of the service of a
summons personally on Brad Loser while he is still present in South Africa.
i. In American Flag Plc v Great African T-shirt Corporation CC the court held
that where a foreign peregrinus consents to the jurisdiction of the court,
attachment of the property of the foreign peregrinus is neither necessary nor
permitted. Consent to jurisdiction is therefore an independent ground on
which jurisdiction may be found or confirmed over a foreign peregrinus.
j. If a foreign peregrinus defendant does not own any property in South Africa,
is no longer present in the country and does not consent to the jurisdiction
of the court, the plaintiff's only remaining option would be to follow the
defendant to his or her forum and institute the action there. In the
question above Goodie Two- shoes will therefore, in such a scenario, have
to institute the action in Sydney, Australia where Brad Loser resides.

You must be able to identify the following in a set of facts provided to

you for assessment purposes:

1. Who is the incola and who is the foreign peregrinus? You must also make use of
the aforementioned Latin terminology.
2. All the courts which will have jurisdiction over the foreign peregrinus. Although the
procedure is also available in the magistrates' courts, you will only be assessed on the
position in the High Court.
3. You only need to know the full citations of the following 6 High Court Divisions:
(a) Pretoria: Gauteng Division of the High Court Pretoria
 (b) Johannesburg: Gauteng Local Division of the High Court Johannesburg
(c) Bloemfontein
(d) Pietermaritzburg: KwaZulu Natal Division Pietermaritzburg
(e) Durban: KwaZulu Natal Local Division Durban
(f) Cape Town
4. Be able to state in which court jurisdiction will be found and in which court jurisdiction
will be confirmed and why.
5. The different procedures that can be utilised in order to found or confirm jurisdiction
over a foreign peregrinus.
6. Be able to cite (both plaintiff's and defendant's names) the decisions in Bid Industrial
Holdings (Pty) Ltd v Strang and American Flag Plc v Great African T-shirt Corporation
CC and explain briefly what was held in these two decisions.