Chapter 5- High Court

• The High Court has inherent jurisdiction. What does this mean?

  It means that the High Court possesses the discretion to make any order or to undertake any procedural step as long as the law does not prohibit it. In other words, the High Court has the power to regulate its own procedure and adjudicate any unlawful interference with rights.
• What are the rules when the defendant is an incola while the plaintiff is a foreign or local peregrinus or an incola?

  When the defendant is an incola of the court's area of jurisdiction, the court will always assume jurisdiction in accordance with s21(1) of the Superior Courts Act and in accordance with the common-law principle actor sequitur forum rei.
• What are the rules when the defendant is a local peregrinus while the plaintiff is a foreign or local peregrinus or an incola?


  It is possible to base jurisdiction on either the location of the defendant or the cause of action.
• What is the jurisdiction of the High Court with regard to the value of the claim?

  The jurisdiction of the High Court is not limited with regard to the amount of the claim. There is no upper limit and, in theory, no lower limit either.
• What are the rules when the defendant is a foreign peregrinus while the plaintiff is an incola?


  In an action against a foreign peregrinus, an incola is entitled to institute action against the foreigner in the incola's court. The reason for this is the public-policy consideration that South African courts should come to the assistance of South African subjects.
• What does section 21(1) of the Superior Courts Act state?

  It states that a division or local seat of a division of the High Court has jurisdiction over all persons residing or being in and in relation to all causes arising and all offences triable within it’s jurisdiction
• What are the two alternative grounds of civil jurisdiction does section 21(1) of the Act mention?

  -A person residing or being in its area of jurisdiction

  -The fact that the cause of action arose within its area of jurisdiction
• At common law the general rule is that a court will assume jurisdiction only if there is a recognised link between its territorial area and the matter before it. The link may relate to the locality of:

  • The defendant. In terms of the general principle actor sequitur forum rei, plaintiff/app must follow the def/res to his or her place of domicile or residence, and institute proceedings in the defendant’s forum domicili.
  • The cause of action (Ratione rei gesta). court will have jurisdiction to hear a particular claim if the cause of action occurred within its geographical area.
• What are the two kinds of ratione rei gestae ?

  1.Contractual

  2.Delictual
• What is meant by concurrent jurisdiction?

  Jurisdiction exercised by two or more courts in respect of a matter.
• What is the causae continentia doctrine?

  The common law doctrine of cohesion or continuity of a cause of action allows a court with jurisdiction over part of a cause to exercise jurisdiction over the whole cause on the basis of considerations of convenience, justice and good sense.
• When can the causae continentia doctrine be applied?

  When causes of action flow or continue from a main cause.
• What is the monetary jurisdiction of the High Court?

  The jurisdiction is not limited with regard to the amount of the claim.
• What is the jurisdiction of the High Court with regard to matrimonial claims?

  Section 2(1) of the Divorce Act as amended by the Domicile Act provides that a court has jurisdiction in a divorce action if the parties to the action are, or either party is

  (a) domiciled

  (b) Resident
• What is the jurisdiction of the High Court with reference to claims regarding property?

  The general rule is that the court in whose area the property is situated (Forum rei sitae) will have jurisdiction to determine matters that affect rights in property.
• What is attachment to found jurisdiction ?

  This is attachment of the property of the foreign peregrinus in the absence of any other ground of jurisdiction.
• What is attachment to confirm jurisdiction?

  This is when a ground of jurisdiction already exists and the court’s competence to assume jurisdiction is simply being confirmed.
• What does section 28 of the Superior Courts Act say?

  Prohibits attachment of property to found jurisdiction against a person who is resident in the Republic.
• In what types of claim will the court attachment apply?


  It only applies to actions in which a judgement sounding in money is claimed.
• Attachments made in order to confer jurisdiction on a court may be of the following nature?

  1.To found jurisdiction (ad fundandam jurisdictionem)

  2. To confirm jurisdiction (ad confirmandam jurisdictionem)