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REVISION QUESTIONS
CIP201-G

STUDY UNIT 2

1. Distinguish between civil and criminal proceedings in respect of the following: -

(a) the objectives (2)
 Civil: Determine liability of the defendant
 Criminal: Determine the guilt of the accused
(b) the onus of proof (4)
 Civil: The balance of probabilities – Plaintiff’s / applicant’s version more probable than
that of the defendant / respondent
 Criminal: Beyond all reasonable doubt – Court must be satisfied that no conclusion
other than that the accused committed the crime can be reached
2. Complete the following sentences by writing the appropriate word in your answer book: -
(a) In criminal proceedings, the state prosecutes the (2)
accused at the instance of the complainant.
(b) In civil proceedings, a (2)
plaintiff issues summons against the defendant.
(c) In civil appeals, a (2)
appellant commences proceedings against a respondent.

STUDY UNIT 3

1. Why are magistrates’ courts called “creatures of statute”? Discuss briefly. (3)
Lower courts do not have inherent jurisdiction. The reason for this is that they derive their powers
from the particular statute that created them. Because of this, lower courts are sometimes called
"creatures of statute”. The exercise of jurisdiction in the lower courts is therefore dependant on the
extent to which the enabling statute permits it to exercise such jurisdiction.
2. Explain the inherent jurisdiction of superior courts. (6)
Because civil procedure as applied in the superior courts does not depend solely on statutory
provisions and rules of court, the superior courts exercise inherent jurisdiction. This means that the
jurisdiction of the superior courts is derived from common law and not from statute. An important
implication is that the superior courts have discretion in regard to their own procedure. They may
condone procedural mistakes. S173 of the Constitution grants the Constitutional Court, Supreme
Court of Appeal and the High Courts the inherent power to protect and regulate their own process
and to develop the common law.
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STUDY UNIT 4

1. State precisely any four aspects of process and procedure in terms of which the Rules
Board is competent to make, amend or repeal rules of court under section 6(1) of the Rules
Board for courts of Law Act of 1985. (4)
 The tariff of fees chargeable by advocates, attorneys and notaries
 The taxation of bills of costs and the recovery of costs
 The duties of sheriffs and other officers of court
 The appointment and admission of commissioners to take evidence and examine witnesses
2. “The rules exist for the court and not the court for the rules”. Discuss this statement briefly .
(4)
The rules are not an end in themselves, but rather a means to an end. The very purpose of the
rules is to facilitate inexpensive and efficient litigation and not to obstruct the administration of
justice. This means that a court, subject to its competence to do so, may condone non-compliance
with procedure that would lead to substantial injustice to a litigant. A superior court may also
exercise its inherent jurisdiction to grant relief in circumstances where the rules do not cover a
particular matter or where strict compliance with a rule would result in substantial prejudice to a
litigant.

STUDY UNIT 5

1. Write short notes on the following: -

(a) The passive role of the court in Anglo-American jurisdictions (8)
In the Anglo-American legal system (AA), civil procedure litigation is adversarial. The AA civil
procedure regards litigation as a private matter between the litigants and the courts play a
passive role during the proceedings. It is primarily the duty of litigants to commence
proceedings, define disputed issues and gather facts for evidence presentation. The court is
not burdened with the official duty of judicial investigation and evidence gathering. The
passive nature of the role of the courts in the AA system is further manifested through a rule
that the presiding officer may not interfere in the pre-trial and trial stages of the proceedings,
unless if so requested by one of the litigants or unless if it is for the purpose of clarity.
The AA system clearly separates investigative and decision making (adjudicative) aspects of
litigation. The role of the presiding officer is analogous to that of the umpire in a game,
whose duty is to ensure that parties comply with the rules of the game they are participating
in without taking part in the game him/herself.
In brief, the passive nature of the role of the court in AA jurisdictions is underscored by
fundamental principles of bilaterality, party prosecution and party presentation.
(b) Explain the principles of party prosecution and party presentation as they relate to the
adversarial system of litigation. (9)
 Party prosecution: Confirms the competence of a litigant to either commence or
defend proceedings and to prosecute (move) the case through all its procedural
stages. Both litigants actively conduct civil proceedings as a private matter without any
interference from the court, but they must, however, conduct the proceedings
according to certain minimum standards that are prescribed by the Rules of Court and
the court will only become involved at the request of one of the litigants to compel the
other or to condone a mistake.
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Both parties have certain choices to make i.e. to institute proceedings or not; to defend
or not. Litigants will then exchange pleadings without the assistance of the court and,
once pleadings have closed, independently prepare for trial. Alternatively, an “out-of-
court” settlement may be negotiated.
 Party presentation: Confirms the control of a litigant on the content of his or her own
cause or defence i.e. to investigate, formulate issues, present facts and to prove them
by raising legal argument. The principle supports the idea that litigants should be the
masters of their rights and should take responsibility for determining the issues in fact
and in law that relate to the dispute without judicial interference.
(c) Name the three principles that underlie our system of civil procedure. (3)
 Bilaterality
 Party prosecution
 Party presentation
(d) Briefly describe any three recognised methods for reforming civil procedure. (6)
 Continual revision of the Rules of Court, being the principal responsibility of the Rules
Board.
 Increase the jurisdictional limits of the lower courts in order to give more people access
to court, but at lower costs by comparison to access to the High Court.
 Exclude in whole, or in part, specific types of disputes from the court system e.g.
Labour Relations Act, which prescribed dispute resolution procedures and also
establishes courts that deal with labour matters only.
(e) How does the function of a South African judge differ from that of a continental judge?
Discuss. (8)
A continental judge has an active role in the proceedings and may, therefore, participate
directly in the process of litigation from the institution to the conclusion of proceedings.
In South Africa, however, the judicial officer plays a passive role in that he or she does not
interfere in the proceedings except upon the request of one of the litigants. South Africa can
be regarded as an Anglo-American jurisdiction where litigation is regarded as a private matter
between litigants and the court is not burdened with the official duty of judicial investigation
and evidence gathering, only the decision making (adjudicative) aspects of litigation.
(f) Discuss the differences between the Continental and Anglo-American systems of civil
procedure. (6)
 Continental system: An inquisitorial system meaning the judicial officer plays an active
role in the proceedings and may participate directly in the process of litigation from the
institution to the conclusion of the proceedings by trying both fact and law.
 Anglo-American system: An adversarial system meaning the judicial officer plays a
passive role in the proceedings and may not interfere in the proceedings except upon
the request of one of the litigants, who determine both fact and law, and merely
adjudicates.
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(g) The principle of bilaterality means that both litigants will have a fair and equal
opportunity to present their respective claims and defences. Do you agree with this
statement? Discuss briefly. (4)
Yes, every party will have the opportunity and competence to investigate his or her own
cause or defence, to formulate the issues in the dispute, present the material facts concerned
and to prove them by raising legal argument in support. Rival litigants are placed in an
adversarial or competitive relationship with each other who each present their separate and
contradictory versions of the case for consideration by the court.
2. Your friend is a lawyer practising in Germany. He visits you in South Africa. During the course of
his stay in South African, you take him on a visit to a High Court. Your friend is intrigued by the
differences between the practice of the German courts and South African courts. Answer the
following questions that he asks you.
(a) Why do South African judges not participate in the pre-trial preparations? (2)
In Anglo-American systems of civil procedure, as in South Africa, litigation is regarded as
being a private matter between the litigants. The litigants conduct litigation without the
interference of the court. Attorneys, therefore, do the pre-trial preparation and judges are not
involved. Attorneys must actively conduct civil proceedings and move the case forward on
behalf of their clients.
(b) When can a South African judge become involved in the pre-trial stage? (1)
The only time a judge may intervene in the conduct of civil proceedings between the litigants
is when he is requested to do so by one of the litigants.
(c) When presiding in court, why is a South African judge’s behaviour distant and
reserved? (2)
In Anglo-American systems of procedure the judge is accorded a passive role that is limited
to presiding over the trial, hearing evidence and giving judgment. The judge is therefore
dependant on the litigants regarding the investigation of the facts, the gathering of
information, the determination of the issues in dispute and the presentation of these issues.
(d) On what grounds is it possible for a South African judge to condone an error
regarding process or procedure? (1)
Because a superior court has inherent jurisdiction, it may do anything the law does not forbid.
(e) What is the nature of the rules of court? (1)
Since they are, in their nature, delegated legislation, the rules of court have statutory force
and are therefore binding on a court.
(f) Who is responsible for making the rules for the High Courts? (1)
Rules Board for Court of Law
(g) Why South African courts are open to the public? (1)
Courts are public institutions and play a vital role in fulfilling the government function of
maintaining order in society. Because courts have a public function, proceedings are
conducted in open court.

STUDY UNIT 6
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1. Set out and explain the identifiable stages of the process of mediation (do not draw a
diagram). (10)
 The pre-mediation stage
 The initial contact is made between the mediator, who explains the process and
implications, and the disputants
 Arrangements are made with regard to the venue and costs
 Rules for mediation discussed with a view to signing an agreement to mediate
 The opening stage
 Commence with mediator’s opening statement and each disputant makes a statement
on his or her view of the problem
 Mediator summarised and defines the issues for the disputants
 The middle stage
 Disputants explore options for resolving the dispute and the mediator assists to test the
reality of these options
 Possible solutions negotiated as problem solving is the main focus of this stage
 The closing stage
 Final bargaining in regard to practical arrangements and decision is recorded
 Mediator makes closing statement and the process is terminated
2. Briefly discuss the common factors shared by all Alternative Dispute Resolution processes.
(10)
The common factors are: -
 Informal, i.e. strict rules of procedure are absent
 Flexible, i.e. a process can be adapted to suit a particular situation
 Voluntary, i.e. parties not compelled to enter into the process
 Consensual, i.e. the result is reached through the consent of the different parties
 Interest based rather than rights based
 Relational, i.e. beneficial to uphold long term relationships
 Future orientated, i.e. the focus is not on past events, but on future relationships
3. Discuss mediation as a primary ADR process. (10)
Mediation is a private, voluntary and consensual process whereby two or more disputants
agree to resolve their dispute through the intervention of a third party, a mediator, who
should be impartial and accepted by both disputants. An analysis of the elements: -
 Private, voluntary and consensual: As it’s private, the disputants can, to a certain extent,
ensure the confidentiality of their communications and event the outcome of their mediation.
As it is voluntary, it cannot be imposed on the disputants, they choose to enter into and
participate in mediation and consent to the outcome thereof.
 Process: It consists of a number of distinct and uniform stages, even though it may lack the
formalities of a process like litigation, and therefore it constitutes a process.
 Intervention by a third party : The degree of the intervention of the mediator differentiates
mediation from arbitration and litigation. The mediator has a very limited role and generally
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only controls the process of the mediation and assists and guides the disputants, while the
parties control the content and outcome of the mediation.
 Impartial and accepted by both parties : As neutrality seems to be an impossible standard
in our culturally diverse society, the best compromise is that a mediator should be impartial
and accepted by both disputants. This means that the mediator should be fair and act
without prejudice in regard to both disputants and to the control of the mediation process.
4. Discuss arbitration as a primary ADR process. (10)
Arbitration is a process whereby the disputants voluntarily and jointly ask a third party, the arbitrator,
to hear both sides of the dispute and, thereafter, to make an award which the disputants undertake
in advance to accept as final and binding. This indicates that there is more in common between
arbitration and litigation, than between negotiation and mediation. The reason is that negotiation
and mediation are consensual processes, whereas arbitration and litigation are command
processes.
In arbitration, an award is imposed on the disputants and may in fact be made an order of court
under S31 of the Arbitration Act 42 of 1965. The outcome is final and binding, but such an award is,
however, made with the consent of the disputants. The method of decision making, as with
litigation, is made by adjudication and means that the adjudicator makes a binding decision on the
basis of the evidence and arguments presented by both sides. In arbitration, however, the decision
is binding on the disputants only, unlike litigation which is binding on the litigants and third parties.
Even though arbitration is a command process and so alike litigation, it is still regarded as a primary
ADR process because the disputants may 1. select the arbitrator; 2. choose the rules of arbitration
to be applied; 3. determine the issues in their submission; and 4. arrange matters relating to the
venue, costs and date.
5. Discuss litigation as a method of dispute resolution. (8)
It has a broad social purpose, namely to compensate, to adjust behaviour and to regulate public
policy and may be described as a state-sponsored method of resolving civil disputes through the
court system (thus being a public process). The formal and technical characteristics of the process
protect the procedural rights of litigants as opposed to interests in informal processes. Litigation is
controlled by external rules, such as the rules of court and statutory provisions. Lastly, it is also a
command process: a decision in the form of a judgment if imposed on the litigants by a judicial
officer and is enforced by execution proceedings.
6. Explain the basic differences between mediation, conciliation and facilitation. (6)
 Mediation: A mediator’s function is restricted to controlling the mediation process without
becoming directly involved in the content and outcome of the negotiations between the
disputants.
 Facilitation: This process has a broader application and is more flexible than mediation.
The facilitator’s role is directed at problem solving on an individual or group level, rather than
at dealing specifically with a dispute.
 Conciliation: A conciliator participates more directly in the interaction between the
disputants by advising them during their negotiations and may give a non-binding
recommendation at the end of the process.
7. Discuss the weaknesses of ADR processes. (6)
 It does not guarantee the procedural rights of litigants, because it settles disputes informally
and the disputants may place themselves beyond the protection afforded to litigants.
Moreover, as court proceedings are on record, a litigant may later turn to court for further
relief without having to prove again the issues already on record.
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 The decision of the court is binding and enforced through the state by means of the execution
procedures. At most, with the exception of arbitration or arbitration-based processes,
decisions reached by other ADR processes are only contractually binding and left to the
maturity and goodwill of the parties to comply with their agreement.
 When the process of litigation is used, access to court and court time are, in principle, free,
which is not the case with ADR processes. The third party intervener, as well as other
related expenses, must be paid. Apart from arbitration or arbitration-based processes, ADR
processes do not guarantee a final and binding resolution of a dispute and if settlement is not
reached, the costs of the informal process will have to be added to the eventual costs of
litigation.
8. Name and explain the various derivatives of the primary process of arbitration. (10)
 Expedited arbitration: Conducted in the same manner as full arbitration except that the
rules of arbitration are simplified in order to speed up the process.
 Documents-only arbitration: The arbitration is based on the documents that are submitted
by both disputants, which in these circumstances dispense with the arbitral hearing.
 Quality arbitration: Relies on the arbitral decision only and dispenses with the presentation
of any evidence as well as an arbitral hearing.
 Final-offer arbitration: Restricts an arbitrator’s competence to make an award freely since
the award is limited to the more reasonable of two final offers.
9. Briefly describe three positive characteristics of the system of ADR. (6)
 It mainly address the interests of the disputants and therefore avoid aggressive bargaining
about legal rights.
 It is private and allows disputants to settle their difference without having to divulge personal
and confidential information, which would happen in a public trial. The only exception is in
the case of court-ordered mediation or arbitration.
 It concentrates on problem solving directed at future relationship of the parties and is,
therefore, suited to resolve disputes in situations where the disputants will be in a continuing
or long term relationship with each other.
10. Discuss the mini-trial. (10)
 Information exchange
 Each party’s best case is presented by counsel who is given a limited time
 Minimum procedural standards are applied
 A neutral advisor controls the process
 Company executives must be present
 Settlement negotiations
 Senior executives meet privately and negotiate bone fide to settle the dispute
 A neutral advisor gives an advisory opinion if settlement cannot be negotiated
 Executives meet a second time to attempt settlement on the basis of the opinion
 If settlement still not reached, offers of settlement are submitted
 The offers form the basis for the neutral advisor to attempt to mediate settlement
 If mediation fails, the process is finally terminated
11. Discuss why it is a disadvantage to have the same person acting as mediator and arbitrator
for the process of mediation/arbitration. (6)
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If the mediator is also the arbitrator, the question is whether the mediator/arbitrator is capable of
applying the natural rules of justice to the arbitration. As the former mediator in the matter, the
mediator/arbitrator has intimate knowledge of the merits of both parties’ cases, including very
confidential information that a disputant might have disclosed privately to him or her during the
mediation, but would never have disclosed for the purposes of the arbitration. Mediation/arbitration,
therefore, always carries the risk that the mediator/arbitrator might (even unconsciously) introduce
confidential information disclosed during the initial stage of mediation into the arbitral award.
12. Do you think that a mediator should be neutral, or if not neutral, then impartial? Discuss. (10)
Certain commentators require the mediator to be neutral although there is no general agreement to
this issue. Neutrality seems to be an impossible standard in culturally diverse societies. The best
compromise is that the mediator should be impartial and accepted by both disputants.
Impartial means that the mediator should be fair and act without prejudice in regard to both
disputants. For instance a mediator might not be neutral when the rights or interests of an innocent
third party (i.e. a minor child) could be affected by a decision made by the disputants, but should,
however, still remain impartial in regard to the control of the mediation process.
Impartiality also refers to the manner in which the mediator controls the mediation process and
means he must be accepted by and be able to retain the trust of the disputants. The acceptability
of the mediator depends on whether the disputants perceive him to be impartial.
13. Name the four stages of the negotiation process. (4)
 Orientation stage
 Positioning stage
 Bargaining stage
 Close-out stage
14. Name and briefly describe the four derivatives of arbitration. (12)
 Expedited arbitration: Conducted in the same manner as full arbitration except that the
rules of arbitration are simplified in order to speed up the process.
 Documents-only arbitration: The arbitration is based on the documents that are submitted
by both disputants, which in these circumstances dispense with the arbitral hearing.
 Quality arbitration: Relies on the arbitral decision only and dispenses with the presentation
of any evidence as well as an arbitral hearing.
 Final-offer arbitration: Restricts an arbitrator’s competence to make an award freely since
the award is limited to the more reasonable of two final offers.
15. Explain the manner in which final-offer arbitration functions. (6)
The arbitrator’s competence to decide the matter is modified and an award may be made on the
basis of the most reasonable of the last offers made by each disputant. The arbitrator may not
choose a middle path, but must choose only one of the offers. To illustrate this, a professional
soccer player claims an annual fee of R 500,000.00, but the club is willing to pay R 200,000.00.
The reasonable fee is set at R 300,000.00. The arbitrator will award the most reasonable fee,
which is R 200,000.00 and reject R 500,000.00 as being excessive. The purpose of final offer
arbitration is to discourage excessive demands on the part of both parties. The disadvantage is that
an arbitrator might be compelled to choose one of two offers, no mater how absurd or irrational
each one is.
16. The two directors of a company are in dispute over accounting methods and consequently the
distribution of profits to each other. One of the directors consults with you with a view to
commencing proceedings against the other director. You realise that litigation would be futile under
the circumstances and try to convince your client to use methods of Alternative Dispute Resolution
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(ADR) so as to resolve their differences. Your client is confused and you need to explain the
following matters to him.
(a) State for your client two positive characteristics of ADR. (2)
 It mainly address the interests of the disputants and therefore avoid aggressive
bargaining about legal rights.
 It is private and allows disputants to settle their difference without having to divulge
personal and confidential information, which would happen in a public trial. The only
exception is in the case of court-ordered mediation or arbitration.
 It concentrates on problem solving directed at future relationship of the parties and is,
therefore, suited to resolve disputes in situations where the disputants will be in a
continuing or long term relationship with each other.
(b) Distinguish between litigation as a command process and negotiation and mediation
as consensual processes. (2)
 Litigation is a command process and means that a decision in the form of a judgment
is imposed on the litigants by a judicial officer and that this decision is enforced under
the sanction of the state.
 Negotiation and mediation are consensual processes because the outcome is not
imposed, but rather achieved by the agreement of both disputants, which could be
contained in a written contract.
(c) Explain the nature of the intervention by a mediator. (3)
The mediator actually has a very limited role and generally only controls the process, while
the disputants control the content and outcome of the mediation. This means that the
mediator’s main role is to assist and guide the disputants as they interact with each other
during the various stages of the process.
(d) Describe the process of expedited arbitration to your client. (3)
The rules of arbitration have been simplified in order to avoid delays and to speed up the
hearing. This is sometimes called “fast track arbitration”. The pace of the process may be
speeded up by –
 Doing away with certain formal rules of evidence
 Shortening the periods within which documents must be exchanged
 Giving the arbitrator an active rather than a passive role at the hearing

STUDY UNIT 7

1. Write short notes on the three differences between small claims courts and other courts. (6)
 Representation of a litigant by a legal professional is disallowed as the intention is to keep
legal costs, which would otherwise be incurred, to a minimum. In order to facilitate self
representation, pre-trial proceedings are informal, the rules of evidence have been relaxed
and the role of the judicial officer has been modified.
 Pre-trial formalities have been simplified and reduced to the barest essential.
 Although the relationship between the litigants remains adversarial, the role of the judicial
officer has changed to be more active, rather than passive as in other courts.
2. Write short notes on the manner in which evidence may be led in terms of Section 26 of the
Small Claims Courts Act of 1984. (6)
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The rules of the law of evidence do not apply in respect of proceedings in small claims courts. The
commissioner has the discretion to establish any fact in a manner that is suitable under the given
circumstances. S26 (3) introduces the inquisitorial system and provides as follows: -
 Litigants may not question or cross examine one another or witnesses called.
 The commissioner must proceed inquisitorially in order to establish the relevant facts and
may, therefore, question any litigant or witness at any stage of the proceedings.
 The commissioner may, in his own discretion, allow any litigant to put a question to the other
litigant or any witness.
3. Describe the manner in which proceedings are instituted in terms of Section 29 of the Small
Claims Courts Act of 1984. (6)
 A letter of demand delivered, by hand or registered post, to the defendant to satisfy the claim
within 14 days from date of receipt thereof (S29(1)(a)).
 If the defendant does not satisfy the claim, summons must be issued out of the small claims
court with a date and time for the hearing set by the clerk indicated (S29(2)).
 Summons is served on the defendant by litigants themselves or, optionally, by the deputy
sheriff (S29 (2)).
 No pleadings are required from the litigants, although the defendant may lodge a written
statement with the clerk of the court before the hearing setting out the nature of his defence
and the grounds on which it is based. A copy of this statement must then be supplied by the
defendant to the plaintiff (S29 (3)).
4. Explain the inquisitorial role of the commissioner in the small claims courts. (6)
In the small claims court, S26 (3) gives the commissioner an active role in assisting litigants by
introducing the inquisitorial system and provides as follows: -
 Litigants may not question or cross examine one another or witnesses called.
 The commissioner must proceed inquisitorially in order to establish the relevant facts and
may, therefore, question any litigant or witness at any stage of the proceedings.
 The commissioner may, in his own discretion, allow any litigant to put a question to the other
litigant or any witness.
S26 (1) gives the commissioner a discretion to establish any fact in a manner that is suitable under
the circumstances.
5. Name any three matters which a small claims court may not hear in terms of the provisions
of Section 16 of the Small Claims Court Act of 1984. (6)
 Dissolution of marriage
 Validity or interpretation of a will or other testamentary document
 Status of a person in respect of mental capacity
 Specific performance without an alternative claim for payment of damages (except in certain
instances)
 Decree of perpetual silence
 Damages in respect of defamation, malicious prosecution, wrongful imprisonment, wrongful
arrest, seduction and breach of promise
 Interdict
6. Name four objectives of the Small Claims Court Act of 1984. (4)
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 To make the administration of justice more accessible to all South Africans

 To provide a forum for the settling of minor civil disputes
 To remove time-consuming, formalistic and expensive procedures
 To introduce informal and simplified procedures to reduce the cost of litigation and provide
speedy determination of small claims
 Further reduction of legal costs by prohibiting legal representatives
 To establish a consumer-orientated court.

STUDY UNIT 8

1. Write concise notes on the concept of territoriality for the purposes of the exercise of civil
jurisdiction. (4)
Various high courts exists, each serving specific geographical areas. Each of these courts is largely
independent of the other high courts and the decision of one court is not binding on the other courts
of a similar or lower status. Each high court has original jurisdiction over all causes arising in its
territorial area.
2. Give a detailed explanation of the term “jurisdiction”. (6)
Two requirement must be met: -
 a court must have the authority to adjudicate or determine matters before it;
 a court must have the authority to enforce its judgments according to the doctrine of
effectiveness.
These requirements are confirmed in the Ewing McDonald decision and a court will not exercise
jurisdiction until both requirements are met. The first necessitates some or other jurisdictional
connecting factor between the court and the parties or the cause of action (ratione jurisdictionis)
and the second flows from the doctrine of effectiveness.

STUDY UNIT 9

1. Where is the Constitutional Court situated? (1)

Johannesburg
2. How many judges must hear a matter before the Constitutional Court? (1)
Eight judges
3. Write concise notes on the functions of the Constitutional Court. (4)
 Highest court of appeal in respect of constitutional matters.
 S 167: Exclusive jurisdiction to hear: 1. disputes between organs of state on national and
provincial level; 2. applications by the legislator concerning the constitutionality of
parliamentary legislation; 3. deciding whether parliament or the president fulfilled their
constitutional obligations; and 4. certifying provincial constitutions.
 It may, in exceptional cases, grant a person direct access in the interest of justice.
 Must confirm orders by other courts declaring legislation invalid before that order will have
any force.
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4. In terms of Section 167 of the Constitution of 1996, the Constitutional Court is only a court of
appeal in constitutional matters. Discuss this statement. (4)
Although the Constitutional Court is the highest court of appeal in constitutional matters, Section
167 also include the following in its jurisdiction: -
 Exclusive jurisdiction to hear: 1. disputes between organs of state on national and provincial
level; 2. applications by the legislator concerning the constitutionality of parliamentary
legislation; 3. deciding whether parliament or the president fulfilled their constitutional
obligations; and 4. certifying provincial constitutions.
 It may, in exceptional cases, grant a person direct access in the interest of justice.
 Must confirm orders by other courts declaring legislation invalid before that order will have
any force.
5. Name any three matters set out in Section 167(4) of the Constitution of the Republic of South
Africa, 108 of 1996, in respect of which the Constitutional Court has exclusive jurisdiction. (6)
 disputes between organs of state on national and provincial level
 applications by the legislator concerning the constitutionality of parliamentary legislation
 deciding whether parliament or the president fulfilled their constitutional obligations
 certifying provincial constitutions

STUDY UNIT 10

1. Explain the meaning of the term “residence”. (6)

In Beedle & Co v Bowley, residence was described as “his home, his place of abode, the place
where he generally sleeps after the work of the day is done”. In Ex parte Minister of Native Affairs,
the following principles were laid down: -
 A distinction should be drawn between place of residence and domicilium as one may reside
in one place and be domiciled in another.
 A person may have more than one residence, in which case he should be sued in the
jurisdictional area of the court in which he is residing at the time of service of the summons.
 A person does not reside in a place which he only visits temporarily.
2. Explain what is meant by the phrase “forum rei sitae”. (5)
Forum rei sitae is the court in whose area the property is situated and is relevant only in respect of
property claims. Under common law, the court where the property is situated, is the only court
which has jurisdiction to hear claims relating to such property. However, there are exceptions to
where this forum is not the exclusive forum, e.g. where property is movable, the forum domicilii may
also have jurisdiction; and where the property is immovable, Hugo v Wessels says that the forum
domicilii has jurisdiction in relation to transfer of the immovable property.
3. Discuss the relationship between the actor sequitur forum rei rule and the ratione domicilii.
(5)
In terms of the actor sequitur forum rei rule, the plaintiff must institute action against the defendant
in the area in which the defendant is domiciled or against the defendant in the area in which the
defendant is domiciled or resident. If this rule is followed to give jurisdiction to the court, such court
is said to have jurisdiction ratione domicilii.
4. Explain the doctrine of effectiveness. (6)
 Page 13 of 28

This is one of the common law principles on which the exercise of jurisdiction is based. A court will
not exercise jurisdiction unless compliance with the judgment can be expected. Where a defendant
resides outside South Africa, arrest or attachments to find or confirm jurisdiction is necessary in
order to give the court some control over the defendant or his property. It is for this reason that a
court requires a jurisdictional connecting factor between it and a defendant before it will assume
jurisdiction. The purpose of the doctrine is merely to ensure that court proceedings are not
completely futile from the start; it does not guarantee compliance with all judgments.
5. Write concise notes on: -
(a) the meaning and application of the terms “incola” and “peregrinus” (6)
An incola is a person who is either domiciled or resident within a specific court’s area of
jurisdiction.
A peregrinus is a person who neither domiciled nor resident within the court’s area of
jurisdiction.
 These 2 terms applied to each high court as a separate entity and not to South Africa
as a whole, thus person resident or domiciled in Natal HC peregrinus of Transvaal HC.
 Citizenship of a country not relevant when determining whether incola or peregrinus as
a person may be a citizen of a country without ever being resident or domiciled there.
 A distinction is drawn between a local peregrinus (lives elsewhere in South Africa) and
a foreign peregrinus (lives outside South Africa) where different jurisdictional rules
apply.
(b) the doctrine of effectiveness (4)
This is one of the common law principles on which the exercise of jurisdiction is based. A
court will not exercise jurisdiction unless compliance with the judgment can be expected.
Where a defendant resides outside South Africa, arrest or attachments to find or confirm
jurisdiction is necessary in order to give the court some control over the defendant or his
property. It is for this reason that a court requires a jurisdictional connecting factor between it
and a defendant before it will assume jurisdiction. The purpose of the doctrine is merely to
ensure that court proceedings are not completely futile from the start; it does not guarantee
compliance with all judgments.
6. M’s factory is attached under an order of attachment ad confirmandam jurisdictionem. While
pleadings are being exchanged, the factory is destroyed by a fire. Discuss briefly whether the
doctrine of effectiveness still applies. (4)
A court requires a jurisdictional connecting factor between it and a defendant before it will assume
jurisdiction so that compliance with the judgment can be expected. As a court will not exercise
jurisdiction unless it is able to give an effective judgment, the doctrine of effectiveness does not
apply.
7. Your client wishes to institute proceedings against D. During the consultation, you discover
that D is a South African citizen who is domiciled and resident in the United Kingdom.
Furthermore, D has no attachable property in South Africa. Advise your client. (2)
Where a defendant resides outside South Africa, arrest or attachments to find or confirm jurisdiction
is necessary in order to give the court some control over the defendant or his property. It is for this
reason that a court requires a jurisdictional connecting factor between it and a defendant before it
will assume jurisdiction. If he is a foreign peregrinus and has no attachable property, the court
proceedings would be completely futile from the start. Client should probably not institute
proceedings against D.
8. Explain the term “ratione rei gestae”. (6)
A court will be vested with jurisdiction in respect of monetary claims in the following instances: -
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 If the contract which is the subject of litigation was concluded OR was to be performed OR
was breached within the court’s area of jurisdiction, any of these grounds will be sufficient to
vest a court with jurisdiction (ratione contractus)
 If the delict on which the claim was based was committed within the court’s area of
jurisdiction (ratione delicti commissi)
9. Give an explanation of the concept “reside”. (6)
No legal definition exists, but according to decided cases (Beedle & Co v Bowley and Ex parte
Minister of Native Affairs) it would seem that more than mere physical presence at one place is
required: there must be an element of intention towards more permanence than a mere accidental
or temporary visit. Furthermore, a person can be resident at one place, but domiciled at another –
there is difference between the concepts. If a person has more than one residence, the court within
whose area he is residing at the time of service of the summons has jurisdiction.
10. Explain the meaning of the terms actor sequitur forum rei. (4)
It is a Roman law rule which means that the plaintiff must institute action against the defendant in
the area in which the defendant is domiciled or against the defendant in the area in which the
defendant is domiciled or resident. This rule is merely one of the accepted rationes jurisdictionis
and, if another link with a court exist, need not be followed. If the actor sequitur forum rei is
followed to give jurisdiction to a court, such court is said to have jurisdiction ratione domicilii.
11. C resides in Durban and E resides in Cape Town. E wishes to sue C for the purchase price
of a motor vehicle, which C refuses to pay despite demand. Discuss briefly whether the
principle of actor sequitur forum rei applies. (4)
In a claim sounding in money, the plaintiff must institute action against the defendant in the area in
which the defendant is domiciled or against the defendant in the area in which the defendant is
domiciled or resident. This rule is merely one of the accepted rationes jurisdictionis and, if another
link with a court exist, need not be followed. If the actor sequitur forum rei is followed to give
jurisdiction to a court, such court is said to have jurisdiction ratione domicilii. E must sue C in
Durban.

STUDY UNIT 12

1. Draw a brief schematic outline indicating the jurisdictional principles governing claims sounding in
money. (8)
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DEFENDANT

Incola Local peregrinus Foreign

peregrinus

Court where incola Court where cause of Court where plaintiff

action arose incola +
arrest/attachment

Court where cause of Court where cause of

action arose action arose +
arrest/attachment

Court where cause of

action arose +
submission

STUDY UNIT 13

1. Discuss briefly the domicile of an incola defendant within the area of the court as a ground
for the exercise of jurisdiction in regard to claims sounding in money. (8)
A court has jurisdiction over a defendant who is an incola of its area at the time when action is
instituted. It is irrelevant whether the plaintiff is an incola or a peregrinus or where the cause of
action arose.
The only problems encountered with regard to this jurisdictional connecting factor are procedural
ones. The defendant must be domiciled or resident within the court’s area of jurisdiction at the time
the action is instituted, i.e. when summons is issued and served.
The defendant need not be physically present in the court’s area of jurisdiction at the time when the
action is instituted. A person may be domiciled at a place where he is not currently resident and
such a court will still have jurisdiction ratione domicilii.

STUDY UNIT 14

1. Discuss Section 19(1)(c) of the Supreme Court Act 59 of 1959 in regard to the arrest or
attachment of the person or property of a peregrinus defendant of the whole of South Africa.
(6)
Until the end of 1999, the implication of the common law principle (namely that a person or the
property of a foreign peregrine had to be either arrested or attached, as the case may be, to provide
the necessary nexus between the court, the litigants or the cause of action), was that the person or
the property of the person had to be situated within the area of jurisdiction of the court where the
plaintiff wished to institute action. This principle was confirmed in the Ewing McDonald case. The
application of this principle lead to the fact that incola plaintiffs often could not litigate effectively
against foreign peregrine defendants simply because there was no property (or person) situated
within the court’s area of jurisdiction. S19(1)(c) now specifically provides that arrest or attachment
 Page 16 of 28

(to find or to confirm jurisdiction) of a foreign peregrinus or his/her property, can be effected
anywhere in South Africa.
2. Discuss briefly the implications of Section 19(1)(c) of the Supreme Court Act 59 of 1959 for
the exercise of jurisdiction over foreign defendants. (6)
Until the end of 1999, the implication of the common law principle (namely that a person or the
property of a foreign peregrine had to be either arrested or attached, as the case may be, to provide
the necessary nexus between the court, the litigants or the cause of action), was that the person or
the property of the person had to be situated within the area of jurisdiction of the court where the
plaintiff wished to institute action. This principle was confirmed in the Ewing McDonald case. The
application of this principle lead to the fact that incola plaintiffs often could not litigate effectively
against foreign peregrine defendants simply because there was no property (or person) situated
within the court’s area of jurisdiction. S19(1)(c) now specifically provides that arrest or attachment
(to find or to confirm jurisdiction) of a foreign peregrinus or his/her property, can be effected
anywhere in South Africa.

STUDY UNIT 15

1. Write concise notes on the significance of the decision in Venita Mineraria Spa v Carolina
Collieries (Pty) Ltd 1987 4 SA 883 (A) in regard to submission to jurisdiction. (4)
Previously it was assumed that where a defendant is a peregrinus of the court concerned, but an
incola of some other South African court, such a defendant could submit to the jurisdiction of some
court other than the court where the cause of action arose. However, in Venita Mineraria, the court
held that, despite submission, one of the traditional grounds of jurisdiction still had to be present. It
therefore appears that a local peregrinus cannot submit to the jurisdiction of a court, but action must
be instituted against him in the court within whose area the cause of action arose.
2. Explain the significance of the decision in Briscoe v Marais 1992 (2) SA 413 (W) for the
doctrine of submission. (4)
In the Briscoe decision, the court held that, irrespective of whether the plaintiff was an incola,
parties could not submit to the court's jurisdiction unless the cause of action arose within the court's
jurisdictional area. The earlier Venita Mineraria decision had stated obiter that, although courts
exercised jurisdiction if the plaintiff is an incola and the defendant a peregrinus of the Republic,
provided that arrest or attachment to found jurisdiction could be effected, this was not a traditional
ground for the exercise of jurisdiction, but merely a development to help incolae to litigate at home.
The current position, post-Briscoe, is that a peregrinus defendant cannot avoid arrest or attachment
to find jurisdiction by submitting to the jurisdiction of the court.

STUDY UNIT 16

1. Saleem purchases fixed property situated in Durban from Dudu. Dudu lives in Johannesburg.
Despite continuous demands from Saleem, Dudu refuses to take steps to have the property
registered in Saleem’s name. With reference to these facts, answer the following questions: -
(a) Discuss whether Saleem may institute an application for registration of the property in
the Johannesburg High Court or in the Durban High Court. (6)
Where the object of relief in a claim relates to immovable property, the court in whose
territorial area the immovable thing is situated, has exclusive jurisdiction. However, in Hugo
v Wessels, the appellate division stated that a court has jurisdiction if the property is situated
in the borders of South Africa, provided the defendant is an incola of the court. Thus the
forum domicilii is also relevant. As this question relates to forum domicilii registration of
 Page 17 of 28

property, Saleem may institute action in the Johannesburg High Court as it is the forum
where the defendant is domiciled. Saleem can also institute proceedings in the Durban High
Court as it is the forum rei sitae.
(b) Giving reasons, state whether your answer to (a) would differ if Saleem institutes an
action for damages on the grounds of breach of contract. (2)
If it is a claim sounding in money, forum domicilii is also applicable, so Johannesburg High
Court still has jurisdiction. Durban High Court does not have jurisdiction now, as the place
where property is situated is not relevant to claims sounding in money.
2. Does the forum domicilii have jurisdiction relating to claims regarding immovable property?
Discuss briefly. (4)
Where the object of relief in a claim relates to immovable property, the court in whose territorial area
the immovable thing is situated, has exclusive jurisdiction. However, in Hugo v Wessels, the
appellate division stated that a court has jurisdiction if the property is situated in the borders of
South Africa, provided the defendant is an incola of the court. Thus, the forum domicilii is also
relevant.
3. Discuss the exercise of jurisdiction where the object of relief is movable property. (6)
Where the object of relief is movable property, the court in whose territorial area the movable
property is situated has jurisdiction in any of the following actions : -
 to determine the title to such property
 for delivery of the movable property
 where a real right in respect of such property is at issue
It is debatable whether the jurisdiction of the forum rei sitae is exclusive regarding movable
property. Unlike immovable property, movables can be removed from the jurisdictional area of a
court, while remaining under the control of the owner or possessor. Therefore, it would appear that
the forum domicilii of the person would be able to exercise jurisdiction. However, the current
position is that, while the forum rei sitae will always have jurisdiction, it is unclear whether the forum
domicilii of the defendant will also be able to exercise jurisdiction. Where the forum rei sitae is
approached for relief, it is irrelevant whether the defendant is a peregrinus or an incola.
4. Discuss the principle forum rei sitae as it applies to movable property. (7)
Where the object of relief is movable property, the court in whose territorial area the movable
property is situated has jurisdiction in any of the following actions : -
 to determine the title to such property
 for delivery of the movable property
 where a real right in respect of such property is at issue
It is debatable whether the jurisdiction of the forum rei sitae is exclusive regarding movable
property. Unlike immovable property, movables can be removed from the jurisdictional area of a
court, while remaining under the control of the owner or possessor. Therefore, it would appear that
the forum domicilii of the person would be able to exercise jurisdiction. However, the current
position is that, while the forum rei sitae will always have jurisdiction, it is unclear whether the forum
domicilii of the defendant will also be able to exercise jurisdiction. Where the forum rei sitae is
approached for relief, it is irrelevant whether the defendant is a peregrinus or an incola.

STUDY UNIT 17
 Page 18 of 28

1. State the provisions of Section 2(1) of the Divorce Act of 1979 in regard to the requirements
for the exercise of divorce jurisdiction. (6)
S2(1) of the Divorce Act provides that domicile or residence of either spouse within the area of a
particular High Court is sufficient to confer jurisdiction in that court. S2(1)(a) provides that a court
may exercise divorce jurisdiction if both or either parties are/is domiciled in its area of jurisdiction on
the date on which the action is instituted. S2(1)(a) also provides that such court will be competent
to exercise jurisdiction irrespective of the period of domicile. Thus, a spouse's domicile of one
month or one day within the court's area will be sufficient to confer jurisdiction. Alternatively, the
parties may institute a divorce action if both or either of the parties are ordinarily resident in the
Republic for a period of not less than one year immediately prior to the institution of the action.
2. Explain the significance of Section 1(1) of the Domicile Act of 1992 in regard to the exercise
of divorce jurisdiction. (4)
In terms of the common law, a woman on entering marriage, automatically adopted and followed
the domicile of her husband. The significance of S1(1) is that the wife’s domicile of dependence
was abolished. In terms of S1(1), every person who is over the age of 18 and every person under
the age of 18 years who by law has the status of a major, shall be competent to acquire a domicile
of choice, regardless of such person’s sex or marital status.
3. Discuss briefly the domicile of a married women for the purposes of divorce jurisdiction. (6)
Common law provided that a woman adopted the domicile of her husband on marriage and retained
it for the duration of the marriage. In other words, on marriage, she lost her domicile of choice.
S1(1) of the Domicile Act abolished this principle and granted an independent domicile to married
women. This amendment also resulted in new grounds for the exercise of jurisdiction: domicile and
residence are now independent grounds; in fact, the domicile or residence of either spouse in the
jurisdictional area of the court is enough to vest that court with divorce jurisdiction.
4. Thandi wishes to obtain a divorce from her husband, Peter. The parties were married in
Durban. They then lived together in Pretoria until two years ago when Peter left Thandi for
another women, Salang. Immediately afterwards, Peter moved permanently to Bloemfontein
to live there with Salang. Answer the following questions, in each instance giving brief
reasons for your answer: -
(a) Explain why both Peter and Thandi can institute a divorce action in the Bloemfontein
High Court. (6)
S2(1) of the Divorce Act provides that domicile or residence of either spouse within the area
of a particular High Court is sufficient to confer jurisdiction in that court. S2(1)(a) provides
that a court may exercise divorce jurisdiction if both or either parties are/is domiciled in its
area of jurisdiction on the date on which the action is instituted. The fact that Peter has
moved permanently to Bloemfontein indicates that he has the intention to stay there
indefinitely. S2(1)(a) also provides that such court will be competent to exercise jurisdiction
irrespective of the period of domicile and thus, a spouse's domicile of 1 month or 1 day will be
sufficient to confer jurisdiction. Therefore, Peter is domiciled in Bloemfontein and both
Thandi and Peter may institute a divorce action in the Bloemfontein High Court. Alternatively,
the parties may institute action in the Bloemfontein High Court on the basis of Peter being
ordinarily resident in Bloemfontein for more than a year (in terms of S2(1)(b) of the Divorce
Act).
(b) Explain the concept ‘domicile’ in the context of divorce jurisdiction. (7)
The common-law position was that a woman upon entering into marriage, automatically
adopted and followed the husband's domicile, retaining it throughout the subsistence of the
marriage. Therefore, she lost the domicile which she had acquired prior to her marriage, and
also forfeited her competence to acquire a domicile of choice during the subsistence of the
marriage. However, the wife's domicile of dependence was abolished by the provisions of
S1(1) of the Domicile Act 3 of 1992 and an independent domicile for married women is now
conferred, which provides that every person over or under the age of 18 years who has the
 Page 19 of 28

status of a major by law, shall be competent to acquire a domicile of choice, regardless of

such person's sex or marital status. The Domicile Act amended the Divorce Act by
establishing both domicile and residence as separate grounds for the exercise of divorce
jurisdiction. The present position is that the domicile or ordinary residence of either spouse
within the area of a particular High Court is sufficient to confer jurisdiction on that court. The
effect of the amendment is that the word "domicile", when used in the context of divorce
jurisdiction, must be interpreted according to the definition contained in S1(1) of the Domicile
Act and not according to the common-law position.
(c) Thandi wishes to have her marriage declared void as she has discovered that Peter
was already married to Salang when he purported to marry her. Which court/courts
will have jurisdiction to hear this action? (4)
The following courts have jurisdiction to declare a marriage void in terms of the common law:
1. the forum loci celebrationis (court where the "marriage" was entered into); and 2. the court
where the plaintiff and/or the defendant is/are domiciled at the time that the nullity
proceedings are instituted. Thus, either the Durban High Court (where parties married) or the
Pretoria High Court (Thandi’s domicile) or the Bloemfontein High Court (Peter’s domicile) will
have jurisdiction to hear the matter.
(d) After having the marriage declared void, Thandi and Peter need to determine
ownership of the house that they bought together in Pretoria. Which court/courts
must they approach for this purpose? (3)
This relates to the ownership or possession of immovable property. Therefore, where the
object of relief is immovable property (determining title to immovable property), then the court
in whose territorial area the immovable property is situated (forum rei sitae), has exclusive
jurisdiction to hear the action. Thus, the Pretoria High Court (where house is situated) may
be approached to hear the action.
5. R and S are married to each other and are domiciled in Lesotho. During their five-year
marriage R, the husband, lives and works in Bloemfontein while his wife, S, lives in Lesotho
where she maintains the family home. R frequently visits his wife and family in Lesotho. R
meets another women and wished to divorce S. With there facts in mind, answer the
following questions, giving full reasons for your answers: -
(a) Can R institute divorce proceedings in the Bloemfontein High Court? (4)
Yes, R is ordinarily resident in the Bloemfontein Court's area (lives and works there) and he
has been doing so for the past 5 years (therefore, ordinarily resident for at least 1 year
preceding the action in the Republic). He fulfils the requirements of S2(1 )(b).
(b) Can S institute proceedings in the Bloemfontein High Court? (2)
Yes, S2(1) refers to "the parties or any one of them" who is domiciled or resident in either the
court's area or the Republic, as the case may be. The husband fulfils these requirements
and so the wife can institute action.
(c) Can R institute divorce proceedings in the Bloemfontein High Court if he has worked
in South Africa for only 10 months? (2)
No, S2(1)(b) requires that a party be "ordinarily resident in the Republic" for "at least 1 year
immediately preceding the action". Period stated is less than required period.
6. Mary, a South African woman, visits Botswana for a holiday. While there, she marries John, a
mineworker, who is a citizen of Botswana. At Mary’s request, the couple move to Johannesburg
where John accepts employment with a mining company. After six months John decides to go to
Kimberly because he would rather work in a diamond mine. Mary refuses to accompany John to
Kimberly since she holds a job with good prospects in Johannesburg. After spending about eight
months in Kimberly, John decides to return to Botswana. Shortly after his return to Botswana, John
decides to institute divorce proceedings against Mary.
 Page 20 of 28

(a) Briefly discuss whether John, who is domiciled and resident in Botswana, would be
able to institute divorce proceedings against Mary in the Johannesburg High Court. (3)
John is domiciled and resident in Botswana, while his wife Mary is resident in Johannesburg
at the time divorce proceedings are to be instituted. Mary also appears to have been
ordinarily resident in the Republic for a period of 1 year immediately before that date.
Although John cannot institute action in the Johannesburg High Court on the basis of his own
domicile or residence, he may do so because the defendant, Mary, is resident in that court's
area of jurisdiction and has been ordinarily resident in the Republic for a year proceeding this
date. {Also refer to domicile definition}
(b) Briefly indicate whether or not your answer would differ had Mary instituted
proceedings for divorce when John decided to leave for Kimberly. (3)
As it does not appear that John ever became domiciled in South Africa, the fact that he had
not yet returned to Botswana at this stage will not affect his domicile. We do not know where
Mary is domiciled. At this stage John is still resident in the Johannesburg court's area of
jurisdiction, but has not been resident in the Republic for 1 year. Mary is resident in the
court's area of jurisdiction, but it is not clear whether her residence was interrupted by her
stay in Botswana. Unless Mary can show that she is a domiciliary of the Johannesburg
court's area of jurisdiction, she may not institute divorce proceedings in South Africa.
7. D and F are a married couple who have been domiciled in Pretoria for 10 years. Although they do
not have American citizenship, they decide to emigrate to the USA in the hope that citizenship will
be granted. With these facts in mind, answer the following questions, giving full reasons for your
answers in each instance: -
(a) Will the Pretoria High Court have jurisdiction to grant a divorce to the wife F is, before
American citizenship is granted, the marriage breaks down irretrievably and F returns
to Pretoria? (2)
Yes, S2(1) refers to "the parties or any one of them" who is domiciled or resident in either the
court's area or the Republic, as the case may be. Both parties fulfil these requirements, as
they are both domiciled in Pretoria and so the wife can institute action.
(b) Will the Pretoria High Court have jurisdiction to grant a divorce to the wife F if, after
American citizenship has been granted and the couple have settled permanently in
new York for a year, the marriage breaks down irretrievably and F returns to Pretoria
only for the purposes of instituting divorce proceedings against D? (1)
No, the court will not have jurisdiction, as they are no longer domiciled nor ordinarily resident
in the area of jurisdiction of the Pretoria High Court.

(c) Will the Durban High Court have jurisdiction to grant a divorce to the husband D if,
after American citizenship has been granted and the couple have settled permanently
in New York for a year, the marriage breaks down irretrievable and F settles
permanently in Durban for 9 months after having returned to South Africa. (5)
S2(1)(a) provides that a court may exercise divorce jurisdiction if both or either parties are/is
domiciled in its area of jurisdiction on the date on which the action is instituted. S2 (1) (a)
also provides that such court will be competent to exercise jurisdiction irrespective of the
period of domicile. Thus, a spouse's domicile of 1 month or 1 day within the court's area will
be sufficient to confer jurisdiction. It is clear that F has decided to settle in Durban
permanently, so the court has jurisdiction on the basis of domicile. It is irrelevant how long F
has regarded the area her domicile.
8. R and S are married to each other. They are both domiciled in Namibia. R the husband is sent by
his employer to manage a contract that his company has undertaken to perform in South Africa.
For the purposes of his employment, R resides in Johannesburg. S, the wife, remains in Namibia.
 Page 21 of 28

While living in Johannesburg, R decides to divorce S. With these facts in mind answer the following
questions: -
(a) May R institute proceedings in the Johannesburg High Court if he is not domiciled in
its area of jurisdiction? (4)
S2(1)(a) provides that a court may exercise divorce jurisdiction if both or either parties are/is
domiciled or ordinarily resident in its area of jurisdiction on the date on which the action is
instituted. If jurisdiction is based on residence, both or either of the parties must be resident
in the area of jurisdiction on the date on which the action is instituted and have been
ordinarily resident in the Republic for a period of not less than 1 year immediately prior to the
institution of the action (S2(1)(b)). Only if R has been residing in South Africa for at least a
year prior to the institution of the action, will the Johannesburg High Court have jurisdiction.
(b) May S institute proceedings in the Johannesburg High Court if she is neither
domiciled nor resident in its area of jurisdiction? (2)
Yes, S2 (1) refers to "the parties or any one of them" who is domiciled or resident in either the
court's area or the Republic, as the case may be. If R, the husband fulfils these
requirements, the wife can institute action.
(c) Will your answer to (a) above differ if R institutes proceedings only after having been
resident in Johannesburg for six months? (2)
Yes, S2 (1)(b) requires that a party be "ordinarily resident in the Republic" for "at least 1 year
immediately preceding the action". The period stated in the facts is less than the required
period and, thus, the court has no jurisdiction.
9. B and D are married to each other in Lesotho. Their communal home is in Lesotho where both
parties are domiciled. B, the husband resides in Pretoria where he has worked for over 10 years.
The couple decides to divorce. On the basis of these facts, determine :
(a) whether B may institute proceedings in the High Court of Pretoria; (2)
Yes, S2 (1) refers to "the parties or any one of them" who is domiciled or resident in either the
court's area or the Republic, as the case may be. The husband fulfils the requirement of
residence because he has been ordinarily resident in South Africa for at least 1 year (10 to be
exact) and so the Pretoria High Court has jurisdiction.
(b) whether D may institute proceedings in the High Court of Pretoria; (2)
Yes, S2 (1) refers to the domicile or residence of any one of them, thus the court has
jurisdiction. Although D is neither domiciled nor resident in Pretoria, she can rely on the
residence of her spouse B.
(c) Whether D may institute proceedings in the High Court of Lesotho for the declaration
of the nullity of the marriage. (2)
The following courts have jurisdiction to declare a marriage void in terms of the common law:
1. the forum loci celebrationis (where the "marriage" was entered into); or 2. the court where
the plaintiff and/or the defendant is/are domiciled at the time that the nullity proceedings are
instituted. The High Court of Lesotho will have jurisdiction on both grounds.

STUDY UNIT 18

1. Write concise notes on the jurisdiction of the Supreme Court of Appeal in regard to
constitutional matters. (4)
This court may decide appeals “in any matter”, clearly including appeals in constitutional matters.
Unlike the position as far as non-constitutional matters are concerned, where no further appeal is
possible after a decision by the Supreme Court of Appeal, a constitutional matter may be taken on
 Page 22 of 28

further appeal to the Constitutional Court. If an appeal deals with both constitutional and non-
constitutional issues, appeal must be noted first to the Supreme Court of Appeal, as the
Constitutional Court may decide only constitutional matters.
2. State the instances where the Constitutional Court exercises exclusive jurisdiction in terms
of section 167(4) of the Constitution of the Republic of South Africa, 1996. (6)
 disputes between organs of state on national and provincial level
 applications by the legislator concerning the constitutionality of parliamentary legislation
 deciding whether parliament or the president fulfilled their constitutional obligations
 certifying provincial constitutions
3. Discuss the jurisdiction of the Constitutional Court. (10)
It only hears constitutional matters. However, it has the final say on whether or not a matter is a
constitutional one and will determine what matters it is prepared to hear itself. The CC has
exclusive jurisdiction regarding constitutional matters and, regarding other matters not specified in
S167(4), it exercises concurrent jurisdiction with the High Courts and either court may hear the
matter depending on the circumstances. It has exclusive jurisdiction to hear the following matters in
terms of S167(4): 1. disputes between organs of state on national and provincial level; 2.
Applications by the legislator concerning the constitutionality of parliamentary legislation; 3.
Deciding whether parliament or the president fulfilled their constitutional obligations; and 4.
certifying provincial constitutions.
The procedure is to approach the relevant HC for a decision. The decision may then be taken on
appeal, where the CC is the court of final instance. No further appeal is possible. The CC no
longer has the exclusive jurisdiction to determine whether an Act of parliament is invalid and a HC
or the Supreme Court of Appeal may also make such a finding. However, it remains necessary for
the CC to confirm such a finding made by any other court before the order has any force. This
limits the concurrent jurisdiction of the other courts. In exceptional case, it is possible to approach
the CC directly or to appeal to this court directly, despite the fact that the matter falls within the
concurrent jurisdiction of the CC, and should first be heard by a HC or the Supreme Court of
Appeal. The CC must give leave for an approach to it. The applicant must show that it is "in the
interests of justice" that this court be approached direct.

COMBINATION QUESTIONS  High Court Jurisdiction

1. X is domiciled in Cape Town and is a fish merchant who guarantees the delivery of fresh fish daily
to restaurants. X owns valuable industrial property in Port Elizabeth. X and Y meet in Durban
where they conclude a contract in terms of which X undertakes to deliver 500kg of fish per month to
Y's restaurant situated in Johannesburg, where Y is also domiciled. Despite repeated demands, X
fails to deliver the required quantities of fish to Y's restaurant. As a result, Y suffers damages to the
amount of R250 000. With these facts in mind answer the following questions, giving reasons for
each answer.
(a) Could Y institute proceedings against X in the Cape Town High Court on the grounds
of breach of contract? (2)
(b) Could Y institute proceedings against X in the Durban High Court on the grounds of
breach of contract? (2)
(c) Would it be necessary for Y to arrest X or attach his property in order to enable the
Durban High Court to exercise jurisdiction? (2)
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(d) If on the same facts, X is now a Russian citizen who is domiciled in Moscow and no
longer resident in Cape Town, could Y institute proceedings against X in the
Johannesburg High Court on the basis of an order ad fundandam jurisdictionem? (4)
(e) If on the same facts, X is now a Russian citizen who is domiciled in Moscow and no
longer resident in Cape Town, could Y institute proceedings against X in the Durban
High Court on the basis of an order ad confirmandam jurisdictionem? (4)
(f) Would your answer to (v) above differ if X was a South African citizen who is domiciled
in Moscow and no longer resident in Cape Town? (2)
(g) If on the same facts, X is now a Russian citizen who is domiciled in Moscow and no
longer resident in Cape Town, could Y apply for an order in the Johannesburg High
Court for the jurisdictional attachment of X's property situated in Port Elizabeth? (2)
(h) Which court(s) would be competent to exercise jurisdiction if the claim related to the
vesting of a servitude over X's property situated in Port Elizabeth? (2)
2. P, who lives in Pretoria, owns a valuable stud bull which is kept on his farm in Bloemfontein. P sells
the bull to T for an amount of R200 000. T pays the purchase price but P refuses to deliver the bull.
With these facts in mind answer the following questions, giving reasons for each answer.
(a) What type of claim is a claim for the delivery of the bull? (1)
(b) Which court will have jurisdiction if T institutes action for the delivery of the bull? (2)
(c) What type of claim is a claim for return of the purchase price? (1)
(d) Which court will have jurisdiction if T institutes action for return of the purchase
price? (2)
3. John is a diamond dealer who lives in Bloemfontein. John sells a valuable diamond to Peter, a
jeweller, for a purchase price of R300 000. Peter lives in Pretoria, but conducts his business from
an office in Cape Town. The contract is signed in Johannesburg but the diamond must be
personally delivered to Peter's Cape Town office and the purchase price will be paid on delivery.
After taking delivery of the diamond, Peter refuses to pay the purchase price. Answer the following
questions, in each instance giving brief reasons for your answer.
(a) John wishes to sue Peter for an amount of R300 000, being the purchase price of the
diamond. Explain whether the Johannesburg High Court and the Cape Town High
Court will be competent to exercise jurisdiction. (4)
In a claim sounding in money, if the contract was concluded OR was to be performed OR
was breached within the court’s area of jurisdiction, ANY of these grounds will be sufficient to
vest a court with jurisdiction. A court is then said to be vested with jurisdiction ratione
contractus. Both the Johannesburg High Court and the Cape Town High Court may hear the
matter.
(b) Explain whether or not summons may be issued out of either of the High Courts
identified in (a) above during a period when Peter is in Durban for business purposes.
(3)
Summons may be issued by any court vested with jurisdiction and the defendant's
whereabouts are irrelevant in this regard. His whereabouts are relevant for purposes of
service, but as S26 (1) provides that process runs throughout the country, service may be
effected on the defendant anywhere in the country
(c) The original facts remain the same, except that, Peter, the purchaser, is a peregrinus
of the Republic and his only asset in South Africa is his business in Cape Town.
Explain whether the Johannesburg High Court and the Bloemfontein High Court will be
competent to exercise jurisdiction. (8)
As Peter is a foreign peregrine, arrest of his person or attachment of his property will always
be necessary before a court may exercise jurisdiction. S19(1)(c) provides that arrest or
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attachment may take place anywhere in South Africa, so his assets in Cape Town may be
attached to found or confirm jurisdiction. The Bloemfontein High Court may exercise
jurisdiction provided arrest or attachment ad fundandam jurisdictionem is possible, because
John the plaintiff is an incola of that court. The Johannesburg High Court may exercise
jurisdiction provided arrest or attachment ad confirmandam jurisdictionem takes place, as this
will strengthen the partial jurisdiction it has because the cause of action arose in its
jurisdiction.
(d) The original facts remain the same. However, John decides to sue Peter for the return
of the diamond, which is stored in Peter's bank vault in Cape Town. Explain why both
the Cape Town High Court and the Pretoria High Court may exercise jurisdiction. (5)
This is now an action concerning property, not a claim sounding in money. The place where
the property is situated always has jurisdiction ratione rei sitae. So the Cape Town High
Court has jurisdiction because the diamond is stored in a bank vault there. As the property is
movable, this jurisdiction is not necessarily exclusive and the place where the defendant is
domiciled may also be able to exercise jurisdiction. It is for this reason that the Pretoria High
Court may possibly also exercise jurisdiction.
4. X has a claim against Z in the amount of R200 000 on the grounds of breach of contract. The
cause of action arose in Cape Town. X is an incola of Cape Town and Z is an incola of Pretoria. On
the basis of these facts, answer the following questions: –
(a) Can X institute proceedings against Z in the Cape Town High Court? (1)
Yes, the cause of action arose here (ratione rei gestae).
(b) If it is possible to institute proceedings against Z in the Cape Town High Court, would
it be necessary to arrest Z or attach his property? (2)
No, Z is an incola of the Republic and S28 of the Supreme Court Act specifically prohibits the
arrest (or attachment of property) of an incola of the Republic
(c) If Z is temporarily resident in Durban, can X issue summons out of the Cape Town
High Court and have the summons served in Durban? (2)
Summons may be issued by any court vested with jurisdiction and the defendant's
whereabouts are irrelevant in this regard. His whereabouts are relevant for purposes of
service but as S26(1) provides that process runs throughout the country, service may be
effected on the defendant anywhere in the country.
(d) Can X institute proceedings against Z in the Pretoria High Court? (1)
Yes, based on the principle actor sequitur forum rei, Z is an incola of the Pretoria High Court.
(e) Would your answer to (a) differ if Z was a peregrinus of the whole Republic? (6)
No, the Cape Town Court will still have jurisdiction, but on different grounds. Arrest or
attachment must now take place. There are two types of arrest or attachment, namely ad
confirmandam iurisdictionem and ad fundandam iurisdictionem. In the first instance the
requirements are arrest or attachment plus cause of action, and in the latter instance, apart
from arrest or attachment, it is required that the plaintiff be an incola of the particular court.
In casu only arrest is possible, since there is no mention of attachable property. Furthermore,
because both the requirements relating to cause of action and the plaintiff-incola are met,
both forms or types of arrest can take place.
(f) Would your answer to (e) differ if Z is not present in Cape Town and has attachable
property only in Pretoria. (3)
No, S19(1)(c) of the Supreme Court Act provides that arrest or attachment can take place
anywhere in the Republic. Attachment of the property in Pretoria will be sufficient for
jurisdictional purposes. S26 provides that execution of an order or of a process can take
place throughout the Republic.
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(g) Would your answer to (a) differ if Z was a peregrinus of the whole Republic and the
cause of action arose in Durban? (3)
No, the Cape Town Court will still have jurisdiction, but on different grounds. Arrest or
attachment ad fundandam jurisdictionem must now take place. In this case only arrest is
possible, since there is no mention of attachable property.
(h) Could the Cape Town High Court assume jurisdiction if X was domiciled in Cape Town,
Z was a peregrinus of the whole Republic, the cause of action arose in Cape Town and
Z submits to the jurisdiction of the said court before an order for arrest or attachment
is granted to X? (2)
Yes, this is the only instance where submission occurs.
(i) Could the Cape Town High Court assume jurisdiction if X was domiciled in Cape Town,
Z was a peregrinus of the whole Republic, the cause of action arose in Cape Town and
Z submits to the jurisdiction of the said court after an order for arrest or attachment is
granted to X? (2)
In Kasimov v Kurland, the court stated it is too late to submit once the court has issued the
order for arrest or attachment. However, in Utah International Inc v Honeth the court held
that submission is still possible. All cases agree that once arrest or attachment has actually
taken place, submission will not be accepted.
(j) Would your answer to (a) differ if the claim related to the registration of fixed property
and the property is situated in Durban? (2)
Yes, according to the principle forum rei sitae, the Durban court has exclusive jurisdiction.
(k) Would your answer to (j) differ if the claim now related to movable property situated in
Durban? (1)
Yes, the principle relating to exclusivity of jurisdiction does not apply to movable property and
therefore the forum domicilii may also be vested with jurisdiction.
5. X who lives in Pretoria, buys a farm situated in the Cape Town area from Y, who lives in
Bloemfontein. The parties sign the contract of sale in Johannesburg. Y subsequently refuses to sign
the transfer documents and X wishes to institute action against him for transfer of the property. With
regard to these facts, answer the following questions, giving reasons for each answer.
(a) Discuss whether X may institute an action for transfer of the property in the
Johannesburg or Cape High Court. (3)
The forum rei sitae always has jurisdiction to determine ownership of immovable property. In
respect of claims where the object of relief is immovable property (as in the present instance),
the court in whose area of jurisdiction the property is situated has exclusive jurisdiction.
Therefore, the Cape High Court will have jurisdiction to hear the matter since the farm is
situated in Cape Town. The Johannesburg High Court will not have jurisdiction to hear the
matter as the forum domicilii of the defendant is irrelevant regarding claims relating to
immovable property.
(b) X requests the court to award damages against Y for breach of contract. Which court
now has jurisdiction to hear the matter? (4)
Note that the type of claim has changed - we are no longer dealing with a property claim, but
with a claim sounding in money and so different jurisdictional principles must be applied.
Where an amount of money such as damages is claimed, a court may exercise jurisdiction if
the defendant is an incola of its area of jurisdiction or if the cause of action arose within its
area of jurisdiction. The Bloemfontein High Court could exercise jurisdiction in respect of the
damages claim, because the defendant Y is an incola of Bloemfontein and so this court has
jurisdiction ratione domicilii. The cause of action arose in Johannesburg in that the contract
of sale was signed in Johannesburg. For this reason, this court has jurisdiction ratione rei
gestae.
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(c) Would your answer to (b) differ if Y is a German national and he owns a yacht which is
moored in Durban harbour? (5)
The defendant is now a foreign peregrinus and, for any court to have jurisdiction, arrest or
attachment of V's person or property must take place. If this can be done, the Johannesburg
High Court will still have jurisdiction, but on a different jurisdictional ground to (b) above. The
arrest or attachment will be ad confirmandam jurisdictionem, because the cause of action
(signature of the contract) arose within the court's area of jurisdiction. Where a court
exercises jurisdiction based on arrest or attachment ad confirmandam jurisdictionem, the
nature of the proceedings is irrelevant, provided that money is claimed (such as a claim for
damages which is the case here). It is also irrelevant whether the plaintiff is an incola or
peregrinus of the court concerned, and the cause of action need not arise wholly within the
court's jurisdiction for that court to be vested with jurisdiction. S19(1)(c) of the Supreme Court
Act also provides that arrest or attachment, both to find and confirm jurisdiction may take
place anywhere in the Republic. From the above, it is apparent that X can institute action in
the Johannesburg High Court if he can arrest Y or attach his yacht anywhere in South Africa.
Alternatively, X can institute action in the Pretoria High Court if he can arrest Y or attach his
yacht. This is because X, the plaintiff, is an incola of Pretoria, as he is ordinarily resident and
domiciled in Pretoria. The court's jurisdiction in this instance will be based on arrest or
attachment ad fundandam jurisdictionem. Please note that the order for arrest or attachment
founds jurisdiction, and it is not necessary for the cause of action to have arisen within the
court's area of jurisdiction. Thus, one can institute action against a foreign peregrinus in the
court where the plaintiff is an incola.

6. X, a Frenchman, is the owner of a yacht. The yacht is damaged at sea, rescues and brought to dry
dock in Cape Town. X instructs Z, who lives permanently in Durban, to do the necessary repairs to
the yacht. Z performs the repairs in Cape Town at a total cost of R200 000. Despite demand, X fails
to pay Z for the cost of the repairs and sails from Cape Town to Durban. With these facts in mind,
answer the following questions, giving reasons for each answer.
(a) Could Z successfully bring an application for the attachment of X's yacht to enable the
Cape Town High Court to exercise jurisdiction? (5)
X is a peregrinus of the Republic and therefore arrest or attachment of the person or property
has to take place for a South African court to have jurisdiction over him. There are two types
of arrest or attachment, namely: -
 ad confirmandam iurisdictionem which requires arrest or attachment plus cause of
action; and
 ad fundandam iurisdictionem which requires arrest or attachment plus that the plaintiff
is an incola of the particular court.
In casu the cause of action arose in Cape Town and therefore attachment ad confirmandam
iurisdictionem is applicable.
Note: If students pointed out that X had already sailed from the harbour credit was given.
(b) Could Z successfully bring an application for the attachment of X's yacht to enable the
Durban High Court to exercise jurisdiction? (4)
The requirements for ad fundandam iurisdictionem are arrest or attachment plus that the
plaintiff must be an incola of the court. In this instance the plaintiff is an incola since he lives
in Durban and therefore the yacht can be attached.
Note: Ad confirmandam iurisdictionem may also be possible if the facts are read in such a
way that the contract for the repairs was concluded in Durban.
(c) Would the Cape Town High Court have jurisdiction if X was domiciled in Pretoria? (3)
 Page 27 of 28

Yes, X is now an incola of the Republic and S28 of the Supreme Court Act prohibits the
arrest or attachment of such persons. The cause of action (breach of contract, i.e. failure to
pay for the repairs) arose in Cape Town and therefore this court has jurisdiction ratione rei
gestae.
7. Z wishes to claim damages from X on the grounds of breach of contract. X owns a valuable
commercial property situation in Cape Town. With these facts in mind, answer the following
questions: -
(a) If X is domiciled in Johannesburg, will the Johannesburg High Court be competent to
exercise jurisdiction? (3)
Yes: based on the principle actor sequitur forum rei. X is an incola of the Johannesburg High
Court and thus the court has jurisdiction
(b) Would your answer to (a) above differ if at the time of the institution of the action, X is
temporarily resident in Durban? (3)
Yes. Although a court has jurisdiction based on domicile or residence, a person does not
reside in a place which he visits only temporarily. The Durban court would not have
jurisdiction, but the Johannesburg Court will still have jurisdiction if X is domiciled there.
(c) In relation to your answer to (b) above, explain whether the provisions of section 26(1)
of the Supreme Court Act of 1959 would apply. (2)
Summons may be issued by any court vested with jurisdiction and the defendant's
whereabouts are irrelevant in this regard. His whereabouts are relevant for purposes of
service but as section 26(1) provides that process runs throughout the country, service may
be effected on the defendant anywhere in the country.
(d) Will the Pretoria High Court be competent to exercise jurisdiction if X is a peregrinus
of the whole Republic, Z is domiciled in Pretoria and the contract was concluded in
Zambia? (5)
Ordinarily, it matters not where the Plaintiff is an incola (Pretoria). However, where the
Defendant is a peregrinus of the Republic and the plaintiff is an incola of the court, arrest or
attachment ad fundandam jurisdictionem is required to found jurisdiction (ie give the court
jurisdiction). The cause of action also did not arise in the area of jurisdiction. If X is in South
Africa, he will have to be arrested, so as to found jurisdiction of the Pretoria High Court.
There is no mention of property that could be attached. If X is not in the Republic any longer,
no South African court has jurisdiction because arrest cannot be effected.
(e) Will the Durban High Court be competent to exercise jurisdiction if both X and Z are
peregrines of the whole Republic and the contract was concluded in its area of
jurisdiction? (5)
Yes. Where a defendant is a peregrinus of the whole of the Republic, a court is competent to
exercise jurisdiction IF the cause of action arose within its area of jurisdiction AND IF arrest
or attachment ad confirmandam jurisdictionem takes place. The arrest or attachment
CONFIRMS or strengthens the partial or imperfect jurisdiction which the court has by reason
of the fact that the cause of action arose within its area of jurisdiction. It makes no difference
whether the plaintiff is an incola or peregrinus of the court concerned. Also, the cause of
action need not arise wholly within the court’s jurisdiction. Therefore, it is fine that the contract
was only concluded in Durban.
(f) In relation to your answer to (e) above, explain whether the provisions of section 19(1)
(c) of the Supreme Court Act of 1959 would apply. (4)
Section 19(1)(c) of the Supreme Court Act 59 of 1959 provides that arrest or attachment,
both to found and confirm jurisdiction may take place anywhere in the Republic. From the
above, it is apparent that X can institute action if he can arrest Y or attach his commercial
property in Cape Town
 Page 28 of 28

8. Peter lives in Pretoria. He visits Cape Town on business. While in Cape Town, Peter is involved in a
motor vehicle collision with Jane. Jane lives in Cape Town. The collision is due solely to the
negligence of Peter. Jane wishes to institute an action against Peter for damages in the amount of
R200 000, being the cost of repairs to Jane's Mercedes sports car. Peter has fixed assets in
Johannesburg. With reference to the above facts, answer the following question. Ensure that you
give reasons for each answer.
(a) May Jane institute proceedings against Peter in the Cape Town High Court. (2)
Yes, the cause of action arose here (ratione rei gestae). The delict in which the claim is
based was committed within the court’s area of jurisdiction (ratione delicti commissi).
(b) Must Jane obtain an order of arrest or attachment against Peter so as to enable a court
to exercise jurisdiction? (2)
No, S28 (1) of the Supreme Court Act prohibits arrest or attachment, for jurisdictional
purposes, of persons domiciled or resident anywhere in South Africa.
(c) Would your answer to (a) differ if Peter was an Australian businessman who has fixed
assets in Johannesburg to the value of R800 000? (9)
X is a peregrinus of the Republic and therefore arrest or attachment of the person or property
has to take place for a South African court to have jurisdiction over him. There are two types
of arrest or attachment, namely: -

 ad confirmandam iurisdictionem which requires arrest or attachment plus cause of

action; and
 ad fundandam iurisdictionem which requires arrest or attachment plus that the plaintiff
is an incola of the particular court.
In casu cause of action arose in Cape Town and therefore attachment ad confirmandam
iurisdictionem is applicable. The arrest or attachment confirms or strengthens the partial or
imperfect jurisdiction which the court has by reason of the fact that the cause of action arose
within its area of jurisdiction.
It makes no difference whether the plaintiff is an incola or peregrinus of the court concerned.
As it happens, the plaintiff is also an incola of the court. Therefore, one could also do arrest
or attachment ad fundandam jurisdictionem. However, where both are applicable, one must
do attachment ad confirmandam jurisdictionem, as the court already has partial jurisdiction.
S19(1)(c) of the Supreme Court Act provides that arrest or attachment, both to find and
confirm jurisdiction may take place anywhere in the Republic. From the above, it is apparent
that X can institute action if he can arrest Y or attach his fixed property in Johannesburg.
(d) If on the same facts, Peter is an Australian tourist and Jane wants to institute action in
the Cape Town High Court, can Peter submit to the jurisdiction of this court to avoid
being arrested or having his property attached. (5)
Where the defendant is a peregrinus of South Africa and the cause of action arose within the
court’s area of jurisdiction, the defendant may submit to the court’s jurisdiction, provided he
does so before the arrest or attachment order is made. Submission will then render an arrest
or attachment unnecessary. It is the only instance where submission may take place.
Submission is merely a substitute for the confirmation of jurisdiction by arrest or attachment.