Ward v Burgess and Another

• Jurisdiction: South Africa
• Judge: Munnik J
• Judgment Date: 18 December 1974
• Citation: 1976 (3) SA 104 (TK)
• Hearing Date: 17 October 1974
• Court: Transkei High Court

Munnik, C.J.:

The plaintiff instituted action against the defendants for relief which for the sake of brevity and convenience may be summarised as being claims for:

(a)

an order compelling the defendants to sign transfer documents as purchasers of immovable property;

(b)

F an order compelling the defendants to furnish guarantees for the purchase price of such immovable property;

(c)

payment of the purchase price against transfer of the property in question into their names; and

(d)

costs of suit.

It was alleged in the particulars of claim that the defendants G are resident and domiciled within the jurisdiction of this Court and that the deed of sale upon which the relief claimed is based was signed at Umtata but that the property to which the claim relates is situate within the municipal area of Port St. Johns.

It is common cause that the municipal area of Port St Johns falls in the magisterial district of Hermes, which is not one H of the 26 magisterial districts comprising the area of jurisdiction of this Court, but in fact falls under the jurisdiction of the Eastern Cape Division of the Supreme Court of South Africa.

The second defendant filed a plea in bar averring that by virtue of the facts set out in the aforegoing paragraph this Court has no jurisdiction to hear the action.

The crux of the argument presented by Mr. Rogers, for the second defendant, in support of the plea in bar, was that the Eastern Cape Division

Munnik CJ

as the forum rei sitae has exclusive jurisdiction since the claim concerns the transfer of immovable property situate within the jurisdiction of that Court.

Before examining the validity or otherwise of this argument it will be convenient to set out the position in regard to the A Court's jurisdiction generally.

This Court was constituted by Proc. R. 173 of 1973, sec. 6 whereof confers upon it, inter alia:

'the same jurisdiction in the area as that which could have been exercised by the Eastern Cape Division of the Supreme Court in terms of the common law or other applicable laws had these regulations not come into force.'

The jurisdiction possessed by the Eastern Cape Division of the Supreme Court is derived, in common with the other Divisions of the Supreme Court, from sec. 19 of the Supreme Court Act, 59 of 1959, the relevant portions whereof read as follows:

'19 (1) (a): A provincial or local division shall have jurisdiction over all persons residing or being in and in relation to all causes arising... within its area of jurisdiction...

19 (3): The provisions of this section shall not be constructed as in any way limiting the powers of a provincial or local division as existing at the commencement of this Act or as depriving any such division of any jurisdiction which could lawfully be exercised by it at such commencement.'

From what I have set out it is clear that the...