A NEW LOOK AT AN OLD QUESTION – PRECISELY WHERE DOES A CAUSE OF ACTION BASED ON CONTRACT OR DELICT “ARISE” IN THE CASE OF CIVIL CLAIMS IN THE MAGISTRATES’ AND SMALL CLAIMS COURTS?

Abstract

One of the chief jurisprudential considerations of the new South Africa must be access to justice. Whilst various possibilities for the realization of this imperative are aired periodically, the principles on which the civil jurisdiction of the courts is based are seldom considered in this regard. However, complex and arcane rules of jurisdiction can place what this article argues to be unfair and largely pointless limitations on a plaintiff, particularly in respect of magistrates’ and small claims courts’ actions. Section 28(1)(d) of the Magistrates’ Courts Act, for example, which confers jurisdiction on a court in relation to the locality of the cause of action, can prove
particularly problematic in the case of claims based on contract. Jurisdiction cannot be conferred under this provision unless every “element” of the contract – offer, acceptance, performance and/or breach, has occurred within the same magisterial district. This article examines the many practical problems which arise as a result, as well as various interpretations of the existing case law, which may serve to alleviate these problems to a certain extent. The authors conclude, however, that legislative reform may be the only way in which to truly solve the many dilemmas which arise in practice.