THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 159/2023
In the matter between:
MAGDALENA JOSINA VORSTER APPELLANT

and

CLOTHING CITY (PTY) LTD RESPONDENT

Neutral citation: Vorster v Clothing City (Pty) Ltd (159/2023) [2024] ZASCA 53
(19 April 2024)
Coram: MOKGOHLOA, NICHOLLS and HUGHES JJA and
SEEGOBIN and MBHELE AJJA
Heard: 11 March 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down of the judgment is
deemed to be 11h00 on 19 April 2024.

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Summary: Jurisdiction – Magistrates’ Court Act 32 of 1944 (the Act) –
whether a claim for damages falls within the monetary jurisdiction of the
magistrates’ courts – s 29(1)(g) sets the jurisdictional limit of the value of the subject
matter in dispute – s 37(2) applicable.

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ORDER

On appeal from: Eastern Cape Division of the High Court, Makhanda (Mjali J and
Mqumse AJ, sitting as court of appeal):
1. The appeal is upheld with costs.
2. The order of the high court is set aside and substituted with the following:
‘1. The appeal against the order of the regional court is upheld.
2. The defendant’s special plea is dismissed with costs.
3. The plaintiff’s action is referred to the regional court for the determination of
damages.’


JUDGMENT

Nicholls JA ( Mokgohloa and Hughes J JA and Seegobin and Mbhele A JJA
concurring):
[1] This appeal concerns the monetary jurisdiction of the magistrates ’ court in
terms of the Magistrates’ Court Act 32 of 1944 (the Act). The oft repeated phrase is
that the magistrates’ courts are creatures of statute and have no jurisdiction beyond
that provided for in the enabling statute. However, this does not mean that one has
to ‘give those powers such a restrictive interpretation as to practically, in many cases
lead to a miscarriage of justice.’1


1 Rex v Boon 1913 TPD 12 at 14.

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[2] The issue for determination is whether a claim for damages falls within the
monetary jurisdiction of the magistrates’ courts, which at the time was a maximum
amount of R400 000. The Regional Court of the Eastern Cape, Port Elizabeth
(the regional court) found that it did not. This was confirmed by the full bench of the
Eastern Cape Division of the High Court, Makhanda (the high court). Special leave
to appeal was granted by this Court.

[3] The facts of this case are briefly as follows. In September 2015, the appellant,
Ms Magdalena Josina Vorster (Ms Vorster), fell and injured herself while shopping
in the business premises of the respondent, City Clothing (Pty) Ltd (City Clothing).
Pursuant thereto, she claimed delictual damages against City Clothing out of the
regional court. In her initial particulars of claim, the quantum of Ms Vorster’s claim
was R255 856.40. Before the trial commenced, the merits were settled on a 75/25
basis in her favour. The settlement agreement was made an order of court and the
issue of quantum was postponed to a later date. The order reads as follows:
‘1. Defendant concedes the issue of negligence on a 75/25% basis.
2. Quantum and causality to be postponed sine die.’

[4] Before the hearing on quantum Ms Vorster effected an amendment to her
particulars of claim, increasing the quantum of her claim from R255 856.40 to R531
225.02 less the 25% apportionment. This resulted in a total claim by Ms Vorster of
R398 418.77. City Clothing did not object to the amendment which was duly
perfected. It filed a consequential amendment to its plea and did not raise monetary
jurisdiction as an issue. However, a month and a half later, City Clothing filed a
notice to amend its plea , solely to introduce a speci al plea that the amount of
R531 225.02 exceeded the R400 000 monetary jurisdiction of the regional court. In

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her replication, Ms Vorster responded that after the apportionment was taken into
consideration, the amount fell within the jurisdiction of the regional court.

[5] The matter proceeded in the regional court only in respect of the special plea.
The magistrate found that Ms Vorster had the option to abandon part of her claim to
bring it within the jurisdiction of the regional court, but instead she made a deliberate
choice to persist with a claim which exceeded the jurisdiction. The magistrate upheld
the special plea and found that it was a ‘declinatory plea’ with respect to jurisdiction
which, if upheld, brings an end to the action.

[6] An appeal to the high court was dismissed with costs. The high court was of
the view that Ms Vorster had taken it upon herself to apportion her claim, thus
usurping the function of the court. It was only once the quantum of damages had
been proven could the apportionment of 75/25% be applied, said the high court. It
held that if a portion of an indivisible claim exceeded the monetary jurisdiction, then
the whole claim was beyond the jurisdiction of the regional court. For this it relied
on Jones v Williams.2

[7] The crucial time to determine whether a court has jurisdiction to entertain a
matter is at the time when the action commences. This is even so where the plaintiff
is responsible for the removal of jurisdiction. 3 Once a court is seized with
jurisdiction, it retains that jurisdiction until the matter is concluded.4 The high court
considered this argument but distinguished this matter on the basis that once the
quantum was amended the quantitative jurisdiction would have to be re-considered.

2 Jones v Williams 1911 TPD 536.
3 Balfour v Balfour 1922 WLD 133; Strydom v Strydom 1945 (1) PH B32 (WLD).
4 Coin Security Group (Pty) Ltd v Smit NO and Others 1992 (3) SA 333 (AD); [1992] 2 All SA 122 (A) at 344 A.

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It also held that it was of no moment that City Clothing did not immediately raise
jurisdiction as an objection when Ms Vorster first filed her amended particulars of
claim increasing the quantum. It stated that it would be absurd for the court to ‘turn
a blind eye on the issue of jurisdiction well aware that it has a bearing on its
competence to deal with such a matter.’

[8] In refusing leave to appeal to this Court, the high court found that the
application was based on ‘a misconstrued interpretation of the relevant provisions’,
as Ms Vorster had taken it upon herself to apply the 25% apportionment before
damages were even proven.

[9] The monetary jurisdiction of the magistrates’ court is dealt with in ss 29(1)(g)-
(1A) of the Act, which provides:
‘
(1) Subject to the provisions of this Act and the National Credit Act 34 of 2005, a court shall
have jurisdiction in….
(a) . . . .
(g) actions other than those already mentioned in this section where the claim or the value
of the matter in dispute does not exceed the amount determined by the Minister from time to
time by notice in the Gazette.
(1A) The minister may determine differen t amounts contemplated in section (1) (a),(b),(f) and
(g) in respect of courts for districts and courts for regional divisions . . .’

[10] It is undisputed that at the relevant time the value of a claim determined by
the Minister, as falling within the jurisdiction of the regional court , was between
R200 000 and R400 000. This Court, therefore, has to determine whether ‘the claim
or the value of the matter in dispute’ exceeds R400 000. Ms Vorster argues that the
high court erred in deciding the jurisdict ion on the basis of the total damages as
opposed to th e damages actually claimed, namely R398 418.77. City Clothing on

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the other hand contends that Ms Vorster impermissibly usurped the role of the court
by deducting the 25% prior to the court making a determination on the actual
quantum. It therefore contends that the only amount this Court can have regard to is
R531 225.02, being the amount before the apportionment was applied , which falls
outside the monetary jurisdiction of the regional court. In addition, City Clothing
contends that the claim is indivisible.

[11] Section 29 (1)(g) operates to set the jurisdictional limit of the value of the
subject matter in dispute.5 The starting point is the pleadings – jurisdiction is always
determined with reference to the pleadings.6 The test is the amount claimed. A line
of cases dating as far back as 1913, have consistently held that in order to determine
whether the claim or the matter in dispute fell within the jurisdiction of the
magistrates’ court (in terms of the relevant proclamation), the court ha s to simply
look at the prayer. If the prayer was for an amount under the prescribed amount, then
it fell within the jurisdiction of the magistrates’ court.7 Therefore the sole test is the
amount claimed.

[12] In this instance, the amended prayer reads as follows:
‘Wherefore the plaintiff claims:
(a) Payment of the sum of R398 418.77 for damages as aforementioned;
(b) Interest on the aforesaid amount, calculated at the prevailing legal rate of 9% per annum
as from a date fourteen (14) days from Judgment to date of payment;
(c) Costs of suit;
(d) Further and/or alternative relief.’


5 Botha v Andrade and Others [2008] ZASCA 120; 2009 (1) SA 259; [2009] 1 All SA 436 (SCA) para 15
6 Chirwa v Transnet Limited and Others [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC) para
169; Baloyi N.O. and Others v Pawn Stars CC and Another [2022] ZACC 10; 2022 (12) BCLR 1431 (CC) para 25.
7Jackson & Co., v Eggeling 1913 TPD 403 at 406.

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[13] In Van der Merwe v Van der Merwe 8 Corbett J, dealt with the ‘value’ of
immoveable property in terms of s 29(1)(a) of the Act. He held that the value was
the actual market value of the property at the time of the commencement of the
action, even though this may fluctuate from time to time. This was the appropriate
time to determine the jurisdiction of the magistrates ’ court other wise ‘serious
anomalies and absurdities’ could arise in a particular case.9 The court re-iterated that
it is the value of the claim and only that value which determines whether jurisdiction
will be conferred upon the magistrates’ court.10

[14] From the prayer a lone, it is clear that the value of the claim falls within the
jurisdiction of the regional court , as t he amount claimed is R398 481.77 , falling
below the R400 000 threshold. The fact that a greater amount has to be determined
by the magistrate does not detract from this or have the effect of ousting jurisdiction.
Insofar as the regional court may have to have regard to a greater quantum before
arriving at the amount c laimed, this is dealt with in s 37, a section which the high
court erroneously found had no application.

[15] Section 37 provides:
‘(1) In actions wherein the sum claimed, being within the jurisdiction, is the balance of an
account, the court may enquire into and take evidence if necessary upon the whole account, even
though such account contains items and transactions exceeding the amount of the jurisdiction.
(2) Where the amount claimed or other relief sought is within the jurisdiction, such jurisdiction
shall not be ousted merely because it is necessary for the court, in order to arrive at a d ecision, to
give a finding upon a matter beyond the jurisdiction.

8Van der Merwe v Van der Merwe 1973 (1) SA 436 (C).
9 Ibid at 440 B-D.
10 Ibid at 339 G-H.

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(3) In considering whether a claim is or is not within the jurisdiction, no prayer for interest on
the principal sum claimed or for costs or for general alternative relief shall be taken into account.’

[16] Section 37(2) permits the court to give a finding beyond its jurisdiction if it is
necessary to reach its decision on the matter before it but only if the ‘relief sought is
within [its] jurisdiction’.11 This section serves the purpose of permitting magistrates
to have regard to issues which are relevant to the matter before them, which would
otherwise not fall within their jurisdiction. The fact that the court may have to inquire
into far larger sums, and into complicated accounts worth f ar more, is irrelevant as
long as the value of claim in dispute does not exceed the monetary jurisdiction of
the magistrates’ court or regional court.

[17] In this matter, the regional court will have to investigate whether the quantum
of R531 225.02 has been proven. But this is not the amount claimed, only 75% has
been claimed. The apportionment of 75/25% has already been made an order of
court. In these circumstances, it is difficult to understand why is it, by reducing the
quantum by 25%, that Ms Vorster has usurped the role of the court. This argument
could only hold water where the court had not ordered apportionment. Whatever
damages Ms Vorster will finally prove, this quantum will have to be reduced by
25%. But the regional court can never grant an order for more than the amount
claimed, namely, R398 481.77. Thus the quantum will always remain within its
jurisdiction.

[18] Insofar as the high court relied on Jones v Williams to hold that Ms Vorster’s
claim was indivisible, this was misplaced. That matter dealt with an action where

11 See Ntshingila and Others v Minister of Police [2011] ZAWCHC 12; 2012 (1) SA 392 (WCC) para 32 where the
dictum in Tshisa v Premier of the Free State 2010 (2) SA 153 para 10 is quoted with approval.

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the plaintiff had claimed an amount in damages and specific performance. The
monetary claim against the defendant was for wrongfully diverting storm water on
his land with a separate amount for trespassing on his land and breaking down the
barrier he had erected to keep the stormwater out. The claim for specific performance
was an ‘order condemning the defendant to substantially block up the outlet mad e
by him aforesaid forthwith’. 12 The defendant excepted to the summons on the
grounds that the second claim was beyond the jurisdiction of the magistrates’ court.
The magistrate refused to allow the plaintiff to abandon that claim at the hearing.
The court found that the second claim was one ad factum praestandum which did
not fall within the jurisdiction of the magistrates’ court. Because this was so, the
court found that the entire claim was beyond the jurisdiction of the magistrates ’
court. It is not apparent how Jones v Williams would have any bearing on the present
matter. Here, there is only one claim for a monetary amount in damages.

[19] There is no doubt that the value of Ms Vorster’s claim is R398 481.77. This
falls within the ambit of s 29(1)(g) read together with s 37(2). In any event, to non-
suit Ms Vorster on these grounds would amount to a miscarriage of justice.

[20] In the result the following order is made:
1. The appeal is upheld with costs.
2. The order of the high court is set aside and substituted with the following:
‘1. The appeal against the order of the regional court is upheld.
2. The defendant’s special plea is dismissed with costs.
3. The plaintiff’s action is referred to the regional court for the determination of
damages.’

12 Jones v Williams 1911 TPD 536 at 538.

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__________________________
C E HEATON NICHOLLS
JUDGE OF APPEAL

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Appearances

For the appellant: N Paterson (with him A White)
Instructed by: Raymond Bojanic & Associates, Gqeberha
Hendre Conradie Inc, Bloemfontein

For the respondent: M Rodrigues
Instructed by: Palm and Hollander Attorneys, Rooderpoort
Bezuidenhout Inc, Bloemfontein