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[2015] ZAKZDHC 67
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Mohomed v Nomafusi (7576/2013) [2015] ZAKZDHC 67 (2 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
no: 7576/2013
DATE:
02 SEPTEMBER 2015
Reportable
In the matter
between:
MOHOMED HASSIM
ISMAIL
.......................................................................................
APPLICANT
And
EDITH
NOMAFUSI
.......................................................................................................
RESPONDENT
Coram: JEFFREY AJ
Heard: 25 August
2015
Delivered: 2
September 2015
Summary:
Court — High Court — Jurisdiction — KwaZulu-Natal —
The KwaZulu-Natal High Court, Pietermaritzburg is
the main seat of
the KwaZulu-Natal Division and has jurisdiction over the entire
province of KwaZulu-Natal — The local seat
of the KwaZulu-Natal
Division in Durban has concurrent jurisdiction over its limited area
within the province of KwaZulu-Natal
— Until determined by
notice referred to in s 6 (3) (c) of
Superior Courts Act 10 of 2013
,
the limited area of jurisdiction of the local seat remains that set
out in Schedule A (as amended) to Supreme Court Act 59 of
1959 —
s 50 (1) of Act 10 of 2013
JUDGMENT
Jeffrey AJ
[1] The applicant
instituted this application seeking an order evicting the respondent
from certain immovable property at which
she resides in Kokstad,
KwaZulu-Natal.
[2] The town of
Kokstad in southern KwaZulu-Natal is situated in the Mount Currie
magisterial district.
[3] When this
application came before me on the unopposed motion roll I asked Mr
Sitaram who appeared for the applicant whether
this Court had
jurisdiction to hear the matter. He submitted that, on a proper
interpretation of ss 50 (1) of the Superior Courts
Act No. 10 of 2013
(the Act), this Court has concurrent jurisdiction with that of the
main seat of the KwaZulu-Natal Division in
Pietermaritzburg over the
entire province of KwaZulu-Natal and, therefore, this Court does have
jurisdiction to hear the matter.
This submission cannot be sustained
for the following reasons.
[4] Subsection 6 (1)
of the Act provides that the High Court of South Africa consists of a
several specified Divisions, one of which
is the KwaZulu-Natal
Division with its main seat in Pietermaritzburg.
[5] The
determination of the area of jurisdiction of a Division and the
establishment of one or more local seats for a Division
in addition
to its main seat and the determination of the area or areas of
jurisdiction of the local seat or seats as the case
may be, is
provided for in ss 6 (3) (a) and (c) of the Act as follows:
‘(a) The
Minister must, after consultation with the Judicial Service
Commission, by notice in the Gazette, determine the area
under the
jurisdiction of a Division, and may in the same manner amend or
withdraw such a notice …
(c) The Minister
may, after consultation with the Judicial Service Commission, by
notice in the Gazette establish one or more local
seats for a
Division, in addition to the main seats referred to in subsection
(1), and determine the area under the jurisdiction
of such a local
seat, and may in the same manner amend or withdraw such a notice.’
[6] Subsection 50
(1) sets out the following transitional provisions in respect of the
High Courts that existed at the date of commencement
of the Act
namely 23 August 2013:
‘(1) On the
date of the commencement of this Act, but subject to the issuing of
any notice referred to in section 6 (3) (a)
or (c), the-
(a) Eastern Cape
High Court, Bhisho, becomes a local seat of the Eastern Cape
Division;
(b) Eastern Cape
High Court, Grahamstown, becomes the main seat of the Eastern Cape
Division;
(c) Eastern Cape
High Court, Mthatha, becomes a local seat of the Eastern Cape
Division;
(d) Eastern Cape
High Court, Port Elizabeth, becomes a local seat of the Eastern Cape
Division;
(e) Free State High
Court, Bloemfontein, becomes the main seat of the Free State
Division;
(f) KwaZulu-Natal
High Court, Durban, becomes a local seat of the KwaZulu-Natal
Division;
(g) KwaZulu-Natal
High Court, Pietermaritzburg, becomes the main seat of the
KwaZulu-Natal Division;
(h) Limpopo High
Court, Thohoyandou, subject to subsection (2), becomes a local seat
of the Limpopo Division;
(i) Northern Cape
High Court, Kimberley, becomes the main seat of the Northern Cape
Division;
(j) North Gauteng
High Court, Pretoria, becomes the main seat of the Gauteng Division;
(k) North West High
Court, Mahikeng, becomes the main seat of the North West Division;
(l) South Gauteng
High Court, Johannesburg, becomes a local seat of the Gauteng
Division; and
(m) Western Cape
High Court, Cape Town, becomes the main seat of the Western Cape
Division, of the High Court of South Africa, and
the area of
jurisdiction of each of those courts becomes the area of jurisdiction
or part of the area of jurisdiction, as the case
may be, of the
Division in question.’
[7] On a proper
interpretation, the words ‘the area of jurisdiction of each of
those courts’ on the date of commencement
of the Act as
contemplated in s 50 (1), means the area of jurisdiction of those
courts that was set out in First Schedule (as amended)
to the Supreme
Court Act No. 59 of 1959 (the Supreme Court Act).
[8] The reason for
this is that First Schedule remained extant by virtue of s 4 of the
Interim Rationalisation of Jurisdiction of
High Courts Act No. 41 of
2001 (the Interim Rationalisation Act). Despite the repealing of the
First Schedule along with subsections
6 (1) and (4) of the Supreme
Court Act, the Interim Rationalisation Act specifically provided that
the seats and the areas of jurisdiction
of the High Courts referred
to in the First Schedule would, subject to any alteration by notice
contemplated under s 2, remain
as they were immediately before the
commencement Interim Rationalisation Act. Notices were subsequently
issued under s 2. For
instance, the district of Matatiele (Maluti)
became a cross-jurisdictional enclave by virtue of such a notice that
amended the
First Schedule and specially endowed both this Court and
the KwaZulu-Natal High Court, Pietermaritzburg, with concurrent
jurisdiction
over that magisterial area that fell into the Eastern
Cape Province. This was held to be the position in the as yet
unreported
decision of Minister of the National Department of Rural
Development & Land Reform v Tsuputse and Others (4127/2015)
[2015]
ZAKZDHC 35 (28 April 2015) at paras [7] to [10]. But this
notice certainly did not confer concurrent jurisdiction on this Court
with the Natal Provincial Division (as it then was) over the entire
province of KwaZulu-Natal.
[9] I respectfully
agree with the view expressed in Thembani Wholesalers (Pty) Ltd v
September and Another
2014 (5) SA 51
(ECG) 54D-G at para [10], that
the express wording of the transitional provisions of ss 50 (1) are
grammatically clear and unambiguous
and that the words that ‘ .
. . the area of jurisdiction of each of those courts becomes the area
of jurisdiction or part
of the area of jurisdiction, as the case may
be, of the Division in question’ mean that the local seats of
the Divisions
are endowed with concurrent jurisdiction over their
limited areas with the main seats of the Divisions in question. But
I would
go further and add that the words ‘…the area of
jurisdiction of each of those courts…’ are equally clear
and unambiguous in their context and mean, as a transitional measure,
that the areas of jurisdiction of each of those courts immediately
prior to the commencement of the Act are those set out in the First
Schedule (as amended) and became the areas of jurisdiction
or part of
the area of jurisdiction, as the case may be, of the Divisions in
question upon the commencement of the Act and will
remain as such
until such time as the areas of jurisdiction may be determined by a
notice referred to in section 6 (3) (a) or (c)
of the Act.
[10] I am
accordingly unpersuaded that the construction sought to be placed on
the meaning of ss 50 (1) by Mr Sitaram is correct.
[11] The Mount
Currie magisterial district does not fall within the area of
jurisdiction of this Court that was contemplated in
the First
Schedule (as amended) immediately before the commencement of the Act.
This Court’s area of jurisdiction has not
yet been determined
by a notice under ss 6 (3) (c) of the Act and consequently the
transitional provisions of ss 50 (1) are still
applicable.
[12] I accordingly
find that this Court does not have jurisdiction in this matter. I
make the following order:
The application is
dismissed.
A G JEFFREY
ACTING JUDGE
Appearances
For applicant: Mr
V R Sitaram
Instructed by:
Junaid Khamissa Attorneys
Ref. JYK/129
Tel. 039 6825592
e-mail:
junaid@sai.co.za
For respondent:
No appearance