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MANDLA SIBOZA SEVENTH RESPONDENT
ERICK FIELDIN MASUKU EIGHTH RESPONDENT
SHADRACK MAGAGULA NINTH RESPONDENT
SUZETTE C MOUTON TENTH RESPONDENT
VARIUOS UNKNOWN PERSONS ELEVENTH RESPONDENT
THE STATION COMMANDER TWELFTH RESPONDENT
NELSPRUIT POLICE STATION
THE PROVINCIAL COMMISIONER OF THIRTEENTH RESPONDENT
POLICE -MPUMALANGA
UNIVERSITY OF MPUMALANGA FOURTEENTH RESPONDENT
This judgment will be handed down by email to the parties and by publication on
SAFLII. The judgment will be deemed to have been delivered at 11:00 on 09 April
2025
JUDGMENT
SHAI AJ
Introduction
[1] This is an appeal against the whole of the judgment and order of Magistrate D
van Rooyen , of the Mpumalanga Regional Division, Mbombela (court a quo ), handed
down on 14 June 2023.
[2] The appeal is opposed by the respondents .
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Brief litigation history
[3] The appellants are contractor s conducting development works at the
Mpumalanga University (“construction site”) .
[4] An urgent application was brought by the appellants in the court a quo to
interdict the respondents (1st to 11th) from entering the construction site for unlawful
purposes and making threats of violence against the appellants’ employees. It was
alleged that the respondents had acted on some of the threats made in that they, inter
alia, attacked appellants’ attorney and damaged the vehicle he was in. The appellants,
therefore sought an order prohibiting the respondents from repeating the alleged
unlawful activities.
[5] It was alleged that their ac tions included malicious damage to property,
trespassing, threats of assault and intimidation and murder.
[6] The respondents did not respond in detail to the allegations averred to by the
appellants but, instead, raised points in limine which included , but not limited to, non-
joinder of the Mbombela Local Municipality , questioning the form and manner of
service, and lack of urgency. All of these points were considered and dismissed by the
court a quo . The matter was then postponed for arguments on merits. The court a
quo’s findings on the points in limine are not the subject matter of this appeal.
[7] When the matter was supposed to be heard on merits, the court a quo mero
motu raised a jurisdictional issue. It held that it had no jurisdiction to entertain the
matter as the contract value of the construction project which the appellants are
conducting on the site where the transgressions were alleged to have been committed
by the respondents , exceed ed its jurisdictional limit of R400 000. The value was said
to be R500 million.
[8] The appellants now appeal against this finding.
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Issue
[9] The issue s for determination herein are:
9.1 Whether a presiding officer could, in light of the fact that jurisdiction was at no
stage disputed by the respondents, raise the issue of jurisdiction mero motu ;
9.2 Whether the court a quo was correct in finding that it lacked jurisdiction by virtue
of the operation of the provisions of Section 29 of the Magistrate’s Court Act.
[10] For the appeal to succeed, the question in 9.2 should be answered negatively.
The law
[11] This Court may interfere with a decision by the court a quo only if the court a
quo misdirected itself on the question of law involved.
Section 30(1)
[12] Section 30(1) of the Magistrates ’ Court Act, no. 32 of 1944 (the Act) , provides:
“(1) Subject to the limits of jurisdiction prescribed by this Act, the
[Magistrates’ ] court may grant against persons and things orders for
attachments, interdicts and mandamenten van spolie .”
[13] The phrase “subject to the limits of jurisdiction prescribed by this Act” calls into
action the provisions of section 29 of the Act . Section 29(1)(g) provides:
“(1) Subject to the provisions of this Act and the National Credit Act, 2005
(Act No. 34 of 2005), a court in respect of causes of action, shall have
jurisdiction in —
…
(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. ”
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[14] Section 30 is the section empowering the Magistrate’s Court to deal with
interdicts . It is trite that interdicts generally take one of the following two forms :
14.1 Those that are brought to stop or pr event a person from acting or taking action.
These are referred to as prohibitory interdicts; and
14.2 Those that are brought to compel or force a person to act or take action in a
certain way, and are refe rred to as mandatory interdicts .1
[15] A Magistrate’s Court can adjudicate in all these interdicts save a mandatory
interdict which amounts to an order for specific performance. It is accepted that,
generally an interdict can be brought by way of an application but can also be brought
by way of an action procedure, especially where a dispute of fact arises.
[16] It was held by the SCA in Botha v Andrade2 that in dealing with the provisions
of section 30, the court should not lose sight of the jurisdictional limits in section 29,
more particularly section 29(1)( g). The court had the following to state at paragraph
15:
“It follows that s 29(1)(g) is applicable to interdicts granted by the magistrate
under s 30, and the section operates to set the jurisdictional limit of the value
of the subject matter in dispute and other specific matters referred to in s 29 .”
[17] Section 30 should therefore be read with section 29 . The court proceeded to
state at paragraph 16 :
“The central question this case raises, however, is how to determine ‘the
value of the matter in dispute’. The issue in dispute between the parties is the
alleged nuisance emanating from the respondents’ unlawful activities. The
1 See CIVIL PROCEDURE – A PRACTICAL GUIDE by S Pete et al , Third Ed (2016) , at p. 483 and Airoad Express
(Pty) Ltd v Chairman, Local Road Transportation Board, Durban and Others 1986 (2) SA 663 (A) at 675 –676.
2 (578/2007) [2008] ZASCA 120 (26 September 2008); 2009 (1) SA 259 (SCA) .
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abatement of the nuisance is capable of quantification and so the jurisdictional
limits of the magistrates’ court can be determined without difficulty. Although
the court below correctly identified the issue as being the ‘alleged nuisance’, it
attached value to the businesses rather than the subject matter in dispute,
which was the abatement of the unlawful activities. In this regard the court
erred. It is that conduct or the cost of the abatement of the unlawful activities
to which value had to be a ttached and not the businesses per se. If the cost of
abating the nuisance was in excess of R100 000 the magistrate would clearly
have had no jurisdiction in the matter. The respondents simply provided
evidence of the yearly profit and monthly turnover of their businesses, which
the high court accepted as conclusive in relation to the jurisdictional limits.
That was in my view wrong. The question was not, what was the turnover and
profit of the businesses creating the offending nuisance? It was, what would
be the cost to the respondents of complying with the conditions attached to
the provisional municipal permission, so as to abate the nuisance? On this
they led no evidence at all. ”
[18] The court then held , at paragraph 18, that the respondents bore the onus of
proving what the value of the abate ment is:
“The onus was on the respondents to prove that the matter fell beyond the
jurisdiction of the magistrates’ court.”
[19] From the aforesaid it is evident that where the issue of lack of jurisdiction is
raised by the respondent, it is the respondent that bears the onus of proving what the
value of the abatement is .
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Lack of jurisdiction
[20] I now turn to look at whether a court can raise the issue of lack of jurisdiction
mero motu .
[21] It was held in Cusa v Tao Ying Metal Industries and Others3 that:
“Where a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the law is, a court is not
only entitled, but is in fact also obliged , mero motu, to raise the point of law and
require the parties to deal therewith. Otherwise, the result would be a decision
premised on an incorrect application of the law. That would infringe the principle
of legality….”. The court in Booi v Amathole District Municipality4 held that :
“It is trite that courts are bound by the issues that the litigating parties raise.
However, a court can raise an issue mero motu where (i) raising it is necessary
to dispose of the matter, and (ii) it is in the interests of justice to do so , which
depends on the circumstances at hand .”
[22] It is apparent from these cases that courts, including magistrates ’ courts, have
the power to raise issues of jurisdiction on their own initiative, even if the parties
have not raised them . If a court determines that it lacks jurisdiction, it
necessarily follows that it must decline to hear the case, regardless of whether
the plea of lack of jurisdiction was raised by the opposing party or not.
Evaluation
[23] It is trite that a court can raise lack of jurisdiction mero motu . This can be raised
at any time of t he proceedings, including on appeal. In principle, there is no procedural
3 2009(1) BCLR 1 CC; 2009(1) SA 204 CC, at paragraph 6
4 2022 (3 BCLR 265 (cc) at para 35.
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handicap th at prevents the court from raising jurisdiction mero motu . However, in this
case , the circumstances and the facts did not warrant such step by the court a quo.
[24] This is because the court a quo was mistaken on a point of law , and so are the
respondents in their submissions , as to what the issue was that related to the limit set
in section 29(1)(g). The court a quo reasoned that the limit was determined by the
value of the business generated on the premises. To that extent, the court a quo erred.
[25] This reasoning , that the court should consider the value of the business
generated on the premises , was rejected by the SCA in Botha v Andrade . The court
therein held that it was the costs abatement of the unlawful activities that should be
considered.
[26] The court a quo found that “the basis for this concern was that it appeared to
me that the magnitude of the construction work is such that its value exceeds the
monetary limit of the court, which is currently R400 000”5. This was a misdirection.
[27] The issues raised by the respondents on non -disclosure of material facts relate
to the fact that the value of the project was not disclosed by the appellant in its founding
affidavit .
[28] In light of what has been said above, such disclosure was not relevant or
material to the determination of the issue by the court and I am not going to labour th is
issue any further.
Conclusion
[29] Although this Court, on the facts before it, is in as good a position as the court
a quo to make an order that should have been made by that court , the matter is partly
heard by the court a quo and cert ain findings were made by it on other points in limine .
5 Bundle 2, page 355, paragraph 8 of the judgment
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THE NAMES, TELEPHONE NUMBERS AND EMAIL ADDRESSES OF
THE LEGAL REPRESENTATIVES OF THE PARTIES
FOR THE APPELLANT: AJ VAN RENSBURG INC
C/O DU TOIT SMUTS ATTORNEYS
TEL: 011 447 3034
FAX: 011 447 0419
Email address: aj@vrblaw.co.za
devin@vrblaw.co.za
FOR THE RESPONDENT: VAN BREDA & HERBST INC
C/O CRONJE DE WAAL SKOSANA INC
TEL: 013 755 1280
EMAIL: ansie@cronjedewal.co.za