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Circulate to Magistrates:
IN THE .HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY) Ye No
Appeal Case No: CA & R 40/2023
In the matter between:
CONSTABLE MANGATE I st Appellant
MINISTER OF POLICE 2nd Appellant
and
THEBE VINCENT MOTLOGELWA Respondent
In re:
THEBE VINCENT MOTLOGELWA Plaintiff
and
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CONSTABLEMANGATE 1st Defendant
MINISTER OF POLICE 2nd Defendant
Coram: Williams Jet Lever J
JUDGMENT
Lever J:
1. This appeal arises out of the dismissal of a special plea by the Regional
Magistrate in the Regional Court of the Northern Cape, held at Kimberley. The
special plea taken was that the said Regional Magistrates Court did not have
jurisdiction to entertain the relevant claim.
2. The claim concerned an unlawful arrest, alleged unlawful detention, a claim
for damages to a vehicle taken into custody by the police at the behest of the
first appellant, and a claim for legal costs incurred in respondent defending
himself and securing the release of the said vehicle.
3. The plaintiff in his Particulars of Claim pleaded that he was arrested in Taung
on the 22 January 2018. This was admitted by both defendants /appellants in
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their plea-over. This also forms the basis of the special plea in question. This
special plea is founded on the admitted contention that the said arrest took
place in Taung, which is part of the North-West Province and does not fall
within the territorial jurisdiction of the Regional Court. In fact, respondent
pleaded in paragraph 3 of his Particulars of Claim that: "The above
Honourable Court has jurisdiction over this matter in that the cause of action
arose within its area of jurisdiction."
4. The appellants filed two special pleas to the respondent 's Particular s of Claim.
However, it is only the second special plea that is relevant to the present
appeal. This second special plea reads:
"The Defendant s plead that this Honourable Court does not have
jurisdiction to adjudicate this matter as the cause of action arose in Taung,
a town outside the jurisdiction of this court. Wherefore the Defendants
plead that the matter be dismissed with costs."
5. The special p]ea was argued in the Regional Magistrates Court for the
Regional Division of the Northern Cape, held at Kimberley on the 22 June
2023. The Magistrate reserved judgment and gave an order on the 28 July
2023 dismissing the said special plea. The appellants requested reasons for the
said order. Such reasons were provided by the relevant Magistrate on the 17
August 2023.
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6. The reasons provided by the learned Regional Magistrate are short and
succinct enough to quote verbatim. In these circumstances, it is safer to simply
quote the said reasons rather than attempt to paraphrase or summarise them.
The said reasons read as follows:
"l. This court on the 28 July 2023 ruled on a special plea raised by the
Defendant s. On the same day the Defendant s filed a notice for
written reasons for the ruling in terms of Rule 51(1).
2. The approach by the Defendant s that this court lacks jurisdiction on
the basis that the whole cause of action did not arise in the
jurisdiction of this court in my view, with respect is technical in
nature and not the purpose of the jurisdictional boundaries.
3. According to the Particulars of Claim, the Plaintiff was arrested in
Taung in the North West Province for a crime which emanates from
the jurisdiction of this court. The Plaintiff was detained in Jan
Kempdorp which falls within the jurisdiction of this court.
4. I am therefore of the view that this court is not precluded from
adjudicating the matter. The Defendants will also not suffer any
prejudice if the matter is adjudicated within the jurisdiction of this
court."
7. The appellants filed a Notice of Appeal containing six grounds of appeal. The
grounds of appeal read as follows:
"l. The learned Magistrate erred in dismissing the special plea with
costs.
2. The learned Magistrate erred in finding that the court is not
precluded from adjudicating the matter as the crime emanates from
the jurisdiction of the court. •
3. The learned Magistrate erred in finding that because the Plaintiff was
detained in Jan Kempdorp that the court is vested with jurisdiction
to adjudicate the matter.
4. The learned Magistrate erred in finding that Defendants would not
suffer any prejudice if the matter were adjudicated within the
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jurisdiction of the court, as prejudice is not a ground to found
jurisdiction.
5. The learned Magistrate erred in not considering the relevant
authority that the entire cause of action must have arose (sic) within
the jurisdiction of the Regional Court for such a court (sic) to have
jurisdiction to adjudicate on the matter.
6. The learned Magistrate erred in not considering section 28(1)(d) of
the Magistrates Court Act, 32 of 1944, that the whole cause of action
did not arise within the jurisdiction of the court and the court is
thereby precluded from adjudicating the matter."
8. Mr Davis who appeared for the appellants in this matter, argued that a
dismissal of a Special Plea relating to jurisdiction is an order that has final
effect and is therefore appealable. In making this submission Mr Davis relied
inter alia on the authorities of: MAIZE BOARD v TIGER OATS AND
OTHERS1; NDLOVU v SANTAM LTD2; and MINISTER OF POLICE v
THE REGIONAL CIVIL MAGISTRATE OUDTSHOORN3•
9. Undoubtedly, the dismissal of a Special Plea relating to jurisdiction is a final
judgment which may be appealed as contemplated in section 83(b) of the
Magistrates Court Act4.
1 0.Mr Davis then goes on to quote section 28(1 )( d) of the Magistrates CourtAct5•
On the strength of that sub-section Mr Davis submits that the entire cause of
1 2002 (S) SA 365 (SCA) at para (9].
2 2006 (2) SA 239 (SCA) at para (10].
3 Unreported wee case number 15587 /2013 dated 6 November 2014.
4 Act 32 of 1944.
5 Above.
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action must arise within the area of that court's jurisdiction for such court to
be vested with the jurisdiction to adjudicate that matter.
11.In making the submission that the entire cause of action must arise within the
area of jurisdiction of the court for such court to be vested with jurisdiction
under section 28(1 )( d) of the Magistrates CourtAct6 to adjudicate such matter,
Mr Davis referred the court to the following authorities: BLUE CHIP 2 (PTY)
LTD t/a BLUE CHIP 49 v RYNEVELDT AND OTHERS (NATIONAL
CREDIT REGULATOR AS AMICUS CURIAE)7; and MINISTER OF LAW
AND ORDER v THUSI8.
12.Mr Davis then asserted that the arrest of the plaintiff is a different cause of
action that does not emanate from the court's area of jurisdiction.
13.Insofar as section 28(l)(d) of the Magistrates CourtAct9 goes this is correct.
14.Mr Ndwanya who appeared for the respondent raised a number of issues, but
the argument that needs more careful attention appears from paragraph 35 of
the Heads of Argument which he filed on behalf of the respondent. The said
paragraph reads as follows:
6 Above.
7 2016 (6) SA 102 (SCA) at para (21).
8 1994 (2) SA 224 (N).
9 Above.
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"35. In this instance, the first Appellant is employed within the court
aquo (sic) area of jurisdiction, the Second Appellant carries on
business within the courts jurisdiction and there is no statutory
provision precluding the court a quo from pronouncing upon this
matter."
15.Mr Davis, for the appellants had no answer to this argument.
16.Tuming to the pleadings filed in the court a quo these contentions or facts to
support such contentions are pleaded by the respondent. Paragraph 2 of the
relevant Particulars of Claim read:
"2.1 The first Defendant is CONSTABLE MANGATE , an adult male
police officer in the employ of the South African Police Service,
stationed at KIMBERLEY, NORTHERN CAPE.
2.2 The Third Defendant is the MINISTER OF POLICE, cited in his
capacity as the executive head of the SOUTH AFRICAN POLICE
SERVICE responsible for implementing the constitutional
obligation contained in section 206( 1) of the Constitution of the
Republic of South Africa, Act 106 of 1996 .... "
17. The appellants have admitted these contentions in their plea-over. The
question raised is twofold: Firstly, do the contentions as pleaded and admitted
in the plea-over clothe the court a quo with jurisdiction to adjudicate the matter
under the provisions of section 28(1) of the Magistrates Court Act10; and
Secondly, could the court a quo, based on the admitted contentions set out
above, be clothed with such jurisdiction despite what is pleaded in paragraph
3 of the Particulars of Claim, which is quoted above.
10 Above.
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18.Paragraph 2.1 of the Particulars of Claim shows that the first defendant/first
appellant is employed by the South African Police Service and is stationed at
Kimberley. Therefore, it follows that the first appellant is employed within the
area of jurisdiction of the court a quo.
19.Paragraph 2.2 there is an obvious typographical mistake with the reference to
the 'Third Defendant '. It is clear that it is the second defendant being referred
to in this paragraph. The second defendant/second appellant is the political
head of the South African Police Service. The South African Police Service
employs the first appellant/first defendant and has stationed him in Kimberley.
The phrase 'carries on business' is not defined in the Magistrates Court Act11,
nor is it defined in section 28 of the said act, and it is also not defmed in the
Magistrates Court Rules. The said phrase therefore bears its ordinary meaning,
which is wide enough to encompass employing people and stationing them in
a particular place as well as fulfilling the Constitutional mandate as pleaded,
being to establish a policing policy for all of the provinces with the Republic
of South Africa. In ordinary use, the said phrase is not confined to commercial
activity. In these circumstances, it can safely be concluded that the second
defendant carries on business within the area of jurisdiction of the court a quo.
20.Section 28(1) of the Magistrates Court Act provides:
11 Above.
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"28(1) Saving any other jurisdiction assigned to a court by this Act
or by any other law, the persons in respect of whom the court
shall, subject to subsection (IA), have jurisdiction shall be the
following and no other:
(a) Any persons who resides, carries on business or is
employed within the district or regional division;
(b) ...
(c) ...
(d)any person, whether or not he or she resides, carries on
business or is employed within the district or regional
division, if the cause of action arose wholly within the
district or regional division;
(e) ...
(:f) Any defendant (whether in convention or reconvention)
who appears and takes no objection to the jurisdiction of
the court;
(g) ... "
21.What is clear from the structure and wording of section 28(1) of the
Magistrates Court Act are alternate grounds each of which individually could
found jurisdiction for the court concerned. If any one of these are established
the said court will have jurisdiction to adjudicate the matter.
22.It is true that the respondent/plaintiff pleaded the ground set out in section
28(1 )( d) as the ground upon which he claimed the court a quo had jurisdiction.
23.However, the respondent/plaintiff also pleaded facts that would establish
jurisdiction to adjudicate the matter under the provisions of section 28(1)(a).
What's more, both appellants have admitted these facts.
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24. The function of our courts is to determine the real issues between the parties.
The function of pleadings has been set out by Innes CJ in the case of
ROBINSON v RANDFONTEIN ESTATES G.M. CO. LTD12, where it is
stated that:
"The object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause prejudice or prevent
a full enquiry. But within those limits the court has a wide discretion. For
pleadings are made for the Court, and not the Court for the pleadings."
25.Although the dicta quoted above in the ROBINSON v RANDFONT EIN case
was made in different circumstances, I believe it is still applicable to the
present appeal. Here the plaintiff/respondent has pleaded facts which would
clothe the court a quo with jurisdiction to adjudicate the matter under the
provisions of section 28(1)(a) of the Magistrates Court Act. Both appellants
have admitted these facts. In these circumstances, the grounds that clothe the
court a quo with the necessary jurisdiction have been established.
26. The grounds pleaded in paragraph 3 of the Particular s of Claim are obviously
wrong. They can and have been denied in the plea-over. Having admitted the
grounds that establishes the jurisdiction of the court a quo, there can be no
question of either appellant suffering any prejudice in holding that the court a
quo has jurisdiction to adjudicate the matter. To decide otherwise in the
12 1925 AD 173 at 198.
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circumstances would be overly formalistic in approach and would severely
prejudice the respondent/plaintiff .
27.Accordingly, the court a quo was correct to dismiss the Special Plea, albeit on
other grounds. In these circumstances the appeal stands to be dismissed.
28.0n the question of costs, there is no reason why costs should not follow the
result. The appellants should be jointly and severally liable for such costs.
Having regard to the issues canvassed I think it appropriate for costs to be
awarded on scale "B".
In the circumstances, the following order is made:
1. The appeal is dismissed.
2. The appellants are jointly and severally liable for the costs of the appeal,
the one paying the other to be absolved.
3. Such costs are awarded on scale B.
L. G. Lever
Judge
Northern Cape Division,
Kimberley
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I agree,
C. Williams
Judge
Northern Cape Division,
Kimberley
Date of Hearing: 20 May 2024
Date of Judgment: 27 July 2025
Appearances:
Appellants: Mr C Davis -Office of the State Attorney
Respondent: MrNdwanya -Attorney for Respondent
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