REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
Case Number: 4433/2024 &
Case Number: 4435/2024
In the matter between: Case Number: 4433/2024
FIRSTRAND BANK LIMITED Applicant
and
CEDAR FALLS PROPERTIES 143 (PTY) LTD Respondent
Registration number 2017/362742/07
AND
In the matter between: Case Number: 4435/2024
FIRSTRAND BANK LIMITED Applicant
and
MATUMAINI FARMING (PTY) LTD First Respondent
MOOSA DANIEL NTIMBA Second Respondent
Before the Honourable Mayet AJ:
Heard: 7 October 2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
______________ ______ ___
DATE SIGNATURE
17 February 2026
2
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for the hand-down
of the judgment is deemed to be 10h00 on 17 February 2026.
Order:
[1] The Respondents objection in limine to the jurisdiction of this Court is
dismissed.
[2] It is declared that the High Court of South Africa, Mpumalanga Division,
Mbombela, has jurisdiction to hear the applications (Case number:
4435/2024 and Case number: 4433/2024).
[3] The Respondents to pay the costs on a party and party taxed on Scale B.
3
JUDGMENT
[1] The jurisdiction of this Court is challenged . The issue arises from two
related applications instituted by the Applicant under a suite of credit
agreements. The Respondents contend that, by reason of a jurisdiction
clause, this Court lacks competence to entertain the proceedings.
Background Facts
[2] The facts are recorded to the extent necessary to describe the jurisdictional
setting in which the dispute arises.
[3] Matumaini Farming (Pty) Ltd (“Matumaini”) operates a broiler poultry
business, raising day -old chicks within its broiler facilities and supplying
mature chickens to the fresh meat market. These agricultural activities are
carried out on land situated within the Mpumalanga province , owned by
Ceder Falls Properties 143 (Pty) Ltd (“Cedar Falls”).
[4] Mr Moosa Daniel Ntimba (“Mr Ntimba”) is the sole director of both
Matumaini and Cedar Falls.
[5] The Applicant , a commercial bank and Matumaini, represented by Mr
Ntimba concluded a written Loan Agreement and an overdraft Facilities
Agreement.
[6] As security for the loan and overdraft , Mr Ntimba executed an unlimited
suretyship in his personal capacity, and bound himself jointly and severally
4
as surety and co-principal debtor for all sums of money that Matumaini may
owe to the Applicant.
[7] As further security, Ceder Falls , represented by Mr Ntimba , bound itself
jointly and severally as surety and co-principal debtor, for limited debts that
Matumaini may owe to the Applicant.
[8] In September 2024, the Applicant instituted two applications in this Court
under Case number 4435/2025 and Case number 4433/2025:
[1] Case number : 4435/2024: monetary claim for outstanding arrear s
arising from an alleged breach of the Loan Agreement and overdraft
Facility Agreement in the amounts of R15 554 062.16 and
R759 481.07 against:
i. The First Respondent, Matumaini as primary debtor; and
ii. The Second Respondent, Mr Ntimba, as surety for the
obligations of Matumaini.
[2] Case number : 4433/2024: winding up application for Cedar Falls,
based on non -compliance with statutory notice in terms of
sections 344 and 345 of the Companies Act, 2008, having failed to
make payment on its suretyship for the obligations of Matumaini.
[9] The Respondents opposed both applications and raised various points in
limine one of which is this jurisdictional challenge.
5
Jurisdictional Challenge
[10] At the commencement of the hearing, the parties agreed that the
jurisdictional challenge should be determined at the outset.
[11] In Louis Pasteur Holdings (Pty) Ltd v Absa Bank Ltd1 the Supreme Court of
Appeal observed that, while Rule 33(4) does not apply to applications, a
court may nevertheless deal with separate issues in motion proceedings:
“The provision does not apply to applications, but a court may deal with
separate issues in applications in limine and in its inherent power apply a
similar procedure to them.”2
[12] Having considered the nature of the jurisdictional challenge, the interests
of the parties and the ends of justice are better served by resolving the
jurisdictional challenge.3 This Court is satisfied that the question of
jurisdiction is discreet and can be conveniently adjudicated prior to the main
applications.
Issue for determination
[13] The dispute concerns the proper construction of Clause 15 .2 in the Loan
Agreement; in particular whether Clause 15.2 confines proceedings to the
High Court Gauteng Local Division, Johannesburg.
1 Louis Pasteur Holdings (Pty) Ltd v Absa Bank Ltd 2019 (3) SA 97 (SCA)
2 Louis Pasteur Holdings (Pty) Ltd v Absa Bank Ltd 2019 (3) SA 97 (SCA) referred to Harms, Civil
procedure in the Superior Courts Part B High Court at B33.9,
3 African Bank Ltd v Covmark Marketing CC; African Bank Ltd v Soodhoo and others 2008 (6) SA 46
(D) at 51B-D Rule 6(5)(d)(iii) provides a respondent in application proceedings with the means of raising
a point of law.
6
THE PARTIES’ SUBMISSIONS
The Respondents case
[14] The Respondents rely on Clause 15.2 in the Loan Agreement which reads:
“15. GOVERNING LAW AND JURISDICTION
15.1 The terms of this Agreement shall be governed by and interpreted
in accordance with the laws of South Africa.
15.2 Each of the Parties to this Agreement irrevocably agrees that the
High Court of South Africa, Gauteng Local Division,
Johannesburg shall have jurisdiction to hear and determine any
suit, action or proceeding, and to settle any disputes which may
arise out of or in connection with the agreements and for such
purposes, irrevocably submits to the non -exclusive jurisdiction of
such court.”
[15] The Respondents submit that Clause 15.2 constitutes a clear and binding
contractual provision , mutually agreed upon by both parties and which
forms a material part of the Loan Agreement. The parties intended that
disputes arising from the Loan A greement were to be litigated in the
Gauteng Local Division, Johannesburg.
[16] The Respondents refer to the factual matrix in support of this contention.
Despite proximity, the Applicant’s Mbombela branch played no role and all
negotiations and meetings with the Applicant occurred in Johannesburg,
7
and the Loan and Facility Agreements were concluded within the
jurisdiction of the Gauteng Local Division.
[17] The Respondents argue that, having contractually submitted to the
jurisdiction of the Gauteng Local Division, the parties are bound by that
election. The Court was referred to Minister of Justice v Breytenbach 1942
AD 175 and Wellworth Bazaars Ltd v Chandler’s Ltd and another 1947 (2)
SA 37 (A) for the submission that every word in Clause 15 .2 must have
meaning and this Court should be slow to conclude that words are
tautologous or superfluous. It is worthwhile to note that t he latter two
judgments concern the interpretation of legislation.
[18] Reliance was also placed on Arafdien v Soeker 1982 (2) SA 570 (C),
together with authorities concerning contractual interpretation, including
Coopers & Lybrand v Bryant 1995 (3) SA 761 (A) , for the proposition that
contractual language must be given its ordinary meaning and that effect
should be given to every word used by the parties.
[19] Reference was made to First National Bank v Clear Creek Trading 21 (Pty)
Ltd and another 2014 (1) SA 23 (GNP) for the proposition that in the event
that the written agreement did not correctly reflect the agreement or
intention of the parties, then the proper course would have been to seek
rectification.
[20] The Respondents further contend that the Applicant is not entitled to
unilaterally disregard the jurisdictional agreement and proceed in a forum
other than the one expressly provided for in the Loan Agreement per Villa
Crop Protection v Bayer Intellectual Property 2024 (1) SA 331 (CC).
8
[21] On this basis, the Respondent s submit that th e applications should be
dismissed with costs, due to the blatant disregard for the agreed
jurisdictional prerequisites in C lause 15.2 and the unnecessary litigation
costs incurred.
The Applicant’s case
[22] The Applicant is of the view that Clause 15.2 specifically provides for "non-
exclusive" jurisdiction of the High Court, Gauteng Local Division,
Johannesburg.
[23] The Applicant pointed out that ex facie:
[1] Matumaini’s registered address and chosen domicilium citandi et
executandi address is within the jurisdiction of this Court.
[2] Mr Ntimba’s chosen domicilium citandi et executandi address is within
the jurisdiction of this Court.
[3] Cedar Falls registered address is within the jurisdiction of this Court.
[4] The cause of action (the alleged default payment) arose within the
jurisdiction of this Court.
[24] The Applicant refers to the contractual matrix in support, in particular clause
16 of the overdraft Facility Agreement, which provides that the Applicant
may institute proceedings in the High Court of South Africa:
“Jurisdiction: The Bank may take any proceedings against the Obligers
relating to this facility in the High Court of South Africa to which the client
submits.”
9
[25] In addition, the Applicant highlighted that the Deed of Surety signed by Mr
Ntimba in his personal capacity as well as the Cedar Falls Deed of Surety
does not contain a similar clause regarding jurisdiction of the High Court,
Gauteng Local Division, Johannesburg. Both Deed of Surety provide:
“Jurisdiction - I/We hereby consent and submit to the jurisdiction of the
Magistrates' Court having jurisdiction in respect of all proceedings
connected with this suretyship, even if the amount claimed or the value of
the matter in dispute exceeds the Magistrates' Court's jurisdiction; but FRB
shall not be obliged to take steps against me/us in the Magistrates' Court.
FRB may, however take steps against me/us in connection with this
suretyship in the appropriate division/s of the High Court of South Africa
and I/we hereby consent and submit to the jurisdiction of that Court and
I/we agree that any costs awarded against me/us on the High Court scale.”
[26] The Applicant placed reliance on Foize Africa (Pty) Ltd v Foize Beheer 4
Fleet Africa (Pty) Ltd v Polokwane Local Municipality5 and Saboath General
Traders (Pty) Ltd t/a Sausage Saloon and Another v Mthatha Mall (Pty) 6
regarding the enforceability of jurisdiction clauses.
[27] The Applicant maintained that the Respondents' registered address,
principal place of business, chosen domicilium as well farming operations
are within Mpumalanga and this Court has jurisdiction.
Evaluation
[28] The interpretation of clause 15.2 falls to be undertaken in accordance with
the approach articulated in Natal Joint Municipal Pension Fund v Endumeni
Municipality.7 The language used, read in context and having regard to
purpose and commercial sense, must be given its ordinary grammatical
4 Foize Africa v Foize Beheer (752/2011) [2012] ZASCA 123 (20 September 2012)
5 Fleet Africa (Pty) Ltd v Polokwane Local Municipality [2023] JOL 61642 (SCA) at para
6 Saboath General Traders (Pty) Ltd t/a Sausage Saloon and Another v Mthatha Mall (Pty) Ltd [2023]
ZACC 43
7 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18
10
meaning unless this leads to insensible or unbusinesslike results. Clause
15.2 must be interpreted so that every word is given operative effect rather
than rendered redundant.8
[29] Clause 15.2 records that the parties irrevocably agree that the High Court
of South Africa, Gauteng Local Division, Johannesburg “ shall have
jurisdiction” and submit to the non-exclusive jurisdiction of that court. The
deliberate qualification “ non-exclusive” must therefore carry independent
meaning.
[30] The ordinary grammatical meaning of “ non-exclusive” is unambiguous:
Properly construed, it constitutes an advance consent to the jurisdiction of
the of the the Gauteng Local Division, Johannesburg, with the consequence
that no party may object to proceedings instituted there but simultaneously
preserves the possibility that other competent courts may also entertain
proceedings.
[31] Two features of Clause 15.2 are immediately apparent. First, it affirmatively
confers jurisdiction on the Gauteng Local Division, Johannesburg. Second,
the conferral is expressly described as non-exclusive.
[32] Clause 15.2 does not say that the Gauteng Local Division, Johannesburg
is the only court that would have jurisdiction in matters arising out of the
Loan Agreement.
[33] Clause 15.2 operates as an irrevocable consent to the jurisdiction of the
Gauteng Local Division, Johannesburg, but being expressly non-exclusive,
8 Coopers & Lybrand v Bryant 1995 (3) SA 761 (A) at 767E–F.
11
it does not exclude or limit the jurisdiction of another competent division of
the High Court.
[34] A non-exclusive jurisdiction clause enlarges jurisdiction by consent; it does
not restrict concurrent jurisdiction. 9 In Foize Africa v Foize Beheer 10 the
Supreme Court of Appeal held that parties to a contract cannot exclude the
jurisdiction of a court by their own agreement. The Supreme Court of
Appeal cautioned against conflating contractual arrangements with
jurisdictional competence, emphasising that jurisdiction must be
determined as a matter of law.11
[35] The wording of clause 15.2 thus has two discrete legal consequences:
[1] First, it constitutes an irrevocable advance submission to the
jurisdiction of the Gauteng Local Division. If proceedings are instituted
there, no party may object to that court’s jurisdict ion. A party that
institutes proceedings in the Gauteng Local Division, Johannesburg
may not be met with a jurisdictional objection on the basis that the
court is improper; and
[2] Second, because it is expressly non -exclusive, it preserves
concurrent jurisdiction in any other division of the High Court that is
competent in terms of section 21 of the Superior Courts Act 10 of
2013. It does not preclude proceedings in another division provided
that statutory connecting factors are present and established.
9 Foize Africa v Foize Beheer (752/2011) [2012] ZASCA 123 (20 September 2012)
10 Foize Africa v Foize Beheer (752/2011) [2012] ZASCA 123 (20 September 2012)
11 Foize Africa v Foize Beheer (752/2011) [2012] ZASCA 123 (20 September 2012) at para 21
12
[36] Commercially, a non -exclusive jurisdiction clause serves a practical
function: it ensures certainty that proceedings may validly be brought in the
nominated court while preserving flexibility where jurisdiction is connected
to another forum.12
[37] To construe a non-exclusive jurisdiction clause as excluding the jurisdiction
of another competent court would require th is Court to ignore the ordinary
grammatical meaning of the words used, contrary to settled principles of
interpretation.13
[38] In Fleet Africa (Pty) Ltd v Polokwane Local Municipality 14 the Supreme
Court of Appeal held that a non -exclusive jurisdiction clause does not
exclude the jurisdiction of other competent courts. The court stated that
such clauses merely designate a specific court as the appropriate forum,
and the principle of pacta sunt servanda cannot override the inherent
jurisdiction of a competent court altogether.
[39] Similarly, in Saboath General Traders (Pty) Ltd t/a Sausage Saloon and
Another v Mthatha Mall (Pty) Ltd, 15 the Constitutional Court held that a
clause conferring jurisdiction on a specified court does not, by reason of
consent alone, oust the jurisdiction of another court competent under
statute; instead such a clause means that if proceedings are instituted in
12 Foize Africa (Pty) Ltd v Foize Beheer BV 2013 (3) SA 91 (SCA) para 21
13 Coopers & Lybrand v Bryant 1995 (3) SA 761 (A) at 767E–F
14 Fleet Africa (Pty) Ltd v Polokwane Local Municipality [2023] JOL 61642 (SCA) at para
15 Saboath General Traders (Pty) Ltd t/a Sausage Saloon and Another v Mthatha Mall (Pty) Ltd [2023]
ZACC 43.
13
the nominated court, no jurisdictional objection may be taken, but
concurrent jurisdiction remains possible where legally established.16
[40] To interpret Clause 15 .2 as an absolute injunction that proceedings may
only be instituted in the Gauteng Local Division, Johannesburg would
contradict both its express wording and settled authority, and would
impermissibly convert a non-exclusive jurisdiction clause into an exclusive
one by judicial fiat.
[41] Even though this court has interpreted Clause 15.2 to provide concurrent
jurisdiction,17 if the statutory requirements are not satisfied, then this Court
will not have jurisdiction. 18 This follows from Veneta Mineraria Spa v
Carolina Collieries (Pty) Ltd 19, where the court held that jurisdiction
depends on objective connecting factors recognised in law, and the
existence of jurisdiction elsewhere does not extinguish jurisdiction where
the statutory requirements are otherwise met.20
Application to the facts
[42] Jurisdiction is conferred as a matter of law. Section 21(1) of the Superior
Courts Act 10 of 2013 provides that:
16 Saboath General Traders (Pty) Ltd t/a Sausage Saloon and Another v Mthatha Mall (Pty) Ltd [2023]
ZACC 43 at para 66
17 Fleet Africa (Pty) Limited v Polokwane Local Municipality (720/2022) [2023] ZASCA 142 (30 October
2023)
18 Foize Africa v Foize Beheer (752/2011) [2012] ZASCA 123 (20 September 2012) at para 21
19 Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd 1987 (4) SA 883 (A)
20 Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd 1987 (4) SA 883 (A) at 893E–H
14
"…division has jurisdiction over all persons residing or being in and in
relation to all causes arising and of all offences triable within its area of
jurisdiction…”
[43] In South African Human Rights Commission v Standard Bank of South
Africa Ltd,21 the Constitutional Court held that a court is bound to entertain
proceedings that fall within its jurisdiction.22
[44] Clause 15.2 cannot defeat statutory jurisdiction where the connecting
factors are present. To this end, Kotzé J rationale in Brooks v Maquassi
Halls Ltd23 is apposite:
"According to our common law and practice under it, the Court will exercise
juris-diction upon any one of the following grounds, viz: (1) Ratione
domicilii; (2) ratione rei sitae ; (3) ratione contractus ; that is, where the
contract has either been entered into or has to be executed within the
jurisdiction. This is a correct statement of the law as summarised by Burge
21 South African Human Rights Commission v Standard Bank of South Africa Ltd and Others [2022]
ZACC 43 applied the dictum in Goldberg v Goldberg 1938 WLD 83, where Schreiner J stated: “[o]n
principle it seems to me that in general a Court is bound to entertain proceedings that fall within its
jurisdiction….But apart from such cases and apart from the exercise of the Court’s inherent jurisdiction
to refuse to entertain proceedings which amount to an abuse of its process…. I think that there is no
power to refuse to hear a matter which is within the Court’s jurisdiction. The discretion which the Court
has in regard to costs provides a powerful deterrent against the bringing of proceedings in the Supreme
Court which might more conveniently have been brought in the Magistrate’s Court.”
22 Applying the dictum in Goldberg v Goldberg 1938 WLD 83, where Schreiner J stated: “[o]n principle
it seems to me that in general a Court is bound to entertain proceedings that fall within its
jurisdiction….But apart from such cases and apart from the exercise of the Court’s inherent jurisdiction
to refuse to entertain proceedings which amount to an abuse of its process…. I think that there is no
power to refuse to hear a matter which is within the Court’s jurisdiction. The discretion which the Court
has in regard to costs provides a powerful deterrent against the bringing of proceedings in the Supreme
Court which might more conveniently have been brought in the Magistrate’s Court.”
23 Brooks v Maquassi Halls Ltd 1914 CPD 371 at 376 - 377
15
in his Commentaries, vol 3, chap 24, and has generally been adopted by
our courts.”24
[45] The Respondents are resident, domiciled, and carry on business within the
area of jurisdiction of this Court and there is a real and substantial
connection to this Division. It has repeatedly been stressed by the
authorities and in decisions of the courts, that effectiveness is the basis of
jurisdiction.25
[46] Accordingly, this Court is satisfied that the Applicant has established the
jurisdictional connecting factors required for this Court, sitting in Mbombela,
to have jurisdiction to hear the applications.
[47] Consequently, I make the following order:
ORDER
[1] The Respondents objection in limine to the jurisdiction of this Court is
dismissed.
[2] It is declared that the High Court of South Africa, Mpumalanga
Division, Mbombela, has jurisdiction to hear the applications (Case
number: 4435/2024 and Case number: 4433/2024).
[3] The Respondents to pay the costs on a party and party taxed on Scale
B.
24 Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd. (262/86) [1987] ZASCA 87; [1987] 2 All SA 447 (A)
(17 September 1987) at para 25
25 Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969(2) SA 295 (A) 305C - 310t Veneta
Mineraria Spa v Carolina Collieries (Pty) Ltd. (262/86) [1987] ZASCA 87; [1987] 2 All SA 447 (A) (17
September 1987) at para 15-16
16
___________________________
N MAYET
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: ADV WP STEYN
Instructed by:
THETHE SWART INC
3 Sandstone Avenue
Zwartkop Extension 8
Centurion
Mbombela
Tel: 0861 298 007
Email: stephan@tvss.co.za
Ref: Mr Swart/msr/FNB1/0057
C/O COMBRINK GREYLING ATTORNEYS
11 Murray street
Mbombela
Tel: 031 752 6995
Email: mirandi@cgattorneys.co.za
Ref: the11/0010/MB
For the Respondent: ADV WIJNBEEK
Instructed by:
ADENDORFF THERON ATTORNEYS
Beacon Corner, 2nd Floor
2 Rothery street
Cnr Van Niekerk Street
Mbombela
Tel: 013 752 3902
Email: jacques@adendorffs.co.za;
REF: J THERON/D00073