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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not reportable
Case no:740/22
In the matter between:
AMMAN HAMISSIE PLAINTIFF
And
THE MINISTER OF POLICE
FIRST DEFENDANT
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
SECOND DEFENDANT
Coram: Wessels AJ
Judgment reserved: 26 February 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 16h00 on 14 April 2026.
Summary: Jurisdiction – Territorial jurisdiction – Mero motu – Court may raise
issue of its own jurisdiction even where not pleaded – Superior Courts Act 10 of
2013.
Jurisdiction – Consent – Consent to jurisdiction cannot cure absence of
traditional grounds of juri sdiction where court has no authority over subject
matter – Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd 1987 (4) SA 883
(A) applied.
Arrest and detention – Separate causes of action – Arrest a single, completed act
– Detention a continuous wrong – Ngcobo v Minister of Police 1978 (4) SA 930
(D) followed.
Jurisdiction – Causa continentia – Doctrine permitting court with jurisdiction
over part of indivisible cause to assume jurisdiction over whole – Roberts
Construction Co Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A) considered –
Doctrine not applicable where claims are factually rather than legally indivisible
– Separate docket numbers in different provinces indicating legal separation of
claims
JUDGMENT
Wessels AJ
Introduction
[1] This matter was enrolled for trial before me on 16 September 2025. Prior
to the commencement of the trial proceedings, this Court raised, mero motu, the
question of whether this Court , the North West Division of the High Court, has
the requisite territoria l jurisdiction to adjudicate the plaintiff’s claim for
wrongful arrest and the initial period of detention that occurred in Gauteng. The
issue was not raised by the Defendants in their pleadings.
[2] It should be noted that t he parties were directed to file wr itten
submissions on the jurisdictional point and that, following the hearing , the
matter was stood down for the filing of heads of argument. While the plaintiff’s
heads of argument were evidently filed with the Office of the Registrar on the
due date, they were not brought to the attention of th is Court at that time. The
delay in finalising this matter was resolved only when my secretary contacted
the plaintiff’s a ttorneys directly to obtain the documents. Upon the heads of
argument being furnished to my secretary on 26 February 2026 , judgment was
reserved and I engaged with the evaluation of the submissions and the writing
of this judgment.
The factual matrix as disclosed in the pleadings
[3] The plaintiff instituted an action against the first defendant, the Minister
of Police, and the second defendant, the National Director of Public
Prosecutions, claiming damages for wrongful arrest, wrongful detention, and
malicious prosecution.
[4] The factual matrix set out in the plaintiff’s Particulars of Claim is
common cause. For the jurisdictional enquiry, the following facts are material:
On or about 7 November 2020, members of the South African Police Service
(“SAPS”) f rom the Brackendowns Police Station attended to the plaintiff’s
place of employment, Nyasa Logistics, situated at […] R[...] Road, Alberton,
Gauteng. Upon the plaintiff’s arrival, he was arrested and charged with
possession of a hijacked truck, possession of suspected stolen property, and
cultivation of dagga. A case docket was opened under Brackendowns CAS No:
52/11/2020. The plaintiff was detained overnight at the Brackendowns Police
Station in Gauteng Province on 7 to 8 November 2020. On 8 November 2020,
members of the Klerksdorp SAPS collected the plaintiff from Brackendowns
Police Station and transported him to Klerksdorp in the North -West Province,
where he was detained for two days in the police holding cells.
[5] On 10 November 2020, the plaintiff was brought before the Christiana
Magistrates’ Court in the North -West Province. A new case docket was opened
under CAS No: 91/10/2020. The plaintiff appeared on multiple occasions
between November 2020 and July 2021. On 13 July 2021, the charges were
withdrawn, and the plaintiff was released.
[6] Of importance is that the plaintiff’s own pleadings establish that two
separate case numbers were issued: one in respect of the arrest in Gauteng (CAS
52/11/2020) and another in respect of the prosecution in the Nort h-West
Province (CAS 91/10/2020). The plaintiff does not allege that he was
prosecuted under the Brackendowns docket. Instead, the prosecution proceeded
under a separate docket in Christiana.
The parties’ submissions
[7] The plaintiff submits that this Court has jurisdiction to adjudicate the
entire matter, including the wrongful arrest and the initial detention in Gauteng.
He argues that the defendants have consented to jurisdiction in their pleadings
and in the pre -trial minute. He f urther contends that the detention constitutes a
continuous wrong. Because a substantial part of that wrong occurred within this
Court’s territorial jurisdiction, the whole claim may be adjudicated here. He
relies on the doctrine of causa continentia and considerations of convenience,
justice, and good sense.
[8] The defendants argue that this Court lacks jurisdiction over the wrongful
arrest and the initial detention. They contend that the arrest was a single,
completed act in Gauteng and that the first defendant is domiciled in Pretoria.
They submit that the principle of actor sequitur forum rei dictates that the
plaintiff should have instituted his claim for unlawful arrest in the Gauteng
Division. They argue that the doctrine of a continuous wrong pertains to the law
of prescription and cannot be transposed to the question of territorial
jurisdiction. Finally, they conten d that convenience cannot create jurisdiction
where none exists.
Power of the court to raise jurisdiction mero motu
[9] Before addressing the merits of the jurisdictional challenge, it is
necessary to dispose of a procedural objection raised by the plaintiff in his
replying arguments. The plaintiff contends that the defendants’ objection to
jurisdiction is procedurally irregular because it was not raised by way of a
special plea but was instead raised by this Court mero motu.
[10] This objection is without merit. It is a fundamental principle of our law
that a court lacks the power to adjudicate a matter over which it has no
jurisdiction. A court is not only entitled but is duty -bound to satisfy itself as to
its own jurisdiction, even if the parties do not raise the point.
[11] It was held in Cusa v Tao Ying Metal Industries and Others1 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 partie s 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.’
[12] Accordingly, the raising of the jurisdictional question by this Court was
not only procedurally proper but also an exercise of th is Court’s duty. The
plaintiff’s objection on this ground is dismissed.
Territorial jurisdiction
[13] The territorial jurisdiction of a High Court is governed by s 21(1) of the
Superior Courts Act2, which provides:
‘A Division has jurisdiction over all persons residing or being in, and in relation to all causes
arising and all offences triable within, its area of jurisdiction and all other matters of which it
may, according to law, take cognisance…’
[14] The classic definition of jurisdiction was provided by the Supreme Court
of Appeal (‘ the SCA’) in Graaff-Reinet Municipality v Van Ryneveld’ s Pass
Irrigation Board 3
‘Jurisdiction means the power or competence of a Court to hear and determine an issue
between parties, and limitations may be put upon such power in relation to territory, subject
matter, amount in dispute, parties etc.’
1 CUSA v Tao Ying Metal Industries and Others (CCT 40/07) [2008] ZACC 15; 2009 (2) SA 204 (CC); 2009 (1)
BCLR 1 (CC) ; [2009] 1 BLLR 1 (CC) ; (2008) 29 ILJ 2461 (CC) (18 September 2008) para 67.
2 Superior Courts Act 10 of 2013.
3 Graaff-Reinet Municipality v Van Ryneveld’ s Pass Irrigation Board 1950 (2) SA 310 (A) at 424.
The consent to jurisdiction argument
[15] The plaintiff submits that the defendants have consented to this Court’s
jurisdiction. He po ints to the pleadings and the pre -trial minute, which he
contends contain an unconditional consent to jurisdiction found in the pre -trial
minute. It should be noted that the allegations in the particulars of claim
pleading the arrest in Brackendowns are denied in the defendant’s plea, and that
the issue of jurisdiction was not pertinently addressed in the pre -trial minutes,
save for an agreement that the case should not be transferred to another court.
[16] I now turn to consider whether the p re-trial minute constitutes valid
consent to this Court's jurisdiction over the wrongful arrest claim. The pre -trial
minute, signed by both parties on 2 December 2022, records under the heading
‘ISSUES THAT ARE NOT IN DISPUTE BETWEEN THE PARTIES ’ that the
parties agreed that the following issues are not in dispute:
‘Jurisdiction; Locus Standi; Arrest of the plaintiff by the 1 st Defendant; Date of the Arrest;
Detention of the plaintiff; Prosecution of the plaintiff by the 2nd Defendant.’
[17] The plaintiff submits that this constitutes an unconditional consent to
jurisdiction. The defendants, in their written submissions, contend that the pre -
trial minute does not reflect a considered consent to this Court’s adjudication of
a claim that arose outside its territori al jurisdiction. It is evident from the pre -
trial minute that the parties did not direct their minds to the question of whether
this Court has territorial jurisdiction over the wrongful arrest claim. The pre-
trial minute records jurisdiction as an issue not in dispute, without
differentiating among the various claims. The parties appear to have assumed,
without analysis, that this Court would have jurisdiction over the entirety of the
plaintiff’s claims simply because the action was instituted in this Division.
[18] It is trite that parties may consent to the jurisdiction of a court that would
otherwise lack jurisdiction, provided that the court is competent to exercise
jurisdiction over the subject matter of the dispute. However, where a court lacks
inherent jurisdiction over the subject matter, consent cannot confer jurisdiction.
In Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd 4 the Court quotes with
approval the dictum of Innes CJ in Ueckermann v Feinstein 1909 TS 913:
‘I think it must be recognised as settled law in South Africa that there can be no prorogation
in regard to cases where the Court has no authority at all to adjudicate upon the subject -
matter of the dispute; because in such cases, the matter at issue being by law outside the
cognisance of the Court, the consent of parties cannot confer a coercive jurisdiction upon the
Court, which the law expressly denies to it.’
[19] The principle is clear: consent to jurisdiction, whether express or implied,
cannot cure the absence of traditional grounds of jurisdiction. The consent
recorded in the pre-trial minute, even if regarded as a submission to this Court’s
jurisdiction, do es not absolve the requirement that this Court has jurisdiction
over the cause of action itself. The wrongful arrest claim lacks a traditional
connection to the North West Division: the arrest took place in Gauteng, the
docket was opened under Brackendowns CAS No: 52/11/2020, and the first
defendant is domiciled in Pretoria.
[20] The pre -trial minute does not demonstrate that the parties applied their
minds to the specific question of whether this Court could adjudicate a wrongful
arrest that occurred in Gauteng . The inclusion of jurisdiction as an issue not in
dispute is, at best, an assumption of jurisdiction rather than a considered
consent. Such an assumption cannot confer jurisdiction where none exists. A
4 Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd 1987 (4) SA 883 (A) at 920.
court’s jurisdiction is a matter of legal power and c ompetence, not of
convenience or, least of all, the parties’ assumptions.
[21] For these reasons, the pre -trial minute does not constitute a valid consent
to this Court’s jurisdiction over the wrongful arrest claim. Even if it were to be
construed as such, the absence of traditional grounds of jurisdiction renders
such consent ineffective.
[22] However, the purported consent to this Court’s jurisdiction does not assist
the plaintiff in the wrongful arrest claim. The issue is not whether this Court has
jurisdiction over any of the claims, it does. The issue is whether this Court has
jurisdiction over the wrongful arrest claim specifically. Veneta Mineraria laid
down the principle that consent cannot confer jurisdiction over a claim that has
no traditional ground connecting it to a court’s area.
[23] I need not decide this point definitively because, as will become apparent,
I am of the view that this Court has jurisdiction over a substantial portion of the
plaintiff’s claims on established principles of territorial jurisdiction. The
question of consent, therefore, does not arise for determination.
The distinction between arrest and detention
[24] It is well established that wrongful arrest and wrongful detention are
separate causes of action 5. The arrest is a single, completed act that occurs at a
specific moment when the arrestee’s movement is placed under the SAPS’
control. In the present matter, the arrest occurred on 7 November 2020 at Nyasa
Logistics in Alberton, Gauteng. All the facts necessary to prove this cause of
action, the deprivation of liberty , the absence of a warrant, and the lack of
5 See Ngcobo v Minister of Police 1978 (4) SA 930 (D).
reasonable suspicion occurred in Gauteng. A case docket was opened under
Brackendowns CAS No: 52/11/2020.
[25] The detention, by contrast, is a continuous act that lasts for as long as it
persists. In Barnett and Others v Minister of Land Affairs and Others 6 the SCA
distinguished between a single wrongful act and continuous wrong as follows:
“…concept which has be come well-recognised in the context of prescription, namely that of
a continuous wrong. In accordance with this concept, a distinction is drawn between a single,
completed wrongful act – with or without continuing injurious effects, such as a blow against
the head – on the one hand, and a continuous wrong in the course of being committed, on the
other. While the former gives rise to a single debt, the approach about a continuous wrong is
essentially that it results in a series of debts arising from moment t o moment, as long as the
wrongful conduct endures…”
The jurisdiction of this Court
[26] Applying these principles to the facts of this case, the conclusion emerges
that, in the wrongful arrest claim, the cause of action arose and was completed
in its entirety in Alberton, Gauteng, on 7 November 2020. The case docket
opened in respect of this arrest was Brackendowns CAS No: 52/11/2020. This
Court lacks territorial jurisdiction over the wrongful arrest claim.
[27] In t he detention claim , the detention commenced in Gauteng on 7
November 2020 and continued overnight at Brackendowns Police Station. On 8
November 2020, the plaintiff was transferred to Klerksdorp in the North -West
Province. From that point until his release on 13 July 2021, the plaintiff was
detained within the territorial jurisdiction of this Court. As detention is a
6 Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA) para 20.
continuous wrong, each day of detention in the Nor th-West Province gives rise
to a separate cause of action arising within this Court’s area of jurisdiction.
[28] In t he malicious prosecution claim , t he prosecution occurred entirely
within the North -West Province. The case docket was opened under CAS No.
91/10/2020, and all court appearances were held at the Christiana Magistrates’
Court. This Court has clear territorial jurisdiction over this claim.
The doctrine of causa continentia
[29] The question that arises is whether this Court, having jurisdiction over the
detention claim (from 8 November 2020 onwards) and the malicious
prosecution claim, may also assume jurisdiction over the wrongful arrest claim ,
which arose outside its territory.
[30] In Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd 7, the SCA
considered the question of jurisdiction in a case where a single contract for the
construction of a bridge spanning two provinces gave rise to a claim. The Court
held that , because the cause of action was indivisible, arising from a single
contract, it was established that a court with jurisdiction over part of an
indivisible cause may assume jurisdiction over the whole . The doctrine exists
to avoid fragmentation of litigation and conflicting judgments ; the partial
invalidity of a claim does not render the entire claim invalid.
The applicability of causa continentia
[31] The critical question is whether the plaintiff’s claims for wrongful arrest,
wrongful detention, and malicious prosecution are sufficiently interconnected to
7 Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A).
justify the application of the causa continentia doctrine. A significant difficulty
appears in the plaintiff’s case. The plaintiff’s own pleadings establish that two
separate case numbers were issued. Brackendowns CAS No: 52/11/2020 was
opened in respect of the arrest in Gauteng. A separate docket, CAS No:
91/10/2020, was opened in the North West Province in respect of the
prosecution. The plaintiff does not allege that he was prosecuted under the
Brackendowns docket. This suggests that the prosecuting authority in the North
West was proceeding under a separate case number, which weakens the
argument that the arrest and the prosecution are part of a single, indivisible legal
transaction.
[32] Furthermore, the arrest and the detention are separate delicts. The arrest
was a single, completed act that occurred entirely in Gauteng. The detention that
followed, while factually linked to the arrest , is a separate cause of action. The
fact that the plaintiff was transferred to the North West Province does not
retroactively confer jurisdiction over the arrest on this Court.
Considerations of convenience, justice, and good sense
[33] The plaintiff argues that it would be inefficient and contrary to the
interests of justice to require him to litigate his wrongful arrest claim in the
Gauteng Division and his detention and malicious prosecution claims in this
Division. He submits that the same witness es, the same documentation, and the
same central factual question, the lawfulness of the initial deprivation of liberty,
underpin all claims.
[34] It may readily be accepted that there is a factual connection between the
arrest and the subsequent detention and prosecution. The same witnesses may
indeed be required to testify in respect of both the arrest and the detention. The
question of whether the arrest was lawful is foundational to determining
whether the subsequent detention was lawful. However, I am mindf ul of the
defendants’ submission that convenience cannot create jurisdiction where none
exists. In Roberts Construction , the indivisibility was legal , arising from a
single contract. Here, the indivisibility is factual and practical, not legal. The
arrest and the detention are separate delicts, and the arrest was completed in
Gauteng before the detention in the North-West commenced.
Conclusion and order
[35] Having considered the pleadings and the written submissions , I arrive at
the following conclusions: This Court has clear territorial jurisdiction over the
detention claim from 8 November 2020 to 13 July 2021, being the period during
which the plaintiff was detained within the North West Province ; and t he
malicious prosecution claim, which arose entirely within the North West
Province. This Court does not have territorial jurisdiction over the wrongful
arrest claim, which arose and was completed in Alberton, Gauteng, on 7
November 2020, under Brackendowns CAS No: 52/11/2020.
[36] The doctrine of causa continent ia, while recognising that a court with
jurisdiction over a part of a cause may exercise jurisdiction over the whole in
the interests of convenience and justice, does not compel this Court to assume
jurisdiction over a claim that has no territorial connect ion to its area . In the
alternative, this Court cannot assume jurisdiction over a claim merely because it
would be convenient to do so or because the plaintiff made a procedural choice
that now results in fragmentation.
Order
[37] In the circumstances, I make the following order:
1. It is declared that this Court has territorial jurisdiction to adjudicate
the plaintiff’s claim for wrongful detention in respect of the period
from 8 November 2020 to 13 July 2021 and the plaintiff’s claim for
malicious prosecution.
2. It is declared that this Court does not have territorial jurisdiction to
adjudicate the plaintiff’s claim for wrongful arrest, which arose in
Gauteng on 7 November 2020 under Brackendowns CAS No:
52/11/2020.
3. The plaintiff is granted leave to amend his particulars of claim
within 20 (twenty) days of this judgment to remove the claim for
wrongful arrest , failing which that claim shall be deemed to be
struck out.
4. The costs of this jurisdictional hearing shall be costs in the cause.
____________________________
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
For plaintiff :Adv M Skhosana
Instructed by :Mabotju Attorneys
:Pretoria
:c/o Lehabe Attorneys
:Mahikeng
For defendant :Adv MJ Motsusi
Instructed by :State Attorneys
:Mmabatho