REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: A2025-033374
In the matter between:
In the appeal between:
ASHERSONS ATTORNEYS First Appellant
CASH CRUSADERS (PTY) LTD Second Appellant
MAUREEN N CIBE t/a SHERIFF SOWETO WEST Third Appellant
and
B O KHUMALO t/a SHERIFF LENASIA / LENASIA NORTH Respondent
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
______________ ___ __
DATE SIGNATURE
WENTZEL -THOMPSON J (Wilson J concurring)
Introduction
[1] This appeal arises from a judgment and order of the learned Acting Magistrate RM
Masina, delivered in the Regional Court held at Kliptown on 12 February 2025 ( “the
Judgment”), in which the court a quo dismissed the special pleas of jurisdiction raised
by both the first and second appellants (in respect of claim 1) and the third appellant (in
respect of claim 2), with costs. The appellants now seek to have that decision set aside
and replaced with orders upholding their respective special pleas, with costs.
Background
[2] The first appellant, Ashersons Attorneys, is a firm of attorneys based in Cape Town. The
second appellant, Cash Crusaders (Pty) Ltd, is also situated in Cape Town and was at
all material times a client of the first appellant and the execution creditor relevant to
these proceedings. The third appellant, Maureen N Cibe, is a sheriff trading as Sheriff
Soweto West and operates from Protea North, Soweto. The Respondent is the
appointed sheriff for the areas of Lenasia and Lenasia North in Gauteng.
[3] In the court a quo, the respondent, as plaintiff, sued all three defendants for services
rendered and disbursements incurred. In respect of the first and second defendants
(now appellants) , the claim pertained to the respondent’s fees and disbursements
arising from the execution of a writ of execution issued by the Western Cape High Court
in favour of the second appellant. In respect of the third defendant (now appellant), the
claim was also contractual in nature, relating to the storage costs for the goods attached
during execution.
[4] The first and second appellants (as a unit) and the third appellant, each raised separate
special pleas that the whole cause of action had not arisen within the jurisdiction of the
Kliptown Regional Court. The third appellant’s special plea raised additional grounds
based upon the fact that a revised Government Gazette prescribed the geographical
based upon the fact that a revised Government Gazette prescribed the geographical
jurisdiction of Kliptown Magistrates Court.
[5] The appellants appeal against the dismissal of their special pleas by the learned
magistrate.
[6] The respondent’s counsel raised further arguments during the course of the appeal
pertaining to the special pleas raised to claim 1 concerning the first and second
appellants.
a. The one was that the respondent’s claim was essentially statutory in nature, being
for fees and disbursements to which he was entitled by statute, rather than for
payment for services rendered under a contract.
b. The other was that even on the basis that a contractual claim had been pleaded,
the evidence adduced at the trial was that he had made a counter-offer in insisting
on the payment of a deposit before executing the writ that had been accepted by
the first ap pellant in Cape Town but only communicated to him at his place of
business within the jurisdiction of the Regional Court.
[7] The third appellant also added a further ground of appeal, namely that the amount of
R65 000 claimed against the third appellant was below the minimum monetary threshold
for claims in the Regional Court (whose band of jurisdiction is limited to claims between
R200 000 and R400 000) and ought properly to have been brought in the Magistrate’s
Court.
[8] In response to this new “ special plea” raised only on appeal, the respondent’s counsel
made reference to the decision of Binns-Ward J in the Western Cape High Court in the
matter of Minister of Police v Regional Magistrate, Outshoorn and Others1 that held that
it is the upper limit set that is determinative of jurisdiction.
[9] The respondent’s counsel also argued that a special plea of jurisdiction may not be
raised after litis contestatio.
The issues to be decided
[10] The discrete issues that fall to be decided in this appeal are as follows:
The first and second appellants’ special plea to claim 1
a. Whether, as against the first and second appellants, the whole cause of action
arose within the territorial jurisdiction of the Kliptown Regional Court, as required
1 (15587/2013) [2014] ZAWCHC 165 (6 November 2014)
by section 28(1)(d) of the Magistrates' Courts Act 32 of 1944 ( “the Magistrate’s
Court Act”).
b. Whether, without an amendment to the particulars of claim, the respondent is
entitled to rely upon the statutory duty of a sheriff to execute a warrant of execution
that arises ex lege despite the fact that it was not pleaded but was raised and
canvassed by the court a quo . (This inquiry applies equally to third appellant’s
special plea to claim 2.)
c. Whether the respondent was entitled by way of supplementary heads of argument
to raise the argument that the respondent’s stipulation that a deposit be paid
amounted to a counter-offer, that was accepted by the first appellant in Cape Town
but conveyed to the respondent in Kliptown, within the jurisdiction of the Regional
Court.
The third appellant’s special plea to claim 2
a. Whether, as against the third appellant, the whole cause of action arose within the
jurisdiction of the Kliptown Regional Court, having regard to the applicable
Government Gazette delimiting the court’s geographical area, the place of
conclusion and performance of the alleged oral agreement, and the place of any
alleged breach.
b. Whether, in any event, the Kliptown Regional Court had the monetary jurisdiction
to adjudicate the claim against the third appellant in the amount of R65,000.00
below the monetary threshold of R200 000.
c. Whether this latter ground can be raised by the third appellant after lis contestatio.
[11] Certain other points were raised by the respondent that I do not regard as real points in
issue to be dealt with in this judgment; nevertheless I pay cursory regard to them in the
course of this judgment.
The legislative framework and the relevant case law
a. Section 28(1)(d) of the Magistrates' Courts Act
[12] The jurisdiction of the magistrates ’ courts in respect of persons is comprehensively
regulated by section 28 of the Act. Section 28(1)(d) confers jurisdiction over “any person,
regulated by section 28 of the Act. Section 28(1)(d) confers jurisdiction over “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.”
[13] This provision creates a form of special jurisdiction and constitutes a departure from the
common law rule of actor sequitur forum rei, which requires a defendant to be sued in
the district where he or she resides or carries on business. Because the right to invoke
this special jurisdiction is a departure from the common law, it is restricted: a plaintiff
may sue a defendant under this p rovision only if the cause of action arose wholly - not
merely partially - within the district or regional division.2
[14] A Magistrates Court, including a Regional Court, unlike the High Court, has no inherent
jurisdiction. It may entertain only those matters which the Magistrates’ Courts Act and
the applicable regulations confer upon it. Where jurisdiction is founded on s 28 (1)(d) of
the Act, the jurisdictional fact is that the cause of action must have arisen wholly within
the district or regional division. That requirement is not satisfied because some facts
occurred within the courts’ area, nor because the respondent’s off ice or storage facility
is situated there. The whole cause of action must arise there.
[15] In order for a cause of action to arise wholly within the area of jurisdiction of a
Magistrates’ Court, all the facta probanda - the material facts necessary to disclose a
cause of action - must have occurred within the area of jurisdiction. In McKenzie v
Farmers’ Co-operative Meat Industries Ltd,3 the court defined cause of action as “every
fact which it would be necessary for the plaintiff to prove, if traversed, in order to support
his right to judgment of the court.”
[16] In actions founded on contract, the cause of action includes: (a) the conclusion of the
contract; (b) the terms of the contract (including the agreed place of performance); and
(c) the breach of the contract. In an action for remuneration for services rendered, the
(c) the breach of the contract. In an action for remuneration for services rendered, the
cause of action does not arise wholly within the district if the contract was concluded
elsewhere, the performance was to occur elsewhere, or the payment was to be made in
another district.4
[17] This is different from the jurisdiction conferred upon the High Court. In terms of Section
21(1) of the Superior Courts Act 10 of 2013, a High Court has jurisdiction over all causes
2 See Volume 5(1) Third Edition Replacement LAWSA at para 61.
3 1922 AD 16
4 Eisenberg v OFS Textile Distributors (Pty) Ltd 1949 (3) SA 1047 (O); Herholdt v Rand Debt Collecting
Co 1965 (3) SA 752 (T) at 756G -757A; Jones & Buckle, The Civil Practice of the Magistrates ’ Court
in South Africa (Lexisnexis) at Act 106.
arising and persons residing within its designated geographic area. In contractual
disputes, for instance, a High Court has jurisdiction if:
a. The contract was concluded within its jurisdiction.
b. Performance in terms of the contract was meant to happen within its jurisdiction.
c. The breach of contract occurred within its jurisdiction.
[18] This means if any one of these elements takes place in the province where the High
Court sits, a High Court can hear the matter, whereas a Magistrate’s Courts’ jurisdiction
is limited to matters where the whole cause of action occurs within its geographical limits.
[19] In actions founded on contract, the cause of action includes: (a) the conclusion of the
contract; (b) the terms of the contract (including the agreed place of performance); and
(c) the breach of the contract. In an action for fees for services rendered, the cause of
action does not arise wholly within the district if the contract was concluded elsewhere,
the performance was to occur elsewhere, or the payment was to be made in outside of
the jurisdiction of the court.5
b. Conclusion of a contract by telephone
[20] The general rule in our law is that a contract is concluded at the time and place where
agreement is reached - that is, when and where the offeror receives communication of
the offeree’s acceptance. This is known as the information theory.6
[21] In the case of contracts concluded by telephone - which are analogous to contracts
made inter praesentes - the information theory applies .7 Where offer and acceptance
are made by telephone, the contract is concluded at the place where the offeror is, i.e.
where the offeror learns that the offer has been accepted.
[22] In Tel Peda Investigation Bureau (Pty) Ltd v Van Zyl,8 the defendant filed a special plea
claiming lack of jurisdiction. The defendant argued that the contract came to existence
in Johannesburg as opposed to East London (in which event the Johannesburg court
in Johannesburg as opposed to East London (in which event the Johannesburg court
would have jurisdiction). The special plea did not succeed in the Magistrates Court, as
5 Eisenberg v OFS Textile Distributors (Pty) Ltd 1949 (3) SA 1047 (O); Herholdt v Rand Debt
Collecting Co 1965 (3) SA 752 (T) at 756G-757A; Jones & Buckle The Civil Practice of the
Magistrates' Court in South Africa (Lexisnexis) at Act 106.
6 Estate Breet v Peri-Urban Areas Health Board 1955 (3) SA 523 (A) at 532; Volume 9 Third Edition
LAWSA at paras 306 & 307.
7 Jamieson v Sabingo 2002 (4) SA 49 (SCA)
8 1965 (4) SA 475 €
the court was of the view that the plaintiff accepted the offer in East London and therefore
the cause of action arose in East London. The defendant appealed against the
Magistrate’s finding and the Appeal Court subsequently overruled the Magistrate’s
decision, finding that where a contract is concluded by means of a telephone call, the
acceptance of the offer instantly becomes known to the offeror (over the telephone),
hence the contract is concluded in the area where the offeror is based at that point in
time. The Appeal court found that the contract has indeed been concluded in
Johannesburg and the special plea should have been upheld.
[23] The locus contractus is the place where the last step which is required for the completion
of the contract takes place.9In cases of doubt, it is presumed that the contract is formed
only when and where the acceptance is communicated to the offeror.10
c. The admissibility of evidence to establish the special pleas
[24] The Constitutional Court has made it plain that a special plea of jurisdiction must be
decided on the pleadings and not the merits .11 But that does not mean that evidence
cannot be led to support the averments made in the special plea where there are
disputes of fact.12 If jurisdiction depends on disputed facts, the court may hear evidence
before merits. 13 The evidence is then confined to the special plea concerning
jurisdiction.14
[25] In this respect, a special plea of jurisdiction is distinct from an exception. Where the
jurisdiction objection is that even accepting the plaintiff’s pleaded facts as true,
jurisdiction is absent , the matter may be determined purely on the pleadings. This is
because no factual inquiry is required.
[26] As explained in Absa Bank Ltd v Boksburg Transitional Local Council,15 if a special plea
introduces facts not appearing ex facie the particulars of claim , evidence may be
admissible.
9 Volume 9 Third Edition LAWSA at para 306; Kergeulen Sealing & Whaling Co Ltd v CIR 1939 AD
487.
487.
10 Withok Small Farms (Pty) Ltd v Amber Sunrise Properties 5 (Pty) Ltd 2009 (2) SA 504 (SCA)
11 Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC)
12 Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA)
13 Foize Africa (Pty) Ltd v Foize Beheer BV 2013 (3) SA 91 (SCA), where jurisdictional facts were
examined substantively rather than merely formalistically.
14 supra
15 1997 (2) SA 415 (W)
[27] In the present matter, the appellant relied upon facts that did not all appear from the
particulars of claim. Although the respondent did not file a replication, these facts not
consistent with the particulars of claim must be regarded as having been denied. In
these circumstances evidence was admissible to establish the facts set out in the special
plea.
[28] I thus accept that evidence was admissible to establish where the contract was
concluded and in turn to support the special pleas as pleaded.
[29] As a corollary, I must accept that evidence was admissible by the respondent to refute
the special pleas; but that does not mean that evidence was admissible to support a
new cause of action outside of the special pleas that was not pleaded.
[30] A plaintiff may not at trial depart from the case pleaded in the particulars of claim in order
to alter the jurisdictional basis of the claim; parties are held strictly to their pleadings 16-
subject of course to a litigant’s right to seek an amendment.
[31] As the Makhanda High Court recently confirmed in Eastern Cape Motors (Pty) Ltd v
Wolmerans (Appeal)17 that:
“The importance of pleadings is trite. They define the issues for the other party and for
the court... Holding parties to their pleadings is not pedantry - it is integral to the
achievement of legal certainty which is central to the constitutional prescript of the rule
of law. It is impermissible for a court, when deciding a case, to have recourse to issues
not specifically pleaded by a party and which are e xtraneous to the pleadings... The
adjudication of the matter on material that had not been foreshadowed in the defendant's
plea and without proper consideration of the issues underlying the appellant's cause of
action was a misdirection which entitles interference on appeal.”
The application of the law to the facts
a. The first and second appellants’ special plea to claim 1
[32] In his particulars of claim, the respondent expressly pleaded the following:
[32] In his particulars of claim, the respondent expressly pleaded the following:
16 Robinson v Randfontein Estates Gold Mining Co Ltd 1925 AD 173 at 198; Nick's Fishmonger Holdings
(Pty) Ltd v Fish Diner in Bryanston CC 2009 (5) SA 629 (W) at 642.
17 (CA49/2024) ZAECMKHC 34 (15 April 2025)
“2. The whole cause of action arose within the jurisdiction of the above Honourable
Court. ...
5. On the 15th April 2021 at Armadale pursuant to [a] Writ of Execution ... the 1st
Defendant instructed the Plaintiff to execute the aforesaid Writ.
6. The Plaintiff accepted the aforementioned instructions as mandated by the laws of
the Republic of South Africa and as a result of the aforementioned acceptance of the
instructions a contract or agreement was entered into between the Plaintiff and 1st
and 2nd Defendants, and amongst others the following was the express or tacit terms
of the agreement...”
[33] The Respondent thus expressly pleaded both an instruction (offer) and an acceptance
of that instruction, resulting in a concluded contract. This is the case which the first and
second appellants were required to meet.
[34] The first and second appellants’ special plea challenged the jurisdictional basis by
pleading that the instruction was given in Cape Town , the acceptance occurred in
Armadale and that the agreement was accordingly concluded in Cape Town. In addition,
the first and second appellants relied upon the fact that the breach (failure to pay fees)
also occurred in Cape Town.
[35] Faced with these difficulties, the respondent’s counsel argued and the learned
magistrate accepted that it mattered not that the claim had been formulated in contract
as in truth and in fact, where a sheriff sues for fees, his cause of action is sui generis
and arises from the Rules applicable to the Magistrates Court as well as the Sheriff’s
Act 90 of 1986 (“the Sheriff’s Act) and not in contract.
[36] In this respect reliance was placed on Rule 45(3), Rule 68, and BG Bojosinyane &
Associates v The Sheriff, Vryburg and Another.18 These provisions, when read with the
Sheriff’s Act support the fact that the cause of action is statutory and the Sheriff, as an
officer of the court, is duty bound to accept an instruction to execute a writ by operation
officer of the court, is duty bound to accept an instruction to execute a writ by operation
of law; and the fees it may charge are prescribed in the tariff set out in the Sheriff’s Act.
That being the case, it was argued and found that regardless where the contract was
concluded, the court in the district where the respondent operated had jurisdiction.
[37] While it is correct that the sheriff performs statutory duties under the Sheriffs Act and
Uniform Rule 45(3), this does not assist the respondent in the present context ; the
18 [2023] ZASCA 174.
respondent himself pleaded a concluded contract. Even if the sheriff's primary obligation
is statutory, the respondent nevertheless sued on a contract and did not apply to amend
his particulars claim.
[38] The fact of the matter is that the respondent had expressly pleaded the existence of a
contract arising from the acceptance of an instruction. He was bound to that pleading.
The attempt to abandon the contractual foundation of the claim at trial, in order to avoid
the jurisdictional conseque nces of the place of conclusion of the contract as pleaded,
amounted to an impermissible ambush. As already noted, courts hold parties strictly to
their pleadings and do not countenance such tactical shifts of the basis upon which their
claim was predicated.19
[39] In response to this difficulty, the respondent’s counsel argued in supplementary heads
of argument and before us that although the particulars of claim had been somewhat
inelegantly pleaded, the essential facts necessary to sustain a cause of action based
upon the respondent’s statutory entitlement to the fees and disbursements incurred by
him were pleaded. The respondent’s counsel argued that in essence the case pleaded
was a mixture of a claim in contract and one based upon the provisions of the Sheriff’s
Act. He even went so far as to suggest that the contract was pleaded only by way of
background and should not be determinative.
[40] In support of this argument, reference was made to several paragraphs of the particulars
of claim where it was stated:
“3. The Plaintiff is duly appointed in accordance with the Sheriff’s Act 90 o 1986 and
is duty bound to execute all writ and court documents within his jurisdiction.
4. …
5. On the 15th April 2021 at Armadale …. the 1st Defendant instructed the Plaintiff to
execute the aforesaid Writ.
6. The Plaintiff accepted the aforementioned instructions as mandated by the law of
the Republic of South Africa and as a result of the aforementioned acceptance of
the Republic of South Africa and as a result of the aforementioned acceptance of
the instructions a contract or agreement was entered into between the Plaintiff and
19 Robinson v Randfontein Estates Gold Mining Co Ltd 1925 AD 173 at 198; Eastern Cape Motors
(Pty) Ltd v Wolmerans (Appeal) (supra).
1st and 2nd Defendants, and amongst other s the following was the express or
tacit terms of the agreement….
7. …
8. The aforesaid fees are due and payable in accordance with the Sheriff’s
Prescribed Tariff.”
[41] The argument advanced may have had some merit but for the fact that the respondent
pleaded that as a result of the instructions provided a contract or agreement was entered
into between the parties and proceeded to plead the terms of the agreement. One of
these terms was that the Defendant would pay all the necessary and re asonable
fees/costs of execution including any disbursement incurred by the Plaintiff in executing
the 1 st and 2nd Defendant’s mandate (paragraph 6.1); he did not plead that the fees
payable were prescribed by tariff in the context of the terms of the contract but rather
this was merely pleaded as a statement of fact in paragraph 8 of the particulars of claim.
[42] The way I see the case as pleaded is that it was a claim firmly based upon contract, but
with some acknowledgement of the respondent’s statutory responsibilities to accept any
instruction given and to charge fees in terms of a prescribed tariff.
[43] I thus dismiss the notion that somewhere within the pleadings lurked a statutory claim
based upon Rule 45 (3) and the Sheriff’s Act.
[44] The learned magistrate correctly held at paragraph 82 of her judgment that jurisdiction
must be determined with reference to the pleadings. However, she immediately
undermined this correct statement of principle by declining to apply it; instead having
regard to what she regarded as the substantive nature of the claim. She concluded at
paragraph 84 that “the proceedings are for a breach of a right to payment” and relied on
authorities pertaining to High Court jurisdiction - specifically Estate Agents Board v Lek20
and Zokufa v Compuscan (Credit Bureau)21 to justify her conclusion.
[45] This was a fundamental misdirection. The learned magistrate was bound by the case as
[45] This was a fundamental misdirection. The learned magistrate was bound by the case as
pleaded. She was not entitled to substitute a different legal characterisation of the claim
for that which the Respondent had himself pleaded. The authorities she relied upon
(pertaining to High Court inherent jurisdiction) have no application to the limited statutory
jurisdiction of the magistrates' court. By doing so, the learned magistrate applied the
201979 (3) SA 1048 (A)
21 Zokufa v Compuscan (Credit Bureau) 2011 (1) SA 272 (ECM)
wrong legal standard, thereby committing an error of law which requires correction on
appeal.
[46] Furthermore, the respondent having expressly pleaded the conclusion of a contract, the
learned magistrate was obliged to determine jurisdiction on that basis. The question of
where offer and acceptance took place was directly relevant to this determination and
the learned magistrate’s failure to engage with it was a material misdirection.
[47] I thus now turn to consider whether the first and second appellants have established the
necessary facts to sustain their special plea to claim 2.
[48] In their special plea, the first and second appellant’s pleaded that:
a. The 1st and 2nd Defendants reside and/or carry on business in Cape Town and the
instruction to the Plaintiff was given in Cape Town;
b. The Plaintiff’s acceptance of the instruction occurred in Gauteng;
c. It follows that the Plaintiff has failed to plead that both the offer and acceptance
occurred in the area of jurisdiction of the Court;
d. The alleged agreement was concluded in Cape Town;
e. The alleged breach (in the form of the alleged failure to pay fees or charges)
occurred in Cape Town;
f. The writs upon which the instructions were given were issued in Cape Town.
[49] The evidence led and adduced during the cros s-examination of the respondent
supported these facts.
[50] The uncontradicted evidence of Mr Kay of Ashersons Attorneys was that on 13 April
2021 he telephoned the respondent from his office in Cape Town to instruct him to
execute a writ of execution in favour of the second appellant. During that conversation
Mr Kay was seated at his desk in Cape Town. This was conceded by the Respondent
during cross-examination.
[51] The respondent was in Armadale in Gauteng during this conversation. The respondent
requested payment of a deposit as a condition of executing the writ . Mr Kay agreed to
pay the deposit. Mr Kay testified that when the acceptance of the instruction was
communicated to him, he was in Cape Town. There was, however, no mention of the
payment of a deposit in the special plea.
[52] Despite this, the respondent’s counsel sought to rely on the evidence of Mr Kay
regarding his insistence that a deposit be paid to his advantage. In supplementary heads
of argument, it was contended that on the first and second appellant’s own version, the
respondent had insisted on the payment of a deposit before he executed the writ (that
the respondent’s counsel acknowledged the respondent was not entitled to do ).22 Be
that as it may, it was contended that this constituted a counter -offer made by the
respondent that was accepted by the first appellant in Cape Town but communicated to
him by way of telephone in Armadale. On the basis of the information theory, the contract
was thus concluded in Armadale withi n the jurisdiction of the Kliptown Regional Court.
This would have been an ingenious case, had it been pleaded.
[53] The fact that this had not been pleaded in a replication to the special plea was
emphasised by the first and second appellants ’ counsel who pointed out that this was
an issue that arose not from the pleadings but from the evidence. On the basis of the
authority of the Constitutional Court in Gcaba cited above, it was argued that a special
plea of prescription must be argued on the basis of the pleadings alone and because
the issue of the payment of the deposit arose in the course of the evidence, it should be
disregarded. This was notwithstanding that this evidence had been adduced by the first
and second appellants and had been a focus of their counsel’s cross-examination of the
respondent; albeit to establish the respondent’s claim was not statutory as this was not
permitted in a statutory claim.
[54] As I have said, evidence is admissible to establish the facts set out in a special plea; the
evidence of the payment of the deposit and whether this constituted a counter -offer
evidence of the payment of the deposit and whether this constituted a counter -offer
would thus clearly also had been admissible had this been an issue raised in the special
plea or by the respondent in a replication. However, the fact that it was not raised in the
replication was probably because this was not an issue relied on to establish the special
plea, although it was clearly a fact within the respondent’s personal knowledge as he
was the one that asked for a deposit as a precondition to accepting the instruction given
to him by Mr Kay and thus the counter-argument that the respondent’s request for the
payment of a deposit constituted a counter -offer could have been included by the
22 BG Bojosinyane & Associates v Sheriff: Smith and Another (1072/22) ZASCA 174 where the SCA
held that the legislative framework does not provide that a sheriff may demand payment of a deposit
upfront in anticipation of fees and charges to be incurred for services still to be rendered
respondent in a replication to the special plea. It is obvious why this was not mero motu
raised by the respondent - he knew it to be unlawful.
[55] Because the stipulation that a deposit be paid was not an issue relied upon in the special
plea, the evidence regarding the payment of a deposit should properly not have been
led in substantiation of the special plea. But now that the evidence was led, the
respondent’s counsel has sought to capitalise on it. However, at the end of the day, I am
afraid, no matter how attractive the counter-offer argument may be, the fact remains that
this was not pleaded in a replication. As such , this was not a case that the first and
second appellant were called upon to meet and their argument that they have been
ambushed again carries weight.
[56] Accordingly, as the respondent failed to replicate that he demanded a deposit that
constituted a counter-offer that was accepted in Cape Town but communicated to him
in Armadale, I am compelled to reject this further argument raised on appeal as well.
[57] In any event, it is arguable that the question of the payment of the deposit was a separate
contract for which the respondent has not sought relief (as it was paid).
[58] I need now to deal with the first and second appellants’ argument that irrespective
whether the claim was based in contract or as a sui generis statutory claim, the same
jurisdictional rules apply that require that every element of that claim occur within the
geographical area of the Kliptown Regional Court.
[59] The respondent's alternative case - that his claim is statutory in nature and premised on
a “breach of a right to payment ” rather than breach of contract - does not withstand
scrutiny in the context of the Magistrates Court Act, that also governs the Regional
Magistrates Cour t. The statutory duty argument is inapplicable to the jurisdictional
analysis because the court a quo does not have inherent jurisdiction, as do the superior
analysis because the court a quo does not have inherent jurisdiction, as do the superior
courts. A Magistrates Court is a creature of statute and may exercise only such
jurisdiction as is expressly or by necessary implication conferred upon it.23
[60] Thus, even accepting, for purposes of argument, the respondent's contention that the
claim is statutory and not contractual, the material facts ( facta probanda) underpinning
the claim must still have arisen wholly within the jurisdiction of the court a quo. On the
respondent’s own version:
23 Ndamase v Functions 4 All 2004 (5) SA 602 (SCA) at para; BG Bojosinyane & Associates v Sheriff:
Smith and Another (supra)
a. The writ was issued by the Western Cape High Court in Cape Town;
b. The instruction to execute was given from Cape Town;
c. The breach (non-payment) occurred in Cape Town.
[61] Accordingly, the cause of action , whether it was statutory or contractual, did not arise
wholly within the Kliptown Regional Court ’s jurisdiction. Thus, even if the respondent’s
claim is better understood as one for statutory fees and expenses recoverable under the
tariff, the facts necessary to found the claim were not confined to the Kliptown Regional
Court’s jurisdiction.
[62] Nor does BG Bojosinyane assist the respondent. That case confirms the statutory
character of the sheriff’s office and that a sheriff may not insist upon upfront payment
before serving process. The respondent relied on that principle to say that the requested
deposit was legally irrelevant. But the fact that a sheriff may not lawfully refuse to act
without a deposit does not relocate the cause of action to the Sheriff’s office. The
question remains where the material facts arose. The respondent cannot, by in voking
the public character of the Sheriff’s office, convert a geographically divided cause of
action into one arising wholly within Kliptown.
[63] The court a quo appears to have been diverted by the fact that the respondent received
the writ and performed certain acts in Gauteng. That was not enough. The statutory test
is not whether an important part of the cause of action arose within the jurisdiction, but
whether the cause of action arose wholly there. The authorities relied upon by the first
and second appellants in their counsel’s heads of argument24 support the proposition
that, for jurisdictional purposes, the court must identify the material facts necessary to
sustain the plaintiff’s claim. Where conclusion, performance or breach occurs elsewhere,
the cause of action cannot be said to arise wholly within the court’s area.
[64] A further argument submitted by the respondent’s counsel was that by law, payment is
[64] A further argument submitted by the respondent’s counsel was that by law, payment is
to be made at the creditor’s place of business (being Armadale), and that the whole
cause of action therefore arose within the Kliptown jurisdiction. In this respect, reliance
was placed on Harrismith Board of Executors v Odendaal .25 However, this principle
regarding place of payment applies only in the absence of agreement to the contrary. In
24 McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16, Eisenburg v OFS Textile
Distributors (Pty) Ltd 1949 (3) SA 1047 (O), Koening v Motala 1921 42 NLR 242 and Myerson v
Hack 1969 (4) SA 521 (SWA)
25 1923 AD 530 at 539
this case, the agreement was that payment would be made from Cape Town.
Furthermore, the place of payment is only one element of the cause of action; the
respondent still fails on the place of conclusion of the agreement and the place of breach.
[65] Finally, the respondent argued that an appeal is directed against the order of the court
a quo and not its reasoning, relying on Mo Heno Bros v SA Railways26 and Baliso v First
Rand Bank t/a Westbank .27 This is correct as a general principle ; however, it does not
assist the respondent where, as here, the order itself is wrong. The question on appeal
is whether the order - dismissing the special plea - was correctly made. For all the
reasons set out above, with regard to the special plea to claim 2, it was not.
The third appellant’s special plea to claim 2
[66] The same difficulty is decisive in relation to the third appellant. The respondent’s claim
against her was pleaded and argued as contractual; that she requested storage, that the
respondent agreed to store the goods, that storage charges were agreed or became
payable, and that she failed to pay. The third appellant’s special plea squarely raised
that the conclusion of the alleged agreement, performance under it, and breach did not
occur wholly within the court’s jurisdiction.
[67] The respondent’s claim against the third Appellant is conceded by the respondent to be
contractual in nature -specifically, an alleged oral agreement for the storage of goods
attached during the execution of the writ. The third appellant denies that any agreement
for payment was reached, but for purposes of determining jurisdiction, the respondent's
version was accepted.
[68] On the respondent’s own version (as set out in the supplementary heads of argument),
the third appellant telephoned the respondent whilst she was at the Protea Glen Mall.
The respondent was in Armadale when he received the call. The third appellant
requested that the respondent store the goods , on her version for no costs. The
requested that the respondent store the goods , on her version for no costs. The
respondent insists that he required payment of R5000 per day to store the go ods. By
operation of the reception theory, the agreement was concluded at the place where the
acceptance of the offer was received by the third appellant at the Protea Glen Mall.
[69] The respondent himself conceded in cross-examination that the third appellant was at
the Protea Glen Mall when the telephone call was made. The Protea Glen Mall falls
outside the jurisdiction of the Kliptown Regional Court under the applicable Government
26 1936 AD 408
27 2017 (1) SA 292 (CC)
Gazette. The place of conclusion of the contract was therefore outside the territorial
jurisdiction of the court a quo.
[70] Performance by the third Appellant , being payment , was to be made into the
respondent's banking account held at a branch in Fourways, as evidenced by the
respondent’s own invoice. Fourways is likewise outside the jurisdiction of the Kliptown
Regional Court.28
[71] On the third appellant’s version, any payment would have been effected by EFT from
her office at Protea North. The place of payment is not a peripheral matter where the
pleaded breach is non-payment. If payment was to be made outside the jurisdiction, or
if the pleadings were silent on that necessary fact, the respondent failed to establish the
jurisdictional requirement that the whole cause of action arose within the court’s
geographical area of jurisdiction.
[72] Internet banking practices have substantially changed the place where payment is
required to be made; payment at a branch is now completely outdated and unless one
has no access to the internet (which is not the case in the present matter) one must take
judicial notice of the fact that what was contemplated was that payment be made via
internet banking. In this context, payment must be taken to have occurred where the
creditor’s account was effectively credited (or where the creditor was entitled to receive
the funds), not where the payment instruction originated. This is in accordance with the
principle that payment occurs where the creditor receives effective payment. A debt is
not discharged merely because the debtor instructs its bank to pay ; payment is
completed when the creditor receives the money in a legally effective sense.
[73] South African law has long treated breach by non-payment as occurring where payment
ought to have been made. That principle appears clearly in Ewing McDonald & Co Ltd
v M & M Products Co ,29where the Appellate Division recognised that performance of a
v M & M Products Co ,29where the Appellate Division recognised that performance of a
contractual obligation is linked to the place where the obligation must be discharged.
[74] In the context of the Magistrates Courts Act, where jurisdiction depends on the cause of
action arising wholly within the district, the court examines where the essential facts
constituting the cause of action occurred. Where a contract required payment into a
specified bank account, the place where that account is maintained , that is where
payment should legally be received becomes highly material. But that is not the end of
28 Jones & Buckle at Act 107; Eisenberg v OFS Textile Distributors 1949 (3) SA 1047 (O).
29 1991 (1) SA 252 (A)
the inquiry; modern banking complicates this because accounts are not strictly tied to a
physical branch in the old sense.
[75] Thus, if the contract stipulates where payment is to be made and does not only stipulate
an account number, but also the branch, this would be a strong indicator that
performance occurs there. Absent such stipulation, the creditor’s place of business or
residence may become relevant.
[76] In conclusion, the mere electronic initiation of a funds transfer within a district does not
mean that the cause of action for payment arose there. In law, a monetary obligation is
discharged only upon effective receipt by the creditor, and a failure to pay occurs where
payment ought to have been received. For purposes of section 28(1)(d) of the
Magistrates’ Courts Act, the situs of an EFT is therefore ordinarily the place of
contractual performance, not the place where the debtor transmitted the payment
instruction. Where a particular branch is specif ied as opposed to a bank account, this
will be at the place where that bank account is held. However, where only the bank
account number is given, the place of performance must be regarded where the creditor
conducts his business.
[77] It thus becomes crucial to determine whether the respondent specified the place of his
bank account in his invoice rendered to the third respondent. It appears from the invoice
attached to the particulars of claim that indeed, the respondent specified that payment
be effective into his bank account held at First National Bank in Fourways. Thus, an
essential facta probanda to establish the respondent’s claim against the third respondent
did not occur within the geographical area of jurisdiction of the Kliptown Regional Court.
Thus the whole cause of action against the third respondent could not have occurred
within the jurisdiction of the Kliptown Regional Court.
[78] This is sufficient to have upheld the special plea.
[78] This is sufficient to have upheld the special plea.
[79] Nevertheless, the facts demonstrate that the conclusion of the contract, the performance
of the contract, and any breach thereof did not occur wholly within the jurisdiction of the
court a quo.
[80] A further and independent ground exists to justify uphold the third respondent’s special
plea. That is that t he respondent failed to plead the essential facts ( facta probanda)
required to establish that the cause of action arose wholly within the Kliptown Regional
Court's jurisdiction. In particular, the respondent failed to plead that both offer and
acceptance of the agreement with the third Appellant occurred within the court's
jurisdiction. In the absence of such pleading, the facta probanda to sustain the
jurisdictional allegation are simply not present. The Learned Magistrate ought to have
appreciated this deficiency. 30
[81] The learned magistrate applied the doctrine of causae continentia to retain jurisdiction
over the third appellant on the basis that the respondent’s claims against all three
defendants were connected. This was a material misdirection in two respects.
a. First, the causae continentia doctrine is a principle applicable to High Courts,
which have inherent jurisdiction. It is not applicable to Magistrates Courts, which
are creatures of statute. A Magistrates Court may exercise only such jurisdiction
as is expressly or by necessary implication conferred by the Act. The learned
Magistrate erred in applying High Court jurisdictional principles , derived from
cases that do not concern the Magistrates' Courts Act, to determine the jurisdiction
of a regional court.
b. Second, even if the doctrine were applicable, the claim against the third appellant
is based on a separate and distinct oral agreement to which the first and second
appellants were not party. The causae continentia doctrine could not therefore
provide a basis for the third appellant to be joined in proceedings over which the
court has no independent jurisdiction in respect of her. The claims do not arise
from the same agreement or the same cause.
[82] All in all, this is sufficient to find that the third appellant’s special plea ought to have been
upheld.
[83] It now finally remains for me to consider the further argument advanced by the third
appellant’s counsel at the hearing of this appeal. This occurs the monetary jurisdiction
of the Regional Court.
[84] Section 29(1)(g) of the Act provides that a court shall have jurisdiction in actions “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 Government Gazette. ” In terms of
by the Minister from time to time by Notice in the Government Gazette. ” In terms of
Government Gazette 37477 of 27 March 2014, published under the hand of the then
30 Nature's Choice Farms (Pty) Ltd v Ekurhuleni Metropolitan Municipality (Case 463/19) ZASCA 20
Minister of Justice, the Regional Court has jurisdiction in respect of amounts between
R200,000.00 and R400,000.00.
[85] The claim against the third Appellant under Claim 2 of the particulars of claim is in the
amount of R65,000.00. This amount falls below the jurisdictional floor of R200,000.00
for the Regional Court. The Kliptown Regional Court therefore had no monetary
jurisdiction to entertain this claim against the third appellant.
[86] This jurisdictional defect may be raised at any stage, including after judgment, because
the court was simply not empowered to entertain the claim. The third respondent’s
counsel argued that the court ought to have rejected the claim mero motu.31
[87] However, the respondent’s counsel referred the court to the judgment of Minister of
Police v Regional Magistrate, Outshoorn and Others.32This case found that it was the
upper limit of the Regional Court’s jurisdiction that was determinative, not the lower
limit. This is in line with the High Court’s dealing with matters that are placed before it
that ought properly have been brought in a lower court. The remedy is to only grant
costs on the scale that ought to have been applicable in that court.
[88] However, as has already been said in this judgment, the Regional Court is a creature
of statute and has no independent jurisdiction. Thus unless a claim falls within the
lower threshold of its jurisdiction and does not fall beyond its threshold, it should not be
entertained by that court. For this reason, I agree with the third respondent’s counsel
that the decision relied upon by the third respondent’s counsel is wrong.
[89] However, it still remains for me to consider whether the third appellant could raise this
argument after litis contestatio.
[90] The third respondent’s counsel argued that he could do so as the monetary jurisdiction
of the Regional Court is mandated by statute. However, the same argument applies to
the respondent’s statutory claim for the payment of his fees; this has to be pleaded.
the respondent’s statutory claim for the payment of his fees; this has to be pleaded.
Similarly, the third respondent’s special plea regarding the monetary jurisdiction of the
Regional Court needed to be pleaded-failing which it was a trial by ambush.
[91] I am thus not inclined to have regard to this belated argument raised by the third
respondent.
31 Fairvest Property Holdings v Valdimax CC t/a Fish and Chips Co and Others (A3019/2019) ZAGPJHC
435; 2020 (3) SA 202 (GJ)
32 supra
Conclusion
[92] The judgment of the learned magistrate is replete with errors, which individually and
collectively justify interference on appeal:
a. The learned Magistrate paid lip service to the principle that jurisdiction is
determined on the pleadings, but then disregarded the pleaded case and adopted
a different characterisation of the claim, contrary to the principle in Gcaba.
b. The learned magistrate permitted the respondent to advance a case at trial which
materially departed from his pleadings, thereby prejudicing the appellants who
were entitled to proceed on the basis of the pleaded case.
c. The learned magistrate applied legal authorities and principles applicable to the
inherent jurisdiction of the High Court, rather than applying the specific provisions
of section 28(1)(d) of the Act. The learned magistrate thereby applied the wrong
legal test.
d. In respect of the third appellant, the learned magistrate failed to consider the
revised Government Gazette delimiting the Kliptown Regional Court's
geographical jurisdiction.
e. Moreover, the learned magistrate failed to consider the monetary jurisdictional
constraint under section 29 of the Act, read with Government Gazette 37477 of
2014.
f. In addition, t he learned magistrate erred in applying the causae continentia
doctrine, which has no application in the Magistrates Court.
g. She also failed to have regard to the fact that the claim 2 against the third appellant
fell within the jurisdiction of the Magistrate’s court and she had no independent
jurisdiction to entertain a claim in the amount of R65 000.
[93] In the result, the judgment is clearly wrong and falls to be set aside.
[94] In my view, the learned magistrate erred in dismissing both special pleas. The reasoning
of the court a quo gave undue weight to the respondent’s status as sheriff and to the
fact that execution -related conduct occurred within Gauteng, but insufficient weight to
fact that execution -related conduct occurred within Gauteng, but insufficient weight to
the statutory requirement that the cause of action arise wholly within the court’s
jurisdiction. It also failed to appreciate that the fact that fees are statutorily charged by
a sheriff, does not relieve a sheriff of establishing the jurisdictional facts required by the
Magistrates’ Courts Act. The appeal by the first and second appellants must therefore
succeed. The appeal by the third appellant must also succeed on territorial jurisdiction
but not on monetary jurisdiction.
Order
[95] In the result, the following order is made:
1. The appeal of the first and second appellants is upheld with costs, such costs to be on
Scale B as contemplated in Uniform Rule 69(7) of this Honourable Court, including the
costs of counsel.
2. The appeal of the third appellant is upheld with costs, such costs to be on Scale B as
contemplated in Uniform Rule 69(7) of this Honourable Court, including the costs of
counsel.
3. The order of the court a quo dismissing the appellants’ special pleas of jurisdiction is
set aside and substituted with the following:
3.1 The first and second defendants’ special plea of jurisdiction is upheld, with costs.
3.2 The third defendant’s special plea of jurisdiction is upheld, with costs.
__ ____
WENTZEL-THOMPSON J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the first and second appellants: Adv. C Cutler instructed by Asherson’s Attorneys
For the third appellant: Adv. LCM Morland instructed by Warrener de Agrela and Associates
Inc.
For the respondent: M Khumalo instructed by Mac Donald Khumalo