IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Reportable
Case No: 996/2019
In the matter between:
MAGALIES WATER Plaintiff
and
MADIBENG LOCAL MUNICIPALITY First Defendant
MINISTER OF WATER AND SANITATION Second Defendant
MINISTER OF FINANCE Third Defendant
M E MANAKA Fourth Defendant
NORTH WEST MEC FOR FINANCE Fifth Defendant
Coram: Petersen ADJP
Heard: 21 April 2026
Judgment reserved: 22 May 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 10h00
on 03 July 2026.
Summary: Jurisdiction – Superior Courts Act 10 of 2013 – Territorial jurisdiction
of High Court – Court raising jurisdiction mero motu – Interpretation of
Government Notices issued under s 6(3) – Relationship between Superior Courts
Act and Magistrates’ Courts Act – Whether subsequent restructuring of
magisterial districts alters territorial jurisdiction of High Court Divisions –
Doctrine of incorporation by reference – Jurisdiction by submission – Subsequent
determination under s 6(3) with effect from 1 July 2026 placing Madibeng (Brits)
within North West Division –Territorial jurisdiction not established – Matter
transferred to Gauteng Division, Pretoria in terms of s 24(1) of the Superior
Courts Act.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP
Introduction
[1] During the hearing of this action on 21 April 2026, this Court, mero motu,
raised whether this Division possesses territorial jurisdiction to determine the
dispute. Because jurisdiction concerns the lawful authority of a court to exercise
judicial power, the issue was separated for determination before the merits of the
action were determined.
[2] Jurisdiction is foundational. A court derives its authority from the
Constitution and legislation enacted pursuant thereto and may exercise judicial
power only within the limits prescribed by law. It follows that where doubt exists
concerning jurisdiction, a court is not dependent upon the parties to raise the
issue. It is obliged to satisfy itself that it possesses jurisdiction before adjudicating
the dispute. Neither consent, acquiescence, nor considerations of convenience can
confer jurisdiction where the law withholds it.
[3] By order granted on 21 April 2026, the plaintiff was directed to file written
submissions on the question of jurisdiction. The first defendant was afforded an
opportunity to respond. Both parties subsequently filed comprehensive written
submissions which have materially assisted this Court.
Procedural background
[4] The plaintiff instituted action proceedings in this Division during 2019. It
is a Water Board established under the Water Services Act 108 of 1997. The first
is a Water Board established under the Water Services Act 108 of 1997. The first
defendant is Madibeng Local Municipality. The remaining defendants are organs
of State or public office -bearers who have taken no active part in the present
jurisdictional dispute.
[5] The plaintiff claims payment for services rendered in the operation and
maintenance of bulk water infrastructure belonging to the first defendant within
the first defendant's municipal area. The services were rendered within the North
West Province. The agreements were administered principally from Rustenburg,
and the alleged breaches consist of the first defendant’s failure to pay the agreed
charges.
[6] Since its institution, the litigation has followed an extensive procedural
course. Pleadings closed, discovery was completed, interlocutory proceedings
were finalised and the matter became trial -ready after numerous pre -trial
conferences. Throughout that period, the first defendant participated fully in the
proceedings, pleaded on the merits, participated in the joinder of the second to
fifth defendants, and abandoned a special plea unrelated to territorial jurisdiction.
At no stage before the Court raised the issue did any party question the
jurisdiction of this Division.
Statutory framework
[7] The jurisdiction of every Division of the High Court derives from the
Constitution and the Superior Courts Act 10 of 2013. Section 21(1) confers
jurisdiction over persons residing or being within a Division’s area, causes arising
within that area and all other matters of which the Division may according to law
take cognisance. Section 21(2) extends that jurisdiction to parties properly joined
to proceedings over which the Division already has jurisdiction.
[8] Territorial jurisdiction is determined by s 6 of the Superior Courts Act.
Section 6(3) empowers the Minister of Justice and Constitutional Development,
after consultation with the Judicial Service Commission, to determine by notice
in the Government Gazett e the area of jurisdiction of each Division. Those
notices, therefore, constitute the operative legal instruments by which the
notices, therefore, constitute the operative legal instruments by which the
territorial competence of the various Divisions is defined.
[9] The present dispute concerns the interaction between ss 6 and 21. The
plaintiff contends that, properly interpreted, the Government Notices issued under
s 6 place Madibeng Local Municipality within the territorial jurisdiction of this
Division. Alternatively, it submits that the first defendant has submitted to the
jurisdiction of this Court through its conduct during the litigation. The first
defendant disputes both propositions.
The plaintiff’s submissions
[10] The plaintiff advances two independent grounds of jurisdiction. First, it
contends that the relevant Government Notices, interpreted contextually in
accordance with Natal Joint Municipal Pension Fund v Endumeni Municipality1,
establish that Madibeng now falls within the jurisdiction of this Division.
Secondly, it submits that the first defendant has, through almost seven years of
active participation in these proceedings without objection, submitted to this
Court’s jurisdiction.
[11] Regarding territorial jurisdiction, the plaintiff relies upon four Government
Notices. Government Notice 30 of 15 January 2016 allocated Madibeng to the
Gauteng Division. General Notice 270 of 31 March 2017 published the
Minister’s intention to transfer Ma dibeng to the North West Division.
Government Notice 408 of 29 March 2018 constituted the operative
determination of the territorial jurisdiction of the Gauteng and North West
Divisions. Finally, Government Notice 5762 of 17 January 2025, issued under the
Magistrates’ Courts Act 32 of 1944, restructured the magisterial districts of the
North West Province and established the Bojanala Platinum Magisterial District,
seated at Rustenburg, of which Madibeng forms part.
[12] The plaintiff submits that these notices must be interpreted as a coherent
legislative sequence. It argues that the 2017 Notice demonstrates the Minister’s
settled intention to incorporate Madibeng into the North West Division and that
the omission of Madibeng from the operative provisions of the 2018 Notice was
an inadvertent drafting omission. According to the plaintiff, the 2025
restructuring of magisterial districts confirms that Madibeng now forms part of
the same magisterial district as areas already falling within this Division. Any
contrary interpretation, it submits, produces the anomalous result that a single
magisterial district is divided between two High Court Divisions.
magisterial district is divided between two High Court Divisions.
[13] The plaintiff further submits that, where two interpretations are reasonably
available, the Court should adopt the interpretation that better promotes the
constitutional right of access to the courts. It argues that alignment between the
territorial jurisdiction of this Division and the geographical boundaries of the
North West Province best serves that constitutional objective.
[14] In the alternative, the plaintiff submits that the first defendant has
submitted to this Court’s jurisdiction by entering an appearance to defend,
1 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 17.
pleading on the merits, participating fully in the litigation, joining additional
defendants, abandoning its special plea, and allowing almost seven years to elapse
before the jurisdictional issue arose. Relying principally upon Purser v Sales2, it
submits that such conduct constitutes a tacit submission to jurisdiction preserved
by s 21(1) of the Superior Courts Act.
The first defendant’s submissions
[15] The first defendant submits that the plaintiff’s argument cannot overcome
the plain language of the operative Government Notices issued under s 6 of the
Superior Courts Act. Government Notice 30 expressly allocated Madibeng to the
Gauteng Division, and Government Notice 408 did not alter that allocation. The
2017 Notice was merely a notice of intention and never acquired legislative force.
[16] The first defendant further submits that the 2025 Notice, having been
issued under the Magistrates’ Courts Act, regulates only the organisation of
magistrates’ courts and cannot impliedly amend the territorial jurisdiction of High
Court Divisions determined under the Superior Courts Act. It relies upon KTS
General Trading CC v Madibeng Local Municipality and Others
3 and Go Touch
Resort-Season CC v Rural Informal Dwellers Association 4, both of which held
that Madibeng falls within the jurisdiction of the Gauteng Division.
[17] Regarding submission, the first defendant contends that waiver is never
presumed and that the plaintiff bears the onus of proving a conscious and
informed abandonment of the right to object to jurisdiction. Mere participation in
litigation, even over an extended period, is insufficient. It points out that the
jurisdictional issue was raised by the Court rather than by either litigant, which,
it submits, is inconsistent with any inference of deliberate waiver.
Discussion
Territorial jurisdiction
[18] The question is whether Madibeng Local Municipality falls within the
territorial jurisdiction of this Division as determined under s 6 of the Superior
territorial jurisdiction of this Division as determined under s 6 of the Superior
Courts Act. The answer depends upon the proper interpretation of the
Government Notices issued under that section. It does not depend upon
2 Purser v Sales; Purser and Another v Sales and Another 2001 (3) SA 445 (SCA) para 16.
3 KTS General Trading CC v Madibeng Local Municipality and Others [2023] ZANWHC 225.
4 Go Touch Resort -Season CC and Another v Rural Informal Dwellers Association and Another
(60735/2021) [2022] ZAGPPHC 50 (20 January 2022) para 12.
considerations of convenience, administrative desirability, or the practical
connection between the dispute and the North West Province.
[19] The applicable principles of interpretation are settled. As explained in
Natal Joint Municipal Pension Fund v Endumeni Municipality , interpretation is
a unitary exercise in which language, context, and purpose are considered
together. Context cannot, however, be employed to attribute to legislation a
meaning which its language cannot reasonably bear.
[20] The plaintiff correctly submits that the relevant Government Notices must
be read together. They form part of a legislative sequence enacted pursuant to
s 6(3) of the Superior Courts Act. The enquiry nevertheless remains directed at
identifying the legal effect of the operative instruments rather than reconstructing
the Minister’s administrative intentions.
[21] Government Notice 30 of 15 January 2016 expressly allocated Madibeng
to the jurisdiction of the Gauteng Division. That position can change only if the
allocation is subsequently altered by another determination made under s 6(3) of
the Superior Courts Act.
[22] The plaintiff places considerable reliance upon the 2017 Notice of
Intention. That reliance is misplaced. The notice invited public comment on
proposed amendments. It did not itself determine territorial jurisdiction. Although
it demonstrates that the Mini ster contemplated transferring Madibeng to the
North West Division, contemplated legislation is not enacted legislation. Courts
interpret what the Minister ultimately determined, not proposals which preceded
that determination.
[23] The operative enquiry is therefore whether Government Notice 408 of
29 March 2018 altered the position established in 2016. It did not. The notice
neither removes Madibeng from the Gauteng Division nor expressly includes it
within the North West Division. The plaintiff submits that the omission resulted
from a drafting error that should be corrected by contextual interpretation. I am
from a drafting error that should be corrected by contextual interpretation. I am
unable to agree.
[24] Territorial jurisdiction defines the lawful authority of a superior court to
exercise judicial power. Where Parliament has required that territorial boundaries
be determined by notice in the Government Gazette, those boundaries must be
ascertainable with c ertainty from the operative legal instrument itself. Courts
should not infer amendments to jurisdictional boundaries unless the language of
the determination clearly permits that conclusion.
[25] The plaintiff’s principal argument is founded upon Government Notice
5762 of 17 January 2025. It submits that because the notice establishes the
Bojanala Platinum Magisterial District, incorporating Madibeng with Kgetleng
Rivier, Madikwe, Moses Kotane, and Swartruggens under a single magistracy
seated at Rustenburg, the territorial jurisdiction of this Division necessarily
expanded to include Madibeng.
[26] That submission requires consideration of the relationship between the
Superior Courts Act and the Magistrates’ Courts Act. Government Notice 5762
was issued under s 2 of the Magistrates’ Courts Act. Its purpose was to reorganise
magisterial districts within the North West Province. It did not purport to amend
or replace any determination made under s 6 of the Superior Courts Act.
Government Notice 408, by contrast, derives its authority exclusively from s 6(3)
and determines the territorial jurisdiction of High Court Divisions.
[27] The plaintiff’s argument necessarily assumes that the reference in the 2018
Notice to magisterial districts incorporates every future amendment made under
the Magistrates’ Courts Act. In other words, it assumes an ambulatory
incorporation by reference, so that each subsequent alteration of magisterial
districts automatically alters the territorial jurisdiction of the High Court.
[28] That assumption cannot be sustained. Whether legislation incorporates
another statutory instrument as it exists from time to time depends upon the
language employed and the legislative context. Nothing in s 6 of the Superior
Courts Act or in Government Notice 408 suggests that Parliament intended future
administrative restructuring of magistrates’ districts automatically to redefine the
territorial jurisdiction of High Court Divisions. On the contrary, s 6 prescribes a
specific mechanism by which those boundaries are to be determined after
specific mechanism by which those boundaries are to be determined after
consultation with the Judicial Service Commission and publication in the
Government Gazette.
[29] Acceptance of the plaintiff’s construction would have consequences
extending well beyond the present dispute. It would permit the territorial
jurisdiction of High Court Divisions to change indirectly whenever the Minister
exercised powers under an entirely different statute. Such a construction would
effectively circumvent the procedure prescribed by s 6 of the Superior Courts Act
and undermine the certainty which jurisdictional boundaries are intended to
provide.
[30] Legal certainty is itself an important constitutional value. Litigants and
courts are entitled to know with reasonable certainty which Division possesses
jurisdiction before proceedings are instituted. Equally, the constitutional principle
of legality requ ires courts to exercise judicial power only within the territorial
limits established by law. Constitutional values inform statutory interpretation;
they cannot justify attributing a legal consequence to legislation that its language
does not support.
[31] I accept that the present statutory scheme may produce an administrative
anomaly. A municipality situated wholly within the North West Province remains
subject to the jurisdiction of the Gauteng Division, and the 2025 restructuring of
magisterial districts may make that arrangement appear less satisfactory than
before. The existence of an anomaly, however, does not empower a court to
rewrite delegated legislation. If clarification or realignment is desirable, it is for
the Minister acting under s 6 of the Superior Courts Act rather than the courts. I
discuss the action taken by the Minister in this regard, below, under the discussion
of the determination of 2 July 2026.
[32] The plaintiff further submits that KTS General Trading CC v Madibeng
Local Municipality and Others should not be followed. Although that decision is
not binding upon a court of equal jurisdiction, considerations of judicial comity
and legal certainty require departure from an earlier decision only where it is
clearly wrong. Having independently conside red the statutory framework, I am
not persuaded that KTS was incorrectly decided. Its conclusion accords with the
language of the operative Government Notices and with the legislative scheme
established by the Superior Courts Act. The subsequent decision in Go Touch
Resort-Season CC reaches the same conclusion.
Resort-Season CC reaches the same conclusion.
[33] Nor does s 34 of the Constitution alter the analysis. The constitutional right
of access to courts guarantees access to a court of competent jurisdiction. It does
not authorise a court to assume jurisdiction which legislation has withheld. Where
a matter h as been instituted in the wrong Division, transfer to the competent
Division gives effect to, rather than limits, the constitutional guarantee.
[34] I accordingly conclude that Madibeng Local Municipality remains subject
to the territorial jurisdiction of the Gauteng Division. The plaintiff has therefore
failed to establish jurisdiction on the first basis advanced.
The determination of 2 July 2026
[35] On the eve of the delivery of this judgment, the Minister published
Government Notice 7648 in Government Gazette 54935 of 2 July 2026, issued in
terms of s 6(3)(a) and (c) of the Superior Courts Act and operative with effect
from 1 July 2026.5 The notice withdraws, amongst others, Government Notice
408 of 29 March 2018 and re -determines the areas under the jurisdiction of the
main and local seats of the Divisions of the High Court of South Africa.
[36] In terms of the Schedule to the new determination, the area under the
jurisdiction of this Division now comprises the entire North West Province,
including the Bojanala Platinum Magisterial District with the main seat at
Rustenburg and, expressly, the Madibeng (Brits) Sub-District, excluding only the
Ga-Rankuwa (Odi) and Moretele (Temba) Sub-Districts. The anomaly identified
earlier in this judgment has accordingly been corrected, with prospective effect,
through precisely the mechanism which s 6 of the Superior Courts Act prescribes.
[37] The new determination does not, however, avail the plaintiff in these
proceedings. Paragraph 2 of the notice contains an express transitional provision.
Proceedings which have already been placed on the court roll for trial, but which
have not been concluded before the coming into effect of the notice, must be
concluded as if the notice had not been published. This action, which was trial-
ready and enrolled for hearing when the jurisdictional question was separated for
determination, falls squarely within that provision. It must accordingly be
concluded under the previous dispensation, in terms of which Madibeng Local
Municipality (Brits) falls within the territorial jurisdiction of the Gauteng
Division.
Jurisdiction by submission
[38] The plaintiff advances an alternative basis for jurisdiction. It submits that,
irrespective of the territorial allocation established by the Government Notices,
irrespective of the territorial allocation established by the Government Notices,
the first defendant submitted to the jurisdiction of this Court through its conduct
during almost seven years of litigation. Reliance is placed upon the first
defendant’s appearance to defend, its plea on the merits, participation in
interlocutory proceedings and joinder applications, abandonment of its special
5 GN 7648 in GG 54935 of 2 July 2026: Determination of the Areas under Jurisdiction of the Main and
Local Seats of the Divisions of the High Court of South Africa, issued in terms of s 6(3)(a) and (c) of
the Superior Courts Act 10 of 2013, read with Item 16( 6)(a) and (b) of Schedule 6 to the Constitution
of the Republic of South Africa, 1996, with effect from 1 July 2026.
plea, and failure to raise any jurisdictional objection until the Court raised the
issue.
[39] The common law recognises submission or prorogation as a basis upon
which jurisdiction may, in appropriate circumstances, be established. That
doctrine survives the enactment of the Superior Courts Act through the
concluding words of s 21(1), which preserve matters of which a Division may
“according to law” take cognisance. The doctrine, however, developed primarily
in relation to jurisdiction over the person. The present case raises the different
question whether parties may, by consent or conduct, enlarge the territorial
jurisdiction of a High Court Division where that jurisdiction has been fixed by
legislation enacted under s 6 of the Superior Courts Act.
[40] There is considerable force in the view that statutory territorial jurisdiction
stands on a different footing from personal jurisdiction because it concerns the
legislative allocation of judicial authority rather than merely a procedural right
available to litigants. It is unnecessary, however, to determine that broader
question. Even assuming in the plaintiff’s favour that territorial jurisdiction may
be established by submission, the plaintiff must still prove that the first defendant
knowingly and unequi vocally waived its right to object to this Court’s
jurisdiction.
[41] Waiver is never presumed. The onus rests upon the party alleging it. As
explained in National Arts Council and Another v Minister of Arts and Culture
and Another
6 and reaffirmed in Financial Sector Conduct Authority v Financial
Services Tribunal and Others7, the conduct relied upon must be consistent only
with an intention to abandon the relevant right. Mere participation in litigation,
oversight, or mistaken assumption does not suffice.
[42] The first defendant undoubtedly participated extensively in these
proceedings. It pleaded on the merits, exchanged discovery, attended pre -trial
proceedings. It pleaded on the merits, exchanged discovery, attended pre -trial
conferences, participated in the joinder of additional defendants, and prepared the
matter for trial. Those facts explain why the plaintiff regarded this Court as the
accepted forum for determination of the dispute. They do not, however, establish
6 National Arts Council and Another v Minister of Arts and Culture and Another 2006 (1) SA 215 (C)
para 37.
7 Financial Sector Conduct Authority v Financial Services Tribunal and Others (009838/2023) [2025]
ZAGPPHC 675; 2025 (6) SA 591 (GP) (9 July 2025) para 35.
that the first defendant consciously abandoned a known right to object to
territorial jurisdiction.
[43] The jurisdictional issue was raised by the Court itself rather than by either
litigant. The abandonment of the first defendant’s special plea is of no assistance
to the plaintiff because that plea concerned compliance with the Institution of
Legal Proceedings against Certain Organs of State Act and bore no relation to
territorial jurisdiction. Similarly, participation in interlocutory proceedings and
joinder applications is equally consistent with the shared assumption that this
Court possessed jurisdiction. It is not conduct consistent only with a conscious
and informed waiver.
[44] The plaintiff has therefore failed to discharge the onus resting upon it. Even
if territorial jurisdiction were capable of being conferred by submission, the facts
of this case do not establish the unequivocal waiver required by our law. The
plaintiff’s alternative basis for jurisdiction must accordingly fail.
Effectiveness
[45] The plaintiff finally relied upon the principle of effectiveness. It submitted
that the first defendant’s assets, infrastructure and operations are situated within
the North West Province, that the plaintiff conducts its operations principally
from Rustenburg, and that any judgment granted by this Court would in practice
be enforced within this Province.
[46] The principle of effectiveness concerns the practical utility of judicial
orders. It assumes that jurisdiction otherwise exists and seeks to ensure that courts
do not exercise judicial power where their orders cannot be effectively enforced.
It is not an i ndependent source of jurisdiction. Once it is concluded that this
Division lacks territorial jurisdiction under the Superior Courts Act, the principle
cannot alter that conclusion.
Conclusion
[47] The plaintiff’s submissions exposed an anomaly in the present statutory
framework that has persisted for many years. There is obvious practical attraction
framework that has persisted for many years. There is obvious practical attraction
in the proposition that a municipality situated wholly within the North West
Province should ordinarily litigate in the North West Division. Parliament has
entrusted the determination of territorial jurisdiction to the Minister acting under
s 6 of the Superior Courts Act. The Minister has now exercised that power in the
determination of 2 July 2026, but its transitional provision requires that this
action, already enrolled for trial, be concluded under the previous determination.
This Court is bound to apply that determination accordingly.
[48] The plaintiff has failed to establish either of the jurisdictional bases upon
which it relies. The operative Government Notices issued under s 6(3) of the
Superior Courts Act do not place Madibeng Local Municipality within the
territorial jurisdiction of this Division. Nor has the plaintiff proved that the first
defendant submitted to this Court’s jurisdiction. This judgment determines only
the question of jurisdiction and expresses no view on the merits of the plaintiff’s
substantive claim.
[49] It does not follow that the action should be dismissed. The litigation has
been pending since 2019. Pleadings have closed, discovery has been completed,
and the matter is trial-ready. To require the plaintiff to institute fresh proceedings
would unnecessarily duplicate costs and delay the determination of the dispute.
Section 24(1) of the Superior Courts Act empowers a Division, where the
interests of justice so require, to transfer proceedings to another Division having
jurisdiction. The present matter is an appropriate case for such an order.
Order
[50] I accordingly make the following order:
1. It is declared that the North West Division of the High Court of South
Africa lacks territorial jurisdiction to determine this action.
2. In terms of s 24(1) of the Superior Courts Act 10 of 2013, the action
is transferred to the Gauteng Division of the High Court of South
Africa, Pretoria.
3. The Registrar of this Court is directed, in consultation with the
Registrar of the Gauteng Division, Pretoria, to take all administrative
steps necessary to transmit the court file, pleadings, record, and all
associated documents to that Division.
4. Upon transfer, the matter shall proceed subject to such case -
management directions as may be issued by the Gauteng Division.
5. The costs occasioned by the determination of the jurisdictional issue
5. The costs occasioned by the determination of the jurisdictional issue
shall be costs in the cause.
(
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
Appearance s
For the Plaintiff:
Instructed by:
For the First Defendant:
Instructed by:
Adv A E Ayayee
Kgomo Attorneys Incorporated, Mahikeng
Adv R Masipa
Marivate Attorneys
c/o M E Tlou Attorneys, Mahikeng