Which court can be approached to collect monies due and payable to me? How does one establish jurisdiction in a matter where the collection of debts are involved?
Jurisdiction of courts
In order to provide a full answer to the abovementioned questions, it is necessary to first and foremost explain how jurisdiction (i.e. area in which the court is allowed to adjudicate) is determined to enable one to approach the correct Court with your claim to collect the monies due and payable to you.
Why is this important?
Jurisdiction is of the utmost importance to establish, before you issue the summons in terms of which you claim for your relief, due to the fact that should you approach the incorrect court to adjudicate over your claim, either the Court can mero moto or the opposing party can raise a special defence in terms of which they will claim that the Court has does not have the necessary jurisdiction.
In such circumstances the Court will have no alternative if it is found that the court does not have the necessary jurisdiction that your claim must be dismissed with costs, where after you will have to summons afresh.
This will cause unnecessary costs which costs will include the costs of your opponent and as such it is advisable that you and/or your attorney fully investigate which Court has the necessary jurisdiction before summons is issued.
Courts in South Africa:
A brief overview of the current courts is set out hereunder.
| Constitutional Court | - The highest court on all constitutional matters.
- Matters are referred to it from the Supreme Court of Appeal or the High Court.
- Certain constitutional matters are reserved for exclusive jurisdiction of this court.
|
| Supreme Court of Appeal | - The highest court of appeal in respect of civil and criminal matters, excluding constitutional matters.
- It is not a court of first instance, it only hears mattes from the High Court.
- It is seated in Bloemfontein and matters are heard by 5 judges.
|
| High Court | - Currently consists out of 15 divisions.
- A court of first instance and can be a court of appeal for the Magistrate’s Court or High Court.
- Attends to civil and criminal matters and matters involving a person’s status.
|
| Magistrate’s Court | - Consists out of District Courts and Regional Courts. There are about 500 District Courts.
- The District Courts have jurisdiction over minor criminal matters and civil matters up to R 200 000.
- The Regional Courts have jurisdiction over family matters like divorces, maintenance, custody matters and civil matters between R 200 000 – R400 000.
|
| Small Claims Court | - Can only hear claims instituted by natural persons against natural or juristic persons; not the State.
- Its jurisdiction limit is currently R 20 000.
|
From the above it must be noted that jurisdiction is normally determined by the monetary amount as set from time to time by the Minister and as such should the claimed amount guide you in establishing which court to approach.
Cause of action:
Although there are various causes of action, I will in this article focus only on normal collection matters i.e. services rendered, money lent and advanced and rent income.
As such and normally when determining jurisdiction one shall first look at the base document i.e. the written agreement.
In such a document normally a clear clause will exist dealing with jurisdiction and the chosen domicilium citandi et executandi address of the defendant and as such can this address be used to determine if the address falls within a specific Court’s jurisdiction.
In the absence of such an agreement one can also from the facts of the matter establish if the whole cause of action took place within the area of jurisdiction of a specific court i.e. where the services were rendered and where payment was received.
If it is however unclear if the whole cause of action took place within one area, it is advisable that the general rule such apply in that the defendant should be followed which means that summons should be issued where the Defendant resides and/or where the Defendant is employed.
Conclusion:
As indicated above a simple miss interpretation or incorrect Court being approached, may cause your claim to be dismissed on a technical issue with costs and as such is it advisable that, before you issue summons, obtain legal advice from an admitted attorney.