Jurisdiction in South Africa refers to the power or competence of a particular Court to adjudicate upon disputes between parties. The High Court has concurrent jurisdiction with the Magistrates' Court but it is usually up to the plaintiff to decide in which Court it wishes to institute proceedings provided such decision is made within the prescripts of the overriding legislation and rules such as the Superior Courts Act, No. 10 of 2013, the Uniform Rules of Court, the Magistrates' Court Act, No. 32 of 1944 and its Rules. The Magistrates' Courts consist of District and Regional Courts with the monetary jurisdiction of the District Court being limited to R200,000.00 and below and the Regional Court being limited to R400,000.00 and below. The High Court does not have a jurisdictional monetary limit but where a claim falls within the monetary jurisdiction of the Magistrates' Courts the plaintiff ought to seek relief out of those Courts and not the High Court.

The jurisdictional area of a Magistrates' Court is founded by, inter alia, following the defendant in the area in which he or she resides, carries on business or is employed within the district or regional division (section 28 (1) (a) of the Magistrates' Courts Act), alternatively in respect of 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 (section 28 (1) (d) of the Magistrates' Courts Act).

Whilst these grounds are easily understood to found jurisdiction of the Magistrates' Court in respect of persons, one must ascertain what happens in a case where there is more than one defendant and each defendant resides in different jurisdictional areas of the Court and where the cause of action did not arise wholly in one particular jurisdictional area. The above sections fall short of taking these factors into account. Naturally in such an event a plaintiff in the Magistrates' Court would have to institute proceedings against each defendant in their jurisdictional area of the Court, especially if the monetary jurisdiction is within the threshold of the Magistrates' Court lest such plaintiff is willing to risk its proceedings and be criticized for instituting proceedings in the High Court. There is a possibility for the plaintiff to institute proceedings out of the High Court but Judges and sometimes defendants are less tolerant of entertaining such proceedings there and usually request that it moved to the Magistrates' Court without considering the excessive costs and time delay that the plaintiff is faced with.

When a plaintiff is faced with this dilemma they may have the option under section 35 of the Magistrates' Court available to them to transfer a matter from one Court to another but this can only be done with the consent of all the parties thereto, or upon application of any party thereto, and upon its being made to appear that the trial of such action or proceeding in the court wherein summons has been issued may result in undue expense or inconvenience to such party. The standard in applying the test of what may result in undue expense or inconvenience to such party is extremely high in that a Court will not arbitrarily allow moving a matter from one Court to another simply because it is inconvenient for the plaintiff. It may be transferred to one Court on more substantively motivated grounds, for example, if all the witnesses to be questioned at trial reside in one particular area or if one or more of the parties have fallen terminally ill and cannot travel.

Another provision that such a plaintiff can rely upon is section 42(1), provided it emanates from a damages claim, which states that where "several defendants may be sued in the alternative or both in the alternative and jointly in one action, whenever it is alleged by the plaintiff that he has suffered damages and that it is uncertain which of the defendants is in law responsible for such damages: Provided that on the application of any of the defendants the court may in its discretion order that separate trials be held, or make such other order as it may deem just and expedient". However, section 42 (2) provides that "if judgment is given in favour of any defendant or if any defendant is absolved from the instance, the court may make such order as to costs as to it may seem just; in particular, it may order the plaintiff to pay such defendant's costs; or the unsuccessful defendants to pay the costs of the successful defendant jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful defendants pays more than his pro rata share of the costs of the successful defendant, he shall be entitled to recover from the other unsuccessful defendants their pro rata share of such excess, and the court may further order that if the successful defendant is unable to recover the whole or any part of his costs from the unsuccessful defendants, he shall be entitled to recover from the plaintiff such part of his costs as he cannot recover from the unsuccessful defendants".

Although the plaintiff instituting the action may have more than one option when it comes to suing several defendants in one Magistrate's Court, these provisions are not wide enough to apply to almost any scenario as they each only apply within a particular set of circumstances and each attract their own set of repercussions in the event that the Court does not favour the plaintiff such as adverse costs orders and the need for the plaintiff to launch further applications in order to bring all the defendants in one action and in one particular Court which also attracts further legal costs for the plaintiff and more delays in the main case.

This question is easily answered for High Court matters as provision is made under section 21(2) of the Superior Courts Act, No. 10 of 2013 which states that "a Division has jurisdiction over any person residing or being outside its area of jurisdiction who is joined as a party to any cause in relation to which such Court has jurisdiction or who in terms of a third party notice becomes a party to such a cause, if the said person resides or is within the area of jurisdiction of any other Division." This indicates that when there are more than one defendant in a matter, a plaintiff can institute proceedings in one jurisdictional area of a defendant and the other defendants joined to those proceedings will automatically follow that defendants' jurisdictional area as a result of the Court having jurisdiction over them in terms of this provision.

It is unfortunate that the aforementioned provision is only applicable to matters in the High Court and there is no similar provision in the Magistrates' Court Act or Rules. This is disadvantageous to a plaintiff in the Magistrates' Court because if there is more than one defendant and all parties reside in different jurisdictional areas and if the cause of action did not arise wholly in the area of the Court, the plaintiff will have to institute legal proceedings in each of the defendants' jurisdictional area. Once that is done only then can the plaintiff either transfer the matter to another Court – to bring the matter against all the defendants in one Court – or the plaintiff must bring an application for a joinder of all the defendants. This renders the entire process to be more costly and inconvenient to the plaintiff especially in a case where the claim amount is very low. This will also restrict a plaintiff its constitutional right of access to Courts as the unnecessary legal costs may dissuade such plaintiff from instituting such action. The excessive and unguaranteed recovery of costs is a problem that many plaintiffs face on a day to day basis.

This is one loophole in the Magistrates' Court Act and Rules which needs to be addressed because it is prejudicial to a plaintiff and recommendations can be made to the Rules Board by the Magistrates' Court Committee to bring the Magistrates' Court rules in line with those of the High Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.