Prescription in the time of changing jurisdictions December 2018

By VICKY HEIDEMAN, Published in The Law

With the changing territorial jurisdiction of some of our high courts (most recently in Gauteng and North West under GN 408 in GG 41552 of 29 March 2018), litigants may find that they have inadvertently instituted action in a court which lacks territorial jurisdiction to hear their matter. A defendant in these circumstances may believe it tactical to raise the special plea of the court's lack of jurisdiction, hoping that by the time the correct forum is approached, the claim will have prescribed.


Certainly, this may once have been a cunning plan: while s9(1) of the Supreme Court Act (59 of 1959) allowed a court to transfer a matter to another division having jurisdiction, this could only have been done where the court hearing the matter had the jurisdiction to hear the matter in the first place. The wording of s9(1) spoke of a matter being "more conveniently or more fitly heard" by a different division, and the court in Welgemoed and another, NNO v The Master and another 1976 (1) SA 513 (T) held (at 523D) that where a court lacks jurisdiction to grant the orders sought, it also lacked jurisdiction to transfer the matter to another division in terms of this section. What this implied was that the proceedings needed to be started afresh in the division having jurisdiction, and the proceedings in the wrong court would not have interrupted prescription.

However, things have since changed. The first change came with the Interim Rationalisation of Jurisdiction of High Courts Act (41 of 2001) which substantially changed the wording of the provision governing the transfer of matters between divisions. Section 3(1) allowed for matters to be transferred to another division where it would either be more conveniently or appropriately heard by that division (s3(1)(b)) or where the proceedings should have been instituted in another high court (s3(1)(a)). This seemingly subtle change to the wording of the legislation had the quite substantial effect of allowing a court that does not have jurisdiction to hear a matter to transfer the matter to the appropriate court. In the case of Road Accident Fund v Rampukar; Road Accident Fund v Gumede 2008 (2) SA 534 (SCA), Brand JA concluded (at paragraph 13) that s3(1)(a) effectively conferred limited jurisdiction on a court without jurisdiction, to hear a matter to transfer the matter to one that does. His reasoning for this conclusion (at paragraphs 10-11) was that s3(1)(a) of the Interim Act would effectively be superfluous if it did not envisage a situation where the transferring court did not have the jurisdiction to hear the matter. Section 3(1)(b) covered situations akin to those which were governed by s9(1) of the old Supreme Court Act and so, in Brand JA's view, the addition of s3(1)(a) would serve no purpose if it did not govern situations where the transferring court lacked original jurisdiction to hear the matter.

Section 27 of the Superior Courts Act (10 of 2013) (which now governs the transfer of matters between divisions of the high court) has retained substantially the same wording to s3 of the Interim Act. Therefore, this interpretation is likely to hold in the case of transfers under the new Act as well.

The potential consequence of this change was confirmed by the SCA in Ngqula v South African Airways (Pty) Ltd 2013 (1) SA 155 (SCA), where the court stated at paragraph 18:

"As such a removal is now permitted, it may follow that a party which is deprived of its right to object to the court's jurisdiction in consequence of the case being transferred to a court having jurisdiction, cannot complain of either the loss of its plea to the jurisdiction or the loss of any advantage that would otherwise flow from that plea being upheld, such as the acquisition of a defence of prescription if the plaintiff instituted action afresh."

But the court in this case did not decide definitively whether instituting proceedings in the wrong court, one that does not have jurisdiction, would be sufficient to interrupt prescription.

More recently, however, the prescription question seems to have been settled. In the case of Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Limited 2018 (5) BCLR 527 (CC), the majority judgment of Kollapen AJ appears to accept as a general proposition that prescription is interrupted by proceedings in the wrong forum. This conclusion is reached at paragraph 209 of the judgment where the court refers authoritatively to the Free State judgment of Kruger v Minister of Health and others [2016] ZAFSHC 179. The court in Kruger states as follows at paragraph 36:

"The continuation of applicant's action is governed by the rules which provide for transfer of a matter from one court to the other. It is my view that the institution of proceedings in a court with or without jurisdiction does interrupt prescription."

This conclusion has, therefore, been elevated by the Constitutional Court without the Court's interrogation of the reasons for it beyond a brief reference to flexibility in the operation of the Prescription Act in paragraphs 208-209. But be that as it may, the result appears to be that instituting proceedings in the wrong forum no longer carries with it the danger of a claim's prescription.

Therefore, the only danger still left for litigants who mistakenly institute proceedings in a court which lacks territorial jurisdiction to hear their matter, is the delay and resulting additional cost involved in effecting a transfer from the court lacking jurisdiction to hear the matter to one which has jurisdiction in terms of s27(1)(a) of the Superior Courts Act.

Heideman has just completed pupillage at the Johannesburg Bar. She joins the Island Group in 2019.