Consent to jurisdiction

Consent to jurisdiction

There’s a concept in our law called “jurisdiction”. Broadly speaking, it refers to whether or not a court has the authority to adjudicate on a matter. There are specific indicators that determine whether a court has the jurisdiction, or authority, to make a legally-binding order in a matter, e.g:

  • the court located in the district where a contract was entered into would ordinarily have jurisdiction, or the authority to decide upon disputes arising from the contract;
  • the court located in the district where the defendant (the person being sued) lives or carries on business would ordinarily have authority to decide on any claims brought against the defendant.

Illustration:

Sipho, who operates his business in Johannesburg, sells goods to Joe, who lives in Durban. They had met each other on conference in Cape Town, which is also where they had both negotiated and concluded their Sale of Goods Agreement. Joe fails to pay Sipho for the goods, so Sipho sues Joe. He can do so:

  • by issuing summons in Durban, being where Joe (the defendant) lives; or
  • by issuing summons in Cape Town, which is where the agreement was concluded.

While issuing summons in Johannesburg would certainly be more convenient for Sipho, he cannot do this because the place where the plaintiff lives or works is irrelevant when determining jurisdiction. And, of course, issuing summons in, say, Nelspruit would be completely illogical as it’s inconvenient for both parties – and the Nelspruit courts would have no jurisdiction to hear the matter.

There is, however, another way for a court to have the jurisdiction to hear a matter – and that’s if the parties consent to it. So technically, the court in Nelspruit could have the authority to hear the matter if Joe and Sipho had written this into their contract. But consenting to the jurisdiction of a court that would not otherwise have authority could potentially be open to challenge, particularly where the transaction is a credit agreement in terms of the National Credit Act, or where the matter pertains to an emoluments attachment order.

Emoluments attachment order: In terms of Section 65J of the Magistrates Court Act, the court having jurisdiction to award an emoluments attachment order is the one in which the debtor is employed.

Credit agreement: section 90 of the National Credit Act provides that a provision in a credit agreement containing a consent to the jurisdiction of a court that would otherwise not have jurisdiction would be unlawful. Such a provision would accordingly be struck from the agreement.

When signing an agreement, pay careful attention to whether it has a consent to jurisdiction clause. And consider whether it is a) convenient, and b) lawful.

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.

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