Mr Khumalo resides in Cape Town with his wife and children. He has just received some bad news. He borrowed his car to his friend Johan who drove his family to Limpopo for a holiday. While in Limpopo Johan got involved in an accident with a car driven by Ms Venter who lives in Durban. The investigations have proven that both Johan and Ms Venter were negligent and are therefore both to blame for the accident. The damages to Mr Khumalo’s car amount to R43 000 whilst those to Ms Venter’s car amount to R32 000.

Mr Khumalo is unsure whether he or Johan must sue Ms Venter? Should they even sue if both drivers were negligent? Which court will decide the matter? In which province?

Jurisdiction refers to the competency of a court, forum or institution to hear, decide and/or exercise authority in a matter. Courts in South Africa and the world over exercise their functions in clearly set out areas of their jurisdiction. Special forums also exercise their functions in clearly set out disciplines accorded to them by their creating statutes e.g CCMA, Consumer Commission.

In general, jurisdiction is founded on either the person or the cause of action (reason for suing). This means that when one decides to sue another person, the plaintiff will normally issue summons out of the court with territorial jurisdiction over the defendant. In terms of contracts, the court under whose jurisdiction the contract was concluded will have jurisdiction over disputes that arise out of the contract.

Territorial jurisdiction refers to the geographical exercise of authority. The High Court of South Africa has both provincial divisions and local divisions. Each division decides on matters within its territorial jurisdiction. For example, the North West High Court decides on matters in the North West. The High Court in Limpopo decides on matters in Limpopo. The South Gauteng Local division decides on matters in Johannesburg and its satellite areas.

The principle of jurisdiction further, is premised on the idea that the more complex a dispute is, the higher the court or forum that will have jurisdiction to decide on the issue. For example, a Plaintiff suing a defendant for damages amounting to R10 000, and a plaintiff suing a defendant for damages amounting to R500 000 will not be decided by the same court. In South Africa, claims up to R15 000 will be decided by the Small Claims court whilst claims between R15 0001 – R200 000 will be decided by the District Magistrate’s court. R200 001 – R400 000 claims are within the jurisdiction of the Regional Court and, claims above R400 000 will be decided by the Higher Courts. This follows then, that the amount of a claim determines which court to file the claim.

The Constitutional Court has jurisdiction over constitutional matters whilst the Labour Courts are accorded competency to hear and decide in labour disputes.

In the above given scenario, these rules pertaining to jurisdiction will direct who will sue the other, in which courts and in which provinces. These rules are taken seriously in litigation and effectively play a role in either the success or dismissal of a claim.

Mr Khumalo will be the right person to sue Ms Venter for the damages to his car. This is because he has locus standi (real interest, as it is his vehicle which was damaged). However, in his claim Mr Khumalo must make it clear that at the time when the accident occurred the vehicle was being driven by a third party (Johan), with his consent. Ms Venter may decide to either sue Mr Khumalo for the damages she suffered on her car, since the accident was also caused by the negligence of Johan who was driving the vehicle with the consent of Mr Khumalo who is the owner of the vehicle, or she can bring a counterclaim in response to Mr Khumalo’s lawsuit.

As stated above, jurisdiction follows the defendant in most civil matters. Therefore, regardless of where the accident happened the court that will have jurisdiction over Ms Venter will be the court where she resides, which is Durban. If Ms Venter decides to sue Mr Khumalo then she would do this in Cape Town, where Mr Khumalo resides.

When it comes to motor vehicle accidents where both parties were negligent, the apportionment of damages comes to play. This is where each person’s ‘portion’ of the fault/ liability is taken into account and both parties contribute towards the damages. In this case Mr. Khumalo might decide to institute action against Ms Venter in Durban. The accident was in Limpopo, however, the Durban Courts have territorial jurisdiction over Ms Venter as she stays in Durban. Taking into account the total amount of damages to Mr. Khumalo’s vehicle, it will be the Durban Districts Magistrate’s Court.

Mr. Khumalo might not get the full R43 000 from Ms Venter due to the apportionment of damages. This means that Mr. Khumalo may technically take action for the remaining loss against Johan, keeping in mind that it may get awkward as Johan is also a friend. Let’s hope they can work out some sort of repayment plan and settle the matter out of Court.

However, Mr Khumalo may decide that because the accident was caused by the negligence of both drivers, setting-off the damage amounts might be convenient for both parties realising that Ms Venter also suffered damages of R32 000. This means Mr Khumalo will subtract Ms Venter’s damages (R32 000) from his own damages (R43 000), then Mr Khumalo will only sue for the remainder (R11 000). This means that the amount of R11 000 no longer falls within the jurisdiction of the District Court, therefore Mr Khumalo will lodge his claim in the Small Claims Court.

In the Small Claims Court attorneys are not permitted by law to render services on behalf of claimants/plaintiffs. However, attorneys may advise claimants about their claims. The Clerk of the Small Claims Court assists claimants/plaintiffs through all the processes in the Small Claims Court.