By Henri-Willem van Eetveldt
Jurisdiction is an essential element of procedural law. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) has important implications for the jurisdiction of courts in proceedings for the judicial review of administrative action. Yet this aspect of PAJA has not received much attention. The aim of this article is to highlight PAJA’s important – but often overlooked – jurisdictional provisions.
Jurisdiction under the common law: Brief principles
Jurisdiction is ‘the power vested in a court to adjudicate upon, determine and dispose of a matter’ (Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others 2010 (6) SA 329 (SCA) at para 6). This power is territorial. In other words, ‘it does not extend beyond the boundaries of, or over subjects or subject-matter not associated with, the Court’s ordained territory’ (Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A) at 256G – H).
The territorial jurisdiction of each division of the High Court is determined by a hybrid of sources, being the Constitution, the common law, the High Court’s inherent jurisdiction, the Superior Courts Act 10 of 2013, and various statutes, including PAJA.
Section 21 of the Superior Courts Act determines that a division of the High Court ‘has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance …’. Section 21 of the Superior Courts Act materially corresponds with its statutory predecessor, s 19(1) of the Supreme Court Act 59 of 1959. It is accordingly submitted that the case-law on s 19(1) of the Supreme Court Act will be equally binding on the s 21(1) of the Superior Courts Act.
Section 21(1) of the Superior Courts Act and its statutory predecessors determine that a division of the High Court has jurisdiction, inter alia, ‘in relation to all causes arising’ within its territorial jurisdiction. In a long line of cases, the phrase ‘in relation to all causes arising’ has been interpreted to refer to proceedings in which the court has jurisdiction under the common law, with the result that a court’s jurisdiction is determined by reference to the common law or any relevant statute (Gulf Oil Corporation v Rembrandt Fabrikante en Handelaars (Edms) Bpk 1963 (2) SA 10 (T) at 17G; Bisonboard Ltd v k Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A) at 486H – J).
Under the common law, the doctrine of effectiveness is the basic principle of jurisdiction. The essence of this doctrine is that a court will only have jurisdiction to adjudicate on a matter if its order will be effective (Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A) at 893F).
Although the doctrine of effectiveness ‘lies at the root of jurisdiction’, it does not, on its own, afford a division of the High Court jurisdiction. What is additionally required is a ratio jurisdictionis, namely, a ground of jurisdiction (Gallo Africa Ltd (op cit) at para 10).
A common ground of jurisdiction is the ratione domicilii. Under this ground of jurisdiction, a division of the High Court will have jurisdiction where the defendant/respondent is domiciled or resident in the court’s area of jurisdiction. Although this is not the only ground of jurisdiction, it is the only ground of jurisdiction that this article will focus on.
This ratione domicilii gives effect to the general principle, originating in Roman Law, that the plaintiff/applicant must follow the defendant/respondent to the latter’s place of domicile or residence, and institute process against the defendant/respondent there (Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) at 305C). This is the actor sequitur forum rei (or ‘the plaintiff follows the defendant’s court’) principle.
It is the correlative of the actor sequitur forum rei principle that the domicile of the plaintiff/applicant does not determine a court’s jurisdiction (Gallo Africa Ltd (op cit) at 332D – E).
Jurisdiction under PAJA
PAJA provides for a ground of jurisdiction that contrasts with these general principles of our common law.
Section 6(1) of PAJA provides that: ‘Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action’. Section 6(2) provides that: ‘A court or tribunal has the power to judicially review an administrative action … .’ The relevant part of the definition of ‘court’ for the purpose of PAJA is ‘… a High Court or another court of similar status … within whose area of jurisdiction the administrative action occurred or the administrator has his or her or its principle place of administration or the party whose rights have been affected is domiciled or ordinarily resident or the adverse effect of the administrative action was, is or will be experienced’ (my italics).
Ordinarily, in review proceedings under PAJA, the applicant will be ‘the party whose rights have been affected’. So, in terms of the statutory ground of jurisdiction created by PAJA, a division of the High Court will have jurisdiction to adjudicate on a matter if the applicant is domiciled or resides within that division’s jurisdiction. This is exactly the converse of the ratione domicilii, and the actor sequitur forum rei principle that underlies the ratione domicilii. By the same token, it is an exception to the rule that the domicile of the plaintiff/applicant never determines jurisdiction.
Given that this statutory ground of jurisdiction differs so markedly from the common-law position, it is somewhat surprising that the issue has not received much attention. It does not appear as if this issue has attracted the attention of academic commentators; similarly, our courts have not had much occasion to consider it.
In National Arts Council and Another v Minister of Arts and Culture and Another 2006 (1) SA 215 (C) the High Court recognised that PAJA creates statutory grounds of jurisdiction. The court held that the question of whether a court has jurisdiction in review proceedings under PAJA ‘must be answered with reference to both the Supreme Court Act read with the provisions of ss 1 and 6 of [PAJA]’ (at para 15).
However, upholding a point in limine raised by the respondents, the court held that the applicants failed to establish that the court had jurisdiction in terms of PAJA.
The applicants – the National Arts Council and its acting Chairperson – sought the review of a decision of the first respondent – the Minister of Arts and Culture – to dissolve the Council. The applicants brought the application in the Western Cape Division of the High Court.
The court found that the administrative action occurred outside its area of jurisdiction as the impugned decision was taken in Pretoria (para 21). The applicants were not domiciled or resident in its area of jurisdiction as the National Arts Council’s principal place of administration was in Johannesburg (para 28). And the mere fact that some of the National Arts Council’s members resided in Cape Town did not mean that the adverse effect of the administrative action was experienced there. The administrative action did not adversely affect each member. But it adversely affected the first applicant directly. And, as mentioned above, the first applicant resided in Johannesburg (para 28).
In contrast to the applicants in the National Arts Council case, the applicants in B.O. Mahony NO and Others v MEC, Health and Social Development, Eastern Cape and Others (WCC) (unreported case no 1444/15) (Mayosi AJ) successfully relied on PAJA’s statutory ground of justification.
This was an interlocutory application in which the applicants asked the High Court to rule on whether it had jurisdiction to decide the main application. In the main application, the applicants sought a mandamus compelling the second respondent, the superintendent general of the Eastern Cape’s Department of Health, to make a decision on a hospital licence application that the applicants had submitted to the second respondent in May 2013.
The applicants resided and were domiciled within the court’s area of jurisdiction. The respondents were not. Their respective principal places of business were in the Eastern Cape (para 6).
The applicants argued that the court had jurisdiction by virtue of the fact that they resided and were domiciled in the court’s area of jurisdiction (para 11). The respondents conceded that the court had jurisdiction (para 19), but argued that, in terms of the principle of convenience, the matter should be heard in the Eastern Cape Division of the High Court (para 19).
The court held, with reference to the National Arts Council case, that in proceedings for the judicial review of administrative action ‘the question of where this Court has jurisdiction must be answered with reference to both the Superior Courts Act read with the provisions of ss 1 and 6 of [PAJA]’ (para 15). The court accepted that the principle of convenience would have a bearing on the issue of jurisdiction, but held – contrary to the respondents’ argument – that the principle of convenience favoured the matter to be heard in the Western Cape. Ultimately the court found that it had jurisdiction to hear the main application.
Assessment
Our courts have thus recognised that PAJA creates statutory grounds of jurisdiction for the review of administrative action, one of them being that a court will have jurisdiction where the applicant is resident or is domiciled in the courts’ area of jurisdiction. Measured against the common-law grounds of jurisdiction this is quite a departure. It is exactly the opposite of the ratione domicilii and the actor sequitur forum rei principles. PAJA’s jurisdictional provisions are, therefore, of considerable interest to potential litigants and to their legal representatives. These provisions may determine that a particular court has jurisdiction over a matter under circumstances where the same court would not have jurisdiction under the common law.
It will be interesting to track the development of this area of the law in the future. It remains to be seen how our courts will interpret and apply PAJA’s jurisdictional provisions to the facts of the cases before them.
Henri-Willem van Eetveldt BA (Hons) LLB (Stell) is an attorney at Cliffe Dekker Hofmeyr in Cape Town.
This article was first published in De Rebus in 2016 (June) DR 36.
