THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 865/2020

In the matter between:

FRANK MHLONGO

FIRST APPELLANT
RIEBS KHOZA

SECOND APPELLANT
DR SIBUYI

THIRD APPELLANT
PATRICK JONES

FOURTH APPELLANT

and

TRYPHINA MOKOENA NO

FIRST RESPONDENT
NOMSA MHLAWURI MANYIKE

SECOND RESPONDENT
MADODA ISAAC TJIE NO

THIRD RESPONDENT
TOBANI MICHAEL KHOZA

FOURTH RESPONDENT
THEMBA TIBANE NO

FIFTH REPONDENT
MASTER OF THE HIGH COURT,
GAUTENG DIVISION PRETORIA

SIXTH REPONDENT
ATTORNEY RICHARD SPOOR
OF THE FIRM RICHARD SPOOR
ATTORNEYS INC

SEVENTH RESPONDENT
ATTORNEY WIEKUS DU TOIT OF
THE FIRM WDT ATTORNEYS

EIGHTH RESPONDENT
ATTORNEY ERROL GOSS OF FIRM ERROL
GOSS ATTORNEYS

NINTH RESPONDENT
THEBE CORRIDORS COMPANY (Pty) Ltd

(Previously named Sithole Restoration Services)

TENTH REPONDENT
THE REGIONAL LAND CLAIMS COMMISSIONER,
MPUMALANGA

ELEVENTH RESPONDENT
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT                              TWELFTH RESPONDENT

Neutral Citation:
Frank Mhlongo and Others v Tryphinah Mokoena N O and Others
(723/20) [2022] ZASCA 78 (May 2022)
Coram:
MOCUMIE, MOLEMELA, MAKGOKA, MBATHA JJA and MUSI AJA
Heard:
25 February 2022
Delivered:  31 May 2022
Summary: Jurisdiction – section 21 of the Superior Courts Act 10 of 2013 – statute
takes precedence over practice directives – order of the High Court relying on practice
directive for ousting the jurisdiction of the High Court set aside.

____________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Hughes J sitting as
court of first instance):
1 The appeal is upheld with costs.
2 The order of the Gauteng High Court, Pretoria, is set aside and replaced with the
following:
‘The eighth respondent’s point in limine pertaining to jurisdiction is dismissed with
costs.’
3 Clause 1.5 of Gauteng Division Practice Directive No 1 of 2015 is declared null and
void ab initio and is set aside.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Molemela JA (Mocumie, Makgoka and Mbatha JJA and Musi AJA concurring):
Introduction
[1] The crisp issue in this appeal is whether it is competent for a Judge President
of a high court to remove certain areas of the court’s jurisdiction through a practice
directive; in particular, whether the Gauteng Division of the High Court, Pretoria had
jurisdiction to determine the appellants’ application. The facts that gave rise to the
appeal are succinctly set out in the succeeding paragraphs.

Background facts
[2] The appellants in this matter are beneficiaries of the Nhlangwini Community
Trust (the Trust) and purported to be representing 78 other beneficiaries of the Trust.
The first five respondents are the Trustees of the Trust (the Trustees); the sixth
respondent is the Master of the High Court, Pretoria; the seventh respondent is a firm
of attorneys which previously represented the Trustees, while the eighth respondent
was a firm that legally represented them as at the time when the application was

launched. The ninth respondent is a firm of attorneys acting as the agent of the tenth
respondent, a private company which had leased the Trust’s property. The appellants
approached the Gauteng Division of the High Court, Pretoria (the high court) seeking
an order compelling the Trustees and their attorneys, who were all cited as co-
respondents, to inter alia furnish them with various documents, including the
Trust’s bank statements, and to disclose information pertaining to any funds previously
paid or still due to the Trust. In addition, the appellants sought orders prohibiting the
Trustees’ attorneys from paying out any monies that were due to the Trust, and
demanded that the attorneys furnish them with the trust account journals relating to all
the financial affairs of the Trust.

[3] The eighth respondent raised a point in limine (preliminary point) contending
that the Gauteng Division did not have jurisdiction to adjudicate the application
because the leased property (the farm owned by the Trust) was situated in the
province of Mpumalanga. Relying on the provisions of Gauteng Division Practice
Directive No 1 of 20151 (the Practice Directive), the eighth respondent contended that
the appellants’ application ought to have been launched in the Mbombela or
Middelburg circuit courts, as the high court had ceased to have jurisdiction in any
matters emanating and arising from magisterial districts in the Mpumalanga province.
The appellants contended that the high court had jurisdiction in terms of s 21(2) of the
Superior Courts Act 10 of 2013, by virtue of the fact that the office of the sixth
respondent was in Pretoria, that the practice of the ninth respondent was situated in
Johannesburg and that the registered address of the tenth respondent was also
situated in Johannesburg.

[4] In upholding the point in limine, the high court inter alia alluded to the Practice
Directive and quoted the clause which stipulated that the high court ‘shall’ cease to
have jurisdiction in any matters emanating and arising in and from specified
magisterial districts in Mpumalanga. More about that later. The high court, accordingly,
found that it did not have the jurisdiction to adjudicate the application. Consequently,
the merits of the matter were not considered.

1 Notice issued by the Judge President, Gauteng, namely Government Notice no 956 issued and
published on 1 September 2017.

[5] Aggrieved by the order granted by the high court, the appellants sought the high
court’s leave to appeal its order but were unsuccessful. The appellants then
approached this Court, on petition, which granted leave to appeal on a limited basis.
The order granting leave limited the issues as follows:
‘3.1 Whether the Gauteng Division of the High Court, Pretoria had jurisdiction to hear the
application.
3.2 Whether the Judge President, Gauteng had the power in terms of s 7(1) of the Superior
Courts Act 10 of 2013, when constituting circuit courts in Mpumalanga by way of the notice
dated 1 September 2017, to exclude the jurisdiction of the Gauteng Division of the High Court
in respect of the matters arising in the area of jurisdiction of those circuit courts, prior to the
promulgation by the Minister of Justice and Constitutional Development of a notice in terms of
s 6(3) of the Superior Courts Act in relation to the Mpumalanga Division of the High Court.’

[6] Asserting that the Minister of Justice and Constitutional Development (the
Minister) had a direct and substantial interest in the outcome of this matter in light of
paragraph 3.2 of this Court’s order, which essentially called upon this Court to
pronounce on the validity of a published Practice Directive and Notice which had been
endorsed by the Chief Justice, the appellants brought an application joining the
Minister as a co-respondent in this matter. The Minister did not oppose the application
and indicated that he would abide the decision of the court. An affidavit was, however,
filed by the Director-General: Court Services in the Department of Justice and
Constitutional Development expressing certain views on the matter. The input given
by the latter served to confirm that the Minister indeed had a substantial interest which
warranted the granting of the application for joinder.2 An order joining the Minister as
the twelfth respondent was, accordingly, granted. I turn now to the issues that have to
be determined in this matter.

[7] The starting point is the Practice Directive which persuaded the high court to
conclude that it was not the appropriate forum for the adjudication of the application
and finding instead that one of the two Mpumalanga circuit courts was the court clothed
with the jurisdiction to entertain the matter. On 1 September 2017 the Judge President
of the Gauteng Division of the High Court (the Judge President), within the

2 See Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 659.

contemplation of s 7(1) of the Superior Courts Act, issued a Practice Directive3 which
purported to determine the jurisdictional boundaries of the Circuit Courts of the
Mpumalanga Division.4 Clause 1.5 of the notice reads as follows:
‘1.5 The Gauteng Division of the High Court shall, with the coming into effect of this Notice,
cease to have jurisdiction in any matters emanating and arising in and from the Magesterial
Districts set out in parts A and B respectively.’5

[8] As mentioned before, the appellants rely on the provisions of s 21(1) and 21(2)
of the Superior Courts Act as a basis for their contention that the High Court had the
necessary jurisdiction to adjudicate their application. It is therefore necessary to
juxtapose the provisions of the Practice Directive with the relevant provisions of the
Superior Courts Act in order to assess whether there are any inconsistencies between
the two. This exercise is necessary because, as explained by this Court in The
National Director of Public Prosecutions (Ex Parte Application),6 ‘[p]ractice directives
may not derogate from legislation, the common law or rules of court that have binding
force . . .’. The salient provisions of the Superior Courts Act are set out in the next
paragraph.

[9] Section 6(3)(a) of the Superior Courts Act provides that ‘[t]he Minister must,
after consultation with the Judicial Service Commission [the JSC], by notice in the
[Government] Gazette, determine the area under the jurisdiction of a Division, and
may in the same manner amend or withdraw such notice’. In this regard it bears
mentioning that the Minister published a notice contemplated in s 6(3)(a) establishing
the Mpumalanga Division, with a description of its territorial reach, in Government
Notice No 615 published in Government Gazette No 42420 on 26 April, which took
effect on 1 May 2019. Until that date, the Gauteng Division also functioned as the
Mpumalanga Division and had jurisdiction in the geographical area of Mpumalanga.

3 Government notice 956 published on 1 September 2017.
4 On the same day (1 September 2017), the Chief Justice of the Republic of South Africa had, within
the contemplation of s 8(3) read with s 5 of the Superior Courts Act 10 of 2013 also issued a Practice
Directive which was published in Government Notice 955. Clause 1 thereof stipulated as follows:
‘1. All action and motion proceedings including urgent applications as well as appeals in any area in the
Mpumalanga province shall, with effect from 1 February 2016, be enrolled and heard at Mbombela and
Middelburg Circuit Courts.’
5 Part A listed Mbombela Areas of jurisdiction, while Part B listed Middelburg areas of jurisdiction.
6 The National Director of Public Prosecutions (Ex Parte Application) [2021] ZASCA 142; 2022 (1)
SACR 1 (SCA para 19.

Section 7 provides as follows:
‘7. (1) The Judge President of a Division may by notice in the Gazette within the area under
the jurisdiction of that Division establish circuit districts for the adjudication of civil or criminal
matters, and may by like notice alter the boundaries of any such district.
(2) In each circuit district of the Division there must be held, at least twice a year and at such
times and places as may be determined by the Judge President concerned, a court which
must be presided over by a judge of that Division.
(3) A court referred to in subsection (2) is called a circuit court of the Division in question.'
Section 21 provides:
‘21. (1) A Division 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. . .
. . .
(2) A Division also has jurisdiction over any person residing or being outside its area of
jurisdiction who is joined as 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.
. . . .’
Section 50(2) of the Superior Courts Act provides:
‘Notwithstanding section 6(1), the Gauteng Division shall also function as the Limpopo and
Mpumalanga Divisions, respectively, until a notice published in terms of section 6(3) in respect
of those Divisions comes into operation.’
The reference to ‘Gauteng Divisions’ was apparently intended to refer to both the
Gauteng Division of the High Court, Pretoria, and the Gauteng Division of the High
Court, Johannesburg.

Discussion
[10] The principles applicable to the interpretation of statutes are trite. As stated in
Cool Ideas 1186 CC v Hubbard and Another,7 ‘[a] fundamental tenet of statutory
interpretation is that the words in a statute must be given their ordinary grammatical
meaning, unless to do so would result in an absurdity. . .’. The words in the relevant
sections of the Superior Courts Act are clear and unambiguous. Nothing in any of the
clear and unambiguous provisions mentioned in the preceding paragraph suggests

7 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8)
BCLR 869; para 28.

that a particular Division does not retain jurisdiction in respect of matters which have
been initiated in circuit courts falling within that Division’s area of jurisdiction. On a
proper interpretation and application of the provisions of s 21(2) of the Superior Courts
Act, read with ss 7 and 50(2) respectively, the circuit courts that were established in
terms of the practice directive were not established as self-standing Divisions. Thus,
the High Court retained its territorial jurisdiction over the areas which did not yet fall
exclusively within the jurisdiction of any other Division.

[11] The position as at May 2018, when the application was launched, was that the
High Court functioned as the Mpumalanga Division as envisaged in s 50(2) of the
Superior Courts Act. As at the date of the publication of the Practice Directive
(1 September 2017), the Minister had not yet constituted the Mpumalanga Division of
the Gauteng High Court as a separate Division within the contemplation of s 6(3) of
the Superior Courts Act. A significant common cause fact is that the Notice issued by
the Minister establishing the area of jurisdiction of the Mpumalanga Division within the
contemplation of s 6(3) only came into operation on 1 May 2019. This means that until
1 May 2019 the Gauteng High Court continued to retain its jurisdiction over Mbombela
and Middelburg as circuit courts.

[12] As can be determined from the provisions of s 7 of the Superior Courts Act, the
powers of a Judge President in relation to the establishment of circuit court districts
and their boundaries are circumscribed by legislation; the Judge President cannot
exercise any more power than that granted to him or her by legislation. It is clear that
in terms of s 6(3) of the Superior Courts Act, only the Minister has the power to
determine the jurisdictional areas of the various Divisions of the High Court. The fact
that a Judge President, may, in terms of s 7(1) alter the boundaries of any circuit courts
that have been established under a particular Division should not be equated with the
power, granted exclusively to the Minister, to determine the area under the jurisdiction
of that Division.

[13] It is plain from the provisions of s 21(2) of the Superior Courts Act, read with ss
7 and 50(2) respectively, that the circuit courts that were established in terms of the
Practice Directive were not established as self-standing Divisions. Thus, the high court
retained its territorial jurisdiction over all the areas which did not as yet fall within the

jurisdiction of any other Division(s). Since the Gauteng Divisions retained their
territorial jurisdiction, the newly established circuit courts, established in terms of the
Practice Directive, could not have ousted the jurisdiction granted by that legislation.
The effect of clause 1.1 and 1.2 of the Practice Directive is that there is an overlap of
jurisdiction between the high court and the Mbombela and Middelburg circuit courts.
They have concurrent jurisdiction.8 What is quite striking is that the Mbombela and
Middelburg circuit courts were the circuit courts of the Gauteng Division, and ordinarily,
the only judges that may preside in those courts are the judges of the Gauteng Division
(see s 7(2) of the Superior Courts Act). All these circumstances lead me to conclude
that the high court erred when it found that it had no jurisdiction to entertain the
appellants’ application. This conclusion addresses the first issue which this Court had
to determine (paragraph 3.1 of the order granting leave to appeal), as set out in
paragraph 5 of this judgment.

[14] With regard to the second issue set out in paragraph 3.2 of the order,9 it follows
that the Judge President did not have the power, when constituting circuit courts in
Mpumalanga by virtue of the notice dated 1 September 2017, to exclude the
jurisdiction of the Gauteng Divisions, bestowed on them in terms of s 21 of the Superior
Courts Act, in respect of the matters arising in the area of jurisdiction of those circuit
courts prior to the date on which the Minister promulgated the determination of the
Mpumalanga Division of the High Court, namely 1 May 2019. In purporting to oust the
jurisdiction of the Gauteng Divisions by dint of clause 1.5 of the Practice Directive, he
acted beyond his powers, which conduct is invalid.10 It follows that clause 1.5 of the
Practice Directive ought to be declared null and void ab initio.

[15] As already mentioned, in its order, the high court dismissed the appellants’
application on the basis of lack of jurisdiction. Apart from the fact that it was wrong as
demonstrated above, the high court equally erred in dismissing the application. As
regards the submission that the order dismissing the application was in any event

8 See para 33 of Thobejane.
9 See para 5 of this judgment.
10 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of
the RSA and Others 2000 (2) SA 674 (CC) para 50. Affordable Medicines Trust v Minister of Health
[2005] ZACC 3; 2006 (3) SA 247 (CC); 2005(6) BCLR 529 (CC) para 50.

erroneous because the high court had only adjudicated the points in limine and not
the merits of the matter, it suffices to merely re-affirm the trite principle that an
appropriate order to be granted when upholding a preliminary point like jurisdiction, is
to strike the application off the roll and not to dismiss it, as the merits would not have
been entertained. The high court’s order can therefore not stand. With regard to costs,
there is no basis to deviate from the general rule that costs follow the result.

[16] For all the reasons set out above, the following order is granted:

1 The appeal is upheld with costs.
2 The order of the Gauteng High Court, Pretoria, is set aside and replaced with the
following:
3 ‘The eighth respondent’s point in limine pertaining to jurisdiction is dismissed with
costs.’
4 Clause 1.5 of Gauteng Division Practice Directive No 1 of 2015 is declared null and
void ab initio and is set aside.

________________________
M B MOLEMELA
JUDGE OF APPEAL
Makgoka JA (Mocumie, Molemela, Mbatha JJA and Musi AJA concurring)
[17] I agree with the order of the judgment prepared by my Colleague, Molemela JA
(the first judgment) and the reasons underpinning it. I write separately to deal with two
aspects. The first is the eighth respondent’s reliance on ss 173 and 34 to support the
judgment of the high court. Second, I deal with the eighth respondent’s reliance on the
decision in First National Bank v Lukhele and Seven Other Cases [2016] ZAGPPHC
616 (Lukhele) and consider the status of that decision in the light of this Court’s
decision in Standard Bank of SA Ltd and Others v Thobejane and Others; Standard
Bank of SA Ltd v Gqirana N O and Another [2021] ZASCA 92; [2021] 3 All SA 812
(SCA); 2021 (6) SA 403 (SCA) (Thobejane). I consider these aspects, in turn.

Sections 173 and 34 arguments
[18] Counsel for the eighth respondent submitted, among others, that the impugned
practice directive was justified by the court’s power to regulate its own process in terms
of s 173 of the Constitution, and that the objective of creating the two Mpumalanga
circuit courts was to promote access to courts as envisaged in s 34 of the Constitution.
[19] Jurisdiction is a matter of law, and not of discretion or equity, which is what ss
173 and 34 are concerned with. In the present case, jurisdiction is governed by s 21
of the Superior Courts Act, which regulates the jurisdiction of the various divisions of
the high court over persons and in relation to matters. Thus, whether the court has
jurisdiction or not, is determined with reference to that section only. If it has jurisdiction,
that is the end of the enquiry. The court does not need either s 173 or s 34 to justify
exercising it.  Similarly, if a court does not have jurisdiction, the enquiry ends there.
[20] As explained by the Constitutional Court in S v Molaudzi,11  a court cannot use
the s 173 power to assume jurisdiction that it does not otherwise have. Axiomatically,
it cannot use the s 173 power to oust jurisdiction which it ordinarily has. The same
applies with equal force to the right of access to courts guaranteed in s 34. The section
has no place to the enquiry as to whether or not a court has jurisdiction. No reasons
of equity could ever clothe a court with jurisdiction it does not have.
[21] It follows that the ss 173 and 34 considerations are totally irrelevant to the
enquiry whether a court has jurisdiction or not. Equally irrelevant to the jurisdiction
enquiry, are the objectives sought to be achieved through the practice directive. The
eighth respondent’s submissions on these two constitutional provisions therefore falter
as a matter of law, and must be rejected on that basis alone.
Lukhele
[22] Counsel for the eighth respondent submitted that the high court was entitled to
decline to exercise its jurisdiction over matters that can more conveniently be heard

11 S v Molaudzi [2015] ZACC 20; 2015 (8) BCLR 904 (CC); 2015 (2) SACR 341 (CC) para 34.

by other courts or circuit courts, and that doing so is not akin to the exclusion of a
court’s jurisdiction. In my view, this submission is not properly conceptualised. The
present case is not about a court declining to exercise its jurisdiction, as was the case
in Thobejane and in Lukhele.12 In the present case, the court’s jurisdiction had been
ousted by a practice directive. For that reason, Lukhele, like Thobejane, is unhelpful
in determining the question in paragraph 3.2 of this Court’s order granting leave to
appeal.
[23] That notwithstanding, it is necessary to examine Lukhele closely, to determine
whether its key holding withstand the scrutiny of this Court’s decision in Thobejane. It
is important for the Judges, practitioners and litigants in Mpumalanga to have clarity
as to whether Lukhele is still authoritative in that division. The mere fact that counsel
for the eighth respondent relied on it underscores this point.
[24] To recap, in that case, the Gauteng Division (functioning as Mpumalanga
Division, Mbombela) had declined to determine matters within its jurisdiction on the
basis that the matters would conveniently be dealt with by the circuit court in
Middelburg where the defendants, who had not defended the actions, were resident.
In its reasoning, the court held that in Mpumalanga, plaintiffs were obliged to institute
actions in the circuit court closest to the defendant’s place of residence. The court
based this conclusion on ss 173 and 34 justifications.
[25] This Court in Thobejane rejected those justifications as a basis for a court to
decline exercising its jurisdiction. Significantly, the court expressly rejected the
proposition (a key holding in Lukhele) that a plaintiff had to institute action in a court
closest to a defendant’s place of residence. At para 25 the court said the following:
‘Self-evidently, litigation begins by a plaintiff initiating a claim. Axiomatically, it must be the
plaintiff who chooses a court of competent jurisdiction in just the same way that a game of
cricket must begin by a ball being bowled. The batsman cannot begin. This elementary fact is

12 In Thobejane this Court had to consider two judgments, respectively from the Gauteng and the
Eastern Cape Divisions of the High Court. The Gauteng judgment is the Thobejane part of the judgment,
where this Court had to decide whether a high court division could competently refuse to hear a matter
within its jurisdiction on the basis that another court (such as a local division or a magistrates’ court)
had concurrent jurisdiction.

recognised as a rule of the common law, founded, as it is, on common sense. The right of a
plaintiff to do so was recognised in a Full Court of the Gauteng Division in Moosa v Moosa.
That Court relied on Marth v Collier where it was stated:
“The granting of an order for the transfer of legal proceedings from the Supreme Court to the
Magistrates’ Court, in the absence of a Plaintiff ’s consent, would clearly infringe upon the
latter’s substantive right to choose the forum in which he or she wishes to institute
proceedings. As little as our courts have the inherent power to create substantive law (See:
the Cerebos Foods case (supra) at 173D; Universal City Studios Inc & Others v Network Video
(Pty) Ltd 1986 (2) SA 734 (A) at 754E-755E) do they have the power, in the absence of
statutory - or common law authorisation or legal precedent. . . to make orders which infringe
upon the substantive rights of litigants or others (See: Eynon v Du Toit 1927 CPD 76; E v E
and Another 1940 TPD 333), such as the right of a Plaintiff, as dominus litis, to decide in which
of concurrent fora he or she wishes to enforce his or her rights.”’ (Footnotes omitted.)

[26] This Court also concluded, and made an order to that effect, that the main seat
of a Division of a High Court is obliged to entertain matters that fall within the
jurisdiction of a local seat of that Division because the main seat has concurrent
jurisdiction.
[27] Given these findings, and to the extent contrary views were expressed in
Lukhele, the latter must be considered to have been overturned by Thobejane. In the
result, the eighth respondent’s reliance on Lukhele was misplaced.
Conclusion
[28] Save for these brief observations, I concur in the order of the first judgment.

____________________
TATI MAKGOKA
JUDGE OF APPEAL

Appearances:

For appellants:
J C Klopper
Instructed by:
DBM Attorneys, Centurion

Symington De Kok, Bloemfontein

For 8th respondent: J de Beer (with A C J van Dyk)
Instructed by:
Wiekus du Toit Attorneys, Mbombela

Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

31 May 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Frank Mhlongo and Others v Tryphinah Mokoena N O and Others (723/20) [2022] ZASCA 78 (May
2022)
Today the Supreme Court of Appeal (SCA) handed down a judgment upholding, with costs, an appeal
against the decision of the Gauteng Division of the High Court, Pretoria (the high court).

The issue before the SCA was whether it was competent for a Judge President of a high court to remove
certain areas of the court’s jurisdiction through a practice directive; in particular, whether the high court
had jurisdiction to determine the appellants’ application.

The appellants approached the Gauteng Division of the High Court, Pretoria (the high court), seeking
an order compelling the Trustees and their attorneys, who were all cited as co-respondents, to inter alia
furnish them with various documents, and to disclose information pertaining to any funds previously
paid or still due to the Trust. In addition, the appellants sought orders prohibiting the Trustees’ attorneys
from paying out monies that were due to the Trust and required that the attorneys furnish them with the
trust account journals relating to all the financial affairs of the Trust.

The eighth respondent raised a point in limine (preliminary point), contending that the high court did not
have jurisdiction to adjudicate the application because the leased property (the farm owned by the Trust)
was situated in the province of Mpumalanga. Relying on the provisions of Gauteng Division Practice
Directive No 1 of 2015 (the Practice Directive), the eighth respondent contended that the appellants’
application ought to have been launched in the Mbombela or Middelburg circuit courts, as the high court
had ceased to have jurisdiction in any matters emanated and arose from magisterial districts in the
Mpumalanga province. In contrast, the appellants contended that the high court had jurisdiction in terms
of s 21(2) of the Superior Courts Act 10 of 2013, by virtue of the fact that the office of the sixth
respondent was in Pretoria, that the practice of the ninth respondent was situated in Johannesburg and
that the registered address of the tenth respondent was also situated in Johannesburg.

In upholding the point in limine, the high court alluded to the Practice Directive, quoting the clause which
stipulated that the high court ‘shall’ cease to have jurisdiction in any matters that emanated and arose
in and from specified magisterial districts in Mpumalanga. Accordingly, the high court found that it did
not have the jurisdiction to adjudicate the application. Consequently, the merits of the matter were not
considered. Aggrieved by the order granted by the high court, the appellants sought the high court’s
leave to appeal its order but were unsuccessful. The appellants then approached the SCA on petition,
which granted leave to appeal on a limited basis.

The SCA juxtaposed the provisions of the Practice Directive with the relevant provisions of the Superior
Courts Act in order to assess whether there were any inconsistencies between the two.

The SCA held that a fundamental tenet of statutory interpretation was that the words in a statute must
be given their ordinary grammatical meaning, unless to do so would result in an absurdity. Accordingly,

the SCA held that the words in the relevant sections of the Superior Courts Act are clear and
unambiguous.

Furthermore, the SCA held that it was plain from the provisions of s 21(2) of the Superior Courts Act,
read with ss 7 and 50(2) respectively, that the circuit courts that were established in terms of the Practice
Directive were not established as self-standing Divisions. Thus, the high court retained its territorial
jurisdiction over all the areas which did not as yet fall within the jurisdiction of any other Division(s).
Since the Gauteng Divisions retained their territorial jurisdiction, the newly established circuit courts,
established in terms of the Practice Directive, could not have ousted the jurisdiction granted by that
legislation. The SCA considered that the Minister had published a notice contemplated in s 6(3)(a)
establishing the Mpumalanga Division, with a description of its territorial reach, in Government Notice
No 615 published in Government Gazette No 42420 on 26 April, which only took effect on 1 May 2019.
It held that until that date, the Gauteng Division also functioned as the Mpumalanga Division and had
jurisdiction in the geographical area of Mpumalanga.

The effect of clause 1.1 and 1.2 of the Practice Directive was that there was an overlap of jurisdiction
between the high court and the Mbombela and Middelburg circuit courts; they had concurrent
jurisdiction. All these circumstances led the SCA to conclude that the high court erred when it found
that it had no jurisdiction to entertain the appellants’ application. This conclusion addressed the first
issue. With regard to the second issue, the SCA held that it followed that the Judge President did not
have the power, when constituting circuit courts in Mpumalanga by virtue of the notice dated 1
September 2017, to exclude the jurisdiction of the Gauteng Divisions, bestowed on them in terms of s
21 of the Superior Courts Act, in respect of the matters that arose in the area of jurisdiction of those
circuit courts prior to the date on which the Minister promulgated the determination of the Mpumalanga
Division of the High Court, namely 1 May 2019. The SCA held that ousting the jurisdiction of the
Gauteng Divisions by dint of clause 1.5 of the Practice Directive was therefore beyond the powers of
the Judge President, which conduct was invalid. It followed that clause 1.5 of the Practice Directive
ought to be declared null and void ab initio. Accordingly, in a unanimous judgment by Molemela JA, the
appeal was upheld.

In a separate unanimous concurring judgment, Makgoka JA wrote separately to deal with two aspects:
the eighth respondent’s reliance on ss 173 and 34 of the Constitution, as well as the eighth respondent’s
reliance on the decision in First National Bank v Lukhele and Seven Other Cases (Lukhele).
The SCA considered the status of that decision in the light of this Court’s decision in Standard Bank of
SA Ltd and Others v Thobejane and Others; Standard Bank of SA Ltd v Gqirana N O and Another
(Thobejane). The SCA held that jurisdiction was a matter of law, and not of discretion or equity, which
is what ss 173 and 34 are concerned with.

The SCA held that a court could not use the s 173 power to assume jurisdiction that it did not have.
Axiomatically, it could not use the s 173 power to oust jurisdiction which it ordinarily had. The SCA held
that s 34 had no place to the enquiry as to whether or not a court had jurisdiction. No reasons of equity
could ever clothe a court with jurisdiction it did not have. Hence, the SCA found that ss 173 and 34
considerations were totally irrelevant to the enquiry whether a court had jurisdiction or not. Equally
irrelevant to the jurisdiction inquiry, were the objectives sought to be achieved through the practice
directive.

Furthermore, the SCA held that the present case was not about a court declining to exercise its
jurisdiction, as was the case in Thobejane and Lukhele. The SCA held that in the present case, the
court’s jurisdiction had been ousted by a practice directive. For that reason, Lukhele, like Thobejane,
was unhelpful in determining the question in issue.

Lastly, the SCA noted that in Thobejane it was held that the main seat of a Division of a High Court was
obliged to entertain matters that fell within the jurisdiction of a local seat of that Division, and was not
entiltled to decline to do so because the main seat had concurrent jurisdiction. Given these findings,
and to the extent contrary views were expressed in Lukhele, the latter must be considered to have been
overturned by Thobejane.
~~~~ends~~~~