THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 578/2007

NICO BOTHA

Appellant

and

ESMERELDA ANDRADE

1ST Respondent

JOSE ANDRADE

2ND Respondent

PALTIMCO CC

3RD Respondent

VICTON BRICK & BLOCK
MANUFACTURING CC

4TH Respondent

Neutral citation: Botha v Andrade (578/2007) [2008] ZASCA 120 (26
September 2008)

Coram:
CAMERON,
MTHIYANE,
LEWIS
JJA,
BORUCHOWITZ and KGOMO AJJA

Heard:

9 SEPTEMBER 2008
Delivered:
26 SEPTEMBER 2008

Summary:
Magistrates’ courts’ jurisdiction to grant an interdict
under s 30(1) of the Magistrates’ Courts Act 32 of 1944
(‘the Act’) is limited by s 29(1)(g) of the Act which sets a
monetary limit on the value of the matter in dispute.

_____________________________________________________________________

ORDER

On appeal from: High Court, Eastern Cape (Goosen AJ and Pickering J
sitting as a court of appeal)

The appeal succeeds with costs and the orders granted by the
magistrate are reinstated. The order of the court a quo is set aside and
replaced with an order that the appeal is dismissed with costs.

JUDGMENT

MTHIYANE JA (CAMERON, LEWIS JJA, BORUCHOWITZ and
KGOMO AJJA concurring):

[1] This appeal is concerned with the extent to which the jurisdiction
of the magistrates’ court to grant an interdict under 30(1) of the
Magistrates’ Court Act 32 of 1944 (‘the Act’) is limited by s 29(1)(g) of
the Act, which sets a monetary limit on the value of the subject in dispute.

[2] The appellant, an owner of a small farm in Twee Rivieren in the
district of Joubertina, obtained a prohibitory interdict in the magistrates’
court restraining the first two respondents, owners of a neighbouring farm
and two close corporations which they control and which conduct
industrial operations on it, from committing certain unlawful activities
associated with the conduct of a sawmill business and a brick making
business on their property. The appellant’s complaint was in relation to an
alleged nuisance and the usage of the farm contrary to the municipal
zoning of the property under the town planning scheme.

[3] The appellant purchased the farm intending that he and his fiancé
would retire there to conduct a small farming operation. The farm was
chosen not only because of its location in a peaceful and tranquil area but
also because it had rights to water drawn from a water furrow that
traverses it and that of the individual respondents’ property (which I shall
refer to as the respondents’ farm).

[4] Shortly after taking occupation the appellant’s dream of a peaceful
retirement was dissipated (according to his affidavits) when he and his
fiancé found themselves afflicted by constant noise from a sawmill
operating on the respondents’ farm. The noise came from industrial wood
saws that were operated from early in the morning until 9pm on
weekdays and even on Saturdays and Sundays. In addition, heavy
vehicles delivering and moving logs also added their share of constant
noise disturbance. Sawdust and wood waste from the sawmill operation
were being stockpiled on the respondents’ farm resulting in dust pollution
onto the appellant’s farm, thus creating a potential fire hazard.

[5] The appellant’s further complaint related to the respondents’
failure to maintain the water furrow resulting in the pollution of the water
which the appellant draws from the furrow.

[6] The appellant’s pleas for assistance to the Koukamma Municipality
yielded no meaningful response. The local authority advised him that the
first respondent had applied for the rezoning of the property in order to
operate the sawmill business and that the application had been
conditionally approved. The approval was subject to conditions that
included (i) the erection of a 2.4m fence; (ii) the limitation of industrial
activity on the western side of the property; and (iii) the submission of an

environmental and health assessment report to the local authority. None
of these conditions were complied with, yet the unlawful activities
continued unabated. The appellant consequently applied for a prohibitory
interdict in the magistrates’ court.

[7] In their opposition the respondents raised two points in limine.
First, they pleaded non-joinder of the parties who have a substantial
interest in the matter such as the municipality and employees of the
sawmill business and the brick-making business. Second, they challenged
the jurisdiction of the magistrates’ court to determine the matter. Only the
latter issue is relevant to the present appeal. The respondents contended
that the magistrate had no jurisdiction to grant the interdict in that the
value of the matter in dispute was in excess of the R100 000 jurisdictional
limit of the magistrates’ court. The respondents contended that section
29(1)(g) of the Act, which sets the jurisdictional limit at R100 000, was
applicable and adduced evidence which established that the sawmill
business generated a net annual profit of more than R180 000, and that
the brick-making business had a monthly turnover of approximately R100
000.

[8] The points in limine were dismissed by the magistrate at Joubertina
who held that s 29(1)(g) was not applicable to an application for an
interdict under s 30(1) of the Act because s 29(1)(g) referred to ‘actions’
and not ‘applications’. Consequently, the magistrate concluded that he
had jurisdiction in the matter and granted the application for a prohibitory
interdict in the appellant’s favour.

[9] The respondents appealed successfully to the Eastern Cape High
Court. The court held that s 29(1)(g) was applicable to an application for

an interdict under s 30. The court held that since the value of the matter in
dispute was in excess of R100 000, the plea of lack of jurisdiction was
sound and ought properly to have been upheld by the magistrate. The
order granting the interdict was set aside and replaced with an order
dismissing the application with costs.

[10] The appellant now appeals to this court with the leave of the court
a quo. The central issue for decision is the inter-relation between the
magistrate’s jurisdiction to grant an interdict under s 30(1) and s 29(1)(g)
of the Act. The respondents were not represented in argument before us.

[11] It is convenient to quote the relevant sections at the outset. Section
30 of the Act provides as follows:
‘30 Arrests and Interdicts
(1)
Subject to the limits of jurisdiction prescribed by this Act, the court may
grant against persons and things orders for arrest tanquam suspectus de fuga,
attachments, interdicts and mandamenten van spolie.’ (Emphasis added)

[12] Section 29(1)(g) provides as follows:
‘29 Jurisdiction in respect of causes of action
(1)
Subject to the provisions of this Act and the National Credit Act, 2005, the
court in respect of causes of action, shall have jurisdiction in –
(a)
. . .
(g)
actions other than those already mentioned in this section, where the claim or
the value of the matter in dispute does not exceed the amount determined by the
Minister from time to time by notice in the Gazette.’ [ie R100 000] (Emphasis added)

[13] The wording of the two sections is clear and unambiguous and the
ordinary meaning of the words ought to be given effect. On a proper
reading of s 30(1) of the Act it is clear, I think, that the magistrate’s

power to grant the interdict is circumscribed. The section provides that a
magistrate may grant certain orders including interdicts, subject to the
limits of jurisdiction prescribed by the Act. The search for the ‘limits’
referred to in s 30(1) leads one inevitably to ss 28 and 29 of the Act and
the conclusion is, to my mind, unavoidable that the qualification ‘subject
to the limits of jurisdiction prescribed’ by the Act is a reference to s 29
(relating to the limits of jurisdiction in respect of matters referred to in the
section). (See Mans v Marais;1 Sellars NO v Grobler NO;2 Badenhorst v
Theophanous.3) We are not concerned in this case with s 28 of the Act
which relates to jurisdiction in relation to persons.

[14] The approach adopted by Goosen AJ in the court below, where he
discusses the interrelationship between ss 28, 29 and 30, cannot be
faulted. The magistrate’s conclusion that s 29 was inapplicable to the
grant of an interdict under s 30(1) because s 29(1)(g) refers to ‘actions’, is
clearly incorrect. It seems to me that the two sections (30 and 29)
complement each other and where the limit of the magistrate’s
jurisdiction are required to be determined in interdict proceedings, in so
far as the value of the matter in dispute is concerned, the two sections
ought to be read together. Section 29 speaks to the value of the matter in
dispute and s 30 limits the jurisdiction of the magistrate’s court to the
limit set out in s 29, which at the present moment by regulation is fixed at
R100 000. In my view, this accords with the limitation placed on the
magistrates’ courts’ jurisdiction as a creature of statute. To follow the
approach adopted by the magistrate, which in effect places no
jurisdictional limit at all on interdict orders granted in that court, cannot
be correct, and would result in the magistrates’ court exercising parallel

1 1932 CPD 352 at 357.
2 1961 (3) SA 583 (T) at 585A-H.
3 1988 (1) SA 793 (C) at 797A.

jurisdiction with the high court, a consequence which could never have
been contemplated by the legislature.

[15] To hold, as the magistrate did in this case, that s 29 of the Act is
not applicable to interdict orders granted under s 30 because s 29 refers to
‘actions’ displays a lack of appreciation of the interplay between the two
sections (ie 29 and 30). In Mans v Marais the interplay between the two
sections and how they complement each other was neatly illustrated by
Gardiner JP, where he rejected a contention similar to the approach
adopted by the magistrate to the effect that s 29 applied only to actions.
The learned judge said (at 357):
‘It is contended that as this section refers throughout to actions, one of the limits upon
the magistrate’s jurisdiction is that he can try only actions, or matters connected with
actions. But is seems to me a fair construction to apply is to say that the “limits”
provided by sec. 29 are limits of amount. Actions are not limits, but are the things to
which the limits are to be applied. By sec. 29 the limits are applied as actions; by sec.
30 they are applied to arrests, attachments, interdicts and mandamenten van spolie. A
writ of spoliation cannot be granted by a magistrate’s court where the value of
property seized exceeds £200; that is the limit by which the magistrate’s jurisdiction
is confined, whether he is hearing an application for a spoliation order, or is trying an
action.’
It follows that s 29(1)(g) is applicable to interdicts granted by the
magistrate under s 30, and the section operates to set the jurisdictional
limit of the value of the subject matter in dispute and other specific
matters referred to in s 29.

[16] The central question this case raises, however, is how to determine
‘the value of the matter in dispute’. The issue in dispute between the
parties is the alleged nuisance emanating from the respondents’ unlawful
activities. The abatement of the nuisance is capable of quantification and

so the jurisdictional limits of the magistrates’ court can be determined
without difficulty. Although the court below correctly identified the issue
as being the ‘alleged nuisance’, it attached value to the businesses rather
than the subject matter in dispute, which was the abatement of the
unlawful activities. In this regard the court erred. It is that conduct or the
cost of the abatement of the unlawful activities to which value had to be
attached and not the businesses per se. If the cost of abating the nuisance
was in excess of R100 000 the magistrate would clearly have had no
jurisdiction in the matter. The respondents simply provided evidence of
the yearly profit and monthly turnover of their businesses, which the high
court accepted as conclusive in relation to the jurisdictional limits. That
was in my view wrong. The question was not, what was the turnover and
profit of the businesses creating the offending nuisance? It was, what
would be the cost to the respondents of complying with the conditions
attached to the provisional municipal permission, so as to abate the
nuisance? On this they led no evidence at all.

[17] The difficulties that might arise if the value of the subject matter in
dispute is misallocated, as happened in the present matter, are illustrated
by Williamson J in Le Roux v Le Roux.4 The learned judge gives an
example of a dispute in relation to a domestic helper’s room in a block of
flats. The judge points out that it would be illogical in those
circumstances, and it might lead to absurd results, to determine
jurisdiction by reference to the value of the entire block of flats when the
dispute relates only to one room. By parity of reasoning the matter in
dispute in the present case relates to that component of the case which
bears on the unlawful activities giving rise to the nuisance and not the
lawful conduct of the business. As already indicated, the abatement of the

4 1980 (2) SA 632 (C) at 635A.

nuisance was capable of quantification and (as I shall now show) it was
incumbent upon the respondents to prove the cost of abating the nuisance.

[18] The onus was on the respondents to prove that the matter fell
beyond the jurisdiction of the magistrates’ court. The substantive plea
challenging the jurisdiction (exceptio fori declinatoria) was raised by the
respondents and they accordingly bore the onus of proving the facts upon
which their plea was based (Munsamy v Govender5). What the
respondents were required to do in order to abate the nuisance was to
erect a 2.4m wall, to limit industrial activity on the western side of the
property and to cause an environmental and health assessment report to
be compiled and submitted to the local authority. No evidence was placed
before the magistrate as to what these steps would cost. Had the
respondents proved that it would have cost them more than the
jurisdictional limit of R100 000 they might have been able to create a
jurisdictional obstacle for the appellant. They failed to do this.

[19] It follows that the appeal must succeed with costs and the order
granted by the magistrate reinstated. The order of the court a quo is set
aside and replaced with an order that the appeal is dismissed with costs.

________________________
KK MTHIYANE
JUDGE OF APPEAL

5 1950 (2) SA 622 (N) at 624.

Appearances:

For Appellant:
P E Jooste

Instructed by:
Nel Mentz Inc Humansdorp

Honey Attorneys Bloemfontein

For Respondents: No Appearance

Landman Steyn & Ellis Humansdorp

Lovius Block Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:

26 September 2008

Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not form part of the
judgment of the Supreme Court of Appeal.

BOTHA v ANDRADE (578/2007) [2008] ZASCA 120 (26 September 2008).

Mr Nico Botha, an owner of a farm in Twee Rivieren in Joubertina succeeded today, in getting the Supreme
Court of Appeal to reinstate a prohibitory interdict which a magistrate of Joubertina had granted in his
favour, restraining the owners of a neighbouring farm from conducting a saw mill business and a brick
making business on their farm, contrary to the municipal zoning of the property under the town planning
scheme. The operation of the two businesses created nuisance in the form of noise disturbance, pollution
from sawdust, wood waste and brick works onto Botha’s farm.

The neighbouring farm owners had successfully appealed to the Eastern Cape High Court (before Goosen AJ
and Pickering J) which set aside the interdict granted by the magistrate on the basis that the magistrates’
court had no jurisdiction in the matter as the value of the businesses were more than R100 000, the monetary
jurisdictional limit of the magistrates’ court.
The SCA found that although the high court was correct in ruling that the limit of magistrates’ courts’
jurisdiction was R100 000, it nevertheless erred in attaching the value to the businesses rather than the
unlawful activities to which Botha’s complaint related and which were capable of quantification.

The SCA found that the neighbouring farm owners who bore the onus to do so, had placed no evidence
before the magistrate as to the cost of abating the nuisance caused by the unlawful activities and that it had
accordingly not been shown that the magistrate did not have jurisdiction to grant an interdict under s 30(1) of
the Magistrate’s Courts’ Act 32 of 1944.