Moffat Mungazi
Trust Maanda
Legal Position
AS was discussed last week, the Magistrates’ Court is created by Statute, the Magistrates’ Court Act which defines the limit to that court’s jurisdiction. Jurisdiction is generally the power vested in a court of law to adjudicate upon, determine and dispose of a matter.
While the Magistrates’ Court has specific powers to do certain things, there are some powers it is not permitted to exercise, in civil cases.
This is unlike the High Court which has inherent jurisdiction, which is the power of a court to regulate its own processes and to hear any matter that falls within its purview, even in the absence of explicit statutory authority.
This power gives the court the ability to administer justice effectively, and to avoid any gaps in the legal framework.
This is so because the Magistrates’ Court, being a creature of Statute, can only function within the confines and parameters set by the Statute that creates it. It cannot exercise any powers not given to it or expressly taken from it by the statute.
Section 14 of the Magistrates’ Court Act provides for instances when the Magistrates’ Court has no jurisdiction.
The court has no jurisdiction in or cognisance of any action for the dissolution of a marriage, other than a customary law marriage.
It similarly has no jurisdiction to deal with a suit for an order of separation from bed and board or of goods of spouses of a marriage that is not customary.
The court cannot declare a marriage other than one under customary law, a nullity.
A civil marriage can only be declared a nullity by the High Court, which has inherent jurisdiction.
The Magistrates’ Court cannot entertain disputes relating to the validity or interpretation of a written will or other testamentary document where they are in question. A dispute on the validity or interpretation of the contents of a will must be taken to the High Court.
The court has no jurisdiction to order the specific performance of an act where such is sought without an alternative of payment of damages.
An order of specific performance is where a party to a contract seeks to force the defaulting party to perform the contract in strict accordance with the agreed terms.
Where that party seeks an order for performance of the agreed terms, he or she cannot bring the action to the magistrate court, unless the order sought is coupled with an alternative that the defaulting party must pay damages in lieu of performance. Where there is no alternative claim for damages, an order for specific performance cannot be sought and granted in the Magistrates’ Court.
A Magistrates’ Court cannot order the delivery or transfer of property, movable or immovable, if its value exceeds the such amount as may be prescribed in rules. It can only order delivery if the value is within the prescribed monetary limit.
The Magistrates’ Court cannot order a decree of perpetual silence.
This is a decree that a litigant, who files vexatious and persistently pestering and baseless claims against another, on the same or related subject matter, must not file any legal claim against that other person unless he or she first gets a court order granting him or her permission to sue.
The Magistrates’ Court is precluded from granting provisional sentence, which is a procedure by which a creditor obtains swift remedy against a debtor where the creditor is armed with an unequivocal and clear acknowledgment of debt by the debtor.
A court shall not have jurisdiction in any case relating to the validity, effect or interpretation of an oral will made in terms of the Wills Act [Chapter 6:06], unless, but shall have jurisdiction if the testator of the will concerned was normally resident within the province either when he made the will or when he died; or the testator of the will concerned was born within the province, or the majority, by number or value, of the beneficiaries under the will concerned were normally resident within the province when the testator died.
Alternatively, the will must have been made within the province; or that the will disposes of any interest in immovable property which is situated within the province.
These and other grounds exclude the power of the magistrate from exercising jurisdiction.
Any judgment given in excess of the jurisdiction of a court which is not one of inherent jurisdiction is a nullity. Where the magistrate entertains a matter which is beyond his or her jurisdiction, the proceedings are a complete nullity.
Before you bring any action before the Magistrates’ Court, make sure you check what matters the magistrate can and cannot entertain.
If you are the defendant, check if the court has jurisdiction to entertain the claim.
You can object to the court’s jurisdiction if the claim is not within the Magistrates’ Court jurisdiction.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
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