Frank Mhlongo and Others v Tryphina Mokoena N O and Others

The appellants were beneficiaries of the Nhlangwini Community Trust who brought an application in the Gauteng Division of the High Court, Pretoria seeking orders compelling the Trustees to furnish various documents including bank statements and information about funds. The eighth respondent (the trustees' attorneys) raised a preliminary objection contending that the Gauteng Division lacked jurisdiction because the farm owned by the Trust was situated in Mpumalanga. The eighth respondent relied on Gauteng Division Practice Directive No 1 of 2015, which purported to oust the Gauteng Division's jurisdiction over matters arising from magisterial districts in Mpumalanga. The appellants contended that the High Court had jurisdiction under section 21(2) of the Superior Courts Act 10 of 2013 because the Master's office was in Pretoria, and two respondents practiced in Johannesburg. The High Court upheld the preliminary point and dismissed the application for lack of jurisdiction.

• Whether the Gauteng Division of the High Court, Pretoria had jurisdiction to hear the application
• Whether the Judge President of the Gauteng Division had the power under section 7(1) of the Superior Courts Act to exclude the jurisdiction of the Gauteng Division in respect of matters arising in circuit court areas through a practice directive, prior to the Minister of Justice promulgating a notice under section 6(3) establishing the Mpumalanga Division as a separate Division
• Whether a practice directive can oust jurisdiction conferred by statute
• Whether a Judge President can use a practice directive to alter jurisdictional boundaries that fall within the exclusive power of the Minister under section 6(3) of the Superior Courts Act

The appeal was upheld with costs. The order of the Gauteng High Court, Pretoria was set aside and replaced with an order dismissing the eighth respondent's point in limine pertaining to jurisdiction with costs. Clause 1.5 of Gauteng Division Practice Directive No 1 of 2015 was declared null and void ab initio and set aside.

Practice directives may not derogate from legislation that has binding force. A Judge President's power under section 7(1) of the Superior Courts Act to establish circuit courts and alter their boundaries does not extend to the power to determine or alter the jurisdictional areas of Divisions, which power is reserved exclusively to the Minister under section 6(3) of the Superior Courts Act. Circuit courts established under section 7(1) are not self-standing Divisions but remain circuit courts of the parent Division, creating concurrent jurisdiction with the main Division. A practice directive that purports to oust the statutory jurisdiction of a Division is ultra vires and invalid. Where a court has jurisdiction under section 21 of the Superior Courts Act, that jurisdiction cannot be removed by a practice directive. Until the Minister publishes a notice under section 6(3) establishing a new Division, the parent Division retains its jurisdiction over the area. Where a preliminary point is upheld without the merits being considered, the appropriate order is to strike the matter off the roll, not to dismiss it.

In a concurring judgment, Makgoka JA observed that jurisdiction is a matter of law, not discretion or equity. Sections 173 (inherent power to regulate process) and 34 (access to courts) of the Constitution are irrelevant to the enquiry as to whether a court has jurisdiction. A court cannot use section 173 to assume jurisdiction it does not have, nor to oust jurisdiction it does have. The judgment also discussed and overruled aspects of the decision in First National Bank v Lukhele [2016] ZAGPPHC 616, particularly to the extent it held that plaintiffs were obliged to institute actions in the circuit court closest to the defendant's place of residence. Following this Court's decision in Standard Bank of SA Ltd v Thobejane [2021] ZASCA 92, it was confirmed that a plaintiff has the substantive right to choose the forum in which to institute proceedings where courts have concurrent jurisdiction, and a main seat of a Division is obliged to entertain matters that fall within the jurisdiction of a local seat of that Division.

This case is significant in South African jurisprudence as it clarifies the relationship between statutory provisions and practice directives, confirming that practice directives cannot override or derogate from legislation. It establishes the constitutional and statutory limits on the powers of a Judge President in relation to determining jurisdictional boundaries, reaffirming that only the Minister of Justice has the power under section 6(3) of the Superior Courts Act to determine the area under the jurisdiction of a Division. The judgment also clarifies the operation of section 21 of the Superior Courts Act regarding concurrent jurisdiction, and reinforces that circuit courts established under a Division do not constitute separate Divisions unless and until formally constituted by the Minister. It provides important guidance on the separation of powers between the judiciary and the executive in matters of court administration and jurisdiction.