Zwelibanzi Utilities (Pty) Ltd t/a Adams Mission Service Centre v TP Electrical Contractors CC

The respondent sued the appellant in the Durban Magistrates’ Court in 2004 for payment of the balance due under a contract for electrical installation services. The appellant pleaded to the merits and filed a counterclaim for damages, thereby joining issue. Only after pleadings had closed did the appellant seek to amend its plea to raise a special plea that the Durban Magistrates’ Court lacked jurisdiction because the appellant neither resided nor carried on business within the court’s area. The magistrate dismissed the special plea, holding that the appellant had acquiesced in the court’s jurisdiction. An appeal to the KwaZulu-Natal High Court was dismissed, and the matter proceeded on further appeal to the Supreme Court of Appeal.

The appeal was dismissed with costs.

The case authoritatively confirms that objections to the jurisdiction of magistrates’ courts must be raised before litis contestatio. It clarifies the operation of s 28(1)(f) of the Magistrates’ Courts Act in line with the common law, reinforcing procedural certainty and preventing defendants from raising jurisdictional challenges late in litigation.