Wits Law resting place

March 7, 2006

Prohibitory interdicts in the Magistrates Court

Filed under: Civil Procedure — Paul @ 11:01 pm

Section 30 of the Magistrates’ Court Act makes provision for interdicts.  Subsection 30(1) provides as follows:

"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."

One question which arises is what the "limits of jurisdiction" referred to in the subsection are.  The notes, on page 68, state as follows:

"It has been held that s 30(1) of the Magistrates’ Court Act, which authorises civil Magistrates’ Courts to grant inter alia interdicts, has to be read subject to the exclusionary provisions of s 46.  Therefore, a magistrate may not grant an order for the performance of a positive contractual obligation (ie a mandatory interdict) or an order enforcing a negative contractual obligation (ie a prohibitory interdict, such as a restraint-of-trade agreement) in the absence of an alternative claim for damages."

This portion of the notes is partially correct.  Subsection 46(2)(c) does indeed preclude the Magistrates’ Courts from granting interdicts which amount to orders for the performance of a contractual obligation and while this may appear to be one of the "limits of jurisdiction" referred to in subsection 30(1), the phrase "limits of jurisdiction" is actually a reference to the limitations imposed by sections 28 and 29 and not section 46.  According to the commentary to subsection 30(1) in Jones & Buckle, The Civil Practice of the Magistrates’ Courts of South Africa -

"The power to grant any of the above orders [including an interdict] is ‘subject to the limits of jurisdiction prescribed by this Act’.  The ‘limits of jurisdiction’ referred to in this subsection are those contained in ss 28 and 29 of the Act; consequently no order can be made in respect of any person or thing unless the court has jurisdiction over him or it in terms of ss 28 and 29, or has acquired it by means of an attachment under s 30bis. "The powers given to a magistrate under this section are not qualified or curtailed by s 46(2)(c), which provides that a magistrate’s court shall have no jurisdiction in matters in which is sought specific performance without an alternative of payment of damages.  Section 29 deals with limitations of causes of action while s 46 prohibits the magistrates’ court from having jurisdiction to deal with certain matters: the reference in s 30 to limits of jurisdiction prescribed by the Act is a reference to the limitation section, s 29, and not to the prohibition section, s 46.  In Zinman v Miller it was stressed that ‘s 46(2)(c) deals with quite a different type of claim to that dealt with in s 30(1)’."

One of the cases referred to in the above extract was Badenhorst v Theophanous 1988 (1) SA 793 (C). Essentially, where the effect of a prohibitory interdict is to enforce specific performance of a contractual provision, subsection 46(2)(c) operates to preclude the court from granting such an order.  On the other hand, where the effect of a prohibitory interdict is otherwise, you have regard to sections 28 and 29 to determine whether the court is limited by some other restriction contained in those sections and not to the provisions of subsection 46(2)(c).

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