THE DOCTRINE OF EFFECTIVENESS AND SOUTH AFRICAN COURTS

Written by Denisha Padachey
30 FEBRUARY 2023

INTRODUCTION

When determining whether to approach a competent court for relief, one must consider whether the court has the necessary jurisdiction to adjudicate over the matter and whether a subsequent order granted by that court can be given effect within South Africa.

WHAT IS THE DOCTRINE OF EFFECTIVENESS?

The Doctrine of Effectiveness is a common law principle that essentially states that a court shall not exercise jurisdiction over a matter unless it can give an effective judgment. In other words, a court can only grant an order where compliance thereof can be expected and where non-compliance thereof can be dealt with accordingly in terms of South African law.

WHY IS THE DOCTRINE OF EFFECTIVENESS RELEVANT?

The matter of Nowete Transport (Pty) Ltd v Kanjee and Other (UM33/2020) [2021] ZANWHC 50 (18 February 2021) refers to a previous judgement and confirms that “the guiding principle is that our courts will not exercise jurisdiction unless effect can be given to the judgement, and there is nothing to prevent the court from giving effect to a judgement for damages where the defendant is resident within its jurisdiction.”

The above statement confirms that the Doctrine of Effectiveness is a practical question that relates to the execution of an order, meaning that either the relevant local authority or a competent court must have the necessary power to execute and ensure compliance with the order. The Doctrine of Effectiveness is thus relevant, as it assists a court in determining whether it has the necessary jurisdiction to effectively adjudicate over a matter.

WHAT SHOULD BE CONSIDERED WHEN DEALING WITH THE DOCTRINE OF EFFECTIVENESS?

When attempting to deal with the practical question of effectiveness, one consideration is whether a defendant resides within the borders of South Africa. The reason for this consideration is due to the fact that if a defendant resides in South Africa, an effective judgment can be granted as the order can be enforced by the local authority by execution, attachment, and/or contempt proceedings. In the alternative, where a defendant does not reside in South Africa, the effectiveness of a court order is questionable, and jurisdiction must be confirmed. Generally, where a defendant does not reside in South Africa, a court will look at whether they have some control over the person or, alternatively, some control over a person’s property that is located within South Africa in order to confirm the jurisdiction and the court’s ability to grant an effective order.

CONCLUSION

In light of the above article, it is clear that the Doctrine of Effectiveness has relevance within South African courts and that it should be considered when determining whether to approach a competent court for relief, as it attempts to ensure that any relevant court proceedings are not futile for the institution.

Should you require assistance in determining whether your specific set of circumstances warrant approaching a competent court and whether said competent court can effectively adjudicate over your matter, do not hesitate to contact one of Burger Huyser Attorneys’ legal experts to schedule an appointment.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE