2.4
Section 45
Consent to jurisdiction Section 45 reads as follows: “Jurisdiction by consent of parties.—(1) Subject to the provisions of section forty-six, the court shall have jurisdiction to determine any action or proceeding otherwise beyond the jurisdiction, if the parties consent in writing thereto: Provided that no court other than a court having jurisdiction under section twenty-eight shall, except where such consent is given specifically with reference to particular proceedings already instituted or about to be instituted in such court, have jurisdiction in any such matter.”
Some debt collectors reason that section 45 allows for competent consent to the jurisdiction of a Magistrate’s Court that will ordinarily not have jurisdiction. Therefore, where the employer is resident within the jurisdiction of the Pretoria Magistrate’s Court, the argument allows for section 45-consent to e.g. the Winburg Magistrate’s Court. This method is used within the context of sections 57, 58 and 65 of the MCA, which mechanisms are primarily used by legal practitioners to collect debts on behalf of clients. The procedures related to the aforementioned sections are circumscribed in these specific sections of the MCA and MCR. However, sections and rules of a general nature that do not fall to be specified within the constraints of the mentioned debt collection methods are applied within the context of debt collection to facilitate the process. Therefore, in practice, parties consent to the jurisdiction of a particular Magistrate’s Court, to process their applications in terms of sections 57, 58 and 65 in various jurisdictions by virtue of their consent to the jurisdiction of these courts. Simultaneously with this process, debtors also consent to the issuing of an EAO from the same court to whose jurisdiction they have consented to judgment, which is not the court which has jurisdiction in terms of section 65J. Various opinions exist as to the nature and scope of section 45 and the following aspects need to be clarified: Whether section 45 is relevant where the parties desire that the proceedings be dealt with by a court which would generally not have geographical jurisdiction as the Magistrate’s Court does have jurisdiction to grant requests for judgment in terms of sections 57 and 58 and emoluments attachment orders;
© BE at UP 2013 | www.be.up.co.za
101 | P a g e