THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no. 1059/2020
In the matter between:

TMT SERVICES & SUPPLIES (PTY) LTD
t/a TRAFFIC MANAGEMENT TECHNOLOGIES

APPELLANT

and

THE MEC: DEPARTMENT OF TRANSPORT,
PROVINCE OF KWAZULU-NATAL

FIRST RESPONDENT

THE PREMIER, PROVINCE OF KWAZULU-NATAL         SECOND RESPONDENT

THE MEC: DEPARTMENT OF THE TREASURY,
PROVINCE OF KWAZULU-NATAL

THIRD RESPONDENT

THE HEAD OF DEPARTMENT: DEPARTMENT OF
TRANSPORT, PROVINCE OF KWAZULU-NATAL          FOURTH RESPONDENT

MTM KZN TRAFFIX (PTY) LTD

FIFTH RESPONDENT

Neutral citation:
TMT Services & Supplies (Pty) Ltd t/a Traffic Management
Technologies v MEC: Department of Transport, Province of KwaZulu-Natal and Others
(Case no. 1059/2020) [2022] ZASCA 27 (15 March 2022)

Coram:
Saldulker, Schippers, Plasket and Hughes JJA and Matojane AJA

Heard:
28 February 2022

Delivered:
This judgment was handed down electronically by circulation to the
parties’ representative via email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time of hand-down is deemed to be 10:00 am on
15 March 2022 .

Summary:
Promotion of Administrative Justice Act 3 of 2000 (the PAJA) –
jurisdiction of courts to review administrative action – definition of ‘court’ in s 1 of the
PAJA determines exclusively which courts have jurisdiction – s 21(1) of the Superior
Courts Act 10 of 2013 does not apply.

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Ndita J sitting
as court of first instance):
The appeal is upheld with costs.
The order of the court below is set aside and replaced with the following
order:
‘The point in limine to the effect that the court lacks jurisdiction to hear the
application is dismissed with costs.’
The matter is remitted to the court below.

JUDGMENT

Plasket JA (Saldulker, Schippers and Hughes JJA and Matojane AJA
concurring)

[1] In 2017 the Department of Transport in the KwaZulu-Natal provincial
government published Tender ZNB1366/17T entitled ‘Supply of Integrated Traffic
Contravention Management Systems to Road Traffic Inspectorate’. Bidders were
invited to tender for a five-year contract comprising of five components for managing
road traffic contraventions in the province, namely an integrated camera network, a
traffic contravention management system, a common interface of the various systems,
a fines and recovery system and a skills transfer component.

[2] Four entities responded to the tender. The appellant, TMT Services & Supplies
(Pty) Ltd, which traded as Traffic Management Technologies (TMT), was excluded at
an early stage of the process. The tender was awarded by the fourth respondent, the
Head of the Department of Transport in the KwaZulu-Natal provincial government (the
HOD), to the fifth respondent, MTM KZN Traffix (Pty) Ltd (Traffix). This decision was
taken on review by one of the other unsuccessful bidders, but the application was later
withdrawn. Thereafter, TMT launched a review application for the same relief.

[3] MTM launched its application in the Western Cape High Court, Cape Town (the
Western Cape court). The respondents who opposed the application1 took a number
of points in limine. One was that the Western Cape court did not have jurisdiction to
determine the review. This was the only issue dealt with by that court. Ndita J
dismissed TMT’s application with costs on the basis that it had ‘failed to establish that
this court has jurisdiction to hear and determine the review application’.

1 Three of the five cited respondents opposed the application. They were the first respondent, the MEC
for Transport in the KwaZulu-Natal provincial government, the HOD and Traffix. They are also the only
respondents to take part in this appeal.

[4] The parties agree that the learned judge’s words do not accurately reflect the
true basis upon which she dismissed the application. It is clear from the judgment that
she accepted that the Western Cape court had jurisdiction, but she declined to
exercise it. The sole issue for determination in this appeal is whether she was correct
in declining to exercise jurisdiction.

The facts
[5] TMT is domiciled and ordinarily resident in Cape Town, within the territorial
jurisdiction of the Western Cape court. The first to fourth respondents are functionaries
of the KwaZulu-Natal provincial government. All have their principal place of
administration in KwaZulu-Natal, within the territorial jurisdiction of the KwaZulu-Natal
Division of the High Court, Pietermaritzburg (the KwaZulu-Natal court). Traffix is
domiciled and ordinarily resident in KwaZulu-Natal.

[6] The tender was published by the Department of Transport in the KwaZulu-Natal
provincial government (the department). It invited bids for a contract in which the
successful bidder would be required to provide services to the department in respect
of traffic management in the province. The tender was regulated by the KwaZulu-Natal
Supply Chain Management Policy Framework. The KwaZulu-Natal Bid Appeals
Tribunal had jurisdiction in respect of the tender process. A condition of the contract
required the successful bidder’s project team to be based in Pietermaritzburg, the
capital of KwaZulu-Natal.

The statutory scheme
[7] The basis upon which TMT claimed that the Western Cape court had
jurisdiction was the definition of a court in s 1 of the Promotion of Administrative Justice
Act 3 of 2000 (the PAJA). A decision to award a tender is an administrative action as
defined in the PAJA.2 The result of that was spelled out by O’Regan J in Bato Star

2 Steenkamp NO v Provincial Tender Board, Eastern Cape [2006] ZACC 16; 2007 (3) SA 121 (CC);
2007 (3) BCLR 300 (CC) para 21; Chairperson, Standing Tender Committee and Others v JFE Sapela
Electronics (Pty) Ltd and Others [2005] ZASCA 90; 2008 (2) SA 638 (SCA) para 19; AllPay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social
Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) para 45.

Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others3 as
follows:
‘The cause of action for the judicial review of administrative action now ordinarily arises from
PAJA, not from the common law as in the past. And the authority of PAJA to ground such
causes of action rests squarely on the Constitution. It is not necessary to consider here causes
of action for judicial review of administrative action that do not fall within the scope of PAJA.
As PAJA gives effect to s 33 of the Constitution, matters relating to the interpretation and
application of PAJA will of course be constitutional matters.’

[8] Generally speaking, an applicant for judicial review of administrative action
‘cannot avoid the provisions of PAJA by going behind it, and seeking to rely on s 33(1)
of the Constitution or the common law’ because that would ‘defeat the purpose of the
Constitution in requiring the rights contained in s 33 to be given effect to by means of
national legislation’.4

[9] The PAJA gives effect to s 33(1) and (2) of the Constitution – the fundamental
rights to administrative action that is lawful, reasonable and procedurally fair, and to
reasons for adverse administrative actions.5 It does so by, inter alia, defining
administrative action; defining procedural fairness; creating a mechanism for obtaining
reasons; empowering courts to review administrative action; and providing for the
granting of remedies consequent upon an administrative action having been found
wanting. Chaskalson CJ, in Minister of Health and Another NO v New Clicks South
Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as amici
curiae),6 held that the PAJA ‘was passed to give effect to the rights contained in s 33’,
that it ‘was clearly intended to be, and in substance is, a codification of these rights’
and that it ‘was required to cover the field and purports to do so’.

See too Cora Hoexter and Glenn Penfold Administrative Law in South Africa (3 ed) (2021) at 258-262
(Hoexter and Penfold).
3 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC
15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) para 25.
4 Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action
Campaign and Another as amici curiae) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC)
para 96.
5 Constitution, s 33(3). See too the preamble of the PAJA.
6 Note 4 para 95.

[10] I believe it is fair to say that the heart of the PAJA comprises of s 6 and s 8 –
the power to review administrative action and to grant an appropriate remedy. That,
after all, is the principal way in which it gives concrete effect to the fundamental rights
to lawful, reasonable and procedurally fair administrative action.

[11] Section 6(1) provides that ‘[a]ny person may institute proceedings in a court . .
. for the judicial review of an administrative action’. Section 6(2) then codifies the
grounds upon which a court may review administrative action. The effect is that
administrative actions as defined in the PAJA are subject to review, in terms of s 6(1),
by a court on the basis of the grounds of review codified in s 6(2).7 Section 8 deals
with the remedies that may be awarded when administrative action is reviewed and
found to be either unlawful, unreasonable or procedurally unfair. Section 8(1) provides
that the ‘court . . . in proceedings for judicial review in terms of section 6(1), may grant
any order that is just and equitable’, including mandatory and prohibitory interdicts, the
setting aside of administrative action, declarators and, in exceptional circumstances,
substituting or varying administrative action and even directing the payment of
compensation.

[12] A ‘court’ is identified in s 6 and s 8 as the institution that has the power to review
administrative action and to grant remedies when administrative action has been found
to be irregular.8 Section 1 of the PAJA defines a court as follows:
‘(a)
the Constitutional Court acting in terms of section 167(6)(a) of the Constitution; or
(b)
(i)
a High Court or another court of similar status; or
(ii)
a Magistrate's Court for any district or for any regional division established by
the Minister for the purposes of adjudicating civil disputes in terms of section 2
of the Magistrates' Courts Act, 1944 (Act 32 of 1944), either generally or in
respect of a specified class of administrative actions, designated by the Minister
by notice in the Gazette and presided over by a magistrate, an additional

7 Joubert Galpin Searle Inc and Others v Road Accident Fund and Others 2014 (4) SA 148 (ECP) para
58.
8 In both s 6 and s 8 reference is also made to a ‘tribunal’, defined in s 1 as ‘any independent and
impartial tribunal established by national legislation for the purpose of judicially reviewing an
administrative action in terms of this Act’. Provision is thus made in the PAJA for the possibility, in the
future, of the establishment of specialist administrative tribunals to hear reviews either instead of, or in
addition to, courts. There appear to be no plans at present for the creation of such tribunals. See Hoexter
and Penfold at 711.

magistrate or a magistrate of a regional division established for the purposes
of adjudicating civil disputes, as the case may be, designated in terms of
section 9A;
within whose area of jurisdiction the administrative action occurred or the administrator has
his or her or its principal place of administration or the party whose rights have been affected
is domiciled or ordinarily resident or the adverse effect of the administrative action was, is or
will be experienced.’

[13] The definition of a court in the PAJA identifies the courts that have the power
to review administrative action and the circumstances in which the Constitutional
Court,9 a high court, or a court of similar status,10 and a magistrates’ court, may
exercise that jurisdiction. This definition, Hoexter and Penfold say, ‘contemplates wide
territorial jurisdiction for the high court, courts of similar status to it and designated
magistrates’ courts.11

[14] In the case of review proceedings in a high court, as in this matter, the following
high courts have jurisdiction: (a) the high court within whose area of jurisdiction the
administrative action ‘occurred’; (b) the high court within whose area of jurisdiction the
administrator who took the administrative action has their ‘principal place of
administration’; (c) the high court within whose area of jurisdiction the person whose
rights have been affected by the administrative action ‘is domiciled or ordinarily
resident’; and (d) the high court within whose area of jurisdiction ‘the adverse effect of
the administrative action was, is or will be experienced’.12

[15] It was argued on behalf of the respondents that s 1 of the PAJA must be read
with s 21(1) of the Superior Courts Act 10 of 2013. This section provides:

9 Section 167(6)(a) of the Constitution enables the Constitutional Court to grant direct access to it, when
to do so is in the interests of justice. In such an instance, it will be the court of first (and last) instance.
The definition vests it with jurisdiction to review administrative action in this capacity. Rule 18 of the
Constitutional Court’s rules regulates applications for direct access.
10 The Labour Court created by s 151 of the Labour Relations Act 66 of 1995, and the Land Claims
Court, created by s 22 of the Restitution of Land Rights Act 22 of 1994, are courts of similar status to
the high court. See s 151(2) of the Labour Relations Act and s 22(2) of the Restitution of Land Rights
Act which expressly make these courts specialized equivalents of the high court.
11 Hoexter and Penfold at 710, fn 86.
12 Director-General, Department of Home Affairs and Others v De Saude Attorneys and Another [2019]
ZASCA 46; [2019] 2 All SA 665 (SCA) para 37.

‘(1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes
arising and all offences triable within, its area of jurisdiction and all other matters of which it
may according to law take cognisance, and has the power-
(a)
to hear and determine appeals from all Magistrates' Courts within its area of
jurisdiction;

(b)
to review the proceedings of all such courts;
(c)
in its discretion, and at the instance of any interested person, to enquire into
and determine any existing, future or contingent right or obligation,
notwithstanding that such person cannot claim any relief consequential upon
the determination.’

The issues
[16] Four issues will be discussed below. They are the ambit and effect of the
definition of a court in the PAJA; the principles that apply when more than one court
has jurisdiction; whether an abuse of process was committed by TMT when it instituted
its review application in the Western Cape court; and whether s 6 of the PAJA vests a
discretion in a court to decline to exercise jurisdiction to review administrative action.

The definition of a court in the PAJA
[17] The argument that the definition of a court in the PAJA had to be read with s
21(1) of the Superior Courts Act, and limited the operation of the former, found favour
with the court below. Its judgment effectively grafted additional requirements onto the
jurisdictional factors in the definition. Those were considerations of ‘convenience,
effectiveness and common sense’ that, the court below held, were ‘still relevant’. I do
not understand how s 21(1) affects the question to be answered in this matter. All it
does, is to confirm that a high court has a general jurisdiction to deal with all matters
arising within its area of jurisdiction, and the courts have held that in applying its
provisions, they should be guided by considerations of convenience and common
sense.13

[18] The court below found support, in some of the judgments cited by it, for the
inclusion of considerations of ‘convenience, effectiveness and common sense’ in order
to restrict the application of the definition of a court in the PAJA. I note that the decision

13 See, in particular, Estate Agents Board v Lek 1979 (3) SA 1048 (A) at 1067C-E.

of this court in Director-General, Department of Home Affairs and Others v De Saude
Attorneys and Another14 was not referred to by the court below. That case made no
mention of s 21(1) of the Superior Courts Act and upheld the jurisdiction of the court
below on the basis of the PAJA exclusively, including on the basis that the respondents
had ‘their offices within the area of jurisdiction’ of the Western Cape court.15

[19] The issue was also considered in Maleka v Health Professions Council of SA
and Another.16 The applicant lived and practised as a medical practitioner in
Queenstown in the Eastern Cape. His name was removed from the register of medical
practitioners by the first respondent. He took that administrative decision on review to
the Eastern Cape high court in Grahamstown. It was argued by the first respondent
that the definition of a court in the PAJA was subject to the common law. That meant,
in terms of Jasat v Interim Medical and Dental Council,17 a case that pre-dated the
coming into force of the PAJA, that the court with jurisdiction was that which had
jurisdiction in respect of the place where the register was held – in Pretoria – and not
the court with jurisdiction in respect of where the applicant resided and practised – in
Grahamstown.

[20] Jones J concluded:18
‘The argument on behalf of the first respondent is that the Promotion of Administrative [Justice]
Act is no more than a codification of the common law, that it does not intend to extend the
common law, and that its provisions should be interpreted in harmony with the common law.
Hence, I should interpret its provisions relating to jurisdiction so as to be in line with the
common law decisions on jurisdiction. If I do that I must interpret the definition of “court” in
section 1 restrictively by reading into the definition a proviso to the effect that a court with
jurisdiction is a court of ordinary residence or a court where the effect of the administrative
[action] is experienced, provided that there is also a common law ratio for jurisdiction. I cannot
believe that such an interpretation is permissible. It is not part of the wording and does not
arise from it by necessary implication. In my view the intention of the Act is to give wide, not

14 Note 12.
15 See, in particular, paras 37 and 64.
16 Maleka v Health Professions Council of SA and Another [2005] 4 All SA 72 (E).
17 Jasat v Interim Medical and Dental Council 1999 (1) SA 156 (N). Jasat had sought to distinguish
Estate Agents Board v Lek (note 13) but Jones J was not convinced that there was merit in the
distinction that was sought to be drawn.
18 Para 13.

restricted, protection against unfair administrative action, which implies greater, not more
restricted, jurisdiction. What is the object of giving a court of ordinary residence jurisdiction if
that is not enough for jurisdiction? When the Act was passed the legislature was surely aware
of the decision in Jasat’s case. If so, the conclusion is inevitable that it intended by its wording
of the definition of court to give jurisdiction where Jasat’s case had previously denied it.’

[21] I add but one observation. In Bato Star, O’Regan J said that because the PAJA
gives effect to s 33 of the Constitution, matters concerning its interpretation and
application ‘will of course be constitutional matters’.19 In S v Zuma and Others,20
Kentridge AJ made the point that ‘constitutional rights conferred without express
limitation should not be cut down by reading implicit restrictions into them, so as to
bring them into line with the common law’. In my view, the same principle holds true in
this instance.

[22] I agree with Jones J’s reasoning and with the conclusion arrived at by him that
the question of jurisdiction in respect of the judicial review of administrative action is
to be determined with reference to the definition of a court in s 1 of the PAJA
exclusively. To the extent that the cases cited by the court below relied on factors
additional to those in the PAJA, those decisions are, in my view, not correct.21

[23] There is nothing in the language, context or purpose of the definition of a court
in the PAJA that justifies the inclusion of additional factors relevant to jurisdiction,
particularly with a view to restricting the jurisdiction of the courts mentioned in the
section. This is so for the following reasons.

[24] First, the definition vests jurisdiction in the courts mentioned in unqualified
terms. Had s 21(1) of the Superior Courts Act (or its predecessor, s 19 of the Supreme
Court Act 59 of 1959) been intended to apply in addition, one could reasonably have
expected the legislature to have said so.

19 Note 3 para 25.
20 S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) para 15.
21 See in particular, Mahony NO and Others v Member of the Executive Council for Health and Social
Development, Eastern Cape and Others WCHC case no.1444/15 unreported; Johnson and Others v
Minister of Home Affairs and Others [2014] ZAWCHC 101.

[25] Secondly, the definition of a court in the PAJA relates to jurisdiction in one
specific, specialised and limited area of law – the judicial review of administrative
action. It is a self-contained definition for that purpose and the grafting on of other,
general, jurisdictional requirements is at odds with this purpose.

[26] Thirdly, the extended approach to judicial review jurisdiction that the
respondents contend for is, to borrow a term from Natal Joint Municipal Pension Fund
v Endumeni Municipality,22 one that leads to ‘insensible and unbusinesslike results’: it
would introduce intolerable uncertainty where there was otherwise none, because
whenever a party relied on domicile or ordinary residence, or the location of the effect
of the administrative action, for jurisdiction, they would open up a dispute as to the
suitability of their choice of forum that could lead to them being non-suited despite the
clear terms of the PAJA. In other words, an applicant for judicial review relying on
these bases for jurisdiction would have no way of knowing in advance whether a court
would or would not exercise jurisdiction.

[27] Finally, the purpose of the PAJA must be taken into account. It is primarily to
give effect to the fundamental rights, contained in s 33 of the Constitution, to lawful,
reasonable and procedurally fair administrative action and to reasons for adverse
administrative action. A broad, inclusive and unqualified jurisdiction regime promotes
this purpose and the fundamental right of access to court,23 while the approach
contended for by the respondents restricts it. If one considers the origin of the ordinary
residence or domicile, and location of the adverse effect, grounds for jurisdiction,
namely Estate Agents Board v Lek,24 they were expressly intended to give effect,
through s 19 of the Supreme Court Act ironically, to effective access to court. Trollip
JA stated that as the ‘inhibitory effect’ of the board’s decision ‘hit respondent in Cape
Town where he is resident and has his business’ and because he was ordinarily
resident within the area of jurisdiction of the Western Cape court, it had jurisdiction: it
was, after all, the court ‘immediately at hand and easily accessible to him and to which
he would naturally turn for aid in seeking to have the diminution in his legal capacity

22 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA) para 18.
23 Constitution, s 34.
24 Note 13.

or personality remedied’.25 The PAJA has codified the jurisdictional grounds
recognized by Lek without qualification.

[28] I conclude therefore that in order to decide which high court has jurisdiction in
a review of administrative action in terms of the PAJA, the complete and exclusive
answer is to be found in the definition of a court in s 1. Section 21(1) of the Superior
Courts Act has no application.

Concurrent jurisdiction
[29] Two divisions of the high court have jurisdiction in this matter. The KwaZulu-
Natal court has jurisdiction because the administrative action was taken in KwaZulu-
Natal and because the administrative decision-maker has their principal place of
administration in KwaZulu-Natal. The Western Cape court has jurisdiction because
TMT – the person whose rights were affected by the administrative action – is
domiciled and ordinarily resident in the Western Cape.

[30] The question now to be answered is whether, in the light of the fact that two
courts had jurisdiction, it was open to the Western Cape court to decline to exercise
its jurisdiction. This requires a consideration of the principles that apply when more
than one court has jurisdiction. This issue was considered by this court fairly recently
in Standard Bank of South Africa Ltd and Others v Mpongo and Others.26 It concerned
various issues relating to the concurrent jurisdiction of high courts and magistrates’
courts, on the one hand, and of main seats and local seats of divisions of the high
court, on the other. In deciding these issues, it relied on and applied general principles
relating inter alia to concurrent jurisdiction. The principles that I draw from it apply with
equal force to the situation that pertains in this matter, namely the concurrent
jurisdiction of two different divisions of the high court.

[31] The first question that arises is who chooses the forum. In Standard Bank,
Sutherland AJA answered this question as follows:27

25 At 1067C-E.
26 Standard Bank of South Africa Ltd and Others v Mpongo and Others [2021] ZASCA 92; 2021 (6) SA
403 (SCA).
27 Para 25.

‘Self-evidently, litigation begins by a plaintiff initiating a claim. Axiomatically, it must be the
plaintiff who chooses a court of competent jurisdiction in just the same way that a game of
cricket must begin by a ball being bowled. The batsman cannot begin. This elementary fact is
recognised as a rule of the common law, founded, as it is, on common sense.’

[32] Sutherland AJA affirmed28 this court’s decision in Makhanya v University of
Zululand,29 in which Nugent JA stated in relation to the concurrent jurisdiction of the
high court and the labour court:
‘Some surprise was expressed in Chirwa at the notion that a plaintiff might formulate his or
her claim in different ways and thereby bring it before a forum of his or her choice but that
surprise seems to me to be misplaced. A plaintiff might indeed formulate a claim in whatever
way he or she chooses – though it might end up that the claim is bad. But if a claim, as
formulated by the claimant, is enforceable in a particular court, then the plaintiff is entitled to
bring it before that court. And if there are two courts before which it might be brought then that
should not evoke surprise, because that is the nature of concurrent jurisdiction. It might be
that the claim, as formulated, is a bad claim, and it will be dismissed for that reason, but that
is another matter.’
Nugent JA also explained the mechanics of concurrent jurisdiction when he said that
a litigant ‘who has a claim that is capable of being considered by either of two courts
that have concurrent jurisdiction must necessarily choose in which court to pursue the
claim and, once having made that election, will not be able to bring the same claim
before the other court’.30

[33] In order to cater, inter alia, for any undue prejudice that the choice of forum may
have for a defendant or respondent, the Superior Courts Act makes provision for the
transfer of matters from one court to another. Section 27(1) provides:
‘If any proceedings have been instituted in a Division or at a seat of a Division, and it appears
to the court that such proceedings-
(a)
should have been instituted in another Division or at another seat of that
Division; or

(b)
would be more conveniently or more appropriately heard or determined-

(i)
at another seat of that Division; or

28 Para 32.
29 Makhanya v University of Zululand [2009] ZASCA 69; 2010 (1) SA 62 (SCA) para 34.
30 Note 29 para 27.

(ii)
by another Division,
that court may, upon application by any party thereto and after hearing all other parties thereto,
order such proceedings to be removed to that other Division or seat, as the case may be.’

[34] In Standard Bank, Sutherland AJA considered whether a court that has
concurrent jurisdiction with another court could refuse to exercise its jurisdiction. He
answered this issue in the negative, stating that it is ‘law of long standing that when a
High Court has a matter before it that could have been brought in a magistrates’ court
it has no power to refuse to hear the matter’.31 It is only in the event of an abuse of
process that it may do so.32 Sutherland AJA33 also affirmed this court’s judgment in
Agri Wire (Pty) Ltd and Another v Commissioner, Competition Commissioner and
Others,34 in which it was held that ‘[s]ave in admiralty matters, our law does not
recognise the doctrine of forum non conveniens, and our courts are not entitled to
decline to hear cases properly brought before them in the exercise of their jurisdiction’.

[35] From the above, the following propositions apply in this case. First, TMT, as the
applicant in the review application, had a choice to either initiate those proceedings in
the KwaZulu-Natal court or the Western Cape court. It chose to do so in the Western
Cape court, and it was entitled to do so. Secondly, once it chose to proceed in the
Western Cape court, that court had no power to refuse to entertain the matter, in the
absence of an abuse of process. A third point requires mention too. Questions of
convenience do not arise when a high court decides whether it has jurisdiction in terms
of the PAJA. If one or more of the four jurisdiction-vesting circumstances are present,
the court has jurisdiction. The convenience of the parties can only arise later, in the
event of one or more of the respondents applying in terms of s 27(1) of the Superior
Courts Act for the transfer of the matter to another court.

31 Para 27. See too Goldberg v Goldberg 1938 WLD 83 at 85-86; Standard Credit Corporation Ltd v
Bester and Others 1987 (1) SA 812 (W) at 817J-819E.
32 Para 59. See too Corderoy v Union Government (Minister of Finance) 1918 AD 512 at 517.
33 Para 31.
34 Agri Wire (Pty) Ltd and Another v Commissioner, Competition Commission and Others [2012] ZASCA
134; 2013 (5) SA 484 (SCA) para 19.

Abuse of process
[36] It was argued that the Western Cape court had been entitled to decline to
exercise jurisdiction because the initiation of the review in that court was an abuse of
process on the part of TMT. This issue was also discussed in Standard Bank.

[37] Sutherland AJA endorsed35 what Mahomed CJ had held in Beinash v Wixley36
concerning the nature of an abuse of process. The learned Chief Justice had said:
'What does constitute an abuse of the process of the Court is a matter which needs to be
determined by the circumstances of each case. There can be no all-encompassing definition
of the concept of “abuse of process”. It can be said in general terms, however, that an abuse
of process takes place where the procedures permitted by the Rules of the Court to facilitate
the pursuit of the truth are used for a purpose extraneous to that objective.'
What is more, Sutherland AJA held that the mere fact that the banks had instituted
proceedings in a high court when they could have done so in magistrates’ courts was
not an abuse of process, as had been found by one of the courts below;37 and he
added that ‘[i]n any event, it is difficult to see how litigants can be accused of abusing
the process by exercising a choice that the law gives them’.38

[38] The court below did not purport to decline to exercise jurisdiction on the basis
of an abuse of process on the part of TMT. That is not surprising because the
answering papers of all of the respondents are completely silent on the issue. In the
result, there is no evidence whatsoever to even suggest that TMT instituted the review
proceedings in the Western Cape court for a purpose extraneous to the objective of
facilitating the pursuit of the truth. It simply exercised a choice given to it by the law
and, as explained above, that cannot, without more, constitute an abuse of process. If
any of the respondents are of the view that TMT’s choice of forum works a hardship
on them, they can apply for the transfer of the matter to the KwaZulu-Natal court in
terms of s 27 of the Superior Courts Act.

35 Para 47.
36 Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA) at 734F-H.
37 Para 44.
38 Para 48.

Section 6 of the PAJA
[39] Finally, it was argued that s 6 of the PAJA, in providing for the judicial review of
administrative action, vested a discretion in a court to exercise that jurisdiction or
decline to do so. That discretion, according to this argument, arises from s 6(1), which
states that ‘[a]ny person may institute proceedings in a court . . . for the judicial review
of an administrative action’, read with s 6(2) which provides that a ‘court . . . has the
power to judicially review an administrative action’. I have a great deal of difficulty in
understanding how this vests in a court the choice of exercising or refusing to exercise
jurisdiction granted to it by the definition of a court in the PAJA.

[40] These two provisions mean no more than that when a person chooses to
institute review proceedings, the court is empowered to come to that person’s
assistance if a ground of review is found to exist. This says nothing of jurisdiction. That
is dealt with in the definition of a court.

Conclusion
[41] As the Western Cape court had jurisdiction and had no power to decline to
exercise that jurisdiction, the appeal must succeed. Neither the remaining points in
limine or the merits of the review have been determined. The matter must therefore
be remitted to the high court so that the application can be concluded.

[42] I make the following order.
The appeal is upheld with costs.
The order of the court below is set aside and replaced with the following
order:
‘The point in limine to the effect that the court lacks jurisdiction to hear the
application is dismissed with costs.’
The matter is remitted to the court below.

____________________
C Plasket
Judge of Appeal

APPEARANCES

For the appellant:

L Ackermann (with A Pepler)
Instructed by:

Pepler O’Kennedy, Cape Town
Symington
&
De
Kok
Inc,
Bloemfontein

For the First and Fourth Respondents:
A Cockrell SC (with P Govindasamy)
Instructed by:
Govindasamy
Ndzingi
&
Govindasamy Inc, c/o K B Gangen &
Company, Cape Town

Matsepe’s Inc, Bloemfontein

For the Fifth Respondent:

G van Niekerk SC (with M Potgieter)
Instructed by:
PKX Attorneys c/o Pincus Matz
Attorneys, Cape Town

Lovius Block Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

15 March 2022

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

TMT Services & Supplies (Pty) Ltd t/a Traffic Management Technologies v MEC:
Department of Transport, Province of KwaZulu-Natal and Others (Case no.
1059/2020) [2022] ZASCA 27 (15 March 2022)

MEDIA STATEMENT

The Supreme Court of Appeal (SCA) today upheld the appeal of TMT Services &
Supplies (Pty) Ltd, trading as Traffic Management Technologies (TMT), against the
MEC and head of department of the Department of Transport of the KwaZulu-Natal
provincial government and MTM KZN Traffix (Pty) Ltd (Traffix).

TMT was an unsuccessful bidder for a tender offered by the Department of
Transport for an integrated traffic contravention management system. It took the
decision to award the tender to Traffix on review. It did so in the Western Cape Division
of the High Court, Cape Town (the Western Cape court), where it was ordinarily
resident and domiciled, rather than in the KwaZulu-Natal Division of the High Court,
Pietermaritzburg (the KwaZulu-Natal court), where the principal place of
administration of the government respondents was, and where Traffix was ordinarily
resident and domiciled. It did so because the definition of a court in s 1 of the
Promotion of Administrative Justice Act 3 of 2000 (the PAJA) provided inter alia that a

court with territorial jurisdiction in respect of the ordinary residence or domicile of a
person had jurisdiction to judicially review administrative action affecting that person.

The respondents argued that considerations such as convenience also had to
be taken into account and that, in this case, it was more convenient that the matter be
heard by the KwaZulu-Natal court. The Western Cape court upheld this point, declined
to exercise jurisdiction and dismissed TMT’s application. The SCA held, however, that
the definition of a court in the PAJA determined exclusively which courts had
jurisdiction; that the Western Cape court and the KwaZulu-Natal courts had concurrent
jurisdiction in terms of the definition; and that the Western Cape court was not entitled
to decline to exercise jurisdiction. The court set aside the Western Cape court’s order
and remitted the matter to it for completion.