The high court is still largely governed by common unless otherwise regulated by statute. Even when high court procedure is regulated it merely entails a clarification of the common law position. I find it interesting that terms and concepts used more than 2500 years ago in Rome are still used in our high courts today. Lecturers are not impressed at all with students who use high court terminology for a magistrates court matter!
- Jurisdiction works completely different in the high court as opposed to the magistrates courts;
- Incola: An incola is an individual who is either resident or domiciled within a specific court’s area of jurisdiction;
- Peregrinus: Back in the Roman day, a peregrines was simply a foreigner. A peregrines is a person who is neither resident or domiciled within that high courts area of jurisdiction
- A person resident or domiciled in the jurisdictional area of the Cape High Court is a peregrines of the Johannesburg High Court;
- What is the ground of jurisdiction for an incola of the Johannesburg High Court? The ground of jurisdiction is “ ratine domicilii” which will only apply to maters dealing with money claims. Under common law, the high court where the defendant is either domiciled or resident always has jurisdiction for money claims;
- Ratione rei sitae: This jurisdictional link applies to property claims. Under common law, the high court where the disputed property is located is the only high court which has jurisdiction over property claims;
- Nexus: this is a jurisdictional connecting factor, something that connects the high court to the defendant or a cause of acton