Makhanya v University of Zululand - LexisNexis South Africa

13PLEADING JURISDICTIONAL CHALLENGES[28] When cases come before a court on appeal or on application the issuesare presented to the court simultaneously and that might at times obscure thevarious issues if they logically arise sequentially. I think it is useful, forproper analysis in such cases, to envisage how they would have arisen in anaction, where the issues are often pleaded and disposed of sequentially.[29] Jurisdictional challenges will be raised either by an exception or by aspecial plea, depending on the grounds upon which the challenge arises.There will be some cases in which the jurisdiction of a court is dependentupon the existence of a particular fact (often called a ‘jurisdictional fact’).Where the existence of that fact is challenged it will usually be in a specialplea, and the matter will proceed to a factual enquiry confined to that issue.In other cases the existence or otherwise of jurisdiction to consider the casewill appear from the particulars of claim and in those cases the challengewill be raised by an exception. In such cases a court that considers thechallenge might not even be aware of whether or not the plaintiff intendsraising any defence at all to the claim. But in both cases the issue mustnecessarily be disposed of first, because upon it depends the power of thecourt to make any further orders.[30] The case before us is one in which the challenge is not dependentupon the existence of a jurisdictional fact but instead upon the nature of theclaim. Because the nature of the claim will be apparent from the particularsof claim a jurisdictional challenge will conventionally be raised in anexception to the particulars of claim.