Makhanya v University of Zululand - LexisNexis South Africa

14[31] The disposal of a jurisdictional challenge on exception ought to beelementary, because it entails no more than a factual enquiry, with referenceto the particulars of claim, to establish the nature of the right that is beingasserted in support of the claim. Sometimes the right that is asserted mightbe identified expressly. At other times it might be discoverable by inferencefrom the facts that are alleged and the relief that is claimed. And if there isany doubt a court might simply ask the litigant to commit himself or herselfto what the claim is before the court embarks upon the case.[32] Applying those principles of pleading it is worthwhile consideringwhat would have happened had Ms Chirwa brought her claim in an action,on particulars of claim that alleged the material facts, and went on to allegethat the conduct complained of infringed her constitutional right to justadministrative action, and to claim appropriate relief.[33] An exception to the particulars of claim, on the basis that the highcourt lacked jurisdiction to consider the claim, would have been taken anddisposed of first, with reference only to the particulars of claim. Indeed, hadthe matter been pleaded conventionally, the court hearing the jurisdictionalexception would not even have been aware that a further exception (on thebasis that the claim was bad in law) was waiting in the wings. It would havebeen called upon to consider the jurisdictional issue with reference to theparticulars of claim, on the assumption that the claim was good in law.Clearly the exception could not have been sustained, because it is manifestfrom the Constitution that the high court has jurisdiction to consider such aclaim. But if the court had (unaccountably) upheld the exception, then the