- Magalies Water's claim against Madibeng Local Municipality will proceed in the Gauteng Division.
- Despite years of litigation, the North West Division ruled that it did not have jurisdiction.
- Recent changes to High Court boundaries do not apply because of transitional provisions.
A seven-year legal battle between Magalies Water and Madibeng Local Municipality will now continue in the High Court in Pretoria after the High Court in the North West ruled that it did not have the authority to hear the matter.
The ruling means the parties do not have to restart the entire case, but the trial will continue in a different court despite years of preparation in the High Court in the North West in Mahikeng.
Magalies Water instituted the action in 2019, seeking payment for operating and maintaining the bulk water infrastructure owned by Madibeng Local Municipality. The case had already progressed through pleadings, discovery, several procedural hearings and numerous pre-trial conferences before the court itself raised the issue of jurisdiction.
In the High Court in the North West, Acting Deputy Judge President AH Petersen said, "Jurisdiction is foundational... Neither consent, acquiescence, nor considerations of convenience can confer jurisdiction where the law withholds it."
Arguments on jurisdiction
Magalies Water argued that Madibeng should fall within the High Court in the North West's jurisdiction, relying on government notices and changes to magisterial districts. It also argued that, by defending the case for almost seven years, the municipality had effectively accepted the court's jurisdiction.
The municipality maintained that the relevant notices issued under the Superior Courts Act continued to place Madibeng within the High Court in Pretoria's jurisdiction and that simply participating in the litigation could not change this. The court agreed after considering the legislative framework.
Judge Petersen found that while Justice Minister Mmamaloko Kubayi intended in 2017 to move Madibeng into the High Court in the North West area, the proposal never became law. The 2018 notice did not transfer the municipality, meaning Madibeng remained within the Gauteng Division.
The court also found that the reorganisation of magisterial districts in 2025 did not automatically change High Court boundaries because the Magistrates' Courts Act and the Superior Courts Act serve different purposes.
Recent changes and court findings
While the court was preparing its judgment, Kubayi issued a new determination under the Superior Courts Act, effective from 1 July 2026. The determination places most of Madibeng within the jurisdiction of the High Court in the North West.
However, the court found that the new determination specifically provides that matters already enrolled for trial must continue under the previous jurisdictional arrangements.
Judge Petersen said, "This action... falls squarely within that provision. It must accordingly be concluded under the previous dispensation."
Magalies Water also failed to persuade the court that the municipality had submitted to the North West Division's jurisdiction through its conduct during the litigation.
Although the municipality entered an appearance to defend, filed pleadings, participated in discovery, attended pre-trial conferences and allowed the matter to proceed for years, the court held that this was not enough to establish a clear waiver of its legal rights. Judge Petersen said, "Waiver is never presumed."
The court found that the municipality's conduct was equally consistent with both parties mistakenly believing that the case had been instituted in the correct court.
Transfer of the case
Instead of dismissing the action, Judge Petersen decided that transferring the matter would best serve the interests of justice.
The court noted that the litigation has been ongoing since 2019, with all major pre-trial processes completed and the case ready for trial. Requiring Magalies Water to start over would unnecessarily increase costs and further delay the resolution of the dispute.
The High Court in the North West declared that it lacked territorial jurisdiction, ordered that the matter be transferred to the High Court in Pretoria, directed the registrars of both divisions to facilitate the transfer of the court file, and ordered that the costs of the jurisdiction dispute be costs in the main action.
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