The Supreme Court of Appeal (“SCA”) recently handed down judgment in a matter dealing with the jurisdiction of the High Courts of South Africa in comparison to other courts with concurrent jurisdiction as the High Courts. The crux of the appeal was whether a High Court has the power to exercise a discretion to decline to hear a matter on the ground that another court has concurrent jurisdiction.
Concurrent jurisdiction refers to the situation where a High Court and Magistrates’ Court both have the ‘power’ to hear a matter. What has been happening is that the High Courts have been declining to hear matters that can also be heard in the Magistrates’ Court, because, Judges were of the view that matters that could be heard in the Magistrates’ Court should only be heard in the Magistrates’ Court.
It appears that the above happened for two reasons: firstly, there was a concern that the High Court rolls were being inundated by matters that could have been heard in the Magistrates’ Court, and secondly, there was a belief that impecunious debtors suffered logistical and financial prejudice when their matters were instituted in the High Court, as opposed to the ‘nearby’ and more convenient Magistrate’s Court.
The Judges-President of Gauteng and Eastern Cape posed questions to litigants to establish why the High Court should hear matters that could be heard by the Magistrates’ Court.
In response to the questions from the Gauteng Court Judge President, in the case of Nedbank v Thobejane, Judge Tolmay held that the High Court system is in danger of collapse and may soon be unable to provide proper access to justice because banks institute proceedings in the High Court whereas they could have proceeded in the Magistrates’ Court, which he held was an abuse of the court process
In response to the questions posed by the Eastern Cape Court Judge President, in the case of Nedbank v Gqirana, Judges Lowe and Hartle disagreed with the conclusion reached by the Gauteng Court. However, in this case, the Judges held that the National Credit Act 34 of 2005 (“NCA”) ousted the jurisdiction of the High Court and this meant that all NCA matters had to be instituted in the Magistrates’ Court. The Judges explained that when read with the Magistrates’ Courts Act and the NCA, a proper application of section 34 of the Constitution, which enshrines the right to a fair trial, means that all NCA matters falling within the monetary jurisdiction of the Magistrates’ Court, must be instituted in that court.
The orders handed down in Thobejane and Gqirana respectively were taken on appeal to the SCA and were heard jointly heard by that court. The SCA expressed the view that the issues brought up in the cases of Thobejane and Gqirana were policy considerations that would be better ventilated in Parliament.
The SCA referred to an abundance of case law that deals with the issue of concurrent jurisdiction. One of the first cases that dealt with this issue was Koch v Realty Corporation of South Africa wherein the court held that there is nothing said in the Magistrates’ Court Act to indicate that cases under £200 are to be brought exclusively in the Magistrates’ Court.
With reference to the case of Goldberg v Goldberg, the SCA explained that a High Court does not have power to refuse to hear a matter on the basis that it could have been brought in a Magistrate’s Court.
Judge Sutherland, of the SCA, further explained in his judgment that the principle formulated in Goldberg was affirmed in the case of Standard Credit Corporation Ltd v Bester wherein it was held that from none of these similar cases “can a principle be extracted that the Supreme Court has an inherent jurisdiction to refuse to hear a litigant and to entertain proceedings in a matter within its jurisdiction and properly before the Court”.
The SCA referenced a number of other cases that affirmed Bester and what is clear from such case law and the commentary of the SCA, is that the court is of the view that the High Court does not have the power to refuse to hear a matter that could also be heard in the Magistrates’ Court. Further, the court held that the decisions in Thobejane and Gqirana are untenable on the basis that the High Court does not have the discretion in terms of either the legislation or the common law, to not hear matters that have concurrent jurisdiction with the Magistrates’ Court.
On appeal, the Thobejane appeal was upheld and the court ruled as follows:
i. The High Court must entertain matters within its territorial jurisdiction that fall within the jurisdiction of a Magistrates’ Courts, if brought before it, because it has concurrent jurisdiction with the Magistrates’ Court.
ii. The High Court is obliged to entertain matters that fall within the jurisdiction of a Magistrates’ Court because the High Court has concurrent jurisdiction.
iii. There is no obligation in law on financial institutions to consider the cost implications and access to justice of financially distressed people when a particular court of competent jurisdiction is chosen in which to institute proceedings.
On appeal, the Gqirana appeal succeeded and the order of the court a quo was set aside and replaced with the order similar to the one handed down in Thobejane.