|BACKGROUND AND SUMMARY|
|Concerned with (i) the increasing tendency by litigants, mainly banks and other financial institutions, to enrol in the High Court, foreclosure applications with amounts falling within the jurisdiction of the Magistrates’ Court; and (ii) litigants taking advantage of the concurrent jurisdiction between the High Court of South Africa, Gauteng Division, Pretoria (the “Gauteng Division”) and the High Court of South Africa, Gauteng Local Division, Johannesburg (the “Gauteng Local Division”), by enrolling matters in the Gauteng Division even where it involves parties located within the jurisdiction of the Gauteng Local Division, the Judge President issued a practice directive in terms of which the parties involved in the consolidated application were called upon to address the following questions:
a. Why the High Court should entertain matters that fall within the jurisdiction of the Magistrates’ Courts?
b. Is the High Court obliged to entertain matters that fall within the jurisdiction of the Magistrates’ Courts purely on the basis that the High Court may have concurrent jurisdiction?
c. Is the provincial division of the High Court obliged to entertain matters that fall within the jurisdiction of the local division on the basis that the provincial division has concurrent jurisdiction?
d. Is there not an obligation on financial institutions to consider the cost implication and access to justice of financially distressed people when a particular forum is considered?
The aforegoing concerns were raised for two reasons:
1. impecunious defendants or respondents have to travel in person from distances far away from the High Court to appear and oppose these matters or, alternatively, are unable to appear in person due to the prohibitive transport and other related costs and, as such, these people are denied proper access to justice; and
2. matters which can easily be dealt with in the Magistrates’ Courts cause enormous congestion of the rolls and result in delays in matters where the parties have no choice but to institute action in the High Court. The South African Human Rights Commission (the “SAHRC”) and the Department of Justice and Constitutional Development (the “Minister”) were granted leave to be admitted as amici curiae.
The financial institutions argued that the High Court is obligated to entertain all matters once it is seized with jurisdiction. Furthermore, the financial institutions stated reasons as to why they choose not to institute actions in the Magistrates’ Court, inter alia, the inefficiency and uncertainty experienced in the Magistrates’ Courts and its reluctance to order properties specially executable.
The SAHRC highlighted the plight of distressed impecunious defendants or respondents against whom legal proceedings are brought as a result of small defaults and their general inability to properly defend these actions. Further, the SAHRC argued that it is a well-known fact that Magistrates’ Courts are more accessible than High Courts due to their number and geographical location.
The Minister submitted that there are no designated interpreters in the High Court and warned that this may have the effect of denying the defendant or respondent his/her right to a fair hearing.
|Having regard to the constitutional right of access to court, the Gauteng Division found that the right does not entitle a person to access a particular court, but rather entitles everyone to have their dispute resolved in a fair hearing before a court or another independent and impartial tribunal.
The Gauteng Division held that the advent of the Constitution of the Republic of South Africa, 1996 (the “Constitution”), has introduced access to justice as a primary consideration and, as such, requires a new approach by the High Courts in terms of which they regulate their own processes, as envisaged by section 173 of the Constitution, with regard to access to justice. The High Courts have not yet extensively considered the principle of access to justice through the prism of the Constitution, which obliges the High Court, not only to approach the question of access from the viewpoint of the plaintiff, but to acknowledge the existence of competing rights and obligations, being the rights of the impecunious defendants or respondents and the roles and functions of the different courts.
The Gauteng Division was of the view that the solution pertaining to matters that fall within the jurisdiction of the Magistrates’ Court is that such matters be issued in the Magistrates’ Courts. Furthermore, it is an abuse of process to allow a matter which can be decided in the Magistrates’ Court or in the local division of a High Court to be heard in the provisional division simply because it has concurrent jurisdiction. If a party is of the view that a matter that falls within the jurisdiction of the Magistrates’ Court should be more appropriately heard in the Gauteng Division, an application must be issued setting out reasonable grounds why the matter should be heard in the Gauteng Division. The inefficiency of other courts, whether real or perceived, and the convenience of the plaintiff, will not constitute such reasonable grounds.
In answering the questions raised in the Judge President’s directive, the Gauteng Division found that the High Courts are not obliged to entertain matters that fall within the jurisdiction of the Magistrates’ Courts purely on the basis that the High Court may have concurrent jurisdiction. Furthermore, the Gauteng Division held that both the local division and the provincial division of the High Courts can mero motu transfer a matter to the other court, if it is in the interests of justice to do so. Finally, the Gauteng Division held that there is an obligation on all litigants, not only financial institutions, to consider the question of access to justice when actions or applications are issued, and the courts have a duty to ensure that access to justice is ensured, by exercising the appropriate judicial oversight.
Accordingly, the Gauteng Division ordered that to promote access to justice as from 2 February 2019, civil actions and/or applications, where the monetary value claimed is within the jurisdiction of the Magistrates’ Courts should be instituted in the Magistrates’ Court having jurisdiction unless the High Court has granted leave to hear the matter in the High Court.
Furthermore, the Gauteng Division declared that the High Court is entitled to transfer a matter mero motu to another court, i.e. Magistrates’ Courts and/or local and provincial divisions of the High, if it is in the interests of justice to do so
The High Court has the power to regulate its processes with regard to access to justice. The High Court can mero motu transfer a matter to another court, if it is in the interests of justice to do so.
Written by Khotso Mmatli and supervised by Kerry Theunissen