19 August 2020
Can the High Court refuse to exercise concurrent jurisdiction?
This Thursday, the Legal Resources Centre will be in the Supreme Court of Appeal Court (SCA) on behalf of the South African Human Rights Commission (SAHRC) who are Amicus Curiae in the Standard Bank, Nedbank and Firstrand Bank IN RE: Nedbank v Thobejane and Various Others (999/2019; 47/2019) matter.
The full bench of the Gauteng Provincial Division of the High Court held that it is not obliged to hear matters that fall within the jurisdiction of the Magistrates’ Court, purely on the basis that the High Court may have concurrent jurisdiction over such matters. Instead, the court determined that such matters should be argued in the Magistrates’
Court. Should a party be of the view that a matter which falls within the jurisdiction of the Magistrates’ Court should be heard in the High Court, then said the party must make an application and justify why the matter should be heard in the High Court. In addition, the Provincial and Local Divisions of the High Court may, mero motu (of their own
accord), transfer a file to the other court if it is in the interest of justice to do so. Finally, the court held that there is an obligation on all litigants to consider the question of access to justice when actions or applications are issued and the courts have an obligation to ensure that access to justice is safeguarded, by exercising appropriate
The SAHRC aligns itself with the position of the High Court and will argue that the position is correct in light of the following:
- The Constitution does not oblige the High Court to hear all matters falling within its jurisdiction, nor does any statute oblige the High Court to exercise the jurisdiction may have over a particular matter. Subject to the fundamental right of access to courts enshrined by section 34 of the Constitution, the High Court is accordingly entitled to decline to exercise its jurisdiction over matters that are more appropriately heard by other courts.
- Section 34 of the Constitution should be interpreted to require that respondents be given a meaningful opportunity to present their legal arguments and evidence to the court. Measures must be taken to reduce the economic, social and geographical barriers that prevent a respondent’s access to the court.
- Similar to the legislature and executive, the judiciary is bound by the Bill of Rights and bears a constitutional duty to respect, protect, promote and fulfil the rights therein (including the right of access to courts). The High Court is also empowered by section 173 of the Constitution to protect and regulate its own process, and to develop the common law, taking into account the interests of justice.
- Magistrates’ Courts are generally more accessible than High Courts to impoverished respondents or defendants (they are closer geographically, less expensive and have designated interpreters).
- The right of access to courts is infringed in cases where there is a real risk that, if the matter is heard in the High Court, the respondent will be unable to defend his or her case due to financial, geographical or other barriers.
- In such cases, the High Court must accordingly decline to hear the matter and should then transfer it to the Magistrates’ Court. This is necessary in order to promote and protect the right of access to courts and is in the interests of justice.
- Given the high prevalence of such cases, the default rule should be that matters that fall within the monetary jurisdiction of the Magistrates’ Courts should be heard in such courts unless exceptional circumstances exist. The onus will be on the applicant (the bank or creditor) to show exceptional circumstances that warrant the hearing of the matter in the High Court.
Issued by the Legal Resources Centre
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Lucien Limacher (Johannesburg Acting-Regional Director), Legal Resources Centre:
David Mtshali (Attorney of record), Legal Resources Centre: firstname.lastname@example.org