19 May 2022 – Can a high court refuse to exercise concurrent jurisdiction?

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For Immediate Release

19 May 2022

Can a high court refuse to exercise concurrent jurisdiction?

JOHANNESBURG — The Legal Resources Centre will be in the Constitutional Court this morning, on behalf of the South African Human Rights Commission (SAHRC), the appellant in South African Human Rights Commission v Standard Bank SA limited and Others. The appeal is against the 2020 judgment of the Supreme Court of Appeal (SCA) wherein the SAHRC was amicus curiae.

In its ruling, the SCA held that the judgment of the high court be set aside. The full bench of the Gauteng Provincial Division of the High Court, in its judgment– held that the high court  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, and that 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 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 another 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 jurisdictional oversight.

The SCA, in overturning the high court decision, held that a court cannot refuse to hear a matter that falls within its jurisdiction and that a court has no power to decline to hear a matter because another court also has jurisdiction. It held further that a party may bring a matter within the jurisdiction of the high court without a prior application, even if the matter falls within the jurisdiction of the magistrate’s court and the local division of the high court. The SCA further held that the order of the high court should be replaced with an order stating that there are no obligations 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 to institute proceedings.

The SAHRC stands with the position of the high court and will argue that the decision of the SCA should be overturned. The SCA decision has the effect that, in matters concerning applications for default judgment in respect of money amounts falling within the jurisdiction of the magistrates court, the high court cannot refer that matter to the magistrates court even if the indigent debtor will be unable to defend the matter in the high court due to financial constraints. The SCA decision prevents the high court from using its discretion to provide an indigent debtor an affordable and accessible forum to defend such matters, in cases where a debtor is unable to defend their matter in the high court. There are only a few high courts in South Africa, but many magistrate courts, which makes these forums easy to access. The SCA judgment will result in the infringement of the right to access to justice. The SCA decision further conflicts with the principle that the high court may exercise its inherent power in terms of Section 173 of the Constitution to decline to hear the matter and transfer it to the magistrates court.


Issued by the Legal Resources Centre

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Cell: 068 584 2442 / Email: thabo@lrc.org.za

For more information; please contact:

David Mtshali, Legal Resources Centre: david@lrc.org.za

Lauren Nel, Legal Resources Centre: lauren@lrc.org.za