Press Release: Judgment clarifies issue of court jurisdiction and promotes access to justice

For Immediate Release: 26 September 2018

Today, 26 September 2018, in the Pretoria High Court, a judgment was handed down that significantly promotes the constitutional right of access to justice. The judgment found that Magistrates’ Courts should be the first court approached by financial institutions (including almost all the banks in South Africa) when matters fall within its monetary jurisdiction and, if financial institutions fail to do so and institute proceedings in the High Court, the High Courts may transfer the matter to the Magistrates’ Courts.

The LRC represented the South African Human Rights Commission as a friend of the court and made submissions which provided a Constitutional and international perspective on the right to access courts.

The case arose when thirteen matters came before the Pretoria High Court, in which the applicants were banks seeking default judgments against debtors, as well as an order declaring that the immovable property of the debtor (their home) may be sold in execution. In each case, the application was brought in the High Court, despite the fact that it fell within the monetary jurisdiction of the Magistrates’ Court. In all the matters, the arrears on the home loans were quite low amounts but the home owners stood to lose their homes and had to defend the default judgment in the High Court, instead of the Magistrate’s Court closest to their home.

These types of scenarios can result in backlogs within the High Courts and also result in respondents or defendants, like debtors, finding it challenging to access the High Court and respond to the case against them.

A practice directive issued by the Judge President on 24 June 2016 asked parties to address the following questions: Why the High Court should hear matters that fall within the jurisdiction of the Magistrates’ Court? And, is the High Court 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?

The case, therefore, concerned the jurisdiction of the High Court in the light of the constitutional right of access to courts. At the heart of it, however, is the ability of stressed debtors to access courts when they risk losing property.

The SAHRC, represented by the LRC, made submissions on these two questions; arguing that the Constitution demands that we promote access to courts; Magistrates’ Courts are more accessible to impoverished respondents or defendants (they are closer geographically, less expensive and have designated interpreters); and the right to access courts is infringed in cases where there is a real risk that the respondent will be unable to defend his or her case due to financial, geographical or other barriers.

The SAHRC favoured an interpretation of this to mean that matters that fall within the monetary jurisdiction of the Magistrates’ Courts should be heard in such courts unless exceptional circumstances exist.

The Pretoria High Court favoured this interpretation too, ordering that matters that fall within the jurisdiction of the Magistrates’ Courts must be issued in that court, unless an application is made to rather have it heard in the High Court. The High Courts are not obliged to hear matters if they can be heard in the Magistrates’ Courts and these matters can be transferred to the Magistrate’s Court.

This judgment is far reaching and incredibly important in affirming the right of access to justice. We are pleased that the Court found in favour of impoverished clients who are burdened by the current system which allows for cases to be taken straight to the High Court, which may be geographically further, more expensive and not have designated interpreters available.

ENDS