Summary of Judgment

1. Introduction

The proceedings were an application in the High Court (Gauteng Local Division, Johannesburg) for the judicial review of a decision of the Magistrates’ Court. The applicants, Green Outdoor Gym (Pty) Ltd and Mr Timothy Paul Hogins, sought to have set aside a judgment delivered by Magistrate Beharie on 19 October 2021 in the Magistrates’ Court for the district of Johannesburg Central. The respondents were Mr Norman Ogana (the plaintiff in the magistrates’ court action) and Magistrate Beharie (cited because the impugned decision was his).

The review was brought inter alia in terms of section 22(1)(a) of the Superior Courts Act 10 of 2013, on the basis that the magistrates’ court proceedings were vitiated by lack of jurisdiction and consequent procedural irregularity.

The procedural history leading to the review involved two sequential attempts by Mr Ogana to litigate in magistrates’ courts. The first was an action issued in the Tshwane Central Magistrates’ Court (Pretoria), which was withdrawn after the applicants raised a special plea of lack of jurisdiction. The second was an action instituted in the Johannesburg Magistrates’ Court, where the applicants again raised a special plea of lack of jurisdiction. Instead of persisting with an amendment intended to cure the pleaded jurisdictional basis, Mr Ogana launched an application under section 35 of the Magistrates’ Courts Act 32 of 1944 to transfer the action to the Randburg Magistrates’ Court, which application was granted. The applicants then approached the High Court to review and set aside that transfer decision.

The general subject-matter of the dispute before the High Court was therefore not the merits of Mr Ogana’s underlying civil claim, but the competence and legality of a transfer order issued by a magistrates’ court which, on the record and by common cause, lacked jurisdiction in the main action.

2. Material Facts

Mr Ogana instituted action against the applicants in September 2020 in the Tshwane Central Magistrates’ Court (Pretoria). That action did not proceed: the applicants raised a special plea of lack of jurisdiction, and Mr Ogana’s attorneys thereafter withdrew the action.

After withdrawing in Pretoria, Mr Ogana instituted the action anew in the Johannesburg Magistrates’ Court. The applicants again filed a plea incorporating a special plea that the Johannesburg Magistrates’ Court lacked jurisdiction.

In response, Mr Ogana delivered a notice of intention to amend his particulars of claim. The proposed amendment entailed deleting an allegation that jurisdiction existed because the first applicant’s business address and the second applicant’s residential address fell within Johannesburg, and substituting the more general allegation that the cause of action arose within the court’s jurisdiction. The applicants delivered a notice objecting to the proposed amendment.

Instead of pursuing the amendment application, Mr Ogana brought an application to transfer the action to the Randburg Magistrates’ Court purportedly in terms of section 35 of the Magistrates’ Courts Act. That transfer application was opposed by the applicants.

Magistrate Beharie heard the transfer application and, on 19 October 2021, granted an order transferring the action to the Randburg Magistrates’ Court. In the judgment granting transfer, the magistrates’ court recorded, as common cause, that the Johannesburg Magistrates’ Court lacked jurisdiction to hear the matter. The judgment also recorded that it was clear from the papers that the Randburg Magistrates’ Court would have jurisdiction.

Despite stating that, on its interpretation of section 35, only a court with jurisdiction could order removal/transfer to another court, the magistrate nonetheless proceeded to hold that there was a discretion to transfer where undue expense or inconvenience would result if transfer were not ordered, and then exercised that discretion in favour of Mr Ogana. The transfer order was granted with costs to be costs in the cause of the main action.

For purposes of the review, the High Court treated as established (and not genuinely contested) the following: the Johannesburg Magistrates’ Court lacked jurisdiction in the main action; and the magistrate nonetheless made a transfer order moving the case to Randburg.

3. Legal Issues

The central legal question was whether a magistrates’ court that lacks jurisdiction in the main action is empowered under section 35 of the Magistrates’ Courts Act 32 of 1944 to order the transfer of that action to another magistrates’ court.

A further question concerned the proper characterisation of the review in relation to ongoing proceedings, namely whether the review was sought in medias res (before completion of the proceedings), and if so, whether the High Court should decline interference absent exceptional circumstances or a serious injustice incapable of being remedied otherwise.

A related issue, raised at the instance of the High Court, was whether section 172 of the Constitution was applicable, including whether the matter raised a constitutional issue (with reference to section 34 and the right of access to courts) such that a “just and equitable” remedy under section 172 would be engaged.

These issues primarily concerned law (the scope of statutory power and reviewability for want of jurisdiction), together with the application of legal principles to the recorded facts about jurisdiction and the transfer order. The “in medias res” point required an evaluative determination about the status and effect of the magistrates’ court decision in the procedural trajectory of the case.

4. Court’s Reasoning

The High Court approached the matter on the basis that the magistrates’ courts are creatures of statute, and that their powers, including powers relating to transfer, must be found within the statutory framework governing them. The court considered section 35 of the Magistrates’ Courts Act, which provides that an action may, with consent or upon application and where trial in the issuing court may result in undue expense or inconvenience, be transferred by the court to another court.

The High Court accepted the applicants’ submission that it is a well-established principle that only a court possessing jurisdiction in the main matter may grant an order removing or transferring that matter. The first respondent’s counsel did not contend otherwise and accepted this as the prevailing position.

In support of this approach, the High Court referred to Welgemoed and Another v The Master and Another 1976 (1) SA 513 (T), which recorded the logic that if a court has no jurisdiction to grant substantive relief, it likewise has no jurisdiction to transfer the case, and noted decisions holding that before transfer on convenience grounds can occur the transferring court must have jurisdiction in the first place.

Applying those principles to the facts, the High Court treated it as determinative that the Johannesburg Magistrates’ Court had, on the record and by common cause, no jurisdiction. On that basis, the court held that the magistrate’s court could not competently order a transfer under section 35. The High Court characterised the making of the transfer order in these circumstances as a procedural irregularity, aggravated by the internal contradiction in the magistrate’s own reasoning: the magistrate recorded that the court did not have jurisdiction to entertain the transfer, yet granted the transfer order.

On the “in medias res” contention, the High Court rejected the proposition that the review amounted to interference in incomplete proceedings. It reasoned that the decision of the Johannesburg Magistrates’ Court terminated the course of proceedings in that court, since the matter was removed from it. On that reasoning, the High Court treated the review as not being the exercise of review powers in medias res. The court further stated that, even if that characterisation were incorrect, the circumstances were such that review intervention would still be warranted because justice could not be achieved in any other way.

As to the possible constitutional dimension, the High Court invited argument on whether section 172 of the Constitution applied. The first respondent argued that the matter implicated access to courts and justice and that setting aside the proceedings would infringe section 34. The applicants argued that section 172 was not applicable and that the court lacked competence to make a “just and equitable” order following a declaration of invalidity.

The High Court reasoned that, although “constitutional matter” is widely defined (with reference to section 167(7) of the Constitution and the Constitutional Court’s observation in S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC) that the Constitution does not define constitutional matter), it was not necessary to invoke section 172. The court emphasised that the Superior Courts Act is a “subsidiary constitutional statute” that specifically provides for High Court review of magistrates’ court proceedings, including on the ground of lack of jurisdiction.

The High Court further rejected the contention that the first respondent’s section 34 rights were infringed. It reasoned that the first respondent had exercised the right to litigate but did so by instituting his action in a court without jurisdiction, and he could not complain that the court he selected lacked power to transfer the matter. On that basis, the High Court concluded that the matter did not raise a constitutional issue triggering section 172.

5. Outcome and Relief

The High Court held that the magistrate’s order transferring the action was made in circumstances where the Johannesburg Magistrates’ Court lacked jurisdiction to entertain the action or to order its transfer, rendering the proceedings procedurally irregular and the transfer order invalid.

The court reviewed and set aside the magistrate’s judgment and declared it invalid. The first respondent, Mr Ogana, was ordered to pay the costs of the review application.

Cases Cited

Welgemoed and Another v The Master and Another 1976 (1) SA 513 (T).

S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC).

Legislation Cited

Superior Courts Act 10 of 2013, section 22(1)(a).

Magistrates’ Courts Act 32 of 1944, section 35.

Constitution of the Republic of South Africa, 1996, sections 34, 167(7), and 172.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that where it is common cause and apparent on the record that a magistrates’ court lacks jurisdiction in the main action, that court is not empowered to order a transfer of the action to another magistrates’ court under section 35 of the Magistrates’ Courts Act. The making of a transfer order in those circumstances constitutes a reviewable procedural irregularity.

The High Court further held that the review was not an impermissible interference in proceedings in medias res because the transfer order effectively terminated proceedings in the Johannesburg Magistrates’ Court; and in any event, the circumstances justified review intervention because justice could not otherwise be achieved.

The High Court held that it was unnecessary to invoke section 172 of the Constitution, as the matter was adequately addressed under the Superior Courts Act review jurisdiction, and that setting aside the transfer order did not infringe the first respondent’s section 34 rights because the first respondent had chosen to litigate in a court lacking jurisdiction.

LEGAL PRINCIPLES

A magistrates’ court derives its powers from statute, and its competence to make orders must be located within the statutory framework governing jurisdiction and procedure. Where the court lacks jurisdiction in the main matter, it cannot competently make ancillary orders premised on jurisdiction, including an order transferring the action to another court under section 35.

Section 35 of the Magistrates’ Courts Act, properly understood in line with established authority, presupposes that the transferring court is a court that can competently entertain the action. A transfer for convenience cannot be used to cure the foundational defect that the proceedings were instituted in a court without jurisdiction.

A High Court’s review jurisdiction under section 22(1)(a) of the Superior Courts Act is engaged where a lower court acts without jurisdiction, and the High Court may set aside such proceedings as invalid without the need to resort to constitutional remedial powers under section 172, particularly where the complaint is a statutory review ground of lack of jurisdiction.

A transfer decision that removes a matter from a magistrates’ court can have the effect of terminating proceedings in that court, with the result that review intervention is not necessarily characterised as interference in medias res; and even where proceedings are ongoing, review may be justified where justice cannot be achieved through other means.