CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 291/21
In the matter between:
SOUTH AFRICAN HUMAN RIGHTS COMMISSION Applicant
and
STANDARD BANK OF SOUTH AFRICA LIMITED First Respondent
NEDBANK LIMITED Second Respondent
FIRSTRAND BANK LIMITED Third Respondent
EZRA MAKIKOLE MPONGO Fourth Respondent
MYRA GERALDINE WOODITADPERSAD Fifth Respondent
RADESH WOODITADPERSAD Sixth Respondent
JOYCE HLUPHEKILE NKWINIKA Seventh Respondent
KARIN MADIAU SAMANTHA LEMPA Eighth Respondent
NEELSIE GOEIEMAN Ninth Respondent
ANGELINE ROSE GOEIEMAN Tenth Respondent
JULIA MAMPURU THOBEJANE Eleventh Respondent
AUBREY RAMORABANE SONKO Twelfth Respondent
ONESIMUS SOLOMON MATOME MALATJI Thirteenth Respondent
MODIEGI PERTUNIA MALATJI Fourteenth Respondent
GRACE MMAMTENA MAHLANGU Fifteenth Respondent
2
KEY HINRICH LANGBEHN Sixteenth Respondent
PRETORIA SOCIETY OF ADVOCATES Amicus Curiae
Neutral citation: South African Human Rights Commission v Standard Bank of
South Africa Ltd and Others [2022] ZACC 43
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Theron J, Tshiqi J and Unterhalter AJ
Judgment: Madlanga J (unanimous)
Heard on: 19 May 2022
Decided on: 9 December 2022
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria):
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The Registrar of this Court must furnish a copy of this judgment to the
Minister of Justice and Correctional Services.
JUDGMENT
MADLANGA J
3
MADLANGA J (Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Theron J, Tshiqi J and
Unterhalter AJ concurring):
Introduction and background
At the heart of this application is whether a High Court may decline to adjudicate
a matter over which it and the Magistrates’ Courts have concurrent jurisdiction.
A related question is whether the main and local seats of a Division of a High Court
may each refuse to hear a matter in respect of which the other has concurrent
jurisdiction.1
The application arises from 13 matters instituted in the Gauteng Division of the
High Court. It is brought by the South African Human Rights Commission (SAHRC),
which was an amicus curiae before the High Co urt and Supreme Court of Appeal .
The 13 matters concerned the enforcement of payment by the first to third respondents,
Standard Bank of South Africa Ltd, Nedbank Ltd and FirstRand Bank Ltd (the banks),
against debtors who are all natural persons. The debtors had either taken up mortgages
or purchased motor vehicles on credit and had defaulted on repayment. They took no
part in the High Court proceedings. The banks sought default judgment and – in the
case of mortgages – orders declaring the debtors’ residential properties specially
executable. It must be noted that in respect of most of these matters, the amounts
claimed fell within the Magistrate’s Court’s jurisdiction.
The matters were set down for hearing before a Full Court of the
Gauteng Division of the High Court in terms of a practice directive issued by the
1 Nedbank Ltd v Thobejane and Similar Matters 2019 (1) SA 594 (GP) (High Court judgment) at para 1 sets out
the issue thus:
“This matter raises concerns that are twofold. The first is the ever increasing tendency by
litigants, mainly banks and other commercial institutions, to enrol in the High Court, foreclosure
applications with amounts falling within the jurisdiction of the Magistrates ’ Courts. Secondly,
litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and
the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it
involves parties located within the jurisdiction of the Gauteng Local Division, Johannesburg.”
What I refer to as a related question in the text is covered by section 27(1) of the Superior Courts Act 10 of 2013.
Save for what I say in n 22 below, I do not find it necessary to deal with this beyond what this section provides.
MADLANGA J
4
Judge President of that division. The directive required the parties to address the
following questions: whether the High Court is obliged to entertain matters that fall
within the jurisdiction of the Magistrate ’s Court purely because the High Court has
concurrent jurisdiction; whether the provincial division of a High Court is obliged to
entertain matters that fall within the jurisdiction of a local division simply because the
provincial division has concurrent jurisdiction; and whether financial institutions ought
not to consider costs implications and access to justice concerns of financially distressed
people when deciding in which of two courts with concurrent jurisdiction to litigate. 2
Even after set-down, the debtors did not participate. At the High Court’s request, the
Pretoria Society of Advocates assisted them pro bono.
Three of the matters were subsequently withdrawn because the debts had been
settled and another was withdrawn as the amount claimed exceeded the jurisdiction of
the Magistrate’s Court.
The Full Court held as follows: it is an abuse of process of court to i nstitute in
the High Court claims that fall within the jurisdiction of the Magistrate’s Court; and the
High Court may exercise a discretion to entertain matters over which it has concurrent
jurisdiction with the Magistrate’s Court.3
On appeal, the Supreme Court of Appeal overturned th e decision of the
Full Court. In its reasoning it highlighted the significance of sections 21 and 27 of the
Superior Courts Act ,4 which it described as “critical provisions” of the Act and
section 169(1) of the Constitution.5 Relying on Agri Wire,6 it held that it was obligatory
2 I have deliberately not itemised a question that required the parties to address the question why the High Court
should entertain matters that fall within the jurisdiction of the Magistrates’ Court. I think this question is closely
bound up with the first two that I have itemised.
3 High Court judgment above n 1 at paras 82-90.
4 10 of 2013.
5 Standard Bank of SA Ltd v Thobejane; Standard Bank of SA Ltd v Gqirana N.O. [2021] ZASCA 92; 2021 (6)
SA 403 (SCA) at para16 (Supreme Court of Appeal judgment).
6 Agri Wire (Pty) Ltd v Commissioner of the Competiti on Commission [2012] ZASCA 134; 2013 (5) SA
484 (SCA).
MADLANGA J
5
for the High Court to entertain matters in respect of which it has concurrent jurisdiction
with the Magistrate’s Court (mandatory jurisdiction principle).
In this Court
The SAHRC now comes before us, not as an amicus curiae (which it was
previously), but as an applicant for leave to appeal. We are satisfied that it does have
the requisite interest to bring the application. The 13 debtors, who have never
participated before any of the Courts below, remain supine. Pursuant to its application,
we admit ted as amicus curiae the Pretoria Society of Advocates which represented
the 13 debtors pro bono at the High Court’s request. We are indebted to it for its
assistance to this Court.
The SAHRC’s submissions
The SAHRC readily conceded that it is not supporting the High Court’s holding
that it is automatically an abuse of court process to litigate in the High Court matters
that fall within the monetary jurisdiction of the Magistrate ’s’ Courts. Consequently,
the SAHRC appears to accept that a holding of abuse of process can only come about
upon the High Court being satisfied that litigation is, in fact, an abuse of process. What
the SAHRC considers an abuse is a litigant routinely litigating in the High Court matters
that fall within the jurisdiction of Magistrates’ Courts. It submits that the right of access
to court dictate s that there be a default rule that matters in respect of which the
High Court and Magistrate’s Court have concurrent jurisdiction must be litigated in the
latter Court. According to the SAHRC, just as courts enunciated the common law
mandatory jurisdiction principle – a subject to which I return below – they should
equally be able to pronounce this default rule. Exceptions to this rule may be instances
where the plaintiff or applicant satisfies the High Court that there is a cogent reason
why the matter must be entertained by the High Court. Examples of these reasons
would include the following: that there is no risk of an infringement of the absent
respondent or defendant’s right of access to court; that the matter is too complex for
adjudication in the Magistrate ’s Court; or that the Magistrate’ s Court concerned is
dysfunctional.
MADLANGA J
6
The SAHRC submits that the Constitution does not impose an obligation on the
High Court to hear all matters within its jurisdiction. That is so because section 169(1)
of the Constitution provides that the High Court “ may” (not “must”) decide such
matters. The SAHRC contends that the word “may” is permissive in respect of the
jurisdiction conferred on all Superior Courts by the relevant constitutional provisions ,
namely section 169(1) (High Court), section 168(3) (Supreme Court of Appeal ) and
section 167(3) (Constitutional Court). It adds that the permissive nature of “may” in
section 169(1) is typified by the fact that this Court – in matters in respect of which it
unquestionably has jurisdiction – may decline to entertain them if it is not in the
interests of justice to do so; an example being applications for leave to appeal.7
In addition, the SAHRC submits that no statute obliges the High Court to
exercise its jurisdiction. There being no obligation, the High Court is entitled to decline
jurisdiction over matters that may more appropriately be heard by other courts. The
SAHRC further submits that the common law mandatory jurisdiction principle
introduced in Goldberg is pre-constitutional.8 It is now subject to the Constitution. It
also contends that , although Agri Wire was decided after the Constitution had taken
effect, it did not hold that the principle applies even when a fundamental right is
implicated. In addition, the SAHRC submits that the mandatory jurisdiction principle
is inconsistent with judicial indepe ndence, and thus unconstitutional as it impedes the
High Court’s rational management and use of judicial resources.
The SAHRC also contends that Magistrates’ Courts are generally more
accessible than High Courts. There are only 14 High Courts in South Africa, which are
mainly located in large urban areas. On the contrary, there are 82 regional
Magistrates’ Courts and 468 district Magistrates’ Courts. The SAHRC submits that
distressed debtors who default on their loan agreements generally have limited financial
7 See S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at paras 10-12.
8 Goldberg v Goldberg 1938 WLD 83.
MADLANGA J
7
means, as was the case with the defendants before the High Court in this matter. 9 The
limited number of High Courts necessitates that litigants travel long distances and, once
at the seat of the court, that they secure and pay for accommodation for the duration of
the proceedings, something impecunious litigants – like those involved in this
matter – can ill afford.
In illustrating its point about the injustice that the mandatory jurisdiction
principle occasions, the SAHRC adverts to the country’s province with the largest land
mass, the Northern Cape. It makes the point that there are very long distances between
some locations within that province and the seat of the High Court in Kimberley. It
gives the example of a defendant who advises the High Court : of their willingness to
defend; the fact that they cannot afford the travel costs to and from the High Court and
costs of accommodation at the seat of the High Court; and that – as there are no such
costs at the Magistrate’s Court located close to their home – they can defend the action
there. The SAHRC also avers that, unlike Magistrates’ Courts, the High Court does not
have designated interpreters for civil matter s. It submits that all these violate the right
of access to cour t of impecunious litigants , a right protected by section 34 of the
Constitution.10 The SAHRC submits that the applicant or plaintiff’s entitlement – as
dominus litis – to choose a forum is at variance with the right of access to court and thus
cannot stand.
Lastly, the SAHRC makes a few submissions concerning the issue of congestion
of High Court rolls by matters falling within the jurisdiction of Magistrates’ Courts and
related issues like access to court , and the need to address these issues by practice
9 In support, the SAHRC draws attention to the fact that in some cases the arrears were relatively small amounts.
The fact that – despite the real risk of each defendant losing their most valuable asset, a home – they had failed to
pay was indicative of their parlous financial c ircumstances. The highest amount of arrears was R20 782.10 and
the lowest was R7 772.18.
10 Section 34 of the Constitution provides that—
“[e]veryone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.”
MADLANGA J
8
directives issued by Judges President. It argues that the issuing of the practice directives
should be possible in terms of the inherent jurisdiction enjoyed by the High Court to
protect its own process.11 According to the SAHRC, the practice directives could differ
based on the “particular concerns” of the various Divisions of the High Court. For
example, in some Divisions the question of the overburdening of rolls may be the most
important consideration. In others the issue may be the Northern Ca pe-type access to
court concern. The nub of the argument is that the Supreme Court of Appeal judgment
precludes the issuance of the practice directives by Judges President. The argument
continues that this is so because , according to the Supreme Court of Appea l, a
High Court is obliged to hear everything.
Standard Bank’s submissions
Standard Bank argues that the SAHRC’s conclusion that an impecunious litigant
may be denied access to court as a result of their adversary litigating in the High Court,
instead of the Magistrate’s Court, depends on evidentiary matter, which the SAHRC
never proffered. That, despite the SAHRC’s promise to tender such evidence when it
sought admission as amicus curiae before the High Court. This bank submits that
evidence it presente d in the High Court points in the opposite direction. It refers to
evidence that sought to establish that it chooses to litigate in the High Court in order to
advance ef ficiency, consistency, and cost savings in the administration of justice.
According t o it, this promotes – rather than impede s – the right of access to court.
Standard Bank contends that, contrary to the SAHRC’s submission, observance of the
mandatory jurisdiction rule is not only consistent with judicial independence, it, in fact,
promotes such independence . It also argues that – properly interpreted – the
Full Court’s order is in conflict with the scheme of jurisdictional demarcation under the
Constitution.
11 Section 173 of the Constitution provides:
“The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa
each has the inherent power to protect and regulate their own process, and to develop the
common law, taking into account the interests of justice.”
MADLANGA J
9
Nedbank’s submissions
Nedbank points out that for more than a century the law h as been that the
High Court cannot decline to exercise jurisdiction merely because Magistrates’ Courts
share concurrent jurisdiction with it.12 What it may do – where a litigant has succeeded
in proceedings instituted in the High Court when they could h ave litigated in the
Magistrate’s Court – is to award costs on the Magistrate’s Court’s scale. Nedbank then
submits that the common law rule has not been altered by t he Constitution; not by
section 34 or section 173 of the Constitution, which are the sections that bear relevance
to the issue. In addressing section 34, it argues – relying on Mukaddam13 – that
section 34 guarantees someone a right of access to court, which does not translate into
guaranteeing a right of access to a particular court. It does concede that in a given case
a defendant may be able to persuade a court that their right of access to court is being
imperilled because they are required to defend the case in the High Court instead of the
Magistrate’s Court. Coming to section 173, Nedbank contends that this section is a
non-starter because it amounts to no more than a constitutional codification of inherent
jurisdiction. As such, section 173 could not – on its own – have altered the
pre-constitutional common law position.
Nedbank challenges what it calls the creation by the Full Court of a rule that it
is always an abuse of process of court for a litigant to litigate in t he High Court if the
Magistrate’s Court has concurrent jurisdiction. It does this for two reasons. First,
whether a procedural step is an abuse of process of court turns on evidence, of which
not a scintilla was tendered by the SAHRC. Second, the Constitution has not changed
the age-old common law rule referred to earlier.
Nedbank submits that the reliance by the SAHRC on “may” in section 169(1) of
the Constitution cannot take it far. This section does not deal with the jurisdiction of a
12 Supreme Court of Appeal judgment above n 5 at para 26 citing Koch v Realty Corporation of South Africa 1918
TPD 356 at 359.
13 Mukaddam v Pioneer Foods (Pty) Ltd [2013] ZACC 23; 2013 (5) SA 89 (CC); 2013 (10) BCLR 1135 (CC) at
para 1.
MADLANGA J
10
particular High Court. It deals with the jurisdiction of the High Court as a constitutional
institution which is a composite whole. If you ask the question, does the High Court
have jurisdiction over a person , the answer will be that the question is meaningless.
Nedbank says the answer to the questio n is provide d by section 21 of the
Superior Courts Act, not section 169 of the Constitution . S ection 21 specifies which
High Court has jurisdiction over what person . It argues, therefore, that in accordance
with the principle of subsidiarity, you “cannot cut through the lower-level legislation”,
the S uperior Courts Act, and advance an argument pegged to higher -level law, the
Constitution.
Nedbank takes issue with the idea that costs are less when litigants litigate in the
Magistrates’ Courts than when th ey litigate in the High Court. It avers that costs are
often less in the High Court. A stance shared by Nedbank and the other banks is that
efficiencies enjoyed in litigating in the High Court result in significant savings on costs.
Nedbank goes so far as to aver that there is some dysfunctionality in
Magistrates’ Courts.
Lastly, Nedbank indicates that it disagrees with the other two banks on the
implications of rule 39(22) of the Uniform Rules of Court. 14 The view of the other
banks is that rule 39(22) constitutes the sum-total of the manner in which a matter may
be transferred from t he High Court to the Magistrate s’ Court. According to the other
banks, absent consent by the parties, there can be no transfer to the Magistrate ’s Court
in terms of the rule. Nedbank contends that what the determinant should be is the
interests of justice. As I understand the contention, the interests of justice criterion
cannot be constrained by, or subjected to, the wording of rule 39(22). To make its point,
Nedbank borrows from the SAHRC’s example of a litigant from a remote area in the
Northern Cape who is forced to defend an action in Kimberley, the seat of the
14 Rule 39(22) provides:
“By consent the parties to a trial shall be entitled, at any time, before trial, on written application
to a judge through the registrar, to have the cause transferred to the magistrate’s court: Provided
that the matter is one within the jurisdiction of the latter court whether by way of consent or
otherwise.”
MADLANGA J
11
High Court. Nedbank accepts that in that instance it would be competent for the
High Court to transfer the matter to the Magistrate’s Court.
FirstRand Bank’s submissions
In certain respects, the submissions of FirstRand Bank overlap with some of the
submissions by the other banks. I will highlight a few of its submissions. It submits
that the legislative framework that permits concurrent jurisdiction in our law and the
mandatory jurisdiction principle , which is consonant with the imperatives of the
Constitution, facilitates the widest possible pool for the exercise of the right of access
to courts. Relying on Bester,15 it argues against denying litigants court access because
of congested rolls that hamper the proper functioning of courts.16 Rather, a solution for
such congestion must be found elsewhere.17
FirstRand Bank concludes that the default rule advocated by the SAHRC would
serve to limit the myriad of courts to which plaintiffs and defendants have access. It
submits that the proposed rule by the SAHRC accordingly constitu tes a limitation of
the section 34 right. FirstRand Bank contends that th e dominus litis principle is
consistent with section 34.
The Pretoria Society of Advocates’ submissions
The upshot of the P retoria Society of Advocates’ submissions is that the
approach adopted by the High Court in the present matter constitutes a limitation of
access to court.
Jurisdiction and leave to appeal
The issues raised above are certainly of a constitutional nature, and I need say
no more. Thus, our constitutional jurisdiction is engaged. I must mention that in the
Supreme Court of Appeal, the appeal in t his matter was heard simultaneously with an
15 Standard Credit Corporation Ltd v Bester 1987 (1) SA 812 (W).
16 Id at 820I.
17 Id.
MADLANGA J
12
appeal emanating from the Eastern Cape Division of the High Court. Plainly – like the
Gauteng Division – that High Co urt is also experiencing a deluge of civil claims in
respect of which Magist rates’ Courts have concurrent jurisdiction . I am sure t hat the
Gauteng and the Eastern Cape Divisions of the High Court are not outliers. Other
Divisions are likely in the same boat. Most definitely, this makes it imperative for us
to pronounce on this issue for High Courts to know how to handle the difficult position
they are faced with. Also, the SAHRC raises some cogent arguments, which do have
reasonable prospects of success. Thus, it is in the interests of justice that leave to appeal
be granted.
The mandatory jurisdiction principle
An issue that bears relevance to the mandatory jurisdiction principle is the
meaning of section 169(1) of the Constitution and the implications of that section to the
issue at hand . Does it mean that the High Court is at liberty not to entertain matters
falling within its jurisdiction ? As indicated above, the SAHRC answers this question
in the affirmative. At the centre of its proposition was the idea that the word “may”
tells us that the section is permissive:18 the High Court “may”, not “must”. And, as I
said, the SAHRC contends that this interpretation is true of the provisions conferring
jurisdiction on all Superior Courts. That means “may” in the sections conf erring
jurisdiction on the High Court (section 169(1)), the Supreme Court of Appeal
(section 168(3)) and the Constitutional Court (section 167(3)) affords these Courts a
discretion. This contention must also apply to section 170 of the Constitution, which
provides that, amongst others, Magistrates’ Courts “may decide any matter determined
by an Act of Parliament”. One wonders what court, other than the
18 Section 169(1) provides:
“The High Court of South Africa may decide—
(a) any constitutional matter except a matter that—
(i) the Constitutional Court has agreed to hear directly in terms of
section 167(6)(a); or
(ii) is assigned by an Act of Parliament to another court of a status similar to the
High Court of South Africa; and
(b) any other matter not assigned to another court by an Act of Parliament.”
MADLANGA J
13
Supreme Court of Appeal, could hear appeals that fall to be determined by it, if it could
exercise a discretion and refuse to entertain them.
What of the matters falling within the Constitutional Court’s exclusive
jurisdiction in terms of section 167(4) of the Constitution? This section provides that
“[o]nly the Constitutional Court may”, and it then itemises what falls under the
exclusive jurisdiction of this Court. If the SAHRC’s argument is correct, “may” in
section 167(4) must mean the same thing as “may” in section 167(3). This then raises
the question: how would a dispute falling within the exclusive jurisdiction of this Court
ever be determined if – through the exercise of discretion – this Court could refuse to
entertain such dispute? One could come up with permutations applicable to the other
Courts that enjoy jurisdiction under the Constitution.
These are not only imponderables ; they point to the unpersuasive nature of the
SAHRC’s interpretation. Thus, the SAHRC’s argument founded on “may” does not
gain traction. How then must we interpret section 169(1)? That section serves to confer
a power on the High Court to entertain matt ers falling under the categories set out in
paragraphs (a) and (b) of the section. 19 Paragraph (a) concerns constitutional matters.
Paragraph (b) is about non -constitutional matters (“any other matters”). As Nedbank
submitted, this is open -ended. It tel ls us nothing about persons over which and in
respect of what physical area of the country a particular Division of the High Court has
jurisdiction. As Makgoka JA says in a concurring judgment in
Mhlongo (Mhlongo concurrence), the point of reference for determining whether the
court has jurisdiction is “s[ection] 21 of the Superior Courts Act, which regulates the
jurisdiction of the various divisions of the High Court over persons and in relation to
matters”.20
19 In Van Rooyen v S (General Council of the Bar of South Africa Intervening) [2002] ZACC 8; 2002 (5) SA 246;
2002 (8) BCLR 810 at para 181 this Court held that “may” conferred a power coupled with a duty to exercise it.
That decision was applied by this Court in South African Police Service v Public Servants Association [2006]
ZACC 18; 2007 (3) SA 521 (CC); [2007] 5 BLLR 383 (CC) at paras 15-6.
20 Mhlongo v Mokoena N.O . [2022] ZASCA 78; 2022 (6) SA 129 (SCA) at para 19. S ee also section 21 of the
Superior Courts Act, which provides:
MADLANGA J
14
The imponderables serve to show that it is unsurprising that, as far back as 1938,
Schreiner J adopted the position that—
“[o]n principle it seems to me that in general a Court is bound to entertain proceedings
that fall within its jurisdiction . . . . But apart from s uch cases and apart from the
exercise of the Court ’s inherent jurisdiction to refuse to entertain proceedings which
amount to an abuse of its process . . . . I think that there is no power to refuse to hear
a matter which is within the Court ’s jurisdiction. The discretion which the Court has
in regard to costs provides a powerful deterrent against the bringing of proceedings in
the Supreme Court which might more conveniently have been brought in the
Magistrate’s Court.”21
Likewise, in Agri Wire, the Supreme Court of Appeal held that “ our courts are
not entitled to decline to hear cases properly brought before them in the exercise of their
jurisdiction”.22
“(1) A division has jurisdiction over all per sons residing or being in, and in relation to all
causes arising and all offences triable within, its area of jurisdiction and all other
matters of which it may according to law take cognisance, and has the power—
(a) to hear and determine appeals from all Magistrates’ Courts within its area of
jurisdiction;
(b) to review the proceedings of all such courts;
(c) in its discretion, and at the instance of any interested person, to enquire into
and determine any existing, future or contingent right or obligatio n,
notwithstanding that such person cannot claim any relief consequential upon
the determination.
(2) A Division also has jurisdiction over any person residing or being outside its area of
jurisdiction who is joined as a party to any cause in relation to w hich such court has
jurisdiction or who in terms of a third party notice becomes a party to such a cause, if
the said person resides or is within the area of jurisdiction of any other Division.
(3) Subject to section 28 and the powers granted under section 4 of the Admiralty
Jurisdiction Regulation Act, 1983 (Act 105 of 1983), any Division may issue an order
for attachment of property to confirm jurisdiction.”
21 Goldberg above n 8 at 85-6.
22 Agri Wire above n 6 at para 19. More fully this part of the judgment says “[s]ave in admiralty matters, our law
does not recognise the doctrine of forum non conveniens, and our courts are not entitled to decline to hear cases
properly brought before them in the exercise of their jurisdiction”. In the text, I have deliberately left out the first
part of the quote because I think some qualification is necessary. I do not believe that we can be as categorical as
Agri Wire is on the non -recognition of the doctrine of forum non conveniens outside of admiralty matters. The
exception of admiralty matters that Agri Wire recognises is provided for in section 7(1)(a) of the Admiralty
Jurisdiction Regulation Act 105 of 1983. This section provides:
“A court may decline to exercise its admiralty jurisdiction in any proceedings instituted or to be
instituted, if it is of the opinion that any other court in the Republic or any other court or any
MADLANGA J
15
The assumption of jurisdiction should not be confused with the manner in which
a court decides to exercise its jurisdiction. There is no discretionary power to decline
the assumption of jurisdiction over a matter within the jurisdiction of a court. But how
a court decides to exercise the jurisdictio n it enjoys is a separate issue. That issue
includes considerations as to whether in exceptional circumstances jurisdiction is not
exercised by reason of, for example, abuse of process or the stay of proceedings pending
some other form of dispute resolution , or on grounds of comity. I n certain special
circumstances, a South African court may take the view that considerations of comity
dictate that a matter is best left for adjudication by a foreign court, which has a closer
connection to the matter.
What of the SAHRC’s attempt at showing the existence of the discretion it is
advocating by relying on the fact that this Court may dismiss an application for leave to
appeal on the basis that it is not in the interests of justice to grant leave? That is a bad
example because this Court actually does entertain the application for leave to appeal.
In doing so, it then refuses leave in accordance with an applicable rule of substantive
arbitrator, tribunal or body elsewhere will exercise jurisdiction in respect of the said proceedings
and that it is more appropriate that the proceedings be adjudicated upon by any such other court
or by such arbitrator, tribunal or body.”
So, a South African admiralty court may decline to exercise jurisdiction even in instances where another
South African ad miralty court will exercise jurisdiction and it is more appropriate that the proceedings be
adjudicated by that other court. In terms of the section, forum non conveniens also applies intra -nationally.
Interestingly, section 27(1)(b) of the Superior Courts Act provides for a similar species of forum non conveniens
(or should I say forum conveniens). This section provides:
“If any proceedings have been instituted in a Division [of the High Court] or at a seat of a Division, and
it appears to the court that such proceedings—
(b) would be more conveniently or more appropriately heard or determined—
(i) at another seat of that Division; or
(ii) by another Division,
that court may, upon application by any party thereto and after hearing all other parties thereto, order
such proceedings to be removed to that other Division or seat, as the case may be.”
A similarly worded provision, which was applicable when Agri Wire was decided, was section 9(1) of the now
repealed Supreme Court Act 59 of 1959. Also worth noting is the fact that there are many instances which do not
involve a denial of jurisdiction but an exercise of jurisdiction. One example is a stay pending an arbitrat ion or
mediation. Another is where, in special circumstances and outside of admiralty matters, a South African court,
considers, on grounds of comity, a foreign court to have a closer con nection to the matter (see, for example
Bid Industrial Holdings (Pty) Ltd v Strang [2007] ZASCA 144; 2008 (3) SA 355 (SCA) at para 59).
MADLANGA J
16
law which is to the effect that leave is not granted if the interests of justice do not dictate
that it be granted. That outco me is the conclusion of the process of entertaining an
application for leave to appeal. So, the Court does not refuse to exercise its jurisdiction.
It does the opposite: it exercises its jurisdiction. And, having done so, it dismisses the
application. That is a decision reached on the merits of the application in accordance
with what may properly be considered in determining such an application. What th is
Court does not get to entertain is the appeal. That, of course, is the natural consequence
of the refusal of leave. So, the SAHRC’s argument in this regard must fail.
Does the right of access to court alter this approach? Subject to what I will say
shortly, I do not think so. Mukaddam says “the guarantee in section 34 of the
Constitution does not include the choice of . . . forum in which access to courts is to be
exercised”.23 I must say though that this statement of law is stated in general terms and
could not have been intended to be absolute. For although it is for the plaintiff – and
not the defendant – to choose the court, the defendant may nevertheless be able to point
out to the court that it will not be able to provide meaningful access to court, a right
guaranteed in the Constitution. Indeed, even Goldberg, the leading case on this subject
in the pre-constitutional era, was not absolutist in its formulation of the principle. It had
a qualification. Here it is: “in general a court is bound to entertain proceedings that fall
within its jurisdiction”.24 (Emphasis added.) The words “in general” are an indication
that there are exceptions to the rule. Indeed, the Court mentioned an exception, which
is that in the exercise of its inherent jurisdiction, the High Court may refuse to entertain
proceedings which amount to an abuse of its process.
Surely, this is but one example. There may be others which – depending on their
nature – may also warrant a departure from the mandatory jurisdiction principle. One
that readily comes to mind is a situation where , without a doubt, a defendant will
effectively be denied access to court if they are forced to defend an action in a faraway
23 Mukaddam above n 13 at para 28.
24 Goldberg above n 8 at 85.
MADLANGA J
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High Court where – because of the distance and attendant costs – they are unable to
defend it, whereas they would be able to defend it in the nearby Magistrate’s Court. Of
relevance in this regard is the Kimberley example posited by the SAHRC.
A development of the common law mandatory jurisdiction rule (not the creation of a
new rule that is at odds with it) must be cognisant of this additional exception. That is,
it must be within the High Court’s power to refuse to entertain a matter of this nature
and to insist that it be litigated in the Magistrate ’s Court that enjoys concurrent
jurisdiction. This approach is consonant with section 8 of the Constitution, which
provides that the Bill of Rights (the right of access to court under section 34, in
this instance) “binds the legislature, the executive, the judiciary and all organs of state”.
As I said, the SAHRC does not agree with the Full Court that litigating in the
High Court where one could have litigated in the Magistrate ’s Court automatically
constitutes an abuse of the process of court. This point is well -made. The SAHRC
submits, instead, that the High Court must be satisfied in each instance that the litigation
in issue is, indeed, an abuse of process or constitutes an infringement of the right of
access to court, in which event it may then not entertain the matter. 25 Obviously, that
case-by-case approach cannot satisfy the SAHRC, which is plainly opposed to the idea
of matters falling within the jurisdiction of the Magistrate ’ Court being routinel y
litigated in the High Court.
The SAHRC then makes the submission that the High Court’s exercise of
discretion must create a default rule to the effect that all matters falling within the
concurrent jurisdiction o f the High Court and Magistrate ’s Court must be litigated in
the latter Court. The exception is that if a litigant wants to bring a case that falls within
the jurisdiction of the Magistrate’s Court before the High Court and it is unopposed, the
litigant must persuade the High Court that there is a justification why that Court should
25 In Bester above n 15 at 813A the Court held that an abuse of process could be said, in general terms, to occur
when a court process “is used by a litigant for a purpose for which it was not intended or designed, to the prejudice
or potential prejudice of the other party to the proceedings”. A collection of authorities on, and a few examples
of what constitutes an, abuse of pro cess are to be found in Price Waterhouse Co opers Inc v National Potato
Co-Operative Ltd [2004] ZASCA 6; 2004 (6) SA 66 (SCA) at para 50.
MADLANGA J
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hear the case. The SAHRC justifies the creation of this default rule on the basis that a
case involving an unrepresented defendant, this being a common feature in bank debt
collection matters, “does not lend itself to a case-by-case judicial discretion”.
I do not quite see how courts can create such a rule. The SAHRC submit s that
just like courts crea ted the mandatory jurisdiction principle, which is a common law
rule, they can also create the default rule. This misses the point. The law affords the
High Court the power to entertain matters in respect of which the Magistrate ’s Court
also has jurisdiction. All that the mandatory jurisdiction principle says is that the
High Court cannot run away from matters that fall within its jurisdiction . If a matter
over which it has jurisdiction is brought before it, it must exercise that jurisdiction. Of
course, that is subject to the exceptions that are recognised by the principle itself. By
contrast, the effect of the proposed default rule is the creation of a substantive rule of
jurisdiction to the effect that the High Court will ordinarily defer to the
Magistrate’s Court unless there is good reason to accept jurisdiction. That, when the
law affords it unqualified concurrent jurisdiction.
A constant refrain in the argument of the SAHRC has been the risk to the
institutional efficiency of the High C ourt, as well as to the access to justice guarantees
in section 34. Both concerns are valid . This notwithstanding, the question of
jurisdiction cannot be moderated by those concerns beyond what I suggest in this
judgment. A court either has jurisdiction or it does not and that question is answered
by reference , in this instance , to section 21 of the Superior Courts Act . Absent a
constitutional challenge to s ection 21 , the division of labour mandated by the
Legislature between courts in respect of their jurisdiction must be honoured. For these
reasons, the default position advocated by the SAHRC is not possible.
The rule 39(22) argument
It was suggested by Nedbank that rule 39(22) provides a mechanism for the
transfer of matter s from the High Court to the Magistrates’ Courts in the interests of
justice. On this basis, Nedbank submits that there is no need to interfere with the
MADLANGA J
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mandatory jurisdiction principle. This argument is unsustainable as rule 39(22)
contemplates only a transfer from the High Court to the Magistrates’ Court if the parties
have consented to the transfer. It does not involve the exercise of any judicial discretion.
It is an entitlement, if the requirements set by the rule are met: “[b]y consent the parties
to a trial shall be entitled . . . to have the cause transferred”. In the absence of consent,
the rule is of no assistance to a p arty who seeks to have a cause transferred to a
Magistrate’s Court, nor does it provide a legitimate escape route for overbur dened
Divisions of the High Court.
Practice directives by Judges President
As indicated, the SAHRC argues that, but for the Supreme Court of Appeal
judgment, the problem at hand could be addressed by the issuance of practice directives
by Judges President . A court’s inherent power in terms of section 173 of
the Constitution to protect and regulate its process does not include a power to effect
changes to legislation or the Constitution. In the context of what is at issue, t his
judgment explains the substantive legal rules on jurisdiction . Judges President may
only issue practice directives that accord with those rules . The Mhlongo concurrence
says:
“Axiomatically, [a court] cannot use the section 173 power to oust jurisdiction which
it ordinarily has. The same applies with equal force to the right of access to courts
guaranteed in section 34. The section has no place to the enquiry as to whether or not
a court has jurisdiction. No reasons of equity could ever clothe a court with jurisdiction
it does not have.”26
Harms says inherent jurisdiction “does not include the power, for the sake of
convenience, to refuse to hear a litigant or entertain proceedings in a matter within its
jurisdiction and properly before the court”.27
26 Mhlongo above n 20 at para 20.
27 Harms Civil Procedure in the Superior Courts 3rd ed (LexisNexis Butterworths, Durban 2016) at A3.3.
MADLANGA J
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In sum, the SAHRC’s submissions on this issue do not assist.
Rationale for the Full Court set-down
The High Court judgment says the consequence of setting down in the
High Court matters in respect of which Magistrates’ Courts have jurisdiction is that—
“the court roll in the Gauteng Division, Pretoria, is congested resulting in matters which
legitimately belong to the High Court being edged-out and their adjudication delayed.
Further, it increases the workload for Judges causing a delay in handing down
judgments and the waiting period for dates of hearing. This results in the adage ‘justice
delayed is justice denied’ becoming a sad reality in this Division.”28
The High Court then says this and the fact that impecunious litigants who are
forced to travel long distances at huge expense to defend the actions in the High Court
or “opt” for not defending because they cannot afford to , thus being denied access to
court, are what motivated the Judge President to issue the practice directive. 29 Plainly,
the difficulties highlighted by the High Court have serious adverse consequences for
the administration of justice in the High Court. And these difficulties are not new.
Some 38 years ago, Coetzee DJP had this to say in Shiba:
“[A] number of Judges in this Local Division alone . . . are required to deal with what
is in essence magistrate’s court work. How long this process can still continue before
grave harm is done to the administration of justice in this Division, is anybody’s guess.
One thing is certain, this does not lie in the too distant future and something will have
to be done pretty soon before, locally, its wheels start grinding to a standstill. For now
we have this latest development, which has great potential seriously to exacerbate these
problems. If left unchecked, it could become one of the last straws. It becomes a
question of weighing up the desirability of keeping open the Supreme Court ’s doors
for all causes at all times, which is something that every Judge strains to the utmost to
maintain, against the danger of fouling up the cogs of this very machine which must be
kept in reasonable running order if it is to fulfil properly its function of performing very
28 High Court judgment above n 1 at para 2.
29 Id at para 5.
MADLANGA J
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essential public work. Those of my Colleagues with whom I have been able to discuss
this question are una nimous that it is imperative to do something drastic to stop this
deliberate policy, which (unwittingly I believe) is calculated to accelerate greatly the
rate of the erosion.”30
As the High Court judgment in the instant matter shows, the problem has become
worse. Therefore, although our final decision does not accept that of the High Court,
we cannot make light of the real problem that Court has highlighted. In the main, that
is the problem of clogging up High Court rolls with matters falling within the
jurisdiction of the Magistrate’s Court. Also, as I said when considering whether leave
to appeal should be granted, the Gauteng Division and the Eastern Cap e Division,
another Division where the central issue in this matter has been considered, are not
outliers. So, we have a huge problem on our hands; a problem which – as the
High Court says in this matter – manifests in inordinate delays in the hearing and
finalisation of matters in the High Court. That, of course, is a blot on the administration
of justice.
Also, as typified by the matters which are the subject of these proceedings, many
of the cases falling within the jurisdiction of Magistrates’ Courts which are litigated by
banks in the High Court involve foreclosures. Rule 46A(2)(b) of the Uniform Rules of
Court provides that “[a] court shall not authorise execution against immovable property
which is the primary residence of a judgment debtor unless the court, having considered
all relevant factors, considers that execution against such property is warranted”. These
factors must surely involve in part a considerati on of the defendant’s personal , family
and other circumstances . Where a defendant is not present at c ourt, it is only the
information from the bank that is available and the task required by rule 46A becomes
more difficult, if not impossible. How does a court make the assessment in the absence
of the party who will be most affected by the proposed order? To most people the ir
home is their most valuable asset. And yet indications are that geography and money
30 Standard Bank of South Africa v Shiba, Standard Bank v Van den Berg 1984 (1) SA 153 (W) at 156F-157A.
MADLANGA J
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do prevent some defendants from attending court (and this is an unfortunate reality in
our country) to fight for the retention of their homes.
Some legislative steps that appear to bear relevance to these concerns are afoot.
A Lower Courts Bill31 has been published for public comment. Section 22(4) of the
Bill appears broadly to make provision for what the SAHRC submitted should be
enunciated by courts as a default position. And I use “appears” advisedly because I do
not want to pronounce on the implications of the section prematurely. The section
provides:
“If a plaintiff is of the view that an action, the amount of which claim fa lls within the
jurisdiction of a District Court . . . should more appro priately be heard in a
Regional Court or a Division of the High Court, that plaintiff must—
(a) apply to the Regional Court or the Division of the High Court in which
it is intended to inst itute the action, and according to the applicable
rules in respect of applications in that court, for leave to inst itute the
action in that court; and
(b) set out reasonable grounds why the action should be heard in that
court.”
I do not purport to be exhaust ive on the provisions of the Bill that may be of
relevance to the concerns expressed by the Full Court. Notwithstanding these
legislative steps, I think it proper that this judgment be brought to the attention of the
Minister of Justice and Correctional S ervices in case he find s some of the
pronouncements that this Court makes of relevance to the legislative process.
In conclusion, the appeal must fail.
Costs
The banks indicated that they are not asking for costs against the SAHRC. So, no
costs order will be made.
31 Lower Courts Bill (X-2022), 29 April 2022. Available at https://pmg.org.za/bill/1079/.
MADLANGA J
23
Order
The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The Registrar of this Court must furnish a copy of this judgment to the
Minister of Justice and Correctional Services.
For the Applicant:
For the First Respondent:
For the Second Respondent:
For the Third Respondent:
For the Amicus Curiae:
M Chaskalson SC, E Webber and
L Makapela instructed by Legal
Resources Centre
K Hofmyer SC and P Ngcongo
instructed by Edward Nathan
Sonnebergs Incorporated
A Crockrell SC and N Luthuli instructed
by Cliffe Decker Hofmeyr Incorporated
P G Cilliers SC and A P Ellis instructed
by Petzer, Du Toit and
Ramulifho Attorneys
A Louw SC, S Davies and S van
der Walt instructed by P retoria Society
of Advocates