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[2011] ZASCA 118
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Oosthuizen v Road Accident Fund (258/10) [2011] ZASCA 118; 2011 (6) SA 31 (SCA); [2011] 4 All SA 71 (SCA) (6 July 2011)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 258/10
In the
matter between:
ANDRE VERNON OOSTHUIZEN
…..........................................................................
Appellant
and
ROAD ACCIDENT FUND
…..................................................................................
Respondent
Neutral citation:
Oosthuizen
v Road Accident Fund
(258/10)
[2011] ZASCA 118
(06 July 2011)
Coram:
Navsa, Cloete, Cachalia, Bosielo and Majiedt JJA
Heard: 16 May 2011
Delivered: 06 July 2011
Summary:
Road Accident Fund – Claim for damages –
Plaintiff issued summons in the magistrates’ court –
Claim found
to exceed the monetary jurisdiction of the magistrates’
court – Plaintiff unable to withdraw case from the magistrates’
court and issue fresh summons in the high court as claim had
prescribed – Plaintiff applied to have case transferred from
the magistrates’ court to the high court having jurisdiction –
No statutory provision authorising such transfer –
Section 173
of the Constitution of the Republic of South Africa, 1996 not
applicable.
ORDER
On appeal from
: North Gauteng High Court (Pretoria) (Louw J
sitting as a court of first instance):
1. The appeal is dismissed with costs.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
BOSIELO JA (Navsa, Cloete, Cachalia and Majiedt JJA concurring)
[1] This is an appeal with the leave of the court below against a
judgment of the North Gauteng High Court (Louw J) dismissing
the
appellant’s application to have his civil case transferred from
the magistrates’ court for the district of Pretoria
to the
North Gauteng High Court.
[2] The facts of this matter are largely common cause and can be
conveniently summed up as follows. The appellant (Oosthuizen)
allegedly sustained serious bodily injuries as a result of a motor
collision which took place on 1 March 2003. A year later in
March
2004 the appellant, through his attorneys, Klinkenberg Inc (KI)
issued summons against the respondent (the Fund) in the Pretoria
Magistrates’ Court. The Fund is a statutory insurer established
in terms of
s 2
of the
Road Accident Fund Act 56 of 1996
. It is not
clear from the papers what the quantum of the appellant’s
original claim was in the magistrates’ court.
[3] Whilst investigating this claim further, the appellant’s
attorneys obtained a medico-legal report from Dr Swartz, an
Orthopaedic Surgeon, during May 2004. He estimated the appellant’s
future medical expenses to be in the region of R133 000.
On 17 August
2004 the appellant obtained another medical report from Dr
Langenegger, a maxilo facial and oral surgeon, who estimated
the
appellant’s future medical costs in relation to his facial and
oral injuries to be in excess of R100 000. Evidently these
two
reports put the appellant’s claim beyond the jurisdiction of
the magistrates’ court. Additional medical reports
were
obtained from Dr Stanojevic, a radiologist, on 4 May 2004 and Jancke
Jonas, an occupational therapist, on 27 June 2007. Importantly
all
these reports showed the nature of the appellant’s injuries and
their sequelae to be more serious than initially diagnosed.
[4] During December 2004, Mr Klinkenberg (Klinkenberg), the deponent
to the appellant’s founding affidavit, was appointed
to take
over this matter as the appellant’s attorney of record from one
Grové. This is because Grové, the appellant’s
previous attorney, had left the employ of KI during December
2004.Thus KI continued to represent the appellant through
Klinkenberg,
the substituted attorney who is one of its directors.
Klinkenberg states that he discovered from reading the pleadings and
medical
reports that the quantum of the appellant’s claim far
exceeded the jurisdiction of the magistrates’ court, which is
R100 000. However, he does not state when exactly he made this
crucial discovery.
[5] Notwithstanding the various medical reports showing the
appellant’s claim to be in excess of the jurisdiction of the
magistrates’ court the appellant persisted in his claim in that
court, amending his particulars of claim on 7 April 2005
to increase
the monetary extent of damages allegedly sustained to a total of R99
000. This amendment was effected approximately
one year after the
receipt by the appellant of Dr Swartz’s report. It is not clear
what happened in the interim ─ the
affidavit by Klinkenberg
appears to be deliberately vague in this regard ─ except that
on 25 June 2008, Klinkenberg wrote
a letter to the Fund advising it
that further medical reports which he had received revealed that the
appellant’s claim exceeded
the jurisdiction of the magistrates’
court and enquiring whether it would consent to a transfer of the
case to the high court.
As there was no response to this request, the
appellant launched an application in the North Gauteng High Court for
the transfer
of the case to that court.
[6] The Fund opposed the application first, on the basis that the
appellant, as
dominis litis,
had chosen the magistrates’
court as the court where he wished to litigate and should therefore
bear the consequences of
that decision, including the consequence
that any claim beyond that which had already been instituted had
prescribed. Second, that
already on 7 May 2005, the time of the
amendment to the pleadings in the magistrates’ court, referred
to above, the appellant
knew or should have known that his claim
exceeded the jurisdiction of that court. His attorneys at that stage
ought to have attempted
to reach an agreement with the Fund in
respect of any future litigation or, alternatively, ought to have
instituted action on his
behalf in the high court. Furthermore, the
Fund pointed out that there was no statutory provision, nor a rule of
either the magistrates’
court or the high court that permitted
a transfer at a plaintiff’s request from the magistrates’
court to the high
court. Finally, the Fund contended that for the
high court to come to the appellant’s relief would have the
substantive and
unjust result of breathing life into a claim that had
already prescribed.
[7] As stated above, the high court found in favour of the Fund. Louw
J stated that a call on him to exercise the high court’s
inherent jurisdiction to come to the appellant’s assistance was
misplaced. He agreed with the Fund’s contention that
inherent
jurisdiction was usually exercised by a high court to regulate its
procedure and not to do what he was called upon to
do in this case.
The learned judge warned against the exercise of inherent
jurisdiction in the manner suggested on behalf of the
appellant,
stating that it could become an unruly horse. He also agreed with the
submissions made on behalf of the Fund referred
to in the preceding
paragraph and consequently ruled against the appellant. He rejected
conclusions to the contrary in the same
division of the high court.
1
[8] The question in this appeal is whether the court below was
correct in its reasoning and conclusion. Because of the contrary
decisions referred to in the preceding paragraph this judgment is of
importance beyond the instant case.
[9] I consider it necessary to examine the applicable statutory
regime. Section 50(1) of the Magistrates’ Court Act 32 of
1944
allows for a defendant to request a transfer of a case from a
magistrates’ court to a high court having jurisdiction.
It
provides as follows:
‘
50 Removal of actions from
court to provincial or local division
(1) Any action in which the amount of the claim exceeds
the amount determined by the Minister from time to time by notice in
the
Gazette,
exclusive of interest and costs, may, upon
application to the court by the defendant, or if there is more than
one defendant, by
any defendant, be removed to the provincial or
local division having jurisdiction where the court is held, subject
to the following
provisions─
(a) notice of intention to make such application shall
be given to the plaintiff, and to other defendants (if any) before
the date
on which the action is set down for hearing;
(b) the notice shall state the applicant objects to the
action being tried by the court or any magistrate’s court;
(c) the applicant shall give such security as the court
may determine and approve, for payment of the amount claimed and such
further
amount to be determined by the court not exceeding the amount
determined by the Minister from time to time by notice in the
Gazette,
for costs already incurred in the action and which
may be incurred in the said provincial or local division.’
[10] There is no statutory equivalent for the plaintiff for an
obvious reason. A plaintiff chooses the forum in which to litigate
and must bear the consequences of doing so. A plaintiff, having
instituted an action in the magistrates’ court is, of course,
free to change tack by abandoning the action in the lower court and
commencing proceedings in a high court with attendant costs
implications.
[11] It is the lack of statutory or any other authority that drove
the appellant to contend for the exercise of the inherent
jurisdiction
of the high court to rescue the situation. As will
become apparent this is a call more for the benefit of the
appellant’s
attorney than for him personally. It was contended
on behalf of the appellant that a failure to order a transfer of the
action
from the magistrates’ court to the high court would
result in grave injustice to the appellant and that this would be
against
constitutional norms. The injustice, it was contended, flowed
from the fact that although the appellant had a substantive right
to
claim damages from the Fund the appellant is presently precluded from
pursuing it in the high court because of the statutory
oversight to
cater for a transfer from the magistrates’ court at a
plaintiff’s instance. Reliance was also placed on
the
expression
ubi jus ibi remedium
(where there is a right there
is a remedy)
.
This contention appears to me to be a variation
of what is set out in the preceding sentence, namely that although
the appellant
has the right to claim damages, he is precluded from
enforcing it because there is no statutory procedure by which he can
pursue
the claim in the high court.
[12] Before us counsel for the appellant did not seek to challenge
the constitutionality of the legislation (including the rules)
dealing with the transfer of cases from the magistrates’ court
to the high court. He could in any event not do so as no notice
of
such challenge was given to the relevant Minister and was not even
raised in the court below; nor was it foreshadowed in the
affidavits
filed on behalf of the appellant. Instead appellant’s counsel
submitted in general terms that constitutional values,
including the
right of access to courts as provided for in s 34 of the Constitution
of the Republic of South Africa, 1996, ought
to have propelled the
court below to have exercised its discretion in favour of the
appellant.
[13] Our courts derive their power from the Constitution and the
statutes that regulate them.
2
Historically the supreme court (now the high court), in addition to
the powers it enjoyed in terms of statute, has always had additional
powers to regulate its own process in the interests of justice. This
was described as an exercise of its inherent jurisdiction.
That power
is now enshrined in s 173 of the Constitution. Citing I H Jacob
Current Legal Problems
, Freedman C J M adopted the following
definition of ‘inherent jurisdiction’:
3
‘
. . . the reserve or fund of
powers, a residual source of powers, which the court may draw upon as
necessary whenever it is just
or equitable to do so, and in
particular to ensure the observance of the due process of the law, to
prevent improper vexation or
oppression, to do justice between the
parties and to secure a fair trial between them.’
[14] Jerold Taitz succinctly describes the inherent jurisdiction of
the high court as follows in his book
The Inherent Jurisdiction of
the Supreme Court
(1985) pp 8-9:
‘
. . .This latter jurisdiction
should be seen as those (unwritten) powers, ancillary to its common
law and statutory powers, without
which the court would be unable to
act in accordance with justice and good reason. The inherent powers
of the court are quite separate
and distinct from its common law and
its statutory powers, eg in the exercise of its inherent jurisdiction
the Court may regulate
its own procedure independently of the Rules
of Court.’
[15] The inherent jurisdiction of the high court has long been
acknowledged and applied by our courts.
4
The font of this power was said to be the common law. However with
the advent of the new Constitution the inherent jurisdiction
of the
courts has now been subsumed under s 173 of the Constitution. This
section provides that:
‘
Inherent power
173. The Constitutional Court, Supreme Court of Appeal
and High Courts have the inherent power to protect and regulate their
own
process, and to develop the common law, taking into account the
interests of justice.’
[16] Save for a general assertion on behalf of the appellant that a
grave injustice would result if the high court were not to
be
compelled to come to his rescue and a general reliance on the
expression ‘
ubi jus ibi remedium
’, we were not
told, nor was the high court, in which specific manner the common law
should be developed, nor what aspect
thereof required to be
developed. It appears that the appellant was ultimately contending
that the high court is entitled and indeed,
in the present
circumstances, compelled to come to the appellant’s assistance
by exercising its inherent jurisdiction to
regulate its own process.
[17] A court’s inherent power to regulate its own process is
not unlimited. It does not extend to the assumption of jurisdiction
which it does not otherwise have. In this regard see
National
Union of Metal Workers of South Africa & others v Fry’s
Metal (Pty) Ltd
5
where this Court stated that:
‘
While it is true that this
Court’s inherent power to protect and regulate its own process
is not unlimited – it does
not, for instance, “extend to
the assumption of jurisdiction not conferred upon it by statute”.
. . .’
[18] Section 173 does not give any of the courts mentioned therein,
including the high court, carte blanche to meddle or interfere
in the
affairs of inferior courts. Historically, the high courts have always
had supervisory powers over the magistrates’
courts by way of
for example review in terms of s 24 of the Supreme Court Act 59 of
1959 and
s 304
of the
Criminal Procedure Act 51 of 1977
. Moreover, a
high court may only act in respect of matters over which it already
has jurisdiction. A high court can therefore not
stray beyond the
compass of
s 173
by assuming powers it does not have.
[19] Courts have exercised their inherent jurisdiction when justice
required them to do so. In this regard the following dictum
by Botha
J in
Moulded Components and Rotomoulding South Africa (Pty) Ltd v
Coucourakis & another
6
should be noted.
‘
I would sound a word of
caution generally in regard to the exercise of the Court’s
inherent power to regulate procedure. Obviously,
I think, such
inherent power will not be exercised as a matter of course. The Rules
are there to regulate the practice and procedure
of the Court in
general terms and strong grounds would have to be advanced, in my
view, to persuade the Court to act outside the
powers provided for
specifically in the Rules. Its inherent power, in other words, is
something that will be exercised sparingly.
As has been said in the
cases quoted earlier, I think that the Court will exercise an
inherent jurisdiction whenever justice requires
that it should do so.
I shall not attempt a definition of the concept of justice in this
context. I shall simply say that, as I
see the position, the Court
will only come to the assistance of an applicant outside the
provisions of the Rules when the Court
can be satisfied that justice
cannot be properly done unless relief is granted to the applicant.’
This dictum must be read alongside what has been stated above. A high
court can only act as described in this dictum when it already
has
jurisdiction over the case.
[20] It follows that a high court can only exercise its inherent
jurisdiction in relation to the regulation of its own process
when
confronted with a case over which it already has jurisdiction and
when faced with procedures and rules of the court which
do not
provide a mechanism to deal with an instant problem. A court will, in
that case, be entitled to fashion the means to deal
with the problem
to enable it to do justice between the parties.
[21] This brings me to the point where it is necessary to deal with
the appellant’s general submission that the ‘interests
of
justice’ required of the high court to use its inherent
jurisdiction to order a transfer of the case to the high court.
In
this regard the submission appears to be that in appropriate
circumstances a court was obliged to create a remedy for the
appellant
where none exists.
[22] It was submitted that there was a discrimination of sorts
between plaintiff and defendant reflected in s 50(1) of the
Magistrates’
Court Act, which impacts negatively on the
appellant’s entitlement to have his case adjudicated. It was
contended on behalf
of the appellant that constitutional norms
dictated that a litigant in the circumstances of the appellant should
not be left destitute.
These submissions ignore the fact that it is a
plaintiff who chooses the forum in which to litigate and not a
defendant. In the
present case the appellant was legally represented
and fully informed about all the implications of the injuries
sustained by him.
The appellant’s attorneys, even when they
became aware of the full extent of his claim, nevertheless persisted
in the path
that led them to the application to the high court, which
is the subject of the present appeal. They ought to have switched
forums
when it became clear that they should do so to protect his
interests.
[23] Counsel for the Fund contended that to allow a transfer of the
case in the prevailing circumstances would be more than overcoming
a
procedural hurdle, as submitted by the appellant, but would be akin
to breathing new life into a claim that has been extinguished
by
prescription. Put differently, the contention that the respondent
requests no more than procedural intervention is fallacious.
Acceding
to the respondent’s request would have a substantive effect,
namely the revival of a prescribed claim. Claims against
the Fund are
understandably time bound. There are statutorily prescribed
prescription periods. The Fund, like any other litigant,
is entitled
to raise a defence based on prescription.
7
The appellant seeks to deprive the Fund of such a lawful defence in
circumstances in which his attorneys have been remiss.
[24] As conceded by counsel on appellant’s behalf, the
appellant is not without remedy. He has a right to institute a claim
for compensation against his attorneys for the difference between
what might be recovered through the magistrates’ court
and the
full extent of his loss. In these circumstances, I fail to see how it
can be in the interests of justice for the high court
to come to the
appellant’s assistance on the basis suggested by him. Indeed,
the contrary is true.
[25] The appellant’s access to court was not impeded by some
lacuna in the law. His attorneys chose the wrong forum and persisted
therein when it was clear on the available evidence that a change of
forum was imperative.
[26] A high court may not use its inherent jurisdiction to create a
right.
8
The appellant’s reliance on the expression ‘
ubi jus
ibi remedium
’ is misplaced. The appellant had a right to
institute action in the appropriate forum to the full extent of his
claim. Prescription
has extinguished part of his claim. For that
consequence his attorneys are to blame. As pointed out above, he has
a remedy in that
regard.
[27] In the circumstances of the present case, I share the
reservations of the court below that allowing the exercise of
inherent
jurisdiction in the manner suggested, opens the door to
uncertainty and potential chaos. If there is a case in which it is
necessary
to fashion a constitutionally acceptable remedy because of
the interests of justice, this is not it.
[28] For these reasons, the appeal is dismissed with costs.
______________
L O Bosielo
Judge of Appeal
APPERANCES:
For
Appellant: E. L. Theron, W Pretorius
Instructed
by
Klinkenberg
Inc. c/o Geyser Van Rooyen Attorneys, Pretoria,
Rossouws
Attorneys, Bloemfontein;
For
Respondent: K Kollapen
Instructed
by
Fourie
Fismer Inc., Pretoria
Kramer,
Weihmann & Joubert, Bloemfontein.
1
See
Dhlamini v Padongelukfonds
2010
JDR 0006 (GNP) and
Chantella Alicia
Strydom v Road Accident Fund
Case No
71249/2010, delivered on 25 March 2011. In
Mokoena
Rebecca v Road Accident Fund
Case No
57115/10 delivered on 8 February 2011, Sapire AJ refused an
application for a transfer from the magistrates’ court
to the
high court and rejected the conclusion reached in
Dhlamini
,
holding that it was clearly wrong.
2
Section
171 of the Constitution provides that ‘all courts function in
terms of national legislation, and their rules and
procedures must
be provided for in terms of national legislation’.
3
Montreal
Trust Co v Churchill Forrest Industries (Manitoba) Ltd
1972 21 DLR (3d) 75 at 81 quoting I H Jacob,
Current Legal Problems
(1970) p 51.
4
Ritchie
v Andrews
(1881-1882) 2 EDL 254
;
Conolly
v Ferguson
1909 TS 195.
5
National
Union of Metal Workers of South Africa & others v Fry’s
Metal (Pty) Ltd
2005 (5) SA 433
(SCA) para 40 citing
Moch v
Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3)
SA 1
(A) at
7 F.
6
Moulded
Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis &
another
1979 (2) SA 457
(W) at 462H-463B.
7
In
Road Accident Fund v Mdeyide
2011
(2) SA 26
(CC) the Constitutional Court confirmed the
constitutionality of the three-year prescription period provided for
by
s 23(1)
of the
Road Accident Fund Act 56 of 1996
.
8
In
S Peté, D Hulme, M du Plessis, R Palmer and O Sibanda
Civil Procedure; A Practical Guide
2 ed (2011) p 91.