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[2022] ZAECGHC 33
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Voko v Road Accident Fund (06/2022) [2022] ZAECGHC 33 (29 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GRAHAMSTOWN)
Of
interest
Case
no: 1123/2021
361/2021
In
the matter between:
NONTUTHUZELO
VOKO
APPLICANT
and
THE
ROAD ACCIDENT
FUND RESPONDENT
and
in the matter between:
MAKAGONGWE
SAWULA
APPLICANT
and
THE
ROAD ACCIDENT
FUND RESPONDENT
REASONS
Govindjee
J
[1]
The abovementioned matters were moved on my motion court
roll on 22
March 2022. They are practically identical in substance. The
applicants both seek orders removing and transferring their
proceedings against the respondent to the ‘East London Circuit
Local Division’, with costs to be costs in the undefended
main
actions between the parties.
[2]
The applicants rely on affidavits from their legal representative.
The
essence of both affidavits is the same. The applications are
premised on s 27 of the Superior Courts Act, 2013 (‘the
Act’):
[1]
‘
Removal of
proceedings from one Division to another or from one seat to another
in same Division
(1)
If any proceedings have been instituted in a Division or at a seat of
a Division,
and it appears to the court that such proceedings –
(a)
should
have been instituted in another Division or at another seat of that
Division; or
(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.’
[3]
The main actions were instituted in this court because of the
location
of the respective motor vehicle collisions. The actions
could not have been instituted in the East London Circuit Court,
which
lacks the requisite jurisdiction. The basis for the
applications is the place of business of the applicants’ legal
representatives
(East London), the extra costs necessitated by the
appointment of correspondents in Makhanda and the need for the
applicants’
legal practitioner to travel and be accommodated
here. The deponent also avers that costs will be saved by the filing
of documentation
in East London rather than by incurring postage
costs to Makhanda. In addition, the respondent’s head office is
in East London,
and the applicants’ orthopaedic surgeon is
located there. In essence, it was submitted that it would be
convenient and cost-efficient
to remove the main proceedings from
this court to the East London Circuit Court.
[4]
I have previously considered identical arguments in a matter argued
before
me during November 2021. As in that instance, I find myself
unable to agree with counsel’s submissions and the applications
stand to be dismissed in my view. I suggested to counsel that it
might be appropriate for me to provide written reasons for my
decision on this occasion, also to ensure that counsel moving similar
applications in future can at least bring this line of reasoning
to
the attention of presiding officers. I understand that orders
granting similar relief may have been granted on occasion in the
past
and consider it important that the position is clarified. The reasons
for my approach follow.
[5]
The Constitution of the Republic of South Africa, 1996, (‘the
Constitution’)
was amended in 2012 to constitute a single High
Court in South Africa.
[2]
The
Act, following suit, abolished local divisions and constituted the
High Court in its present divisions,
[3]
corresponding to the nine provinces, with main seats in each division
and some local seats.
[4]
The
main seat of the Eastern Cape Division is Grahamstown.
[5]
Erstwhile local divisions (the South-Eastern Cape Local Division, the
Witwatersrand Local Division and the Durban and Coast Local
Division,
with their seats in Port Elizabeth,
[6]
Johannesburg and Durban, respectively) were separately constituted as
High Courts prior to the Act establishing a single High Court
for
South Africa. Following the abolition of local divisions, those
courts, and those in Mthatha, Bhisho and Thohoyandou, are now
‘local
seats’ of the provincial divisions.
[7]
As the SCA held in
Murray
NO and others v African Global Holdings (Pty) Ltd and others
,
‘They are not separate courts and it is no longer appropriate
to refer to them as such or to describe them as local divisions’.
[8]
[6]
It is the responsibility of the Minister of Justice and Correctional
Services
(‘the Minister’), after consultation with the
Judicial Service Commission (‘JSC’), to determine the
area
under the jurisdiction of a division by notice in the Government
Gazette.
[9]
Importantly, the
Minister may, after consultation with the Judicial Service
Commission, by notice in the Gazette establish ‘one
or more
local seats for a Division, in addition to the main seats …
and determine the area under the jurisdiction of such
a local seat
…’
[10]
[7]
A Judge President of a division may, after consultation with the
Minister,
hold a sitting for the hearing of any matter at a place
other than at the seat or a local seat of the division when it is
expedient
or in the interests of justice to do so.
[11]
The Judge President may also establish a ‘circuit court of the
Division’,
[12]
by
establishing circuit districts for the adjudication of civil and
criminal matters by notice in the Gazette.
[13]
[8]
S 7(3) of the now repealed Supreme Court Act, 1959
[14]
provided that such courts were to be known as ‘the circuit
local division’ for the district in question. The statute
provided specifically that such courts were deemed, for all purposes,
to be a local division. The East London ‘circuit local
division’ was established for the Eastern Cape Division on this
basis.
[15]
The Circuit Court
Rules ‘Regulating the conduct of the proceedings of the several
provincial and local divisions of the Supreme
Court of South Africa
relating to Circuit Courts’ were made in terms of s 43(2)
(a)
of the
now repealed Supreme Court Act, 1959.
[16]
‘Circuit court’ was defined with reference to the now
repealed s 7 of that Act, to be ‘held within the area of
jurisdiction of the provincial or local division’. As
indicated, the nomenclature of a ‘local division’ is now
inappropriate given the wording of s 166
(c)
of the
Constitution, read with ss 6 and 50 of the Act. Any circuit court
established under any law repealed by the Act and in existence
immediately before the commencement of the Act is deemed to have been
duly established in terms of the Act ‘as a Circuit
Court of the
Division concerned’.
[17]
[9]
It must be accepted that the legislature, in repealing the Supreme
Court
Act, 1959 and enacting the Act, acted deliberately in crafting
the provisos dealing with circuit courts differently than it had
done
in the past. A court held in a circuit district is now called a
circuit court of the division in question. More importantly,
the
deeming provision that resulted in a circuit court for the district
being equated to a local division has been repealed. The
powers of
circuit courts are also affected by other sections of the Act. For
example, neither s 7 of the Act, nor any other section
thereof,
provides for the constitution of a circuit court before more than one
judge. It has therefore been submitted that a circuit
court cannot
hear appeals or any other cases where a quorum of two or more judges
is required.
[18]
In the
Eastern Cape Division, this is confirmed explicitly by Rule 18
(c)
of the
Joint Rules of Practice. In addition, these rules provide that no
bail appeals or applications for the admission, suspension,
striking-off or readmission of a legal practitioner will be heard in
a ‘circuit local division’ (now to be read as
‘circuit
court of the division’).
[19]
There is a distinction between the matters that may be heard by the
main seat of the division, the local seats of the division
and the
circuit courts of the division.
[10]
Section 27 of the Act must be considered against this backdrop.
Leaving aside proceedings
removed from one division to another, it is
possible for instituted proceedings to be heard or determined by a
different court
within the division. There are two possible reasons
for this. Firstly, that it appears to the court that the proceedings
should
have been instituted at another seat of the division.
Secondly, that the court considers it to be more convenient or more
appropriate
for the proceedings to be heard or determined at another
seat of the division.
[20]
The
court may then order such proceedings to be removed to the other seat
upon application by any party, and after hearing all
other
parties.
[21]
[11]
As indicated, in addition to the main seats referred to in s 6(1) of
the Act, it is open
for the Minister, after consultation with the
JSC, to establish one or more ‘local seats for a Division’
and determine
the areas under their jurisdiction.
[22]
In the Eastern Cape Division, it is only the Eastern Cape High Court,
Bhisho, the Eastern Cape High Court, Mthatha, and the Eastern
Cape
High Court, Port Elizabeth, that became local seats of this division
when the Act commenced.
[23]
This was subject to the Minister’s power to amend or withdraw
this by notice in the Gazette.
[24]
The East London ‘circuit local division’ is not a ‘local
seat’ of the division. It has not been established
by the
Minister as such, following consultation with the JSC. It is, in
fact, a circuit court of the division. The power of a court
to remove
proceedings from one seat in a division, in terms of s 27 of the Act,
is restricted to removal to ‘another seat’.
This must
relate to ‘local seats’ established by the Minister for a
division in terms of s 6(3)
(c)
of the
Act.
[12]
In coming to this conclusion, I have considered the suggestion by Van
Loggerenberg in
Erasmus
that
‘the words “seat of a Division” and “another
seat of the Division” in s 27(1) include the place
for the
holding of a circuit court as determined by the Judge President of a
division in terms of s 7(2) of the Act’.
I have been
unable to find any authorities to support such an interpretation. The
authority relied upon by the learned author for
the submission that a
matter may be removed from a division of the High Court to a circuit
court is
Rainer
v Rainer
.
[25]
That matter was an unopposed application that considered whether the
provincial division had the authority to remove a matter to
one
circuit court in circumstances where both parties resided in a
district covered by a different circuit court. After referring
to the
legislation applicable at the time, the court held that this was
permissible. In
Van
Niekerk v Van Niekerk
,
[26]
Van Winsen J considered the balance of convenience to be strongly in
favour of a matter being removed from a provincial division
to a
circuit court where the parties and witnesses resided. There was no
reference to the provisions of the Supreme Court Act,
1959 in the
judgment.
[13]
I consider myself bound to consider the question of removal based on
s 27 of the Act, which
is the issue that appears from the papers,
rather than based on any inherent power the court might have to
regulate the proceedings
before it. In
Thembani
Wholesalers v September
,
Chetty J noted that the constitutional right to access to justice
could not ‘ … be invoked to endow a local seat
with
original territorial jurisdiction when the Act itself merely vests it
with concurrent jurisdiction …’
[27]
The learned judge went on to add that the s 27 power to order the
removal of a matter from one court to another was discretionary,
citing authority premised on the wording of now repealed
proclamations and the Supreme Court Act. Those authorities, including
the judgment of Plasket J in
Davis
v Denton
,
which considered removal of an action from Grahamstown to Port
Elizabeth, ground the power of the court to remove matters to another
court firmly in legislation.
[28]
It is out of legislation that the ‘balance of convenience’
principle emerges. In the context of s 27 of the Act, the
convenience
principle is restricted to instances where application is made
[29]
for the removal of proceedings to another division or seat, and finds
no application in the matters before me.
[14]
It is now firmly established that a High Court has no power to
exercise a discretion to
decline to hear a matter falling within its
jurisdiction on the ground that another court has concurrent
jurisdiction.
[30]
A High Court
is therefore obliged by law to hear any matter that falls within its
jurisdiction. This includes the obligation on
the part of a main seat
to entertain matters that fall within the jurisdiction of a local
seat of a division, because the main
seat has concurrent
jurisdiction.
[31]
It is a
fundamental misconception to suggest that it may decline to hear a
matter which is within its jurisdiction.
[32]
It is,
furthermore, untenable to argue that a High Court enjoys a discretion
to do so based on s 169 of the Constitution.
[33]
It is equally misconceived to invoke the concept of the High Court’s
inherent jurisdiction to regulate its own process to
support the
applicants’ arguments. The inherent jurisdiction of the High
Court can only be applied, with caution, to address
a lacuna which,
in the absence of judicial intervention, would result in
injustice.
[34]
It cannot be
the basis for overtaking the clear intention of the legislature. As
the Constitutional Court held in
Phillips
and others v National Director of Public Prosecutions
:
[35]
‘ …
[A]n Act
of Parliament cannot simply be ignored and reliance placed directly
on a provision in the Constitution, nor is it permissible
to
side-step an Act of Parliament by resorting to the common law.’
[15]
Even if I was somehow empowered to consider whether it was more
convenient or appropriate
to hear the applications in the East London
Circuit Court, I would answer that question in the negative in these
matters. In determining
the removal on that
basis,
the
court
must
have
regard
to
the
convenience
of
the
parties,
the
convenience of the court and the general disposal of litigation.
[36]
In
Mekula
v Road Accident Fund
,
Pickering J considered similar arguments as that advanced by the
applicants in these matters, but in the context of a s 27 application
for removal of a matter from Grahamstown to Port Elizabeth.
[37]
The way the learned judge disposed of the arguments advanced in
respect of costs, consultation with experts and convenience is
instructive, and should be considered by legal practitioners before
launching applications, based solely on their own convenience,
for
removal in terms of s 27. It goes without saying that a party’s
choice of legal representatives is not a factor that
is ordinarily
relevant to the exercise of a discretion in terms of this
section.
[38]
[16]
It might be added that these applications were launched in this court
because of the place
where the motor vehicle collisions occurred. In
the first instance the collision occurred in Mthatha, and in the
second on the
road between Cala and Tsomo. In both cases the main
actions could not have been instituted in the East London Circuit
Court because
of a lack of jurisdiction. The applicants seek,
effectively, to circumvent that jurisdictional difficulty by invoking
s 27 of the
Act. Given the wording of that section, and the
difference between ‘another seat’ of that division and a
‘circuit
court of the division’, they cannot succeed.
Order
[17]
The applications are dismissed.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:
22 March 2022
Delivered:
29 March 2022
Appearances:
For
the Plaintiff: Adv
A E Teko
Instructed
by: Whitesides
Attorneys
Makhanda
046 622 7117
Pa1@whitesides.co.za
[1]
Act
10 of 2013.
[2]
S 166
(c)
of
the Constitution. For a useful synopsis of the history of the Act
and its application in the Eastern Cape Division, see the
judgment
of Chetty J in
Thembani
Wholesalers v September
2014
(5) SA 51
(E).
[3]
‘Division’ is defined in the Act to mean ‘any
Division of the High Court’, and ‘High Court’
is
defined to mean ‘the High Court of South Africa referred to in
section 6(1)’.
[4]
Murray
NO and others v African Global Holdings (Pty) Ltd and others
2020
(2) SA 93
(SCA) para 15.
[5]
S 6(1)
(a)
,
read with s 50(1)
(b)
of
the Act. It may be noted that the name ‘Grahamstown’ has
been changed to ‘Makhanda’ and that legal
proceedings
challenging this name-change are ongoing.
[6]
Now Gqeberha.
[7]
S 50(1)
(a),
(c)
and
(d)
of
the Act.
[8]
Murray
NO and others v African Global Holdings (Pty) Ltd and others
op
cit para 18.
[9]
S 6(3)
(a)
of
the Act. The Minister may, in the same manner, amend or withdraw
such a notice.
[10]
S 6(3)
(c)
of
the Act.
[11]
S 6(7) of the Act.
[12]
S 7(3) of the Act.
[13]
S 7(1) of the Act. In each circuit district of a division there must
be held, at least twice a year and at such times and places
as may
be determined by the Judge President concerned, a court which must
be presided over by a judge of that division: s 7(2)
of the Act.
[14]
Act 59 of 1959.
[15]
Four civil terms and four criminal terms are held during the year
and two motion courts are provided each month throughout the
year
(sitting on the second and fourth Tuesday of every month).
[16]
S 51 of the Act provides that the rules applicable to the various
High Courts immediately before the commencement of this section
remain in force to the extent that they are not inconsistent with
the Act, until repealed or amended.
[17]
S 50(3) of the Act.
[18]
See DE van Loggerenberg
Erasmus:
Superior Court Practice
RS
12 (2020) A2-10F.
[19]
Similarly, reference to the ‘Joint Rules of Practice for the
High Courts of the Eastern Cape Province’ should be
read as
‘Joint Rules of Practice for the Eastern Cape Division of the
High Court of South Africa’: s 6
(a)
of
the Act.
[20]
Ss 27(1)
(a)
and
(b)
of
the Act.
[21]
S 27(1) of the Act. An order for removal under subs (1) must be
transmitted to the registrar of the court to which the removal
is
ordered, and upon receipt of such order that court may hear and
determine the proceedings in question: s 27(2) of the Act.
[22]
S 6(3)
(c)
of
the Act.
[23]
These local seats are endowed with concurrent jurisdiction over
smaller areas than that enjoyed by the division’s main
seat:
Thembani
Wholesalers v September
op
cit para 10, cited with approval in
The
Standard Bank of SA Ltd and others v Thobejane and others
and
The
Standard Bank of SA Ltd v Gqirana NO and another
[2021]
ZASCA 92
para 33.
[24]
S
50(1) of the Act, read with s 6(3)
(a)
.
[25]
1941 CPD 391.
[26]
1969 (2) SA 430 (C).
[27]
Thembani
Wholesalers v September
op
cit para 11. Also see
The
Standard Bank of SA Ltd and others v Thobejane and others
and
The
Standard Bank of SA Ltd v Gqirana NO and another
op
cit paras 50, 51.
[28]
Davis
v Denton
2008]
ZAECHC 138
para 5.
[29]
For the suggestion that the court may exercise such power
mero
motu
,
see
Thembani
Wholesalers v September
op
cit para 13.
Cf
[30]
The
Standard Bank of SA Ltd and others v Thobejane and others
and
The
Standard Bank of SA Ltd v Gqirana NO and another
op
cit para 25: it must be the plaintiff who chooses a court of
competent jurisdiction and the granting of an order for the transfer
of legal proceedings from a High Court to a Magistrate’s
Court, in the absence of plaintiff’s consent, would infringe
upon this right.
[31]
The
Standard Bank of SA Ltd and others v Thobejane and others
and
The
Standard Bank of SA Ltd v Gqirana NO and another
op
cit para 88.
[32]
The
Standard Bank of SA Ltd and others v Thobejane and others
and
The
Standard Bank of SA Ltd v Gqirana NO and another
op
cit para 39.
[33]
The
Standard Bank of SA Ltd and others v Thobejane and others
and
The
Standard Bank of SA Ltd v Gqirana NO and another
ibid
paras 40, 41: s 169(1) of the Constitution provides that the ‘High
Court of South Africa may decide’ the types
of matter listed
in subs
(a)
and
(b)
.
[34]
The
Standard Bank of SA Ltd and others v Thobejane and others
and
The
Standard Bank of SA Ltd v Gqirana NO and another
op
cit paras 53-55.
[35]
Phillips
and others v National Director of Public Prosecutions
[2005]
ZACC 15
;
2006 (1) SA 505
(CC)
paras
47-51.
[36]
See
Mulder
v Beacon Island Shareblock Ltd
1999
(2) SA 274
(C);
Nongovu
NO v Road Accident Fund
2007
(1) SA 59
(T) and
Mekula
v Road Accident Fund
[2017]
ZAECGHC 118 para 5.
[37]
Mekula
v Road Accident Fund
ibid.
[38]
Davis
v Denton
op
cit para 8.