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[2021] ZASCA 92
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Standard Bank of SA Ltd and Others v Thobejane and Others; Standard Bank of SA Ltd v Gqirana N O and Another (38/2019; 47/2019; 999/2019) [2021] ZASCA 92; [2021] 3 All SA 812 (SCA); 2021 (6) SA 403 (SCA) (25 June 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
Nos: 38/2019; 47/2019 & 999/2019
In
the matter between:
THE
STANDARD BANK
FIRST
APPELLANT
NEDBANK
LIMITED

SECOND

APPELLANT
FIRSTRAND
BANK LIMITED
THIRD

APPELLANT
and
EZRA
MAKIKOLE MPONGO
FIRST

RESPONDENT
MYRA
GERALDINE WOODITADPERSAD                  SECOND

RESPONDENT
RADESH
WOODITADPERSAD

THIRD

RESPONDENT
JOYCE
HLUPHEKILE NKWINIKA
FOURTH

RESPONDENT
KARIN
MADIAU SAMANTHA LEMPA
FIFTH

RESPONDENT
NEELSIE
GOEIEMAN
SIXTH

RESPONDENT
ANGELINE
ROSE GOEIEMAN
SEVENTH

RESPONDENT
JULIA
MAMPURU THOBEJANE
EIGHTH

RESPONDENT
AUBREY
RAMORABANE SONKO
NINTH

RESPONDENT
ONESIMUS
SOLOMON MATOME MALATJI
TENTH

RESPONDENT
MODIEGI
PERTUNIA MALATJI

ELEVENTH
RESPONDENT
GRACE
M MAHLANGU

TWELFTH
RESPONDENT
KEY
HINRICH LANGBEHN

THIRTEENTH
RESPONDENT
and
in the matter between:
THE
STANDARD BANK

FIRST

APPELLANT
NEDBANK
LIMITED

SECOND

APPELLANT
and
V
W GQIRANA N O

FIRST RESPONDENT
V
W GQIRANA

SECOND

RESPONDENT
and
THE
SOUTH AFRICAN HUMAN RIGHTS                            AMICUS

CURIAE
COMMISSION
THE
DEPARTMENT OF JUSTICE AND
AMICUS

CURIAE
CONSTITUTIONAL
DEVELOPMENT
PRETORIA
SOCIETY OF ADVOCATES
AMICUS

CURIAE
Neutral
citation:
The Standard Bank of SA Ltd and Others v Thobejane
and Others
(38/2019 & 47/2019) and
The Standard Bank of SA
Ltd v Gqirana N O and Another
(999/2019)
[2021] ZASCA 92
(25 June
2021)
Coram:
MAYA P, PETSE DP, DAMBUZA and PLASKET JJA and SUTHERLAND AJA
Heard:
20 August 2020
Delivered:
This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 25 June 2021.
Summary
:
A court is obliged by law to hear any matter that
falls within its jurisdiction and has no power to exercise a
discretion to decline
to hear such a matter on the ground that
another court has concurrent jurisdiction.
ORDER
In case numbers
38/2019 and 47/2019:
On appeal from the
Gauteng Division of the High Court, Pretoria (Ledwaba DJP, Tolmay and
Mothle JJ sitting as court of first instance):
1
The appeal is upheld, with no order as to costs.
2
The order of the court below is set aside and replaced with the
following
order:
‘
It
is declared that:
(1)
The High Court must entertain matters within its territorial
jurisdiction that fall within
the jurisdiction of a Magistrates’
Courts, if brought before it, because it has concurrent jurisdiction
with the Magistrates’
Court.
(2)
The High Court is obliged to entertain matters that fall within the
jurisdiction of a Magistrates’
Court because the High Court has
concurrent jurisdiction.
(3)
The main seat of a Division of a High Court is obliged to entertain
matters that fall within
the jurisdiction of a local seat of that
Division because the main seat has concurrent jurisdiction.
(4)
There is no obligation in law on financial institutions to consider
the cost implications
and access to justice of financially distressed
people when a particular court of competent jurisdiction is chosen in
which to
institute proceedings.
3.
There is no order as to costs.’
In case number
999/2019:
On appeal from the
Eastern Cape Division of the High Court, Grahamstown (Hartle, Lowe
and Jolwana JJ sitting as court of first instance):
1
The appeal succeeds, with no order as to costs.
2.
The order of the court below is set aside and replaced with the
following:
‘
It
is declared that:
(1)
The High Court must entertain matters within its territorial
jurisdiction that fall within
the jurisdiction of a Magistrates’
Courts, if brought before it, because it has concurrent jurisdiction
with the Magistrates’
Court.
(2)
The High Court is obliged to entertain matters that fall within the
jurisdiction of a Magistrates’
Court because the High Court has
concurrent jurisdiction.
(3)
There is no obligation in law on financial institutions to consider
the cost implications
and access to justice of financially distressed
people when a particular court of competent jurisdiction is chosen in
which to
institute proceedings.
3.
There is no order as to costs.’
JUDGMENT
Sutherland
AJA (Maya P, and Petse, Dambuza and Plasket JJA concurring)
[1]
This appeal concerns two matters, one decided in the Gauteng Division
of the High
Court, Pretoria (the Gauteng Court) and the other in the
Eastern Cape Division of the High Court, Grahamstown (the Eastern
Cape
Court) dealing with jurisdictional issues. The essence of this
matter is whether a High Court may properly refuse to hear a matter

over which it has jurisdiction where another court has concurrent
jurisdiction in either of two circumstances: when a High Court
and a
Magistrates’ Court both have jurisdiction in respect of the
same proceedings, and when the main seat of a Division
of a High
Court and a local seat both have jurisdiction in respect of the same
proceedings.
Background and facts
[2]
The context in which these matters came to be heard, and the orders
which were given,
were unusual. Before both courts, there were
applications by several banks, the applicants a quo and the present
appellants, against
debtors who had either taken up mortgages or had
purchased motor vehicles on credit and had defaulted on repayment. As
is usual,
and in accordance with established practice, in the absence
of any notices of intention to oppose from the defendants, the
applications
were enrolled in the Unopposed Motion Court where orders
were sought for repayment of the outstanding indebtedness and for
leave
to specially execute on the mortgaged residential properties.
At no stage did the debtors cited as defendants in the court a quo,

participate in the hearing.
[3]
At the instance of the respective Judges-President several of such
cases were placed
before a full court of each Division. As appears
from the judgments, the trigger was apparently twofold. First there
was a concern
that the rolls of the High Court were being
congested by matters which could have been heard in the Magistrates’
Court.
In Gauteng there was a concern about matters that could have
been heard in the local seat in Johannesburg clogging-up the roll in

the main seat in Pretoria. Second, there was a belief that
impecunious debtors were suffering prejudice because they would,
should
they wish to oppose a claim, have to travel to a High Court
when a Magistrates’ Court was supposedly nearby and more
convenient
to attend. Also, were a debtor to wish to resist a claim,
legal costs would be less in the Magistrates’ Court than in the

High Court. In the light of these considerations was it appropriate
for a plaintiff to sue out of a court other than that closest
to the
defendant?
[4]
Having collected the cases to be heard by the respective full courts,
the Judges President
formulated a number of questions for them
to answer. Four questions were posed to the Gauteng Court. The
questions were thus:
(i)Why
should the High Court entertain matters that fall within the
jurisdiction of the Magistrate’s Court?
[ii]
Is the High Court obliged to entertain matters that fall within the
jurisdiction
of the Magistrate’s Court purely on the basis that
the High Court may have concurrent jurisdiction?
[iii]
Is the Provincial Division (sic) of the High Court obliged to
entertain matters that fall
within the jurisdiction of a Local
Division (sic) on the basis that the Provincial Division (sic) has
concurrent jurisdiction;
[1]
[iv]
Is there not an obligation on financial institutions to consider the
cost implication and
access to justice of financially distressed
people when a particular forum is considered?’
Only
questions 1, 2 and 4 were posed to the Eastern Cape Court.
[5]
The courts a quo sought assistance from several
amici
curiae
. Although it is not entirely
clear whether the
amici
approached the debtors to supply any evidence, the position is clear
that no debtor did so. The only source of facts were the applications

filed by the banks for the judgments by default and the additional
affidavits filed by the banks after the several matters had
been,
pursuant to the directives of the Judges-President, referred to the
full courts. These additional affidavits addressed the
questions
posed and explained why the choice of the High Court as the
appropriate forum was premised on several practical
considerations.
In essence, these considerations were that litigation in the
High Courts was quicker and more efficient, and
moreover, could
often, also be cheaper in the long run. It was also alleged that
legal assistance to indigent litigants was usually
more accessible at
the seat of a High Court than at Magistrates’ Courts. These
allegations of fact and explanations of motive
were unrebutted and
were never challenged.
[6]
Different answers to the posed questions were given by each of the
courts a quo. Appeals
against each of the orders were lodged by the
banks. The answers given by each court appear from the conclusions
stated and orders
given, which are set out below.
The
Gauteng Court in
Thobejane
[2]
[7]
The Gauteng Court based its conclusions on two sources. First, Tolmay
J, in her judgment,
cited statistics of the number of cases heard in
Pretoria and Johannesburg, as well as the number of judges in the
Gauteng Division.
The apparent purpose of this ‘evidence’,
which the banks saw for the first time in the judgment, was to
support the
contention that the High Court ‘may soon be unable
to provide proper access to justice’ and that the system is in
danger
of collapse. Secondly, she set out in some detail allegations
made by the South African Human Rights Commission. These were broad,

sweeping generalisations, and not facts. She took the view that the
mere fact of the banks instituting proceedings in the High
Court when
they could have proceeded in the Magistrates’ Court was an
abuse of process.
[8]
The crux of her conclusions and the order that was made were the
following:
[3]
‘
[91]
In our view the solution pertaining to matters that fall within the
jurisdiction of the magistrates' courts is that such matters
should
be issued in the magistrates' courts. If a party is of the view that
a matter that falls within the jurisdiction of the
magistrates’
courts should more appropriately be heard in this division, an
application must be issued setting out reasonable
grounds why the
matter should be heard in this division. Inefficiency of the other
court, [ie the Magistrates Court] real or perceived,
and the
convenience of the plaintiff alone will, however, not constitute such
reasonable grounds. Only after leave has been granted
may the summons
be issued in the High Court.
[92]
To answer the questions posed in the directive, in our view the High
Court is not obliged to entertain matters that fall within
the
jurisdiction of the magistrates' courts purely on the basis that the
High Court may have concurrent jurisdiction. Furthermore,
both the
local and provincial division can mero motu transfer a matter to
the other court, if it is in the interests of justice
to do so.
Lastly, there is an obligation, not only on financial institutions,
but also on all litigants, to consider the question
of access to
justice when actions or applications are issued, and the courts have
a duty to ensure that access to justice is ensured
by
exercising appropriate judicial oversight.
[93]
Regarding matters where the local and/or provincial division is the
more appropriate forum, the court hearing the matter may
mero motu
transfer the matter to that court.
...
[96]
Consequently, the following order [is issued]:
(1)   To
promote access to justice, as from 2 February 2019 civil actions
and/or applications, where the monetary
value claimed is within the
jurisdiction of the magistrates’ courts, should be instituted
in the magistrates' court having
jurisdiction, unless the High Court
has granted leave to hear the matter in the High Court.
(2)   It
is declared that a High Court is entitled to transfer a matter mero
motu to another court, ie magistrates’
courts and/or local and
provincial divisions, if it is in the interests of justice to do so.’
The
Eastern Cape Court in
Gqirana
[4]
[9]
A majority of the Eastern Cape Court (Lowe and Hartle JJ, Jolwana J
dissenting) disagreed
with the conclusion arrived at by the Gauteng
Court. They held, however, that the National Credit Act 34 of 2005
(the NCA) ousted
the jurisdiction of the High Court. The result was
that all NCA matters had to be instituted in the Magistrates’
Court.
[10]
The crux of the reasoning of Lowe J, and the order that was made were
the following:
‘
[73]
In the result, I am respectfully of the view that the relief
in
Thobejane
was too widely cast and, in any event,
on what is before us arises only in fact in respect of NCA
matters.
[74]
A proper application of the s 34 right, [ie, section 34 of the
Constitution] as read with the Magistrates' Courts Act and the
NCA,
recognising the purpose and imperative of the NCA as stated above,
makes it clear that to afford equality and access to a
fair hearing
right to the mostly financially, previously disadvantaged persons
subject to the Act, and thus proper access to justice
in all NCA
matters falling within the monetary jurisdiction of the magistrates'
court (all NCA matters in fact), must be brought
in that court, save
only if there are exceptional circumstances justifying otherwise
(such not to include the banks' suggested
advantages in High Court
litigation). Put otherwise, the NCA properly provides necessarily
that, save in exceptional circumstances,
all NCA matters be brought
in the magistrates' court. What may constitute exceptional
circumstances would have to be decided on
a case-by-case basis.
[75]
In summary it follows from the above that:
[75.1] Generally,
post-1994 the concurrency of jurisdiction between the High Court and
magistrates' court remains in place
— put otherwise, the High
Court retains jurisdiction in respect of matters falling within the
monetary jurisdiction of the
magistrates' court.
[75.2] This remains
so unless the jurisdiction of the High Court in such matters is
ousted by legislation either expressly
or by necessary implication.
[75.3] The NCA
extends jurisdiction to the magistrates' court in all matters which
properly constitute issues falling within
the ambit of the NCA.
[75.4] The NCA seeks
to provide for specific structures and procedures in order to
enable the mostly financially, previously
disadvantaged to benefit
from the provisions of the NCA itself.
[75.5] There is no
express legislative provision in the NCA or other legislation ousting
the High Court jurisdiction generally
in respect of matters
subject to the magistrates' court jurisdiction.
[75.6] The
provisions of the NCA, however, properly interpreted through the
prism of the Constitution, create a specific set
of structures and
procedures relating to NCA matters which, read in context and on a
generous interpretation, by necessary implication
provides for the
magistrates' court to be the court of first adjudication in all NCA
matters, to the exclusion of the High Court
as a court of first
adjudication, save only in the event that there are unusual or
extraordinary factual or legal issues raised
which in the opinion of
the High Court warrant them being heard first in the High Court.
[75.7] Insufficiency
and/or related delays in the magistrates' court, perceived or real,
are not factors which constitute such
unusual circumstances.
[75.8] In
the result, all but unusual and extraordinary cases falling within
the provisions of the NCA (which will be few and
far between) must be
brought in the magistrates' court as court of first instance.
[76]
This does not implicate other non-NCA matters, upon which I make no
finding as this would be clearly obiter.
…
.
[78] Order
1.
To promote access to justice in the
context of the Magistrates' Courts Act and the NCA, as read with ss 9
and 34 of the Constitution,
and as from 1 August 2019, civil actions
and/or applications arising within the ambit of the NCA (and thus
falling within
the magistrates' courts' jurisdiction) should be
instituted in the magistrates' court having jurisdiction.
.
. . .’
Comments on the
approach taken by the courts a quo
[11]
In neither of the courts a quo were material facts adduced to
substantiate the arguments presented
about the litigation dynamics
and their supposed implications for constitutional values which were
central to the debate. Not one
of the defendants filed an affidavit
to set out their means, why they did not oppose the claims brought
against them or whether
or not their right of access to court had
been affected in any way by the banks’ choice of forum. The
primary platform for
the conclusions reached was the notion that by
an appeal to ‘constitutional values’ the plight of
impecunious litigants
could be alleviated. The paradigm in which the
questions were considered was that in which a stereotypical plaintiff
was characterised
as a bank foreclosing on a mortgage bond and the
stereotypical defendant was characterised as being of poor
circumstances.
[12]
These characterisations are self-evidently not applicable in every
case implicating the concurrent
jurisdiction controversy. In any
event, the proposition that the debtors were all of poor
circumstances and were inhibited by either
geography or lack of means
from participation in the matters, was wholly unsubstantiated on the
record. The debts were all within
the jurisdiction of the
Magistrates’ Court. No other material facts about the debtors
were before the courts.
[13]
Indeed, the several
amici
were driven to present arguments on the basis of speculative
extrapolations from moral sensibilities rather than from established

fact. As stated above, in the Gauteng Court, factual averments about
the work-load of the Pretoria and of the Johannesburg seats,
upon
which that court relied to reach its conclusions, were ventilated for
the first time in the judgment and were never put to
the litigants in
the hearing for them to address. In the Eastern Cape Court, the
foundation of the thesis for the Court’s
conclusions that the
NCA ousted the jurisdiction of the High Court was never put to the
parties’ counsel. Moreover, both
courts addressed the question
of transfers of matters from the High Court to another court, and
made orders about that subject,
despite this plainly not being a
question posed by the Judges-President in their directives.
[14]
Many of the issues addressed in the judgments may be proper matters
for investigation and consideration.
However, these issues implicate
policy considerations which, in my view, plainly and properly belong
within the province of Parliament.
The statutory provisions in the
Superior Court Act 10 of 2013 (SC Act), the Magistrates’
Court Act 32 of 1944 (the MC
Act) and in the Uniform Rules of
Court which were subjected to a critique were not challenged on the
basis that the provisions
were unconstitutional. The forensic
exploration a quo was therefore limited to an exercise in
interpretation of the statutes to
endeavour to reach conclusions on
their meaning such as to render them consistent with the
constitutional guarantee in s 34 of
the Constitution as to access to
a court to resolve justiciable disputes and, more broadly, consistent
with s 9 of the Constitution
as to the guarantee of human dignity.
Largely, factual findings with no proper evidential basis, the resort
to generalised and
speculative conclusions with no proper evidential
foundation, and the unjustified ignoring or rejection of the only
evidence before
the courts a quo explain the shortcomings in both
judgments.
The law relevant to
concurrency of jurisdiction and the choice of court
The constitutional
and statutory framework
[15]
In our country, the Constitution establishes judicial authority.
Several Courts are created.
Section 166
(b)
creates the High
Court and s 166
(d)
creates the Magistrates’ Courts. The
scope of the substantive decision-making power of these courts is
addressed in ss 169
and 170.
[16]
Section 169(1) provides:
‘
(1)
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.’
The
import of this section is to authorise the High Court to decide all
matters other than those reserved for other courts. The
notion that
the sweep of this authorisation can lightly be compromised is
untenable.
[5]
No
monetary cap exists in respect of the High Court; an indication of
its universal scope of authority, subject only to s 169.
[17]
S 170 stipulates that a Magistrates’ Court may decide any
matter determined by a statute.
The monetary cap on the reach of the
jurisdiction of the Magistrates’ Court is stipulated in s 29(1)
of the Magistrates’
Court Act.
[18]
In s 173 it is provided that the ‘. . . High Court has inherent
power to protect and regulate
their own process, and to develop the
common law, taking into account the interests of justice’.
[19]
In s 171, in relation to ‘court procedures’, it is
provided that ‘[a]ll courts
function in terms of national
legislation, and their rules and procedures must be provided for in
terms of national legislation’.
The national legislation
referenced in the Constitution has been, at all relevant times to
this case, the SC Act and the Magistrates’
Court Act.
[20]
The critical provisions of the SC Act are ss 21 and 27. Section 21
provides:
‘
(1)
A Division [of the High Court] has jurisdiction over all persons
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 obligation, 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 which 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.
.
. . .’
[21]
S 27 is headed ‘
Removal of
proceedings from one Division to another or from one seat to another
in same Division’. It provides:
‘
(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.
(2)
An order for removal under subsection (1) must be transmitted to the
registrar of the court to which the removal is ordered,
and upon the
receipt of such order that court may hear and determine the
proceedings in question.’
[22]
The relevant sections in the Magistrates’ Court Act are s 29(1)
and s 50(1).
S
29(1) is headed
‘Jurisdiction in respect of causes of
action’. It provides:
‘
(1)
Subject
to the provisions of this Act and the National Credit Act, 2005 (
Act
34 of 2005
),
a court in respect of causes of action, shall have jurisdiction in-
(a)
actions
in which is claimed the delivery or transfer of any property, movable
or immovable, not exceeding in value
the amount determined by the
Minister from time to time by notice in the
Gazette
;
(b)
actions
of ejectment against the occupier of any premises or land within the
district or regional division: Provided
that, where the right of
occupation of any such premises or land is in dispute between the
parties, such right does not exceed
the amount determined by the
Minister from time to time by notice in the
Gazette
in
clear value to the occupier;
(c)
actions
for the determination of a right of way, notwithstanding the
provisions of section 46;
(d)
actions
on or arising out of a liquid document or a mortgage bond, where the
claim does not exceed the amount determined
by the Minister from
time to time by notice in the
Gazette
;
(e)
actions
on or arising out of any credit agreement
as
defined in
section
1
of
the
National Credit Act, 2005
(
Act
34 of 2005
);
(f)
actions
in terms of
section
16 (1
)
of
the Matrimonial Property Act, 1984 (
Act
88 of 1984
),
where the claim or the value of the property in dispute does not
exceed the amount determined by the Minister from time to time
by
notice in the
Gazette
;
(f
A
)
actions,
including an application for liquidation, in terms of the Close
Corporations Act, 1984 (
Act
69 of 1984
);
(g)
actions
other than those already mentioned in this section, where the claim
or the value of the matter in dispute
does not exceed the amount
determined by the Minister from time to time by notice in
the
Gazette
.’
[23]
S 50(1) is headed ‘Removal of actions from court to provincial
or local division’.
It provides:
‘
(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 that the applicant objects to the action being
tried by the court or any magistrate's court;
.
. .
Upon
compliance by the applicant with those provisions, all proceedings in
the action in the court shall be stayed, and the action
and all
proceedings therein, shall, if the plaintiff so requires, be as to
the defendant or defendants, forthwith removed from
the court into
the provincial or local division aforesaid having jurisdiction. Upon
the removal, the summons in the court shall,
as to the defendant or
defendants, stand as the summons in the division to which the action
is removed, the return date thereof
being the date of the order of
removal in an action other than one founded on a liquid document,
and, in an action founded on a
liquid document, being such convenient
day on which the said division sits for the hearing of provisional
sentence cases, as the
court may order: Provided that the plaintiff
in the action may, instead of requiring the action to be so removed,
issue a fresh
summons against the defendant or defendants in any
competent court and the costs already incurred by the parties to the
action
shall be costs in the cause.’
[24]
In addition, Uniform Rule of Court 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 magistrates court; Provided that
the matter is one within the jurisdiction of the latter court
whether
by way of consent or otherwise.’
[25]
Self-evidently, litigation begins by a plaintiff initiating a claim.
Axiomatically, it must be
the plaintiff who chooses a court of
competent jurisdiction in just the same way that a game of cricket
must begin by a ball being
bowled. The batsman cannot begin. This
elementary fact is recognised as a rule of the common law, founded,
as it is, on common
sense. The right of a plaintiff to do so was
recognised in a Full Court of the Gauteng Division in
Moosa
v Moosa,
[6]
.
That
Court relied on
Marth
v Collier
[7]
where it was stated:
‘
The
granting of an order for the transfer of legal proceedings from the
Supreme Court to the Magistrates’ Court, in the absence
of a
Plaintiff ’s consent, would clearly infringe upon the
latter’s substantive right to choose the forum in which
he or
she wishes to institute proceedings. As little as our courts have the
inherent power to create substantive law (See: the
Cerebos
Foods
case (
supra
) at 173D;
Universal City
Studios Inc & Others v Network Video (Pty)
Ltd
1986 (2) SA 734 (A) at 754E-755E) do
they have the power, in the absence of statutory - or common law
authorisation
or legal precedent. . . to make orders which infringe
upon the substantive rights of litigants or others (See:
Eynon
v Du Toit
1927 CPD 76
;
E v E and Another
1940
TPD 333)
, such as the right of a Plaintiff, as
dominus litis
,
to decide in which of concurrent
fora
he or she
wishes to enforce his or her rights.’
The
Gauteng Court expressed a view that the concept of a plaintiff as
dominis litis
is
‘outdated’ was unfortunate and was unsubstantiated by
reference to any authorities or learning.
Concurrent
jurisdiction: the case law
[26]
The concurrency of jurisdiction in circumstances in which a claim
justiciable in a Magistrates’
Court has been brought in a High
Court has been recognised for over a century. In
Koch
v Realty Corporation of South Africa
[8]
the court held:
'Now
the first question we have to decide is: What is the policy of the
Magistrates' Courts Act? Is it the policy of the Magistrates'
Courts
Act to take away from this Court the consideration of questions
involving an amount of less than £200, or is it the
policy of
the Act to enable lawsuits as a general rule to be brought more
cheaply than would be the case if they had to be brought
before this
Court? Was it ever the policy, of the Magistrates Courts Act to
deprive this Court of the right of hearing suits involving
an amount
less than £200? Now there is nothing said in the Magistrates'
Courts Act that cases under £200 are to be
brought exclusively
in that Court, therefore this Court has a concurrent jurisdiction
with the magistrates' court in all such cases
as the magistrate is
entitled to hear.’
[27]
It is also law of long standing that when a High Court has a matter
before it that could have
been brought in a Magistrates’ Court,
it has no power to refuse to hear the matter. In
Goldberg
v Goldberg,
[9]
the point was taken that as a Magistrates’ Court had
jurisdiction (in respect of contempt proceedings concerning the

non-payment of maintenance) the Supreme Court should refuse to hear
the matter. After referring to a statutory provision that was
unique
to Natal at the time, that allowed for the transfer of cases where
there was concurrent jurisdiction, Schreiner J held:
[10]
‘
But
apart from such cases and apart from the exercise of the Court's
inherent jurisdiction to refuse to entertain proceedings which
amount
to abuse of its process (and that, in my opinion, is not the case
here) 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.
Not only
may a successful applicant be awarded only Magistrate's Court costs
but he may even be deprived of his costs and be ordered
to pay any
additional costs incurred by the respondent by reason of the case
having been brought to the Supreme Court. In all normal
cases these
powers should suffice to protect the respondent against the hardship
of being subjected to bring unnecessarily expensive
proceedings.’
[28]
In circumstances similar to those in the two cases with which this
appeal is concerned, the issue
of the concurrence of jurisdiction
between Magistrates’ Courts and High Courts was considered by a
full court of the then
Witwatersrand Local Division of the Transvaal
Provincial Division in
Standard
Credit Corporation Ltd v Bester and Others
.
[11]
The issues to be decided in that case were defined by the court to be
‘the right of the plaintiff to issue summons and to
claim
judgment in the Supreme Court, since each claim falls within the
jurisdiction of the Magistrate’s Court, and, conversely,
the
right of the Supreme Court to refuse to hear these actions because
they fall within the jurisdiction of the Magistrate’s

Court’.
[12]
[29]
Van der Walt J, with reference to Coetzee DJP’s judgment in
Standard
Bank of South Africa Ltd v Shiba
,
[13]
held that if he had ‘intended to hold that the Supreme Court
has an inherent jurisdiction to refuse to hear a litigant and
to
entertain proceedings in a matter within its jurisdiction and
properly before the Court, his judgment cannot be supported’.
[14]
With reference to a slew of cases on this issue, Van der Walt J
concluded:
[15]
‘
In
spite of statements referring to an apparent right vested in the
Supreme Court to refuse to entertain a matter within its jurisdiction

in some of these cases, in none of these cases did the Supreme Court
in fact purport to exercise such a right of summarily refusing
to
entertain a matter within its jurisdiction because a lower court also
had jurisdiction. A predominant feature in these cases
was the
Supreme Court's concern about the expenses caused to the litigants by
recourse to the Supreme Court, and appropriate orders
limiting or
disallowing costs were consequently made. From none of these cases
can a principle be extracted that the Supreme Court
has an inherent
jurisdiction to refuse to hear a litigant and to entertain
proceedings in a matter within its jurisdiction and
properly before
the Court.’
Indeed,
he found that
Goldberg’s
case
was ‘clear authority that no such principle exists’.
[16]
[30]
After an exhaustive analysis of the authorities, Van der Walt J came
to the conclusion that a
High Court ‘should hear a matter
properly before it and within its jurisdiction’ and that if a
Magistrates’ Court
also had jurisdiction, and the matter could
be dealt with less expensively in that court, the High Court can
discourage litigation
before it ‘by an appropriate order
regarding costs’.
[17]
[31]
This court confirmed the correctness of
Bester
in
Agri
Wire (Pty) Ltd and Another v Commissioner, Competition Commission and
Others
,
[18]
holding that ‘[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’.
[32]
In
Makhanya
v University of Zululand,
[19]
this court set out the position when  litigants have a choice of
fora in which to bring their claims. Nugent JA said:
‘
Some
surprise was expressed in
Chirwa
at the notion that a
plaintiff might formulate his or her claim in different ways and
thereby bring it before a forum of his or
her choice but that
surprise seems to me to be misplaced. A plaintiff might indeed
formulate a claim in whatever way he or she
chooses – though it
might end up that the claim is bad. But if a claim, as formulated by
the claimant, is enforceable in
a particular court, then the
plaintiff is entitled to bring it before that court. And if there are
two courts before which it might
be brought then that should not
evoke surprise, because that is the nature of concurrent
jurisdiction. It might be that the claim,
as formulated, is a bad
claim, and it will be dismissed for that reason, but that is another
matter.’
[33]
There is also a jurisdictional overlap in those Divisions of the High
Court that have local seats.
In those instances, concurrent
jurisdiction is enjoyed by a local seat, within its area of
jurisdiction, and the main seat, which
has jurisdiction over its
entire province. In
Thembani
Wholesalers (Pty) Ltd v September and Another
,
[20]
Chetty J, with reference to s 50 of the SC Act held that
‘[g]rammatically, its meaning is clear and unambiguous –
the local seats of the division, identified as the Eastern Cape High
Courts, Bhisho, Mthatha and Port Elizabeth, are endowed with

concurrent jurisdiction over smaller areas than that enjoyed by the
main seat’ and that ‘the division's area of jurisdiction,

conferred by s 21, comprises the entire province of the Eastern
Cape’.
The
Thobejane
judgment
[34]
It was argued on behalf of the banks that the
Thobejane
judgment strove to synthesise three aspects to reach its conclusions:
the notion of an abuse of the process, a violation of the
guarantee
of access to a court in s 34 of the Constitution, and the scope of
the exercise of the inherent jurisdiction of the High
Court as
codified in s 173 of the Constitution. I agree that it is useful to
analyse the judgment in relation to those themes.
[35]
The essence of the judgment is that a plaintiff commits an abuse of
the process by suing out
of a court that suits its interests when,
supposedly, that choice would not necessarily suit the defendant’s
interests. In
answer to the banks’ assertion to the contrary,
Tolmay J said:
‘
We
beg to differ, if impecunious litigants are denied proper access to
justice, or the High Court is incapable of dealing properly
and
effectively with its workload, due to this practice, it must
constitute an abuse.’
This
supposed abuse is illustrated by a plaintiff suing out of the High
Court when the alternative exists of suing out of the Magistrates’

Court or suing in the Pretoria seat of the Gauteng Division when the
matter could have been sued out of the Johannesburg seat.
[36]
The judgment holds that the abuse manifests itself in two ways.
First, a defendant could have
more conveniently attended a
Magistrates’ Court having concurrent jurisdiction, supposedly
nearby, rather than travel to
the seat of a High Court, assumed
to be remote. Second, a defendant has to incur greater legal costs if
the case is before
the High Court. As to suing out of the Pretoria
seat, rather than out of the Johannesburg seat, proximity, not costs
is the concern
as regards the defendants. These hypothetical effects
violate, according to the Gauteng Court, a defendant’s s 34
right of
access to court. In addition, it is egregiously unfair to
burden the roll in Pretoria with matters that could have been heard
in
Johannesburg.
[37]
In the view of the Gauteng Court, the violation of s 34 can be cured
by the High Court exercising
its inherent jurisdiction, as
contemplated in s 173 of the Constitution: the High Court would, by
refusing, as a matter of course,
to hear any matter that could have
been brought in another court having jurisdiction, eliminate the
abuse of the process it was
concerned with and uphold s 34 rights.
[38]
This premise is relied on to justify a general injunction to prevent
any plaintiff from instituting
a matter in the Pretoria seat of the
Division when the Johannesburg seat has jurisdiction or instituting a
matter in either seat
where the Magistrates’ Court has
jurisdiction. A single qualification to this regime was recognised by
the Gauteng Court:
in a case where good cause can be shown why
it would be appropriate that the High Court, rather than a
Magistrates’ Court,
should hear a matter, an application prior
to the issue of process must be brought to obtain leave from a High
Court to do so.
[39]
In my view, the reasoning of the Gauteng Court cannot be sustained.
At its very root it is flawed.
Anterior to the justifications offered
by it in support of its thesis is the fundamental misconception that
a High Court can decline
to hear a matter which is within its
jurisdiction. This finding is contrary to
Goldberg
,
[21]
Bester
[22]
and also contrary to
Agri
Wire
[23]
which, being a judgment of this Court that was on point, bound the
Court a quo.
Agri
Wire
confirmed the correctness of
Bester
on the point in issue.
[40]
It was argued by the South African Human Rights Commission that s 169
of the Constitution now
grants a High Court a discretion to decline
to hear a matter within its jurisdiction. This argument is based on
the fact that s
169(1) provides that the ‘High Court of South
Africa may decide’ the types of matter listed in subsections
(a)
and
(b)
.
[41]
This argument is untenable. T
he term ‘may decide’
is used in all of the sections dealing with the jurisdiction of all
of the courts listed in chapter
8 of the Constitution. This would
mean, for instance, that the Constitutional Court could refuse to
hear even those matters over
which it has exclusive jurisdiction; the
Supreme Court of Appeal could refuse to hear appeals over which it
has jurisdiction and
Magistrates’ Courts could refuse to hear
matters within their jurisdiction. Bizarrely, this interpretation
would enable a
High Court to refuse to hear a matter that falls
within the jurisdiction of a Magistrates’ Court, for that
reason, and the
Magistrates’ Court to refuse to hear the same
matter because the High Court has concurrent jurisdiction. Counsel
for the
banks were correct, in my view, when they argued that, in
proper context that the term ‘may decide’ simply means
that
each court is empowered to decide the types of cases listed in
the various empowering sections. In the result, s 169 of the
Constitution
does not enable a High Court to refuse to hear a matter
because a Magistrates’ Court also has jurisdiction to do so;
and
the cases cited above remain good law.
[42]
The Gauteng Court’s finding that a court may refuse to hear
matters in order to reduce
its workload is also wrong. This issue is
a well-trodden trail.
[24]
Only
two cases need to be addressed. In
Bester
,
[25]
the Full Court addressed virtually all the concerns ventilated in the
Court a quo and reached the opposite conclusion. The judgment

contains a traverse of the case law about the debate concerning
congestion of the roll by matters that could have been heard by

another court. It concluded that it was not open to the High Court to
decline to hear any matter over which it had jurisdiction
and no
abuse could exist on the part of a plaintiff who deemed it more
propitious to sue out of the High Court than out of the
Magistrates’
Court. It also held:
[26]
‘
That,
however, is not the end of the matter. In the
Bank of Lisbon and
South Africa
judgment Coetzee DJP elaborated on the problem of
the congested rolls and what should be understood by the term “access
to
justice”. Without being drawn into a fruitless debate on
this topic, I can only state that courts should be extremely wary
of
closing their doors to any litigant entitled to approach a particular
court. The doors of the courts should at all times be
open to
litigants falling within their jurisdiction. If congested rolls tend
to hamper the proper functioning of the courts then
a solution should
be found elsewhere, but not by refusing to hear a litigant or to
entertain proceedings in a matter within the
court's jurisdiction and
properly before the court.’
[43]
In
Nedbank
Ltd v Mateman and Others; Nedbank Ltd v Stringer and Another
,
[27]
also a Full Court decision of the Gauteng Court, it was held,
following
Bester
,
that it was beyond the reach of the Court to refuse to hear any
matter within its jurisdiction. It concluded:
‘
As
can be seen from the registrar's letter referred to above, he
complains about the number of actions issued out of the
Transvaal
Provincial Division whereas they could have been dealt with
in the Witwatersrand Local Division. As also pointed out above the
Transvaal Provincial Division and the Witwatersrand Local Division
have concurrent jurisdiction in terms of s 6 of the [Supreme
Court
Act 59 of 1959]. That is something that this court cannot change. If
it is a matter of concern to the registrar and if it
is something
that affects the efficient functioning of this court, it is a matter
of policy which should be dealt with by the department
of justice and
constitutional development. Once a court has jurisdiction to
entertain a matter it cannot refuse to do so unless
the action
amounts to an abuse of the process of the court. See the [
Bester
case]. Any abuse of the process of the court in the matters before us
was disavowed.’
[44]
The Gauteng Court also erred in finding that the mere fact that the
banks instituted proceedings
in the High Court when they could have
done so in the Magistrates’ Court was an abuse of process. Once
again, the case law
is clear.
[45]
In
Corderoy
v Union Government (Minister of Finance)
,
[28]
a case concerning vexatious litigation (now regulated by statute),
Innes CJ held that there was no doubt that a court ‘has
an
inherent power to stop frivolous and vexatious proceedings, for they
amount to an abuse of process’. He went on to find
that the
power was exercisable on a case-by-case basis:
‘
That
individual suits or applications may be stayed on this ground is
clear, and that power has been frequently recognized by South
African
Courts. But the order with which we are concerned goes far beyond
that. It prohibits all suits in the future, in any court,
in
connection with a particular subject matter, not only against the
defendant but against any person in his employ.’
[46]
In
Bester
,
[29]
Van der Walt J said that while it would be ‘unwise to endeavor
to formulate an all-encompassing definition of “abuse
of
process”, because that would encroach upon the exercise of the
discretion of a court’, 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’. Interestingly, the reasons given
by the bank in
that case for instituting proceedings in the Supreme Court are
essentially similar to the reasons given in the two
cases with which
this appeal is concerned; and Van der Walt J held that those reasons
did not constitute an abuse of process.
[30]
[47]
Bester’s
definition was endorsed by Mahomed CJ in
Beinash
v Wixley
,
[31]
who said:
‘
What
does constitute an abuse of the process of the Court is a matter
which needs to be determined by the circumstances of each
case. There
can be no all-encompassing definition of the concept of “abuse
of process”. It can be said in general terms,
however, that an
abuse of process takes place where the procedures permitted by the
Rules of the Court to facilitate the pursuit
of the truth are used
for a purpose extraneous to that objective.’
[48]
There was no evidence before the court to even suggest that by
instituting proceedings in the
High Court the banks were using a
procedure for an extraneous or improper purpose. Indeed, the banks
gave a full explanation of
why they follow this procedure. Their
reasons include the saving of time and money as a result of a greater
efficiency in disposing
of these matters in the High Court as opposed
the Magistrates’ Court; the saving of costs through the
centralisation of litigation;
and the benefit of judges, rather than
magistrates, overseeing the process of execution that inevitably
follows a judgment on a
mortgage bond which, they say, is an
inherently complex decision-making process. In cases falling within
the monetary jurisdiction
of the Magistrates’ Court, the banks
usually only seek a costs order on the Magistrates’ Court
scale. In any event,
it is difficult to see how litigants can be
accused of abusing the process by exercising a choice that the law
gives them.
[49]
Section 34 of the Constitution reads:
‘
Everyone
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.’
For
present purposes, the controversy is confined to access to a court.
Care must be taken not to impose on s 34 work that it is
not designed
to perform. Its role is that of a grundnorm and does not implicate
the peculiar organisation of a litigation system
in which respect for
this value must exist. The guarantee is solely that there must be a
forum with competence to address any and
every dispute about a legal
right and it must be presided over by persons who can render a fair
process.
[50]
It is the task of statute law, in this case, the SC Act and the
Magistrates’ Court Act,
to establish a system that is
consistent with the guarantee. Nothing in either statute contradicts
the provisions of s 34. Therefore,
the invocation of s 34 as a basis
for an interpretation of national legislation (or the common law) to
conclude that one of the
two courts with concurrent jurisdiction
ought to be preferred over the other is misconceived. Where the
statute offers alternative
fora, it is a matter of sheer practicality
that the initiating party may choose one or the other.
[32]
[51]
The irony that lies within the notion that, in a democratic society,
a litigant is denied access
to a High Court of competent jurisdiction
in the absence of an express ouster ought not to be overlooked; and
as rightly argued
on behalf of the banks, no analysis as contemplated
by s 36 of the Constitution took place in this regard.
[33]
Accordingly, the policy choice favoured by the Court a quo, cannot be
founded on the provisions of s 34 because the objective of
the
section is realised regardless of which court hears the matter. This
proposition is incontrovertible as the Constitutional
Court has
plainly stated in
Mukaddam
v Pioneer Foods (Pty) Ltd and Others:
[34]
‘
.
. .
Our Constitution guarantees everyone
the right of access to courts which are independent of other arms of
government. But the guarantee
in section 34 of the Constitution does
not include the choice of procedure or forum in which access to
courts is to be exercised.
This omission is in line with the
recognition that courts have an inherent power to protect and
regulate their own process in terms
of section 173 of the
Constitution . . .’
[52]
It may of course be speculated that by reason of a deliberate policy
choice by Parliament, it
might be thought that where more than one
court has jurisdiction, a particular court should have pride of place
over the other.
However, that policy choice cannot be informed by s
34 and, insofar as the issues in this case are concerned, has not
been made.
[53]
The concept of the High Court’s inherent jurisdiction to
regulate its own process was invoked
to justify compelling the banks
to initiate proceedings in the court supposedly closer to the
defendant, despite concurrent jurisdiction
existing. The application
of inherent jurisdiction to these circumstances is misconceived. The
inherent jurisdiction of the High
Court can only be applied to
address a lacuna which, in the absence of judicial intervention,
would result in injustice.
[54]
The circumstances where inherent power can properly be employed has
been extensively addressed
by this Court and by the Constitutional
Court and the authorities demonstrate that resort to that power under
the circumstances
dealt with in the Court a quo, would be
inappropriate. The High Court cannot by a purported exercise of
inherent jurisdiction create
a new legal right to contradict an
existing legal right and thereby deprive a person of an existing
legal right.
[55]
The Constitutional Court held in
Phillips
and Others v National Director of Public Prosecutions
:
[35]
‘
[47]
The Constitution requires that judicial authority must vest in the
courts which must be independent and subject only to the
Constitution
and the law. Therefore, courts derive their power from the
Constitution itself. They do not enjoy original jurisdiction

conferred by a source other than the Constitution. Moreover, in
procedural matters, s 171 makes plain that “(a)ll courts

function in terms of national legislation and their rules and
procedures must be provided for in national legislation”.
On
the other hand, s 173 of the Constitution preserves the inherent
power of the courts to protect and regulate their own
process in the
interests of justice.
In
S
v Pennington and Another
, this Court held that:
“
It
is a power which has to be exercised with caution. It is not
necessary to decide whether it is subject to the same constraints

as the "inherent reservoir of power to regulate its
procedures in the interests of the proper administration of justice"

which vested in the Appellate Division prior to the passing of the
1996 Constitution.  Even if it is subject to such constraints,

the present situation, in which there is a vacuum because the
legislation and rules contemplated by the Constitution have not been

passed, is an extraordinary one in which it would be appropriate
to exercise the power.”
[48]
In
Parbhoo and Others v Getz NO and Another
too,
this Court turned to its “inherent power” to meet an
“extraordinary” procedural situation pending
enactment of
relevant legislation and promulgation of rules of procedure. In both
cases the points are made that ordinarily the
power in s 173 to
protect and regulate relates to the process of court and arises
when there is a legislative
lacuna
in the process.
The power must be exercised sparingly having taken into account
interests of justice in a manner consistent
with the Constitution.
[49]
It may be that the High Court could legitimately claim inherent power
of holding the scales of justice where no specific law directly

provides for a given situation or where there is a need to supplement
an otherwise limited statutory procedure such as the one
in s 26 of
the Act. This can wait for a decision in the future when such a case
presents itself.
[50]
In the present matter the applicants made no attempt whatsoever to
bring their case within the provisions of the Act, which they

could have done. The effect of the High Court order rescinding the
restraint order was to ignore the statutory provisions of an
Act of
Parliament.
[51]
Whatever the true meaning and ambit of s 173, I do not think that an
Act of Parliament can 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.
’
[56]
This Court, in
Oosthuizen
v Road Accident Fund,
[36]
addressed a controversy concerning a plaintiff who wished to have the
action he had instituted in the Magistrates’ Court
transferred
to the High Court. The issue implicated s 50(1) of the Magistrates’
Court Act that provided for a defendant to
seek such a transfer but
did not accord a plaintiff a similar option. A High Court had
dismissed the application. On appeal it
was held:
‘
[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'

Courts 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 appellant requests no more than procedural intervention
is
fallacious. Acceding to the appellant'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. 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.
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.’
[57]
Accordingly, the premise relied on in the court a quo that the
inherent jurisdiction of the court
can be the basis for directly
contradicting a legal right cannot be sustained. The statutory
provision or the rule of common law
which founds the premise of the
legal right would have to be declared unconstitutional, an issue
never addressed, and indeed, in
relation to the questions posed to
the court, could not legitimately have been addressed. If as a matter
of policy, a hierarchy
of choice about courts of concurrent
jurisdiction is to be imposed on litigants, it is beyond the power of
the High Court to create
such a hierarchy pursuant to a purported
exercise of an inherent jurisdiction to regulate its own process.
[58]
In recognition of the fact that a plaintiff’s choice of forum
may have a prejudicial impact
on a defendant, common law and
statutory mechanisms are in place to mitigate any such consequences.
The first is the transfer of
matters from one court to another. In
terms of s 27 of the SC Act, on the application of one of the
parties, a matter may be transferred
from one Division of the High
Court to another or from one seat a Division of the High Court to
another. Section 50(1) of the Magistrates’
Court Act provides
for a transfer from the Magistrates’ Court to the High Court on
application by a defendant, while Uniform
Rule of Court 39(22)
requires consent to transfer a matter from the High Court to the
Magistrates’ Court.
[37]
[59]
Secondly, as an exception to the general rule, a court may refuse to
hear a matter over which
it has jurisdiction if the plaintiff is
guilty of an abuse of process.
[38]
Thirdly, courts may make appropriate costs orders. In
Goldberg
v Goldberg
,
[39]
Schreiner J said that that not only could a ‘successful
applicant be awarded only magistrate’s court costs but he may

even be deprived of his costs and be ordered to pay any additional
costs incurred by the respondent by reason of the case having
been
brought to the Supreme Court’. The application of all of these
rules involves a fact specific enquiry on a case-by-case
basis. That,
of necessity, requires a defendant who alleges prejudice of one form
or another to establish that prejudice. Decisions
of this nature
cannot be made in the abstract.
[60]
The Court a quo endeavoured to rationalise its conclusions by an
appeal to constitutional values
in the abstract, and that approach
dominates the judgment. As alluded to earlier, in the absence of
facts of actual prejudice,
the Court a quo was not equipped to
properly delve into these concerns. The moral value expressed as
‘access to justice’
is so broad that it can
encompass almost every shortcoming of a legal system to effectively
meet the needs of the litigating populace.
The primary focus of the
Court a quo’s attention was on what is necessary to facilitate
an impecunious person being able
to effectively assert or defend a
right in a court of law. That concern covers a very wide range of
social factors.
[61]
It does not automatically follow that the obvious need to address the
plight of the poor means
that the practicalities of concurrent
jurisdiction are causally connected with that plight. The
facilitation of an effective opportunity
for poor folk to vindicate
their rights requires more than proximity of a forum and low costs.
It requires, regardless of where
the
lis
is contested, to have appropriate expertise available to them.
Moreover, it is an appropriate question to pose, in relation to

foreclosure matters as a prime example, whether so drastic an event
as the repossession of a person’s home ought not, as
a matter
of policy, to enjoy the scrutiny of the High Court rather than the
Magistrates’ Court.
[40]
In the absence of a holistic and evidence-based enquiry the
invocation of constitutional values in the abstract is unhelpful. The

subject of how to enable poor folk to use the courts effectively
implicates the role (and funding) of Legal Aid South Africa, and
the
several NGOs which give assistance to the poor to litigate, no less
than the exercise by a plaintiff of a choice of venue.
The idea that
there might be a causal connection between the implications of
concurrent jurisdiction and an effective way to alleviate
these
social circumstances warrants an empirical enquiry to determine
that as a fact. The court a quo was denied the opportunity
to
consider the matter based on the fruits of such an enquiry.
[62]
Accordingly, the decision in
Thobejane
cannot be sustained. The appeal must succeed and the appropriate
answers to the questions are those as set out in the order of
this
court.
The
Gqirana
judgment
[63]
The Eastern Cape Court decided
Gqirana
after
Thobejane
had
been decided and thus had the benefit of the analysis and reasoning
set out in
Thobejane.
Interestingly, the evidence put up by the banks that after they had,
in compliance with the
Thobejane
judgment, instituted process only in the Magistrates’ Court
there had been no evidence of an increase in the number of matters

being defended. This evidence was unrebutted. The Eastern Cape Court
rejected the Gauteng Court’s reasoning, holding that
the test
for an abuse of the process is fact-specific and could only be
determined
ex post facto
,
that a resort to the exercise of inherent jurisdiction to regulate
process was inappropriate and that no common law rule needed

development. Instead, it conducted an interpretation exercise to
determine whether the NCA ousted the jurisdiction of the High
Court,
leaving the Magistrates’ Court with exclusive jurisdiction in
NCA matters.
[64]
It was argued on behalf of the banks that this issue was not within
the purview of the questions
posed in the Judge-President’s
directive. This is correct. Moreover, and more importantly, as
alluded to earlier, the NCA
thesis was not put to the counsel who
argued the matter. The Court a quo states that the topic was ignored
by the parties. The
upshot was that the Court a quo did not have the
benefit of any argument by any party as to the merits of the NCA
thesis. Regrettably,
a consequence of that is that the arguments
advanced on appeal were never considered by the Court a quo. The
conclusions reached
in the
Gqirana
judgment are, however, unsustainable.
[65]
The judgment acknowledged that there was no express ouster of the
High Courts’ jurisdiction.
Rather, an implied ouster
rested on the statement that ‘(generally) issuing summons in
the High Court for a debt that could
be recovered in the Magistrates’
Court runs counter to the express purpose of the NCA’.
[41]
This proposition exhibits an obvious internal difficulty. Quite how
an ouster can ‘generally’ exist, and thus not exist
in
every instance, is puzzling and a fundamental flaw in this thesis.
[66]
The proposition was seemingly inspired by a remark in
Absa
Bank v Myburgh
,
[42]
an application for default judgment in an NCA matter. The registrar
had referred it to the court because the credit agreement concerned

included a clause that stated that the debtor consented to the
jurisdiction of the High Court. This violated s 90(2)
(k)
(vi)
(aa)
of the NCA. The case turned on that crisp point. However, the court
engaged in an expansive obiter traverse of the NCA and, among
several
observations, it opined that it was irregular for a plaintiff to
institute a claim in the High Court for a sum within the
Magistrates’
Court jurisdiction.
[43]
Notably,
Myburgh
did
not state that High Courts’ jurisdiction, per se, over NCA
matters, was ousted.  This decision cannot be taken as
authority
for the proposition that the High Courts’ jurisdiction is
ousted in NCA matters, wholly or partially.
[67]
The nub of the Eastern Cape Court’s finding in respect of the
implied ouster of the High
Court’s jurisdiction is the
following:
[44]
‘
The
provisions of the NCA, however, properly interpreted through the
prism of the Constitution, create a specific set of structures
and
procedures relating to NCA matters which, read in context and on a
generous interpretation, by necessary implication, provides
for the
magistrates’ court to be the court of first adjudication of all
NCA matters, to the exclusion of the High Court as
a court of first
adjudication, save only in the event that there are unusual or
extraordinary factual or legal issues raised which
in the opinion of
the High Court warrant them being heard first in the High Court.’
[68]
There is a strong presumption against the ouster of the High Court’s
jurisdiction, and
the mere fact that a statute vests jurisdiction in
one court is insufficient to create an implication that the
jurisdiction of
another court is thereby ousted. In
Makhanya
v University of Zululand
,
[45]
Nugent JA explained the position thus:
‘
[24]
In general, the High Courts thus exercise the original authority of
the state to resolve all disputes, of any kind, that are
capable of
being resolved by a resort to law, unless that authority has been
assigned to another court. When a High Court resolves
a contractual
claim it exercises that original jurisdiction. When it considers a
claim for enforcement of a constitutional right
it exercises that
original jurisdiction. So too when it enforces a statutory right.
[25]
But the state might also create special courts to resolve disputes of
a particular kind. Generally those will be disputes concerning
the
infringement of rights that are created by the particular statute
that creates the special court (though that will not always
be so).
When a statute confers judicial power upon a special court it will do
so in one of two ways. It will do so either by (a)
conferring power
on the special court and simultaneously (b) excluding the ordinary
power of the High Court in such cases (it does
that when “exclusive
jurisdiction” is conferred on the special court). Or it will do
so by conferring power on the
special court without excluding the
ordinary power of the High Court (by conferring on the special court
jurisdiction to be exercised
concurrently with the original power of
the High Courts). In the latter case the claim might be brought
before either court.
[26]
. . .
[27]
Naturally a claim that falls within the concurrent jurisdiction of
both the High Court and a special court could not be brought
in both
courts. A litigant who did that would be confronted in one court by
either a plea of lis pendens (the claim is pending
in another court)
or by a plea of res judicata (the claim has been disposed of by the
other court). A claimant who has a claim
that is capable of being
considered by either of two courts that have concurrent jurisdiction
must necessarily choose in which
court to pursue the claim and, once
having made that election, will not be able to bring the same claim
before the other court.
But where a person has two separate claims,
each for enforcement of a different right, the position is altogether
different, because
then both claims will be capable of being pursued,
simultaneously or sequentially, either both in one court, or each in
one of
those courts.’
[69]
The
threshold to sustain the proposition that there is an ouster of the
High Court’s jurisdiction is very high.
In
Metcash
Trading Ltd v Commissioner, South African Revenue Service and
Another
,
[46]
Kriegler J, in the course of determining whether a statute had ousted
the jurisdiction, the High Court demonstrated the method
of deciding
the question. He said that ‘there is nothing in s 36 to suggest
that the inherent jurisdiction of a High Court
to grant appropriate
other or ancillary relief is excluded’ and that the section
‘does not say so expressly nor is
such an ouster necessarily
implicit in its terms, while it is trite that there is a strong
presumption against such an implication’.
[70]
In
Richards
Bay Bulk Storage (Pty) Ltd v Minister of Public Enterprises
[47]
this Court set out the approach to deciding whether an ouster can be
inferred:
‘
The
question at issue is therefore whether the Court
a
quo
had jurisdiction to hear
the review application. This in turn depends on whether the Act
excluded such jurisdiction.
The Act does not do so in express terms,
and the question then is whether it contains an implication to that
effect. The parties
were
ad
idem
that there is a strong
presumption against such an implication:
“
.
. . (T)he Court's jurisdiction is excluded only if that conclusion
flows by necessary implication from the particular provisions
under
consideration, and then only to the extent indicated by such
necessary implication. . . .”
(
Welkom
Village Management Board v
Leteno
1958 (1) SA
490
(A) at 502G-H. See also
Local Road Transportation
Board and Another v Durban City Council and Another
1965 (1)
SA 586
(A) at 593B-C and
Paper Printing, Wood and Allied
Workers' Union v Pienaar NO and Others
[1993] ZASCA 98
;
1993 (4) SA 621
(A) at 635A-B.)
In
argument before us the respondent's counsel contended that an
intention to exclu
de
the Supreme Court's review jurisdiction should be inferred from
the nature and amplitude of the powers granted to the Special
Court
created by s 15 of the Act. Now, of course, it would not be enough
for the respondent to show that the Special Court enjoys
powers of
review similar to those exercised by the Supreme Court under its
inherent jurisdiction. In the present context the respondent
would
have to go further and show that the Legislature intended such powers
to be exclusive. It is quite conceivable that review
powers
concurrent with those exercised by the Supreme Court could be
bestowed, as was found to have happened in
Pienaar's
case
supra
.
In such a case the grant of review powers to the tribunal in
question would not mean that the Supreme Court has been
deprived
of its common-law jurisdiction. However, before any suggestion of
concurrent jurisdiction can arise one must examine whether
the
Special Court was clothed with any review jurisdiction at all . . .
.’
[48]
[71]
The Eastern Cape Court relied for the implied ouster of the High
Court’s jurisdiction on
two sections of the NCA, namely ss 3
and 90(2)
(k)
(vi)
(aa)
, and s 29(1)
(e)
of the
MC Act.
[72]
Section 3 of the NCA sets out its purposes as follows:
‘
The
purposes of this Act are to promote and advance the social and
economic welfare of South Africans, promote a fair, transparent,

competitive, sustainable, responsible, efficient, effective and
accessible credit market and industry, and to protect consumers,
by—
(a)
promoting the development of a credit market that is accessible to
all South Africans, and
in particular to those who have historically
been unable to access credit under sustainable market conditions;
(b)
ensuring consistent treatment of different credit products and
different credit providers;
(c)
promoting responsibility in the credit market by—
(i)
encouraging responsible borrowing, avoidance of over-indebtedness and
fulfilment
of financial obligations by consumers; and
(ii)
discouraging reckless credit granting by credit providers and
contractual default
by consumers;
(d)
promoting equity in the credit market by balancing the respective
rights and responsibilities
of credit providers and consumers;
(e)
addressing and correcting imbalances in negotiating power between
consumers and credit providers
by—
(i)
providing consumers with education about credit and consumer rights;
(ii)
providing consumers with adequate disclosure of standardised
information in order
to make informed choices; and
(iii)
providing consumers with protection from deception, and from unfair
or fraudulent conduct
by credit providers and credit bureaux;
(f)
improving consumer credit information and reporting and regulation of
credit bureaux;
(g)
addressing and preventing over-indebtedness of consumers, and
providing mechanisms for resolving
over-indebtedness based on the
principle of satisfaction by the consumer of all responsible
financial obligations;
(h)
providing for a consistent and accessible system of consensual
resolution of disputes arising
from credit agreements; and
(i)
providing for a consistent and harmonised system of debt
restructuring, enforcement
and judgment, which places priority on the
eventual satisfaction of all responsible consumer obligations under
credit agreements.’
[73]
Section 90 of the NCA is concerned with unlawful provisions in credit
agreements. Section 90(1)
states that a credit agreement ‘must
not contain an unlawful provision’ and s 90(2) then lists a
range of provisions
that are unlawful. So, for instance, a provision
in a credit agreement is unlawful if its purpose or effect is to
‘defeat
the purposes or policies’ of the NCA
[49]
or to ‘deceive the consumer’.
[50]
S 90(2)
(k)
(vi)
(aa)
provides:
‘
A
provision of a credit agreement is unlawful if—
.
. .
(k)
it expresses, on behalf of the consumer—
.
. .
(vi)
a consent to the jurisdiction of—
(aa)
the High Court, if the magistrate's court has concurrent
jurisdiction.’
[74]
Section 29 of the Magistrates’ Court Act, in so far as NCA
matters are concerned, provides:
‘
(1)
Subject to the provisions of this Act and the National Credit Act,
2005 (Act 34 of 2005), a court in respect of causes of action,
shall
have jurisdiction in-
(a)
actions in which is claimed the delivery or transfer of any property,
movable or immovable,
not exceeding in value the amount determined by
the Minister from time to time by notice in the
Gazette
;
.
. .
(e)
actions on or arising out of any credit agreement as defined in
section 1 of the National Credit
Act, 2005 (Act 34 of 2005).’
[75]
The complete answer to the Eastern Cape Court’s finding is
contained in Standard Bank’s
argument. It is that, far from
impliedly ousting the concurrent jurisdiction of the High Court, the
sections of the NCA that it
relied on and s 29 of the Magistrates’
Court Act are premised on the High Court having concurrent
jurisdiction with Magistrates’
Courts.
[76]
There is no indication of an implied ouster of jurisdiction in s 3 of
the NCA. It is concerned
with the purposes of the Act. These
purposes, as one would expect of a provision such as this, are
expressed in broad and general
terms and not one of these even
mentions a court, let alone a preferred choice of court. Section 29
of the Magistrates’ Court
Act is, and has always been, premised
on concurrent jurisdiction. All that s 29(1)
(e)
has done is to expand the jurisdiction of Magistrates’ Courts –
and that does not carry with it an implication that
the jurisdiction
the High Court is correspondingly decreased.
[51]
Section 90(2)
(k)
(vi)
(aa)
of the NCA puts the matter beyond doubt, but not in the way that the
Eastern Cape Court found. It prohibits, when a credit agreement
is
concluded, the inclusion of a term that the parties agree to the
exclusive jurisdiction of the High Court if a Magistrates’

Court ‘has concurrent jurisdiction’. Far from impliedly
ousting the jurisdiction of the High Court, this section of
the NCA
expressly recognises that the High Court has jurisdiction, concurrent
with Magistrates’ Courts.
[77]
The approach of the Eastern Cape Court was considered and rejected by
a Full Court in
Nedbank
Ltd v Mateman and Others; Nedbank Ltd v Stringer and Another
.
[52]
The credit agreements in issue in that case contained a provision to
the effect that while the debtor consented to the jurisdiction
of the
Magistrates’ Court, the bank was ‘nonetheless, at its
option entitled to institute proceedings in any division
of the High
Court of South Africa which has jurisdiction’. It was argued
that this provision was in conflict with s 90(2)
(k)
(vi)
(aa)
of the NCA.
[78]
The court accepted that, leaving the NCA aside, it was ‘settled
law that the High Court
has concurrent jurisdiction with any
magistrates’ court in its area of jurisdiction’
[53]
and that where reliance is placed on an implied ouster of
jurisdiction, the inference to that effect must be clear and
unequivocal.
[54]
The court
found that s 90(2)
(k)
(vi)
(aa)
did not oust the jurisdiction of the High Court in NCA matters. It
held:
[55]
‘
In
my judgment s 90 of the NCA does not affect the jurisdiction of the
High Court. The High Courts retain their jurisdiction
in terms
of the [Supreme Court Act 59 of 1959] as set out earlier herein.
Section 90 was intended to outlaw forum shopping in credit

agreements. To extend its scope and purview to the overall
jurisdiction of the High Court beyond mere clauses in credit
agreements
is to accord the section a meaning which it neither has
nor was ever intended to have.’
[79]
It also dealt with s 3 of the NCA, and its purpose. It held:
[56]
‘
Section
2(1) of the NCA provides as follows: “The Act must be
interpreted in a manner that gives effect to the purposes set
out in
s 3.” Section 3 then deals with the purpose of the Act. The
purposes are set out in detail. All the purposes so set
out are
laudable purposes to promote and advance the social and economic
welfare of South Africans, to promote a fair, transparent,

competitive, sustainable, responsible, efficient, effective and
accessible credit market and industry and to protect consumers.
Not a
single purpose, however, is indicative of the fact that the
jurisdiction of the High Court is intended to be ousted.’
[80]
There are other indications in the NCA which demonstrate
incompatibility with an ouster of the
High Court’s jurisdiction
and strengthen the conclusion that no such inference of an ouster can
be drawn. For instance, s
130(1) states:
‘
Subject
to subsection (2), a credit provider may approach the court for an
order to enforce a credit agreement only if, at that
time, the
consumer is in default and has been in default under that credit
agreement for at least 20 business days and. . . .’
There
is no qualification to which ‘court’ reference is made,
the word ‘court’ being undefined in the NCA.
This
provision can only be understood to refer to any court with competent
jurisdiction and therefore includes both the High Court
and the
Magistrates’ Court.
[81]
Sometimes, however, the NCA is specific about the Magistrates’
Court being the exclusive
forum to make certain decisions. In those
instances, the NCA expressly stipulates the Magistrates’ Court
to the exclusion
of any other court. For example: s 86(9)
provides that if ‘a debt counsellor rejects an application as
contemplated
in subsection (7)
(a)
, the consumer, with leave of
the Magistrate's Court, may apply directly to the Magistrate's Court,
in the prescribed manner and
form, for an order contemplated in
subsection (7)
(c)
’; s 87 provides that if ‘a debt
counsellor makes a proposal to the Magistrates’ Court in terms
of section 86(8)
(b)
, or a consumer applies to the Magistrates’
Court in terms of section 86(9), the Magistrate's Court must conduct
. . .’;
s 127(8)
(a)
provides that if a debtor ‘fails
to pay an amount demanded in terms of subsection (7) within 10
business days after receiving
a demand notice, the credit provider
may commence proceedings in terms of the Magistrates' Courts Act for
judgment enforcing the
credit agreement’; and s 162 provides
that ‘[d]espite anything to the contrary contained in any other
law, a Magistrate's
Court has jurisdiction to impose any penalty
provided for in section 161’.
[82]
By implication in the last example, the High Court has such a power,
and s 162 exists to
confer a like power on the Magistrates’
Court to impose such penalties too, an example of the need to
authorise power to
the Magistrates’ Court by statute, as
contemplated in s 170 of the Constitution. If the NCA had intended to
impliedly oust
the jurisdiction of the High Court, and to vest
exclusive jurisdiction in the Magistrates’
Court, these provisions, which do indeed reserve particular decisions
for that
court, would be odd, if not superfluous.
[83]
The foundation of the Eastern Cape Court’s thesis was that a
constitutional value was somehow
thwarted if the Magistrates’
Court was not assigned primacy of jurisdiction in NCA matters and
this justified an interpretation
that, so it held, would promote
those values. The articulation of this thesis was at a high level of
generality. Reference was
made to a ‘balancing of fairness’
and to examining the NCA through the ‘prism of the
Constitution’. In
this, the approach was an echo of approach of
the Gauteng Court in
Thobejane
and a repetition of the analysis in respect of that judgment is
unnecessary.
[84]
Paradoxically, having held that the High Court’s jurisdiction
was excluded because it would
otherwise violate constitutional
values, the court found that the High Court was somehow nevertheless
vested with a form of residual
jurisdiction to hear exceptional
cases. This thesis too must falter on grounds of incoherence. Fish
cannot sometimes be fowl.
[85]
The majority judgment of the Eastern Cape Court is wrong. So too, in
my view, is the minority
judgment which holds, on grounds similar to
the Gauteng Court, that in all cases in which a Magistrates’
Court has jurisdiction,
a High Court’s jurisdiction is ousted.
[86]
In the result, in my view, the NCA cannot have the effect as found by
the court a quo. Accordingly,
the decision in
Gqirana
cannot be sustained and the appeal must
succeed. The answers to the questions posed to the Court will be set
out in the order below.
Conclusion
[87]
As to costs, given the test-case character of the matter, no costs
were sought. The Court expresses
its appreciation, in particular, to
the several
amici curiae
and their counsel.
[88]
The following orders are made:
In case numbers 38/2019
and 47/2019:
1
The appeal is upheld, with no order as to costs.
2
The order of the court below is set aside and replaced with the
following
order:
‘
It
is declared that:
(1)
The High Court must entertain matters within its territorial
jurisdiction that fall within
the jurisdiction of a Magistrates’
Courts, if brought before it, because it has concurrent jurisdiction
with the Magistrates’
Court.
(2)
The High Court is obliged to entertain matters that fall within the
jurisdiction of a Magistrates’
Court because the High Court has
concurrent jurisdiction.
(3)
The main seat of a Division of a High Court is obliged to entertain
matters that fall within
the jurisdiction of a local seat of that
Division because the main seat has concurrent jurisdiction.
(4)
There is no obligation in law on financial institutions to consider
the cost implications
and access to justice of financially distressed
people when a particular court of competent jurisdiction is chosen in
which to
institute proceedings.
3.
There is no order as to costs’
In case number 999/2019:
1
The appeal succeeds, with no order as to costs.
2
The order of the court below is set aside and replaced with the
following:
‘
It
is declared that:
(1)
The High Court must entertain matters within its territorial
jurisdiction that fall within
the jurisdiction of a Magistrates’
Courts, if brought before it, because it has concurrent jurisdiction
with the Magistrates’
Court.
(2)
The High Court is obliged to entertain matters that fall within the
jurisdiction of a Magistrates’
Court because the High Court has
concurrent jurisdiction.
(3)
There is no obligation in law on financial institutions to consider
the cost implications
and access to justice of financially distressed
people when a particular court of competent jurisdiction is chosen in
which to
institute proceedings.
3.
There is no order as to costs.’
ROLAND SUTHERLAND
ACTING
JUDGE OF APPEAL
APPEARANCES
For Standard
Bank

K. Hofmeyr, with her,
A.
Armstrong.
Instructed by:

Edward Nathan Sonnenbergs Inc., Johannesburg
Webbers
Attorneys, Bloemfontein
For
Nedbank

A. Cockrell SC, with
him,
N.
Luthuli.
Instructed
by:

Cliffe Dekker Hofmeyr Inc., Sandton
Webbers,
Bloemfontein.
For First National
Bank

P G Cilliers SC, with him,
A P Ellis.
Instructed
by:

PDR Attorneys, Pretoria
Rossouws
Attorneys, Bloemfontein
The
Amici Curiae:
The Department of Justice
and Constitutional Development, Pretoria:
A. Platt, with her,
L.
Maite.
The South African Human
Rights Commission, Johannesburg:
M. Chaskalson SC, with
him,
E. Webber,
L.
Makapela.
The Pretoria Society of
Advocates, Pretoria
AJ Louw SC, with him,
SW Davies and
S Van der Walt.
[1]
Strictly
speaking, there are no longer ‘Provincial Divisions’ and
‘Local Divisions’ of the High Court.
Each province is
host to a single Division of the High Court which has a designated
main seat. Any additional seats are not ‘Local Divisions’

but rather ‘local seats’ See
s 6
of the
Superior Courts
Act 10 of 2013
. See too, Malcolm Wallis: ‘What’s in a
name? A note on nomenclature’ (2020) 137
SALJ
at
25, where the history of these convolutions is described.
[2]
Nedbank
Ltd v Thobejane and similar matters
2019
(1) SA 594 (GP); [2018] 4 All SA 694 (GP).
[3]
Ibid paras 91-93 and 96.
[4]
Nedbank
Ltd v Gqirana N O and Another, and similar matters
2019
(6) SA 139 (ECG); [2019] 4 All SA 211 (ECG).
[5]
See
too, para 26 of this judgment infra.
[6]
Moosa v
Moosa
2014
JDR 2194 (GP) para 19.
[7]
Marth v
Collier
[
1996]
3 All SA 506
(C) at 509.
[8]
Koch v
Realty Corporation of South Africa
1918 TPD 356
at 359.
[9]
Goldberg
v Goldberg
1938 WLD 83.
[10]
Ibid at 85-86.
[11]
Standard
Credit Corporation v Bester and Others
1987 (1) SA 812
(W);
[1987]
3 All SA 96
(W)
.
[12]
Ibid at 814C-D.
[13]
Standard
Bank of South Africa Ltd v Shiba Standard Bank of South Africa v van
Den Berg
1984 (1) SA 153
(W);
[1984] 3 All SA 152
(W).
[14]
Standard
Credit Corporation v Bester and Others
above note 12 at 815E.
[15]
Ibid at 817J-818B.
[16]
Ibid at 818B-C.
[17]
Standard
Credit Corporation v Bester and Others
above note 12 at 819E.
[18]
Agri
Wire (Pty) Ltd v Commissioner, Competition Commission and Others
[2012] ZASCA 134
;
[2012] 4 All SA 365
(SCA);
2013 (5) SA 484
(SCA)
para 19.
[19]
Makhanya
v University of Zululand
[2009] ZASCA 69
;
2010 (1) SA 62
(SCA);
[2009] 4 All SA 146
(SCA)
para 34.
[20]
Thembani
Wholesalers (Pty) Ltd v September and Another
2014 (5) SA 51
(ECG);
[2014]
3 All SA 683
(WCC)
para
10.
[21]
Goldberg
v Goldberg
above note 10.
[22]
Standard
Credit Corporation v Bester and Others
above note 12.
[23]
Agri
Wire (Pty) Ltd v Commissioner, Competition Commission and Others
above note 19.
[24]
The
topic was ventilated as early
Koch
v Realty Corporation of South Africa
above
note 9 where it was held that it was policy that the High Court deal
with all matters over which it had jurisdiction. This
verdict was
reiterated in
Goldberg
v Goldberg
above
note 10.
[25]
Standard
Credit Corporation v Bester and Others
above
note 12.
[26]
Ibid at 820H-I.
[27]
Nedbank
Ltd v Mateman and Others; Nedbank Ltd v Stringer and Another
[2007] ZAGPHC 295
;
2008
(4) SA 276
(T);
[2008] 1 All SA 593
(T) at 286B-C.
[28]
Corderoy
v Union Government (Minister of Finance)
1918 AD 512
at 517. See too
In
re Anastassiades
1955 (2) SA 220
(W) at 225-226.
[29]
Standard
Credit Corporation v Bester and
Others
above note 12 at 820A-B.
[30]
Ibid at 820G-H.
[31]
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA);
[1997]
2 All SA 241
(A)
at 734G.
[32]
See
para 25 of this judgment, above.
[33]
Section
36 of the Constitution:
‘
Limitation
of rights
(1)
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a)
the
nature of the right;
(b)
the
importance of the purpose of the limitation;
(c)
the
nature and extent of the limitation;
(d)
the
relation between the limitation and its purpose; and
(e)
less
restrictive means to achieve the purpose.
(2)
Except
as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched
in the Bill of
Rights.’
[34]
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
[2013]
ZACC 23
;
2013
(5) SA 89
(CC) para 28.
[35]
Phillips
and Others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006
(1) SA 505
(CC) paras 47-51.
[36]
Oosthuizen
v Road Accident Fund
[2011]
ZASCA 118
;
2011
(6) SA 31
(SCA);
[2011] 4 All SA 71
(SCA) paras 21-27.
[37]
There
is authority that a High Court can nevertheless
mero
motu
effect a transfer from the High Court to a Magistrates’ Court.
In
Thembani
Wholesalers (Pty) Ltd v September and Another
2014
(5) SA 51
(ECG);
[2014] 3 All SA 683
(WCC) para 13, s 27 of the SC
Act was addressed. After citing an unreported judgment by Plasket J
in
Jeremy
Davis v Kenneth James Denton
ECD
(case no. 630/08) unreported
,
which addressed the circumstances that would make an application for
a transfer meritorious, the court stated:
‘
Although
the section provides the machinery for the removal of a matter to
another court on application, there is in my view nothing
to
preclude a judge, sitting as a court of first instance in the
Eastern Cape High Court, Grahamstown, from
mero
motu
concluding that,
notwithstanding the court having original territorial jurisdiction,
the balance of convenience clearly dictates
that the matter properly
be heard at a particular local seat and order that it be so removed.
The inconvenience to a litigant
hauled before a far-flung court
will, no doubt, not be lightly countenanced and, the court's
opprobrium, marked by an appropriate costs
order. Consequently,
the convenience argument relied upon as an aid to the interpretation
contended for, must fail
.’
A similar decision was
made in
Veto v Ibhayi City Council
1990 (4) SA 93
(SE) where
the Court, dealing with the effect of Uniform Rule of Court 39(22)
took the view that it could transfer a case unilaterally
by a resort
to its inherent power. It is doubtful that these decisions are
correct. This approach was criticised by Binns-Ward
J in
PT v LT
and Another
2012 (2) 623 (WCC) para 15 and footnote 13, where he
questioned whether a cogent rationale could exist to effect transfer
at variance
with the procedure provided in the statute and the Rules
of Court. Again, in
Marth N O v Collier and Another
[1996] 3
All SA 506
(C) Van Reenen J disapproved of the dictum in
Ihbayi
.
I am in full agreement with these criticisms. In any event, such an
approach is self-evidently one that recognises that it could
only be
applied in a fact-specific enquiry in a given case and is no
precedent for a pre-emptive ruling.
[38]
Corderoy
v Union Government (Minister of Finance)
above note 31 at 517.
[39]
Goldberg
v Goldberg
above
note 10. See too
Koch
v Realty Corporation of South Africa
above
note 9. See further,
Greef
v Raubenheimer en ‘n Ander
1976
(3) SA 37
(A);
[1976] 3 All SA 321
(A), a defamation case, where the
court held at 44E that the appropriate order as to the scale upon
which costs should be awarded,
on either of the Magistrates’
Court or of the High Court scale, is to be determined by reference
to what the ‘reasonable
plaintiff’, at the time of
instituting proceedings, had to consider. A vindication of
reputation warranted costs on the
higher scale.
[40]
Since
the decision in
Jaftha
v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005
(2) SA 140
(CC);
2005 (1) BCLR 78
(CC) an application to deprive
mortgagees of their homes by way of foreclosure has required a
judicial interrogation, mero motu,
of the circumstances that make
such an order consistent with s 26 of the Constitution. This enquiry
is a delicate exercise as
is amply demonstrated by the burgeoning
case law on the issue.
[41]
Paragraphs
37.9 of the
Thobejane
judgment, read with para 37.8.
[42]
Absa
Bank v Myburgh
2009
(3) SA 209 (T).
[43]
Ibid p
aras
53-55.
[44]
Nedbank
Ltd v Gqirana N O and Another, and similar matters
above
note 4
para
75.6.
[45]
Makhanya
v University of
Zululand
above note 20 paras 24, 25 and 27.
[46]
Metcash
Trading Ltd v Commissioner, South African Revenue Service and
Another
2001 (1) SA 1109
(CC);
2001 (1) BCLR 1
(CC) para 43.
[47]
Richards
Bay Bulk Storage v Minister of Public Enterprises
1996
(4) SA 490 (A).
[48]
Richards
Bay Bulk Storage (Pty) Ltd v Minister of Public Enterprises
[1996] ZASCA 23
;
1996
(4) SA 490
(A) at 494G – 495.
[49]
Section 90(2)
(a)
(i).
[50]
Section 90(2)
(a)
(ii).
[51]
Makhanya
v University of Zululand
above note 20 para 25;
Welkom
Village Management Board v Leteno
1958 (1) SA 490
(A) at 502-503.
[52]
Nedbank
Ltd v Mateman and Others; Nedbank Ltd v Stringer and Another
above note 30.
[53]
Ibid at 280B.
[54]
Ibid at 280J-281D. Reliance was placed, inter alia, on
Welkom
Village Management Board v Leteno
above note 55 at 502-503;
Minister
of Law and Order and Others v Hurley and Another
1986 (3) SA 568
(A) at 584A-B;
Reid-Daly
v Hickman and Others
1981 (2) SA 315
(ZA) at 318F-G;
Millman
and Another NNO v Pieterse and Others
1997 (1) SA 784
(C) at 788G-J.
[55]
Nedbank
Ltd v Mateman and Others; Nedbank Ltd v Stringer and Another
above note 30 at 284F-G.
[56]
Nedbank
Ltd v Mateman and Others; Nedbank Ltd v Stringer and Another
above note 30 at 285I-J.