About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2017
>>
[2017] ZAKZDHC 34
|
|
Jordaan v Marquee Tent and Tarpaulin (8526/12) [2017] ZAKZDHC 34 (6 June 2017)
CASE
NO
8526/12
DATE
6 JUNE 2017
In
the matter between
M
J G
JORDAAN
PLAINTIFF/APPLICANT
and
MARQUEE
TENT AND
TARPAULIN
DEFENDANT/RESPONDENT
JUDGMENT
(ex tempore)
PILLAY
J
This is an application
for an amendment. The matter should have been issued out of the
appropriate lower court. I raised this
issue with counsel.
Counsel for the applicant in the amendment asked me to order that
matter be transferred appropriately.
In granting the order I
give the following reasons:
First
the institutional arrangements are such that our court system is
divided into lower courts and higher courts. This is done
for a very
rational and reasonable basis. Until the rationality or
reasonableness of this system is challenged it must apply. If
it does
not apply then institutions including the High Courts are likely to
fail.
(
Sabel
C F and Simon W H ‘Destabilization Rights: How Public Law
Litigation Succeeds’ (2003-2004) 117
Harv.
L. Rev
1016
at 1052.)
Judges
are told that one of the reasons for matters being raised in this
court and not in the appropriate lower court having jurisdiction
is
because the lower courts do not function optimally or efficiently.
If this allegation is true it is no reason to make
this court
dysfunctional by imposing on it to do the work of other institutions.
There is even more need to make dysfunctional
courts efficient by
persisting in referring matters there to fix those courts instead of
overburdening and compromising the High
Court.
We
also learn that some institutional creditors like banks impose
collection targets on their attorneys to qualify to be on their
panels. Attorneys cannot meet these targets if they institute
proceedings in the lower courts where matters allegedly take a long
time to be finalised. The High Court cannot be used as tool to
performance manage panel attorneys.
Second,
why this matter should be transferred to the lower court is a
question of access to justice. When a matter that should
not be
in this court is placed on our rolls and clogs up the High Court
system it displaces another matter that should be in this
and no
other court. Therefore those persons are not having efficient and
timely access to justice.
Third,
access to justice is implicated from another angle. The party who is
summoned to appear in these courts willy-nilly instead
of the lower
court has to face a higher tariff for both party and party and
attorney client costs. Hence the costs of litigation
impair such
persons’ access to justice from this perspective too. Bearing
in mind that they are debtors who have defaulted
it is unconscionable
that creditors would mulct them with higher costs.
Fourth,
if my judgment is challenged then it would have to serve before three
judges either of this division or of the Supreme Court
of Appeal. If
it had started in the appropriate lower court it would come before
two judges of this court. Therefore the
cost of litigation even
from the administration of justice point of view is escalated
unnecessarily simply because the person starting
up the litigation
had for whatever reason, often self-interest, prosecuted its claim in
the wrong forum.
For
these reasons I grant the application to transfer the matter to the
appropriate lower court having jurisdiction. The plaintiff
in the
main action and the applicant in the application for amendment shall
pay the wasted costs.
IN
THE KWAZULU NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 8526/12
DATE: 6 JUNE 2017
In
the matter between
M
J G
JORDAAN
APPLICANT/PLAINTIFF
And
MARQUEE
TENT AND
TARPAULIN
DEFENDANT/RESPONDENT
BEFORE THE
HONOURABLE MADAM JUSTICE PILLAY
ON BEHALF OF APPLICANT : ADVOCATE
SNYMAN
ON
BEHALF OF RESPONDENT : ADVOCATE R A SUHR
REPORT ON RECORDING
Clear recording.