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[2016] ZAGPPHC 616
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First National Bank v Lukhele and seven other cases (01.16; 32.16; 33.16; 35.16; 40.16; 84.16; 89.16; 107.16) [2016] ZAGPPHC 616 (16 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, Functioning as MPUMALANGA DIVISION, MBOMBELA)
DATE:
16 MAY 2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
IN
THE MATTER BETWEEN
First
National Bank v Kosinathi S
Lukhele
Case no: 01/16
Absa
Bank Ltd v Cloete
GJ
Case no: 32/16
Absa
Bank Ltd v JK Leshaba and J
Leshaba
Case no: 33/16
The
Standard Bank of SA v G and PJ
Smith
Case no: 35/16
First
Rand Bank LTD v MV
Sikhosana
Case no: 40/16
First
Rand Bank Limited v SM
Mongo
Case no: 84/16
The
Standard Bank of SA LTD v S J
Visser
Case no: 89/16
First
Rand Bank v FV
Mativandlela
Caseno: 107/16
JUDGMENT
Matter
heard on:
21 April 2016
Judgment
handed down on:
16
May 2016
LEGODl. J
[1]
'Our Constitution guarantees everyone the right of access to courts
which are independent of other arms of government.
[1]
But the guarantee in section 34 of the Constitution does not include
the choice of the procedure or forum in which access to courts
is to
be exercised. This omission is in line with the recognition that
courts
have inherent power to protect and regulate their own process in
terms of section 173 of the Constitution
.
Access·to courts is fundamentally important to our democratic
order. It is not only a cornerstone of the democratic architecture
but, also a vehicle through which the protection of the Constitution
itself may be achieved. It also facilitates an orderly resolution
of
disputes so as to do justice between individuals and between private
parties and the state. Our courts are mandated to review
the exercise
of any power of state functionaries from the lowest to the highest
ranking officials.
[2]
The rights
of access to courts are indeed foundational to the stability of an
orderly society. It ensures peaceful, regulated and
institutionalized
mechanism to resolve disputes... The right of access to courts is
bulwark against vigilantism, and the chaos
and anarchy which it
causes...
Access
to courts is indeed of cardinal importance
.
As a result, very powerful considerations would be required for its
limitations to be reasonable and justifiable.
[3]
A litigant who wishes to exercise the right of access to courts is
required to follow certain defined procedures to enable the
court to
adjudicate a dispute. In the main, these procedures are contained in
the rules of each court. The Uniform Rules regulate
the form and
process of the high courts... These rules confer procedural rights on
litigants and also help in creating certainty
in procedures to be
followed if relief of a particular kind is sought'.
[4]
[2]
It is
important that the rules of courts are used as tools to falicitate
access to courts rather than hindering it
.
Hence rules are made for courts and not that the courts are for the
rules...
Therefore.
the primary function of the rules of courts is the attainment of
justice. But sometimes circumstances arise which are
not provided
for in the rules. The proper cause in those circumstances is to
approach the court itself for guidance
.
After all, in terms of section 173 each superior court is the master
of its process.
[5]
Our courts
are familiar with the evaluation of factors with a view to determine
where the interests of justice lie in a given case.
[6]
[3]
The following cases are about access to courts, the mechanism to
facilitate such access, the hindrance of access to courts brought
about by the issuing thereof in Mbombela circuit court, the
interpretation of clause 2.1 of the practice directive issued by the
Judge President of the Gauteng Provincial Division on 29 January 2016
and the superior courts' inherent powers to regulate their
own
processes and the development of common law, taking into account the
interests of justice as envisaged in section 173 of the
Constitution:
3.1
First
National Bank v Kosinathi S Lukhele
Case
no:
01/16
3.2
Absa
Bank Ltd v Cloete GJ
Case
no:
32/16
3.3
Absa
Bank Ltd ve JK Leshaba and J Leshaba
Case
no:
33/16
3.4
The
Standard Bank of SA v G and PJ Smith
Case
no:
35/16
3.5
First
Rand Bank LTD v MV Sikhosana
Case
no:
40/16
3.6
First
Rand Bank Limited v SM Mango
Case
no:
84/16
3.7
The
Standard Bank of SA Ltd v S J Visser
Case
no:
89/16
3.8
First
Rand Bank v FV Mativandlela
Case
no:
107/16
[4]
As could be deduced from the particulars of the plaintiffs, they are
all financial institutions who had issued summonses against
the
defendants based on their failures to comply with their obligations
to pay in terms of the credit agreements to which the provisions
of
the
National Credit Act 34 of 2005
apply. The eight matters were all
applications for default judgments and were consolidated to be heard
together at the same time
in the unopposed motion roll.
[5]
Advocate Snyman instructed by Mbombela firm of attorneys, Seymore, du
Toil and Sasson appeared in matters indicated in paragraphs
3.1, 3.5,
3.6 and 3.8 above. On the other hand, attorney Mr Siebrits of
attorneys Swanepoel and Partners based in Mbombela, appeared
on
behalf of the plaintiffs in the remaining four cases mentioned in
paragraphs 3.2, 3.3, 3.4 and 3.7 above. The latter attorneys
are
correspondent attorneys, having been instructed by attorneys based in
Pretoria. Furthermore, in all the eight matters, immovable
properties
which appear to be the primary residences are involved and the
plaintiffs in all the cases are, inter alia, asking for
the orders
declaring the said immovable properties to be specially executable.
They are also asking for the issuing of the writs
against the
immovable properties aforesaid.
[6]
This court, in dealing with these matters, raised concerns prompted
by the fact that in matters 3.1 and 3.2 above, the defendants
reside
in Middelburg and the mortgage loan agreements appear to have been
concluded in Middelburg. The summonses were also served
in
Middelburg. In matters 3.3, 3.4, and 3.5 above, the defendants are
residing in Witbank. It appears that the mortgage loan agreements
were also concluded in Witbank. Similarly, summonses were served on
the defendants in Witbank. In the matter of Visser indicated
in
paragraph 3.7 above, the defendant is residing in Hendrina within the
magisterial district of Middelburg which is about 50 Km
from
Middelburg. In the matter of Monge indicated in paragraph 3.6 above,
the defendant is a resident in Evander and summonses
were served at
the residential home of the defendant in Evander. Evander is closer
to Middelburg circuit court than Mbombela.
Legislative
framework and establishment of the two circuit courts in Mpumalnga
[7]
On 29 January 2016, the Judge President of Gauteng Provincial
Division issued a notice in terms of which he announced the
establishment
of two circuit courts in Mpumalanga Province as
contemplated in
section 7(1)
of the
Superior Courts Act 10 of 2013
.
Section 7(1)
provides that the Judge President of the Division may by
notice in the Gazette within the area under the jurisdiction of that
Division,
establish circuit districts for the adjudication of civil
or criminal matters,
and may like notice, alter the boundaries of
any such district
. In terms of subsection (2), a court hearing
such matters must be presided by a judge of that Division and such
court referred
to in subsection (2) is in terms of subsection (3)
called a "circuit court" of the Division in question.
In
other words, the two circuit courts established effective from 1
February 2016, are circuit courts of the Gauteng Division functioning
as Mpumalanga Division.
[8]
It is also important to mention that whilst in terms of
section 6(1)
of the Act, the High Court of South Africa consists of several
divisions, inter alia, Mpumalanga Division with its main seat in
Nelspruit, the Gauteng Division in terms of
section 50(2)
, functions
as the Mpumalanga Division until a notice published in terms of
section 6(3)
in respect of Mpumalanga Division comes into effect.
Subsection 6(3) (a) provides that the Minister must, after
consultation with
the Judicial Services Commission, by notice in the
Gazette, determine the area under the jurisdiction of the Division,
and may
in the same manner amend or withdraw such a notice.
The
determination of the area under the jurisdiction of the Mpumalanga
Division of the High Court is still pending. Furthermore,
the
Minister may in terms of subsection (3) (c) of
section 6
, establish
local seat or seats of a division.
[9]
One sees a hierarchy within the legislative framework which, in my
view, is aimed at the attainment of justice by bringing the
courts
closer to the people. That is, each division of the high court shall
have a main seat for the adjudication of cases. A local
seat or seats
of a division in addition to the main seat may be established and an
area or areas under the jurisdiction of such
a local seat or seats
may be determined for adjudication of cases. It must be assumed that
a Judge President of each division is
better placed to know where and
when a service is required within a division, for this, he or she is
given the latitude in terms
of
section 7
to establish a circuit court
or courts within his or her division and may determine an area or
areas falling under the jurisdiction
of such a circuit court. I
revert later in this judgment to some of this and other legislative
framework when dealing with the
intention in the establishment of the
two circuit courts under discussion.
Alleged
entitlement to issue the eight matters in Mbombela circuit court
[10]
This court raised concerns about the issuing of summonses in Mbombela
circuit court against the eight defendants residing in
Middelburg and
or within the proximity of Middelburg circuit court.
Two grounds
were raised as the basis for issuing in Mbombela
: First, that the
plaintiffs are
dominis litis
and that
therefore, they are entitled to choose their forums
. Second, that
the
notice issued on 29 January 2016 by the Judge President of the
Gauteng Division entitles them to do so
. The
notice issued by
the Judge President in terms of
section 7
(1) of the
Superior Courts
Act, allows
concurrent jurisdiction between the two established
circuit courts and that the plaintiffs in the eight matters were
entitled to
issue the summonses in Mbombela circuit court, so was the
argument
. This contention was based on the wording of clause 2.1
of the Practice Directive and it reads:
"All action and
motion proceedings including urgent applications in any area in the
Mpumalanga province shall, with effect
from 1 February 2016, be
issued through designated officially and at the offices situated at
the Mbombela and Middelburg courts
specified in clause 4 below which
shall operate
as
the Registrar's office of the circuit court
..."
[11]
Any suggestion to have it all in the issuing of processes at the
plaintiffs' or applicants' choice of forum throughout the
province,
in my view, ought to be seen in context, and the correctness of the
suggestion ought be questioned and examined as it
would appear
hereunder.
Rationale
in establishing the two circuit courts
[12]
Mpumalanga is the only Province in the country which up to date does
not have its division of the high court functioning. The
interim
arrangement as envisaged in
section 50
(2) read with
section 6(3)
, is
in effect, maintaining the status quo. That is,
matters
in the whole of Gauteng Division of the High Court as it had been the
case for many years
. It would be fair
to
conclude that the
arrangements which existed for so many years long before the
Superior
Courts Act and
thereafter, had brought about hardships to many
litigants who were denied easy and reasonable access to our courts
until the establishment
of the two circuit courts. Accepting that
this is so, one must also accept that, the High Court of South Africa
which consists
of divisions in each province as envisaged in
subsection (1) of
section 6
of the Act, is to ensure that our people
have access to courts and that the interest of justice is enhanced by
bringing courts
for adjudication of matters closer to the people.
This notion appears to be in line with what is provided for in the
Act. For example,
subsection (3) (c) of
section 6
provides that the
Minister may after consultation with the Judicial Services
Commission, by notice in the Gazette establish one
or more local
seats of a division, in addition to the main seats referred to in
subsection (1), and he or she
may determine the area or areas
under the jurisdiction of such local seat. and may in the same manner
amend or withdraw such a notice.
(My emphasis). For these
proceedings, it suffices to mention that the subsection (3) (a) is
silent on the concurrent jurisdiction
of the main seat over the local
seat.
[13]
It must be clear that the area or areas of jurisdiction for a local
seat ought to be determined when such local seat or seats
are
established. Sub-section (4) is also important, although one does not
have to pronounce on its correct interpretation in the
present cases.
It suffices however, to mention that the alleged concurrent
jurisdiction between the two circuit courts is clearly debatable. Of
relevance, subsection (4) provides
:
"(4) If a
Division has one or more local seats:-
(a) The main seat of
that Division
has concurrent appeal jurisdiction over the
area of any local seat of that D
ivision, and the Judge
President of the Division may direct that on appeal against the
decision of a single judge or of a Magistrates'
Court within the area
of jurisdiction may be heard at the main seat of the Division."
(b) ...
(c) ..."
[14]
The determination of an area or areas of a local seat of the
Division can only be aimed at ensuring that access to courts and
attainment
of justice is achieved when courts are brought closer to
the people
. Now, using the same reasoning in the present matters,
it must be accepted,
as was also conceded by Advocate Roelofse
on behalf of Mpumalanga Society of Advocates, whom the court allowed
to address at his request, although not representing any party,
that
the establishment of two circuit courts was aimed at ensuring that
access to courts and attainment of justice, are achieved
. In
paragraph 47 of Advocate JH Roelofse's written heads, is stated:
"It is
appreciated that the result of what
is
set out regarding the
current jurisdiction of the Mpumalanga Court and the manner in which
proceedings are currently issued in terms
of the directive
defeats
the whole objective of the establishment of the Mpumalanga civil
circuit court. namely to give effective access to justice
to the
residents of Mpumalanga." (My emphasis )
.
[15]
The statement was made in the context of the submission that clause
2.1 of the practice directive allows the issuing of the
eight matters
in Mbombela and that until clause 2.1 is amended, parties are
free to sue in any circuit court of their preference.
Whilst
I agree in part with the statement quoted above, I cannot agree that
the problem is with the practice directive. The problem,
as see it,
is with the litigants and or practitioners who seek to adopt a
hostile attitude towards the defendants by wanting the
defendants to
follow them, instead of the plaintiffs or their attorneys following
the defendants. Whilst clause 2.1 did not determine
the area, or
areas of jurisdiction for each circuit, it is not like it is
difficult to determine which area and circuit are closer
to a
particular defendant The determination is based on territorial
concepts. In other words, it cannot be difficult to establish
that the defendant has a connection and or is closer to a
geographical area in Mbombela or Middelburg where the circuit court
seat, is
.
[16]
An attempt to rely on the provisions of
section 21
of the
Superior
Courts Act is
in my view also misplaced
. The section deals with
'persons over whom and matters in relation to which the Divisions
have jurisdiction'. Subsection (1) provides
that " a Division
has jurisdiction over all persons residing or being in, and in
relation to all cases arising and all offences
triable within its
area of jurisdiction and all other matters of which it may according
to law take cognizance ...'
As a start, neither of the circuit
courts established, are “Divisions”. Secondly, each
Division established in terms
of
section 6
(1) has a main seat
.
That is, a mean seat of the high court within a Division where
matters are adjudicated.
On the other hand, in terms of subsection
(3) (c), 'the Minister may, after consultation with the Judicial
Service Commission, by
notice in the Gazette establish one or more
local seats for a Division
, in addition to the mean seats
referred to in subsection (1),
and determine the area under the
jurisdiction of such local seat
, and may in the same manner amend
or withdraw such a notice'.
As I said, there is no mention of
concurrent jurisdiction between the mean seat and the local seat
.
That read together with the provisions of subsection (4) of section
(6) quoted in paragraph 12 of this judgment, is left for another
day
to consider.
[17]
What is important for these proceedings is that there has always been
a notion of fair play, and substantial justice.
Forcing a person
to litigate in a forum far from his residence or home, in my view,
does not constitute fair play and offends against
the principle of
substantial justice; unless there are of jurisdiction for the chosen
forum.
In the present cases, the defendants are not only been
hauled to a place far away from the civil circuit court in
Middelburg, but
a distance away from the main seat of the Division in
Pretoria bearing in mind that, that is, where the forum used to be,
until
the establishment of the two civil circuit courts in Mpumalanga
Province effective from I February 2016.
[18]
It could never have been the intention in establishing the two
circuits that defendants who are residents in Middelburg will have
to
travel for about 200 kilometers to the circuit court in Middelburg to
defend their cases instead of travelling less than 10
kilometres to
the circuit court in Middelburg when previously they had to travel to
Pretoria which is far less than 200 kilometres
. Similarly, those
staying or residing in Witbank, are required to defend their matters
in Mbombela and in doing so, had to travel
for more than 200
kilometers to Mbombela circuit court instead of about 25 kilometers
to Middelburg circuit court. Hendrina and
Evander are areas closer to
Middelburg than Mbombela.
Election to litigate in Mbombela in the
name of
dominis litis
and clause 2.1 of the
practice directive, in the present matters, in my view, amount to an
abuse, which ought to be curbed before
it escalates into an alarming
proportion
.
[19]
Again, the suggestion that the two circuit courts have concurrent
jurisdictions over each other, in my view, is misplaced
. Such
concurrent jurisdiction cannot be inferred. If it was to be there, it
must be clearly spelt out. But even then, any concurrent
jurisdiction
that seeks to impact adversely on fair play and substantial justice
ought to be discouraged and rooted out.
The notion that the
plaintiffs in the present matters had properly brought their matters
in Mbombela as per clause 2.1 of the practice
directive, and that
this court is not competent to refuse to hear the applications for
default judgments, ought to be rejected.
[20]
The lacuna in not determining the areas within the jurisdiction of
each circuit court, when the two circuit courts were established,
cannot be fatal for two reasons: First, at the risk of repetition, it
is not difficult to determine areas or districts closer to
Middelburg
circuit court and Mbombela circuit court respectively. Second, the
intention for the establishment of the two circuit
courts is obvious
and if not, is a matter for serious consideration. I find
the-following - principle laid down in the matter of
S v Toms; S v
Bruce
[7]
to be applicable to the
present proceedings:
“
The primary
rule in the construction of statutory provision is to ascertain the
intention of the legislature. One does
so
by attributing to
the words of
a
statute, their ordinary literal grammatical
meaning. Where the language of
a
statute,
so
viewed, is
clear and unambiguous, effect must be given thereto, unless to do so;
"would lead to
absurdity
so
glaring that it could never have
been contemplated by the legislature. or where it would lead to
a
result contrary to the intention of the legislature.
as
shown by the context or by such other consideration
as
a
court is justified in taking into account "
(My emphasis).
[21]
I have already dealt with the context and consideration, as the court
is justified to take into account. But, it is important
to stress the
point that personal jurisdiction rules can be a bit sticker when you
file a law suit in an area other than the one
in which the defendant
is a resident or does business. You can't just sue someone in your
home town, area or circuit if the defendant
does not live in that
area, has never been in that area or does not do business in that
area, town or circuit.
To protect a defendant from being sued in a
hostile, possibly far-off location, personal jurisdiction requires
the facts to exist
that make it fair
. In the present proceedings,
such-facts for this court in Mbombela, to exercise jurisdiction over
the defendants who are residing
in Middelburg or closer to Middelburg
circuit court, have not been established. I now turn to deal with the
other issues for consideration,
in the event I was to be wrong on
the notion of fair play, substantial justice at common law, and
construction of clause 2.1 of
the practice directive
.
National
Credit Act no. 34 of 2005
and constitutional imperative
[22]
'The Act seeks to infuse values of fairness, good faith,
reasonableness and, equality in the manner actors in the credit
marked
relate. Unlike in the past, the sheer raw financial power
difference between the credit giver and its much needed but weaker
counterpart,
the credit consumer, will, not always rule the roost.
Courts are urged to strike a balance between their respective rights
and
responsibilities. Yes, debtors must diligently and honestly meet
their undertakings towards their creditors. If they do not, credit
market will not be sustainable,
But
the human conditions suggests that it is not always possible-
particularly in credit arrangements that run over many years
or
decades, as mortgage bonds over homes do. Credit givers serve a
beneficial and indispensible role in advancing the economy and
sometimes social good. They too have not only rights but also
responsibilities. They must act within the constraints of the
statutory
arrangements. That is particularly so when a credit
consumer honestly runs into financial distress that precipitates
repayment
defaults. The resolution of the resultant dispute must bear
the hallmarks of equity. good faith, reasonableness. and equality. No
doubt. credit givers ought to be astute to recognize the imbalance in
negotiating power between themselves and consumers. They
ought to
realize that at play in the dispute is not only the profit motive.
but also, the values of our constitution'.
[8]
(My emphasis)
.
[23]
'The
core of the Act is the objective to protect consumers. The protection
however, must be balanced against the interests of credit
providers
and should not stifle a "competitive, sustainable responsible,
efficient [and] effective... credit market and industry".
The
Act, ... replaces the apartheid era legislation that regulates the
credit market, and infuses constitutional considerations
into the
culture of borrowing and lending between consumers and credit
providers'.
[9]
[24]
The Act referred to in the two preceding paragraphs, is reference to
the
National Credit Act. The
plaintiffs and defendants in the present
matters are credit providers and credit consumers to which the
provisions of the
National Credit Act apply
. That being so, what is
quoted in paragraphs 22 and 23 above should find application, in
particular, the constitutional considerations
relevant to the present
proceedings. The plaintiffs are financial institutions with financial
muscles. They are therefore required
to 'act within the constraints'
bearing in mind that they are dealing with "a credit consumer"
who 'honestly runs into
financial distress that precipitates
repayment defaults'. The resolution of the resultant default or
dispute in the Mbombela circuit
court, instead of Middelburg circuit
court, in my view, does not 'bear the hallmarks of equity, good
faith, reasonableness and
equality.' By so doing, the plaintiffs
failed 'to be astute and to recognize the imbalance' in litigating
power 'between themselves
and the credit consumers' (the defendants)
in the present proceedings. They failed and ignored to realize that
at play in the present
litigations is not only the recovery of what
is owed to them or making profit but also 'the civilized values of
our constitution'
especially where a consumer is at the brink of
losing his or her primary residence. The civilized values of our
constitution cannot
be achieved in the present cases by selecting a
court far-located where the defendants reside as such a route would
only aggravate
their financial distress and perhaps, that is why none
of the defendants appeared.
Sections
34 and 173 of the Constitution
[25]
Section 34 of the Constitution deals with access to courts. On the
other hand, section 173 deals with the inherent powers of
the courts
and reads:
"The
Constitutional Court, the Supreme Court and the High Court of South
Africa each has inherent powers to protect, and regulate
their own
process and to develop the common law, taking into account the
interests of justice".
[26]
As indicated in paragraph 2 of this judgment, it is important that
the rules of courts be used as tools to facilitate access
to courts
rather than hindering it.
Suing the defendants in Mbombela circuit
court instead of Middelburg circuit court regarding the eight matters
under consideration,
is tantamount to hindering the defendants'
rights of access to courts which 'is indeed foundational to the
stability of an orderly
society’. I do not think that the
defect, if any in clause 2.1, can take precedent over the right of
access to courts in
the present proceedings.
Linked to this, is
the development of the common law, taking into account the interests
of justice as espoused in section 173 of
the Constitution.
[27]
The unwritten rule, and I say this at the risk of repetition, is that
personal justification rules can be a bit sticker when
you file a law
suit in an area other than the one in which the defendant resides, or
doing business. Put differently, you cannot
just sue someone in your
town or area if that person does not live in your area, and does not
do business in your area. To protect
a defendant from being sued in a
hostile, possibly far-off location, personal jurisdiction requires
the facts to exist that make
it fair for a court to exercise power
over a person who is peregrinis of the area or jurisdiction of the
court, in the present
case, being Mbombela circuit court instead
Middelburg circuit court. This is the common law principle that needs
to be developed
in line with the provisions of section 173, taking
into account the interests of justice.
[28]
Our courts are familiar with an evaluation of factors with the view
to determine where the interests of justice lie.
[10]
The factors in the present proceedings are that, until 1 February
2016, all action and motion proceedings coming from Mpumalanga
Province were instituted and heard in Pretoria. Mbombela and many
other areas around it, are about more than 300 kilometers from
Pretoria. Making it possible for parties in Mbombela or Middelburg or
around Mbombela and Middelburg to issue action and motion
proceedings
in the two circuit courts respectively, came as a huge relief to the
people of Mpumalanga and was widely publicized
and welcomed.
[29]
For example, on 5 February 2016 a most senior attorney in Middelburg,
Mr Helgaardt du Preez was reported in the Middelburg
Observer
newspaper as having said:
"The courts would
certainly be busy, with the main aim of providing
a
speedy and
accessible justice system for the adjudication of civil disputes."
[30]
Similarly, in the Citizen Newspaper, edition of 24 February 2016 in
an article titled "New High Court brings justice home",
by-
Caxton News Service, it was reported, inter alia:
"As a result,
attorneys and clients with offices closer to Middelburg will not have
to travel to Mbombela".
[31]
To now renege from this promise and the legitimate expectation
created in the
Minds
of the many by issuing the summonses in the present matters, in
Mbombela and hauling the defendants to Mbombela far-away from
Middelburg or around Middelburg, ‘would lead to absurdity, so
claring that it could never have been contemplated’ by
clause.
2.1 of the practice directive and that would be a betrayal to the
people of Mpumalanga
.
[32]
Furthermore, in the Lowvelder Newspaper's edition of 24 February 2016
and in an article titled "Mpumalanga High Court
functional in
Mbombela," a journalist, Helene Eloff wrote:
"It's wonderful
news," she quoted attorney Spoor. 'Spoor applied for an urgent
interdict on Tuesday. He described it as
historic day and said that,
whereas he usually travels to Pretoria for this kind of thing, he
could now do it in Mbombela.'
In the same article, Ms
Helene Eloff, further wrote:
"The Mpumalanga High Court has
been bringing justice to the people of the province since the first
day of this month".
[33]
Now, magine a respondent residing in Mbombela having to face and
defend an interdict brought against him or her on an urgent
basis in
Middelburg simply because the applicant prefers a particular attorney
in Middelburg or because clause 2.1 does not set
out the areas to be
serviced by Mbombela or Middelburg circuit court, or because of the
alleged concurrent jurisdiction between
the two circuit courts. That
will be absurd and contrary to the constitutional imperative to make
the courts accessible as contemplated
in section 34 of the
constitution. The development of the common law, taking into account
the interests of justice, in the present
matters, required of the
plaintiffs as
dominis litis
parties, to institute proceedings
in a circuit court closer to where the defendants reside or doing
business.
The issuing in Mbombela circuit court was not founded on
other grounds, for example, that the cause of action arose within or
closer
to Mbombela circuit court.
[34]
Clause 2.1 of the practice directive should be construed in such a
manner as it would give effect to access to courts in the
interests
of justice to a broader community in the province bearing in mind
that the superior courts enjoy in terms of section
173, the power to
regulate their own processes. It is this power that makes every
superior court the master of its own process.
It enables a superior
court to lay down the process to be followed in particular cases,
even if that process deviates from its
rules. Consistent with the
power, this court may in the interests of justice depart from what
its own process provides.
[11]
Therefore, even if clause 2.1 of the practice directive was to be
found lacking, that did not entitle the plaintiffs the choice
of a
forum as they did, far away from where the defendants-reside when
Middelburg circuit court is the closest. Therefore, this
court is
entitled deviate from clause 2.1 insofar as it might be lacking
because, it is in the interests of justice to do so.
[35]
The attempt to rely on the case of Agri Wire (Ply) Ltd and Another v
Commissioner, Competition Commission, and Others
[12]
for the preposition that this court is not entitled to decline to
hear the eight matters, as they are properly brought before Mbombela
circuit court, in my view, is misplaced. Firstly, I have already
indicated that the principle of fair play, substantial justice
and
the provisions of section 34 read with section 173 of the
constitution, have been brought into question and offended against
by
selecting Mbombela civil circuit court as a court of issue in the
eight matters. Secondly, the directive as I said, even if
it was to
be lacking, a submission I do not agree with, this court is entitled
to deviate therefrom, taking into account the interests
of justice
and the development of the common law. Lastly, it is important to
mention that Agri Wire (Pty) Ltd matter, did not deal
with sections
34 and 173 of the Constitution, and therefore reliance on it, lacks
substance.
[36]
Section 173 of the Constitution empowers this court to ensure that
attainment of justice is achieved and not to allow big financial
institutions to trample on the rights of their weaker counter-parts,
the credit consumers who are all defendants in these proceedings.
When that happens, this court will step in swiftly to ensure that
attainment of justice facilitated by bringing the courts closer
to
the people is achieved.
[37]
Furthermore, I was referred to the case of Thembani Wholesalers (Pty)
v September and Another.
[13]
It is important to mention upfront that in this case, the full court
of the Eastern Cape High Court sitting as the court of first
instance
in Grahamtown, did not deal with the provisions of s173 of the
Constitution. It however, dealt with the provisions of
s34 of the
Constitution and s27 of the Superior Courts Act 10 of 2013. The issue
before it was whether an application for summary
judgment, which
ordinarily is heard before a single judge in the unopposed motion
court, should be heard in the Eastern Cape High
Court, Mthata or in
the Eastern Cape High Court, Grahamstown. Whilst it dealt with the
jurisdiction of a division visa-vis local
division and not circuit
court, as is the case in the present proceedings, I find it important
to quote what was said in paragraphs
12 and 13 of Thembani
Wholesalers's judgment because, it dealt with both discretionary
power of removal and access to courts:
"[12] This
discretionary power to order the removal of a matter from one court
to another, albeit, apropos the similarly worded
corresponding
section of the old Act, Plasket J, with reference to earlier
authority, emphasized in the
Jeremy Davis v Kenneth James
Denton
[5],
had to be exercised as follows:-
"[5] The proper
way to exercise this discretion was set out by Britowe J in Ogilvie v
Bettini and
Co,
a matter involving whether an action that had
been initiated in the Transvaal Supreme Court, with its seat in
Pretoria, should be
transferred to the Transvaal High Court, with its
seat in Johannesburg. The court's power to transfer a matter was
founded in s29
of Proclamation 14 of 1902 of the Transvaal Colony,
which, much like s9(1) of the Supreme Court Act, allowed for the
transfer of
a matter where it appeared that it may be more
conveniently heard in another court.
Having rejected the
argument that the most convenient court was. of necessity. the court
within which jurisdiction the defendant
resided
, Bristowe
J proceeded to say:
'It seems to me that
under the Proclamation the plaintiff has the choice of two courts,
-
either the Supreme Court or the High Court-and prima facie it
seems to me he may choose whichever court he likes.
Now if
there was something to show that an action could be tried in
Johannesburg more conveniently. having regard to the the expense
to
which the parties would be put and the places where their witnesses
were living or any other circumstances, an application of
this kind
very probably would be granted."
(
My
emphasis).
[6]
...
[7] It is clear from
the case law that the convenience of the parties and of witnesses are
of importance in determining the balance
of convenience .So, for
instance, in Rothman v Woodrow and Co, Buchanan J held that the
balance of convenience favoured transferring
a matter to a circuit
court sitting in Graaf Reinet where all of the defendant's witnesses
resided there while neither of the two
witnesses to be called by the
plaintiff resided in Grahamstown."
[38]
The full court in Thembani Wholesalers having referred to case Jaw
authorities in paragraph 12 of its judgment, and referring
to
section
27
of the
Superior Courts Act then
held in paragraph 13 as follows:
"[13] 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 court of first instance in 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
particular local seat and order that it be removed
.
The
inconvenience to
a
litigant hauled before a
far flung court will no doubt. not be lightly countenance
and, and the court's opprobrium, marked by an appropriate costs
order ..." (My emphasis).
[39]
Inasmuch as the plaintiffs wanted to rely on Thembani Wholesalers's
case for their choice of Mbombela circuit court, that entitlement
in
the circumstances of the present matters, does not apply for reasons
already mentioned elsewhere in this judgment.
Section 27
of the
Superior Courts Act allows
a transfer of a matter from one court to
another on application by any party to the proceedings or by
agreement of the parties.
Whilst I agree that 'there is nothing to
preclude a judge sitting as a court of the first instance... from
mero motu
concluding that, notwithstanding the court having
original territorial jurisdiction, the balance of convenience
...dictates, that
the matters properly be heard at particular local
seat and order that it be removed',
I do not intend exercising
this discretionary power of removal, in case one was to be wrong in
this regard. I prefer to leave it
up to the plaintiffs to decide what
to do with their respective matters once the present applications for
default judgments are
struck-off from the roll, as I intend to do.
They have three options: to ask the defendants to agree to the
transfers of these
matters to Middelburg circuit court or to apply
for such matters to be transferred to Middelburg, or as the last
resort, to abandon
the the cases and issue the summonses afresh in
Middelburg
.
Costs
[40]
I should not be worrying myself about the issue of costs because, in
all the eight applications, there is no appearance by
any of the
defendants. My worry is, however, that whatever happens to these
matters, the plaintiffs might be tempted to debit the
accounts of the
defendants with legal costs relating to the present proceedings. That
would be unfair to the defendants because
the plaintiffs should never
have chosen Mbombela circuit as a forum for these eight matters. For
this reason, the plaintiffs should
be ordered not to recover any
legal costs from the defendants arising from these proceedings.
[41]
Consequently an order is hereby made as follows:
41.1. The applications
for default judgments in all the eight matters mentioned in
paragraphs 3.1 to 3.8 of this judgment are hereby
struck-off from the
roll.
41.2. All the plaintiffs
in the present proceedings are hereby ordered not to debit any of the
defendants' accounts with legal costs
or charge them for any legal
fees and or disbursements arising from the issuing of the summonses
to date hereof.
_________________________
M F LEGODI
,
JUDGE
OF THE HIGH COURT
FOR
THE APPELLANT: Adv. Snyman
INSTRUCTED
BY: Seymore, Du Tio! & Sasson (Mbombela)
FOR
THE RESPONDENT: Attorney Mr Sieberts of Attorneys Swanepoel and
Parners (Mbombela)
[1]
Mukaddam
v Pioneer Foods (Pty) Ltd and other
[2013) (5) SA 89 (CC) at para 28;
s34
Everyone has the right to have
any dispute that can be resolved by application of the law decided
in a fair public hearing before
court or, where appropriate, another
independent and impartial tribunal or forum; sl 67:
(1) Judicial authority
of the Republic is vested in the courts;
(2) The courts are
independent and subject only to the constitution and the law, which
they must apply impartially and without
fear, favour or prejudice;
(3) No person or organ
may interfere with the functioning of the courts;
(4) Organs of state,
through legislative and other measures, must assist and protect the
courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the courts.
An
order or decision, issued by a court finds all persons whom and
organs of state to which it applies.
[2]
Para 29 of
Mukaddam
supra.
[3]
Chief
Lesapo v North West Agricultural Bank and Another
2000(1) SA 409 (CC), 1999(12) BCLR 420.
[4]
Para 31 of
Mukaddam
supra.
[5]
Para 32 of
Mukaddam
supra.
[6]
Para 35 of
Mukaddam
supra.
[7]
1990(2) SA 802(A)
[8]
Nkata v Firstrand Bank Limited and others
[2016] ZACC 12
para [94]
(decided on 21 April 2016)
[9]
Sebola and another v Standard Bank of SA Ltd and another
2012 (5) SA
142
at para [40].
[10]
Mukkadam para 36
[11]
PEE International and other v Industrial Development Corporation of
South Africa Ltd
2013 (1) SA 1
(CC) para 30
[12]
2013 (5) SA 484
SCA.
[13]
2014 (5) SA 51
(ECG) at para [12].