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[2009] ZAGPPHC 281
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oosthuizen v Road Accident Fund (45258/08) [2009] ZAGPPHC 281 (31 August 2009)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
DATE:
31/08/2009
Case
Number: 45258/08
In
the matter between:
ANDRE
VERNON OOSTHUIZEN
Applicant
And
ROAD
ACCIDENT FUND
Respondent
JUDGMENT
LOUW
J
[1]
The applicant in this case is the plaintiff in a case instituted in
the Magistrate’s Court for the district of Pretoria,
during
February 2004. It is not clear to me what the amount was initially
claimed in this matter but in terms of an amended particulars
of
claim, apparently filed during April 2005, the plaintiff who was a
pedestrian and was hit by an unidentified motor vehicle,
so it is
alleged, claimed future medical expenses and general damages in the
total amount of R 99 000, 00.
[2]
It seems that this amendment was necessitated by a report, dated 4
May 2004, by an orthopaedic surgeon, Dr Swartz, who, in his
medico -
legal report calculated damages in excess of R 100 000, 00.
[3]
Thereafter and on 17 August 2004 another medico-legal report was
obtained from a facial and oral surgeon, Langenegger. His calculation
in respect of medical costs also amount to close to R 100 000, 00.
Thereafter an occupational therapist, Jonas, provided a report
on 27
June 2007 which sets out further medical treatment with accompanying
expenses which the applicant has to undergo.
[4]
Its clear from the above that the applicant’s damages
considerable exceed the jurisdiction of the Magistrate’s Court
which is R 100 000, 00. The applicant now seeks transfer of the
Magistrate’s Court action to this Court. The respondent,
who is
the defendant in the Pretoria Magistrate’s Court, objects to
such transfer.
[5]
It is argued on behalf of the Road Accident Fund, the defendant /
respondent, that it has been clear for a number of years that
the
applicant’s claim exceeds the jurisdiction of the lower court.
It further states that the applicant should timeously
have terminated
the proceedings in the Magistrate’s Court and have issued a new
summons in the High Court. If that is done
now the applicant’s
claim will be prescribed. The respondent states that the applicant is
the author of his own misfortune
alternatively the blame falls on the
applicant’s previous attorney or present attorney of record.
[6]
There is no procedural provisional in the Magistrates’ or the
High Courts’ rules or acts for the relief sought by
the
applicant.
[7]
There are the following related provisions:
(1)
The
Magistrates’ Courts Act, 32 of 1944
, provides for the
transfer of an action or proceeding from one Magistrate’s Court
to another Magistrate’s Court.
[1]
(2)
The
Magistrates’ Courts Act provides
for the removal of actions
from a Magistrate’s Court to a division of the High Court, upon
application to the Magistrate's
Court by the defendant.
[2]
(3)
The Uniform Rules of Court provide for the transfer of actions from
the High Court to a Magistrate’s Court
[3]
(4)
The Supreme Court Act 59 of 1959 (“the Supreme Court Act”),
provides for the removal of civil proceedings from one
division of
the High Court to another division, upon application by any party to
such proceedings if such proceedings may be more
conveniently or
fitly heard or determined by the other division
[4]
.
[8]
The procedure for “removal” of an action from the
Magistrate's Court to the High Court was set out in Rennie v Bosch
as
follows:
[5]
“
It
will be seen, therefore, that the application of the defendant,
despite the language of the opening clause of the first paragraph
of
subsec. 1 of sec. 47, is not properly for removal of the action, but
an objection to the trial of the action in a magistrate’s
court, the effect of which, if the defendant complies with the
conditions set out in the section, is to deprive the magistrate
of
jurisdiction and to stay further proceedings in his Court. The
magistrate, however, possesses no power to remove the action
to the
Supreme Court unless the plaintiff in the action requires him to make
such an order, so that, unless the plaintiff does
so require removal
or issues fresh summons in the Supreme Court, the action is only
indefinitely stayed”
[9]
The equivalent of s 47 in Act 32 of 1917 is now s 50 in the
Magistrates' Courts Act, 32 of 1944 (“the Act”). There
is
still no provision in the Act for the relief sought by the applicant
herein i.e. the remedy provided for in s 50 of the Act
is available
only to the defendant in the lower court.
[10]
It has been argued that there is a lacuna
in the Act as it is irrational to
provide the s 50 remedy to the defendant but not to the plaintiff. I
do not agree. The plaintiff
is dominus litis
and could freely choose in which forum
to institute his action. To my mind there are at least three reasons
why the defendant might
want to transfer an action to the High Court,
namely:
(1)
It may want to institute a counterclaim which exceeds the
jurisdiction of the Magistrate’s Court.
(2)
It might be of the view that the issues, especially issues of law,
are so complicated that it deserves the attention of the
High Court.
(3)
It may simply, for its convenience, want to change the forum, i.e.
from some distant Magistrate’s Court to the North Gauteng
High
Court, Pretoria.
[11]
The applicant argued that this Court has the inherent jurisdiction to
regulate its own procedure in the interests of the proper
administration of justice. This is a power which the High Courts in
South Africa has always had and which has been reconfirmed
by the
Constitution of the Republic of South Africa.
[6]
[12]
In regard to the inherent jurisdiction of the High Court counsel for
applicant relied on Ncoweni v Bezuidenhout
[7]
where the following was stated by Gardiner JP:
“
The
rules of procedure of this Court are devised for the purpose of
administering justice and not of hampering it, and where the
rules
are deficient I shall go as far as I can in granting orders which
would help to further the administration of justice. Of
course if one
is absolutely prohibited by the rule one is bound to follow that
rule, but if there is a construction which can assist
the
administration of justice I shall be disposed to adopt that
construction. ”
One
may further have regard to the well - known dictum of Rumpff CJ in
Republikeinse Publikasies Edms (Bpk) v Afrikaanse Pers Publikasies
Edms (Bpk)
[8]
where the following was stated:
"
...
is dit wenslik om te herhaal wat in die
algemeen van toepassing is, nl. dat die Hof nie vir die Reels bestaan
maar die Reels vir
die Hof. ”
[13]
The applicant further referred to two cases where orders were granted
to transfer a High Court case to a Magistrate’s
Court although
the defendant in each case objected i.e. did not consent there to.
Rule 39(22) of the Uniform Rules of Court provides:
“
By
consent the parties to a trial shall be entitled, at any time, before
trial, on writing application to a judge through the registrar,
to
have the cause transferred to the magistrate’s Court: provided
that the matter is one within the jurisdiction of the latter
court
whether by way of consent or otherwise. ”
[4]
In both these cases, despite the lack of the defendant’s
consent, the trials were transferred to a Magistrate’s
Court.
In so doing the respective High Courts acted in terms of their
inherent jurisdiction alternatively the maxim ubi ius ibi
remedium.
[15]
I cannot find assistance for what the applicant in this application
seeks in the lastmentioned two cases. The inherent jurisdiction
of
the High Court means that a High Court is in charge of its own
procedure. The High Court does not have
automatic jurisdiction over proceedings of a lower court falling
within its area of jurisdiction.
The relationship between such a High
Court and Magistrate’s Court is regulated by statutes and
rules. There is no authority
for the submission by the applicant that
a High Court may simply remove, grab or take a case from a
Magistrate’s Court where
the defendant in the Magistrate’s
Court objects there to.
[16]
I was also furnished with an unreported judgment by BP Geach AJ.
[9]
In that case the plaintiff applied to have her case in the
Magistrate's Court transferred to this Court. Other than in the
present case, in Dhlamini the Road Accident Fund agreed to the
transfer. These two cases are therefore clearly distinguishable
and I
do not find support for the applicant’s case in the unreported
case of Dhlamini.
[17]
Lastly it should be borne in mind that the inherent jurisdiction of
the High Court is a power to be exercise sparingly. It
can become an
unruly horse to ride. There is no reason to create a new remedy in
this case. The applicant, as plaintiff in the
lower court, always had
the option of instituting his action in this Court. Even after he had
instituted the action in the Magistrate’s
Court and it then
became clear that the quantum increased to way beyond the
jurisdiction of that court, he could have withdrawn
the action in the
Magistrate’s Court and have instituted proceedings afresh in
this Court. That the latter cause of action
is now no longer
possible, due to prescription, is something for which the plaintiff
has only himself or his legal representatives
to blame.
[18]
In the result I dismissed the application with costs.
A
A LOUW
JUDGE
OF THE HIGH COURT
ADV
FOR APPLICANT: WG
PRETORUIS
ATTORNEYS
FOR APPLICANT: KLINKENBERG
INC ATTORNEYS
ADV
FOR RESPONDENT: K
KOLLAPEN
ATTORNEYS
FOR RESPONDENT: FOURIE &
FISMER INC
[1]
See s 35 of the Magistrates’ Court’s Act, 32 of 1944
[2]
See s 50 of the Magistrates’ Court’s Act 32 of 1944
[3]
See Uniform Rule 39(22)
[4]
See s 9 of the Supreme Court Act 59 of 1959
[5]
Rennie v Bosch
1928 EDL 23
at 25
[6]
Constitution of Republic of South Africa, 1996, s 173
[7]
1927 CPD 130
[8]
1972 (1)SA 773 at 783 A-B
[9]
Dhlamini v Padongelukfonds, unreported case in this Court dated 16
October 2006, case number 26357/06