13 July 2021 by and Dispute Resolution Alert

Fish cannot sometimes be fowl: Part 1

In a previous alert titled Courts grappling with their own jurisdiction”, we reported on an issue that was awaiting the attention of the Supreme Court of Appeal (SCA). The issue was broadly whether the High Court could refuse to entertain a matter that fell within the jurisdiction of the Magistrate’s Court. On 25 June 2021 the SCA, in a judgment criticising the courts a quo, in the cases of 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), ruled that a court is obliged by law to hear any matter that falls within its jurisdiction and has no power to decline to hear such a matter on the grounds that another court has concurrent jurisdiction to hear it.

It is heartening to read the SCA judgment and to know that it will not tolerate judgments from lower courts that are simply wrong in law. The SCA judgment was delivered by Acting Judge of Appeal Sutherland, who has now been appointed as the Deputy Judge President of the Gauteng Local Division of the High Court.

This alert deals with the High Court of South Africa, Gauteng Division, Pretoria’s judgment that was overturned on appeal. The High Court’s initial judgment included a view that matters which fall within the jurisdictions of both the Magistrate’s Court and the High Court, were clogging up the High Court rolls.

The High Court was also of the view that, in the cases in question, impecunious debtors were being prejudiced because should they wish to oppose a claim, they would have to travel to a High Court when a Magistrate’s Court was supposedly closer by and more convenient to attend. It also held that, should a debtor wish to resist a claim, legal costs in a Magistrate’s Court would be less than in the High Court.

The High Court went so far as to say that the fact that banks were instituting these types of claims in the High Court was an abuse of process. The High Court sought assistance from several friends of the court – the South African Human Rights Commission (SAHRC), and the Department of Justice – but it would seem that these friends of the court were less than helpful as they did not approach any debtors or, if they were approached, no debtors came forward.

The High Court took it upon itself to provide some statistics relating to the workload faced by the High Court, which the appellant banks saw for the first time in the court’s judgment. One friend of the court, the SAHRC, made some allegations in its affidavit, but these were described by the SCA as “broad, sweeping generalisations, and not facts”. These friends of the court “were driven to present arguments on the basis of speculative extrapolations from moral sensibilities rather than from established fact”.

‘No proper evidential basis’

The SCA stated that in neither of the courts of first instance were material facts adduced to substantiate the arguments that were presented. The factual averments about the clogging up of the rolls upon which the High Court relied to reach its conclusions, were ventilated in the judgment and the appellant banks were not given the opportunity in the hearing to address these averments. Not one of the matters was defended, and not one of the many defendants participated in the process at all. The SCA lamented that the primary premise for the conclusions reached in the courts of first instance was the notion that by an appeal to “constitutional values” the plight of impecunious litigants could be alleviated.

In recognising the importance of the issues raised in the two judgments, the SCA pointed out that these issues implicate policy considerations which quite obviously do not fall within the domain of the High Court but belong within the prerogative of Parliament.

However, the SCA explained that the High Court judgment left much to be desired as it was premised on factual findings with no proper evidential basis and the court had resorted to generalised and speculative conclusions with no proper evidential foundation. Further, the SCA averred that the High Court had indefensibly ignored or rejected the only evidence before it.

The SCA analysed various sections of the Constitution, the Supreme Court Act 10 of 2013, the Magistrate’s Court Act 32 of 1944, the Uniform Rules of Court and some of its own previous judgments in order to formulate its well-reasoned judgment. Its ruling found that litigants may institute matters within the High Court’s territorial jurisdiction notwithstanding the fact that they fall within the jurisdiction of the Magistrate’s Court, without a prior application to do so.

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