The Mpumalanga Circuit Courts: Tread with caution on the question of jurisdiction

As the Mpumalanga and Limpopo Provinces did not have High Courts at the time of enactment, s50(2) of the Act that states that:

The Gauteng Division shall also function as the Limpopo and Mpumalanga Divisions, respectively, until a notice published in terms of s6(3) in respect of those Divisions comes into operation.

Section 6(3) of the Act states that the Minister must in consultation with the Judicial Services Commission, by notice in the Gazette, determine the area under the jurisdiction of a Division. There has been no notice by the Minister in relation to the Mpumalanga Province and therefore s50(2) of the Act remains in force.

On the other hand, s7(1) of the Act states that:

The Judge President of a Division may by notice in the Gazette establish circuit districts within the area under the jurisdiction of that Division for the adjudication of civil or criminal matters, and may by like notice alter the boundaries of any such districts.

On 29 January 2016 the Judge President issued practice directive 1 of 2016 in terms of s7(1) of the Act, establishing circuit courts in Middelburg (Emalahleni) and Mbombela (Nelspruit), in order to ease pressure and caseload from the Pretoria High Court.

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 officials and at the offices situated at the Mbombela and Middelburg Magistrate Courts specified in Clause 4 below and which shall operate as the Registrars offices of the Circuit Courts.

In Nedbank Ltd v Rossouw [2016] ZAGPPHC 916 the Pretoria High Court interpreted practice directive 1 of 2016 to mean that it is mandatory for a party to institute proceedings involving a dispute or matter arising out of the Mpumalanga area of jurisdiction in one of the circuit courts established by the Judge President in terms of s7(1). Notwithstanding the fact that the Judge President had not yet published the abovementioned practice directive in the Gazette as prescribed by s7(1) of the Act, the Pretoria High Court enforced it and dismissed the matter with costs due to lack of jurisdiction.

On 1 September 2017 the Judge President issued and published in the Gazette practice directive 1 of 2017, which makes it clear that the Pretoria High Court shall no longer have jurisdiction to hear matters arising in the magisterial districts listed therein (Mpumalanga Province).

Paragraph 1.5 of practice directive 1 of 2017 states:

The Gauteng Division of the High Court shall, with the coming into effect of this Notice, cease to have jurisdiction (own emphasis) in any matters emanating and arising in and from the Magisterial Districts set out in the schedule.

As mentioned above, other than for mere convenience, the circuit courts were established in order to alleviate pressure from the Pretoria High Court. In First National Bank v Lukhele and seven other cases [2016] ZAGPPHC 616, the court held that even if a particular magisterial district is not listed in the schedule to the practice directive, a plaintiff must still establish the closest court to the defendant, as it is not difficult to determine areas or districts closer to the Middelburg and Mbombela Circuit Courts respectively.

In dismissing the applications for default judgment the court held:

The applications for default judgments in all the eight matters … of this judgement are hereby struck-off from the roll.

All the plaintiffs in the present proceedings are hereby ordered not to debit any of the defendant’s accounts with legal costs or charge them for any legal fees and/or disbursements arising from the issuing of the summonses to date hereof.

As from 1 September 2017, a litigant must therefore institute proceedings in respect of matters that fall within the jurisdiction of the Mpumalanga Province in one of the Mpumalanga Circuit Courts, otherwise they run the risk of dismissal of the matter with costs.