On 25 June 2021 the full bench of the SCA upheld the appeals 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), and it upheld the appeals by The Standard Bank and Nedbank in the Grahamstown matter. The SCA ordered that the High Court must entertain matters within its territorial jurisdiction that fall within the jurisdiction of the Magistrates’ Court, if brought before it, because it has concurrent jurisdiction.

Not satisfied with the judgment of the SCA, the South African Human Rights Commission (SAHRC), a friend of the court in the two appeals before the SCA, lodged an application for leave to appeal with the Constitutional Court on 17 September 2021, but not as a friend of the court this time around, but as the applicant seeking leave to appeal. The SAHRC was not a party to the initial matter that came before the Grahamstown High Court, but it was a party to the matter that came before the Pretoria High Court. Consequently, the SAHRC only sought leave to appeal the judgment of the SCA in so far as it overturned the decision of the Pretoria High Court. 

On 9 December 2022, the Constitutional Court (the Court) handed down its judgment, weighing in on the debate whether fish cannot sometimes be fowl.

The Court was of the view that the SAHRC had the requisite interest to bring the application, noting however, that none of the defaulting debtors had participated in any of the proceedings since inception. The Court granted the SAHRC leave to appeal the SCA judgement.

In argument, the SAHRC sought to distance itself from the High Court’s reasoning that it is an automatic abuse of court process to litigate in the High Court matters that fall within the monetary jurisdiction of the Magistrate’s Court. Instead, the SAHRC considered it an abuse if a litigant routinely litigated in the High Court, matters that fall within the jurisdiction of the Magistrate’s Court, and argued that the right of access to court, enshrined in the Constitution, dictates that there should be a default rule that where the High Court and Magistrate’s Courts have concurrent jurisdiction, the matter must be litigated out of the Magistrate’s Court.

In attempting to persuade the Court to uphold its appeal, the SAHRC relied on section 169 of the Constitution that says that the High Court may decide “…any matter not assigned to another court…”. The Court, in addressing the SAHRC’s section 169 argument, concluded that on the SAHRC’s interpretation of section 169, the High Court was at liberty not to entertain matters falling within its jurisdiction. This argument, the Court said, was imponderable.

The Court, having granted the SAHRC leave to appeal, dismissed the appeal. It therefore seems that the Court agrees with the SCA that fish cannot sometimes be foul.

However, this is not the end of the debate. The Court, in its judgement, referred to the Lower Courts Bill circulated for public comment in April 2022, and particularly section 22(4). This section stipulates that if a plaintiff wants to issue a summons in the High Court because the plaintiff is of the view that it would be more appropriate for the High Court to hear the matter, but the amount of the claim falls within the monetary jurisdiction of a lower court, the plaintiff must apply to the High Court and set out reasonable grounds why the action should be heard in the High Court. This will not only increase the cost of litigation, but it will most certainly slow down an already very sluggish process.