Case   CCT291/21
[2022] ZACC 43

Hearing Date: 19  May 2022

Judgement Date: 09 December 2022

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 9 December 2022 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal by the South African Human Rights Commission (SAHRC) against a decision of the Supreme Court of Appeal dated 25 June 2021, in which that Court held that a High Court may not transfer matters properly before it to courts with which it shares concurrent jurisdiction. That Court held that a High Court is obliged to entertain matters brought before it even if Magistrates’ Courts enjoy concurrent jurisdiction in respect of them. The Standard Bank of South Africa Limited, Nedbank Limited and FirstRand Bank Limited (the banks) are the first to third respondents, respectively. The fourth to sixteenth respondents were party to various applications for default judgment lodged by the banks in the High Court, Gauteng Division, Pretoria (High Court). They elected not to participate in the appeals subsequent to the finalisation of the High Court proceedings. The Pretoria Society of Advocates, which had assisted them at the High Court at the request of that Court, applied to be and was admitted as amicus curiae before the Constitutional Court.

The application for leave to appeal originates from thirteen applications that were set down for hearing in accordance with a practice directive issued by the Judge President of the High Court on 24 June 2016 (the practice directive). In the various matters, the banks sought payment for the alleged default on mortgages or motor vehicle credit. The practice directives required the parties to argue, in the main, whether: (a) the High Court is obliged to entertain matters falling within the Magistrate’s Court jurisdiction despite its concurrent jurisdiction; (b) the provincial division of a High Court is obliged to entertain matters falling within the jurisdiction of a local division despite its concurrent jurisdiction; and (c) financial institutions have an obligation to consider the costs implications for, and access to justice imperatives pertaining, to financially distressed people when choosing the court at which to institute proceedings. The matters were consolidated for purposes of argument on these questions and heard by a Full Court.

The Full Court ruled that a High Court having concurrent jurisdiction is not obliged to hear matters that fall within the jurisdiction of the Magistrate’s Court concerned. Such matters should be brought before the Magistrate’s Court. The Full Court held further that: (a) where a party believes that a matter within the jurisdiction of the Magistrate’s Court should be considered by the High Court, that party should make an application for the case to be heard by the High Court; (b) one seat of the High Court may transfer a case to another seat of that Court or to a Magistrate’s Court if it is in the interests of justice to do so; and (c) that all litigants have a responsibility to consider access to justice imperatives when instituting proceedings, with the courts bearing a corresponding duty to guarantee access to justice by exercising proper jurisdictional supervision.

Aggrieved by the decision of the High Court, the banks appealed to the Supreme Court of Appeal. The Supreme Court of Appeal held that a High Court lacks the discretion to decline to determine a case that falls under its jurisdiction solely because it shares jurisdiction with the Magistrate’s Court. Instead, the High Court is obliged to hear such case (mandatory jurisdiction rule).

In this Court, the SAHRC submitted that the position adopted by the Full Court is correct for several reasons, one being that the Constitution does not oblige the High Court to hear all matters falling within its jurisdiction as section 169(1) of the Constitution provides that the High Court “may” (not “must”) decide matters falling within its jurisdiction, and that no statute obliges the High Court to exercise the jurisdiction it may have over a particular matter. As a result, the SAHRC argued that the High Court is entitled to decline to exercise jurisdiction over matters that can more appropriately be heard by other courts. The SAHRC concluded that a default rule must be recognised requiring that all cases falling within the concurrent jurisdiction of the High Court and Magistrates’ Courts be heard by the latter court. The exception must be that a plaintiff who wants to prosecute in the High Court a claim falling within the jurisdiction of the Magistrate’s Court must justify why that claim must be entertained by the High Court.

The following themes emerged from the different arguments presented by the banks. Some obstacles face the SAHRC’s attempt at overturning the mandatory jurisdiction rule. The first obstacle is that, properly construed, the Full Court’s decision conflicts with the Constitution’s structure of jurisdictional demarcation. The banks argued that litigating in the High Court promotes efficiency and uniformity and results in costs savings. According to the banks, costs savings advance the right of access to courts as opposed to impeding it.

In a unanimous judgment penned by Madlanga J, the Constitutional Court rejected the SAHRC’s contention that section 169(1) of the Constitution (conferring jurisdiction on the High Court) affords that court a discretion because “may” in that section must cohere with the constitutional sections which respectively confer jurisdiction on the Supreme Court of Appeal (section 168(3)) and the Constitutional Court (section 167(3)). The Court held further that, understood in this light, the “may” in the sections does no more than to indicate that the respective Courts are each being afforded a power. Additionally, the holding by the Supreme Court of Appeal in Agri Wire that “our courts are not entitled to decline to hear cases properly brought before them in the exercise of their jurisdiction” remains good law..

The Full judgment  here