Jordaan v Marquee Tent and Tarpaulin

• Jurisdiction: South Africa
• Judge: Pillay J
• Judgment Date: 06 June 2017
• Docket Number: 8526/12
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 06 June 2017
• Citation: 2017 JDR 1485 (KZD)

Pillay J

This is an application for an amendment. The matter should have been issued out of the appropriate lower court. I raised this issue with counsel. Counsel for the applicant in the amendment asked me to order that matter be transferred appropriately. In granting the order I give the following reasons:

First the institutional arrangements are such that our court system is divided into lower courts and higher courts. This is done for a very rational and reasonable basis. Until the rationality or reasonableness of this system is challenged it must apply. If it does not apply then institutions including the High Courts are likely to fail.

(Sabel C F and Simon W H 'Destabilization Rights: How Public Law Litigation Succeeds' (2003-2004) 117 Harv. L. Rev 1016 at 1052.)

Judges are told that one of the reasons for matters being raised in this court and not in the appropriate lower court having jurisdiction is because the lower courts do not function optimally or efficiently. If this allegation is true it is no reason to make this court dysfunctional by imposing on it to do the work of other institutions.

2017 JDR 1485 p2

Pillay J

There is even more need to make dysfunctional courts efficient by persisting in referring matters there to fix those courts instead of overburdening and compromising the High Court.

We also learn that some institutional creditors like banks impose collection targets on their attorneys to qualify to be on their panels. Attorneys cannot meet these targets if they institute proceedings in the lower courts where matters allegedly take a long time to be finalised. The High Court cannot be used as tool to performance manage panel attorneys.

Second, why this matter should be transferred to the lower court is a question of access to justice. When a matter that should not be in this court is placed on our rolls and clogs up the High Court system it displaces another matter that should be in this and no other court. Therefore those persons are not having efficient and timely access to justice.

Third, access to justice is implicated from another angle. The party who is summoned to appear in these courts willy-nilly instead of the lower court has to face a higher tariff for both party and party and attorney client costs. Hence the costs of litigation impair such persons' access to justice from this perspective too. Bearing in mind that they are debtors who have defaulted it is unconscionable that creditors would mulct them...