Nedbank Ltd v Gqirana NO and Another, and Similar Matters

• Jurisdiction: South Africa

Nedbank Ltd v Gqirana NO and Another, and Similar Matters
2019 (6) SA 139 (ECG)

2019 (6) SA p139

Citation	2019 (6) SA 139 (ECG)
Case No	1203/2018
Court	Eastern Cape Division, Grahamstown
Judge	Lowe J, Hartle J and Jolwana J
Heard	July 30, 2019
Judgment	July 30, 2019
Counsel	B Boswell (with G Appels) for the amicus curiae, the Minister of Justice and Correctional Services.; B Maswazi (attorney) for the amicus curiae, the Black Lawyers Association.; Case No 1203/2018; R Ismail for the plaintiff.; Case No 1298/2018; No appearances.; Case No 1777/2018; A Cockrell SC (with A Armstrong) for the plaintiff.; Case No 3434/2018; No appearances.; Case No 3706/2018; D de la Harpe for the plaintiff.; Case No 49/2019; No appearances.; Case No 264/2019; No appearances.

Flynote : Sleutelwoorde

Court — High Court — Jurisdiction — Concurrent jurisdiction with magistrates' courts — Whether plaintiff/applicant litigant having election as to which court to proceed to — Eastern Cape Division, Grahamstown, issuing ruling that, to promote access to justice, matters arising within ambit of NCA C should be instituted in magistrates' court having jurisdiction — National Credit Act 34 of 2005, s 172(2), read with Magistrates' Courts Act 32 of 1944, s 29(1)(e); Constitution, s 34.

Constitutional law — Human rights — Right of access to court — Practice of litigants, especially banks and financial institutions, instituting in High Court D matter falling within jurisdiction of magistrates' court — Eastern Cape Division, Grahamstown, issuing ruling that, to promote access to justice, matters arising within ambit of NCA should be instituted in magistrates' court having jurisdiction — National Credit Act 34 of 2005, s 172(2), read with Magistrates' Courts Act 32 of 1944, s 29(1)(e); Constitution, s 34. E

Credit agreement — Consumer credit agreement — Litigation under — Court — High Court — Jurisdiction — Concurrent jurisdiction with magistrates' courts — Whether plaintiff/applicant litigant having election as to which court to proceed to — Eastern Cape Division, Grahamstown, issuing ruling that, to promote access to justice, matters arising within ambit of NCA (and thus falling within magistrates' courts' jurisdiction) should be instituted in F magistrates' court having jurisdiction — National Credit Act 34 of 2005, s 172(2), read with Magistrates' Courts Act 32 of 1944, s 29(1)(e); Constitution, s 34.

Headnote : Kopnota

The practice of banks and other financial institutions instituting proceedings in G the High Court in respect of matters falling within the monetary jurisdiction of the magistrates' court, possibly implicating litigants' rights to access to justice (considering the prohibitive costs involved in litigating in the High Court), formed the background to the present matter. So, too, the recent decision of Nedbank Ltd v Thobejane and Similar Matters 2019 (1) SA 594 (GP) ([2018] 4 All SA 694), in which the full bench of the H Pretoria High Court ordered that, to 'promote access to justice', actions and/or applications where the monetary value claimed was within the jurisdiction of the magistrates' courts should be instituted in the magistrates' courts having jurisdiction, unless the High Court had granted leave to hear the matter. In the present case the full bench of the Grahamstown High Court I was tasked with hearing a number of applications for default judgment instituted by various banks and financial institutions, for the purposes of considering, inter alia, the correctness of the Gauteng approach, and, in particular, whether a plaintiff/applicant litigant in respect of whose matter the magistrates' court and the High Court had concurrent jurisdiction had an election as to which court to proceed to. J

2019 (6) SA p140

The A applicants' view was that the Gauteng approach infringed the existing common law as to concurrency of jurisdiction, which provided that, where a matter fell within the monetary jurisdiction of the magistrates' court, a litigant could choose to go to either the magistrates' court or the High Court, and, at the same time, the High Court would not decline to hear a matter properly before it merely because the magistrates' court had B jurisdiction. They rejected the argument raised by the amicus, the Minister of Justice and Correctional Services, that s 173 of the Constitution — securing the High Court the inherent power 'to protect and regulate [its] own process, and to develop the common law, taking into account the interests of justice' — empowered the High Court to decline to hear a matter that fell within the jurisdiction of the magistrates' court. They argued C further that the Thobejane approach infringed their constitutional right to access to courts.

Majority decision

The court (per Lowe J, with Hartle J concurring) found that, generally speaking, the common-law position of concurrency of jurisdiction (as set out above) D remained in place, and was not altered by the passing of the Constitution. This was so, unless the jurisdiction of the High Court was ousted by legislation, either expressly, or by necessary implication. (See [75.1] and [75.2].) They agreed with the applicants that the inherent jurisdiction of the High Court to regulate its own processes by refusing to hear matters that constituted an abuse of process was case-specific; a High Court did not E have the power to pre-emptively prevent an abuse across all cases of a particular type (unless empowered to do so by legislation or rules consistent with constitutional imperatives). The nature of an abuse did not, ordinarily at least, lend itself to a blanket rule of this kind. (See [15] and [36].)

The court, however, found that a different approach was called for in respect of matters falling within the scope of the National Credit Act 34 of 2005 (NCA) F (see [38]). The NCA, it noted, was designed to render assistance and protection, by various means, to the previously disadvantaged section of the population, who would ordinarily constitute a large number of the respondents/defendants in matters involving credit transactions. It provided for specific structures and procedures in order to enable this group to benefit from its provisions. With this in mind, it extended jurisdiction to the G magistrates' court in respect of all matters, whatever the monetary sum, falling within the ambit of the NCA (s 172(2) of the NCA, read with s 29(1)(e) of the Magistrates' Courts Act 32 of 1944). (See [37] and [75.3] – [75.4].) The court concluded that, when interpreted through the prism of the Constitution — which in terms of s 34, read with the s 9 equality right, guaranteed persons practical, reasonable and effective access to courts — the H NCA required that civil actions falling within its ambit be instituted in the magistrates' court having jurisdiction, unless there were unusual or extraordinary factual or legal issues raised which warranted them being heard first in the High Court. (See [64], [74], [75.6] – [75.8] and [78].)

In reaching its conclusion, the court stressed that it was not developing the common law or applying s 173 of the Constitution, but was simply giving I a proper interpretation and application of the NCA read in its proper legislative and constitutional context. (See [66] and [68], [69].)

Dissenting judgment

Jolwana J, adopting a different approach to that of the majority, found that, in order to give effect to the right of access to justice, it was appropriate and necessary to develop the common law such that all civil actions and/or J applications in respect of which the magistrates' courts and the High Court

2019 (6) SA p141

had concurrent jurisdiction should henceforth be instituted in the magistrates' A court having jurisdiction (unless leave was granted by the High Court to have a matter adjudicated in the High Court). (See [87] – [90] and [97].) Jolwana J further found there to be no basis for restricting the scope of such an order to NCA orders, as was done by the majority (see [91] – [95]).

Cases cited

Absa Bank Ltd v Dlamini 2008 (2) SA 262 (T): dictum in para [20] applied B

Absa Bank Ltd v Myburgh 2009 (3) SA 340 (T): dictum in para [46] applied

Agri Wire (Pty) Ltd and Another v Commissioner, Competition Commission, and Others 2013 (5) SA 484 (SCA) ([2012] 4 All SA 365; [2012] ZASCA 134): para [19] distinguished

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; C [2007] ZACC 5): referred to

Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC) (1999 (2) BCLR 125; [1998] ZACC 19): referred to

Beinash v Wixley 1997 (3) SA 721 (SCA) ([1997] 2 All SA 241; [1997] ZASCA 32): dictum at 734F – G applied

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) D (1996 (4) BCLR 449; [1996] ZACC 2): dictum in para [106] applied

Brand NO v Volkskas Bpk and Another 1959 (1) SA 494 (T): referred to

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752; [1996] ZACC 9): dicta in paras [40] – [41] applied

Brummer v Gorfil Brothers Investments (Pty) Ltd en Andere 1999 (3) SA 389 (SCA) ([1999] 2 All SA 127): dictum at 414I – J E applied

Corderoy v Union Government (Minister of Finance) 1918 AD 512: referred to

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (CC) (2002 (2) SACR 105; 2002 (7) BCLR 663; [2002] ZACC 6): referred to

FirstRand Bank Ltd v Maleke and Three Similar Cases 2010 (1) SA 143 (GSJ): dicta in paras [3] and F [23] applied

Fraser v Children's Court, Pretoria North and Others 1997 (2) SA 261 (CC) (1997 (2) BCLR 153; [1997] ZACC 1): applied

Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) (2010 (1) BCLR 35; [2009] 12 BLLR 1145; [2009] ZACC 26): referred to

Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) (2007 (2) BCLR 125; ...