In casu the honourable Bench discussed concurrency of jurisdiction pre-1994 and post-1994, starting with the fact that the High Court had inherent jurisdiction to regulate its own processes by refusing to hear a matter that constituted an abuse of the process. Citing sections from the Constitution - section 169 provided the High Court may decide Constitutional matters and any other matter not assigned to a Court statutorily. Section 170 provided an Act of Parliament determined the jurisdiction of all other Courts barring the Constitutional Court, Supreme Court of Appeal and High Court. Section 171 provided all Courts functioned in terms of national legislation. Only Parliament had the competence to assign a matter to a Court other than the High Court and that the High Court had Constitutional jurisdiction to determine any matter in terms of the Superior Courts Act in re Phillips^ where the Court inter alia held ordinarily the power in section 173 of the Constitution to protect and regulate related to the process of Court and arose only in a legislative lacuna. Parties agreeing to transfer in accordance with Uniform Rule 39(22) the Bench held was not a lacuna and further, what constituted an abuse of process was decided in terms of Price Waterhouse Coopers Inc** when the vindication of rights or enforcement of just claims was diverted from its true course so as to serve extortion or oppression; or to exert pressure in order to achieve an improper end. The Court would enquire as to whether the act was done with predominant intention to harm or prejudice. Further discussed was the purpose of the NCA and section 34 of the Constitution on Equity and the case concluded with the specific structures and procedures in terms of the NCA which provided for the Magistrates' Courts to be the Court of first adjudication. Only one dissenting judgment.
Determination of NCA* monetary jurisdiction brought in Magistrates' Courts
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Vide *National Credit Act 2005 ("NCA") and decided on by the full bench in the High Court, as from 1 August 2019 Civil actions and/or Applications arising within the ambit of the NCA (and thus falling within the jurisdiction of the Magistrates' Court) should be instituted in the Magistrates' Court having jurisdiction. Vide Nedbank Ltd vs Gqirana N.O.  (1298/2018)and six similar matters; **Nedbank Ltd v Thobejane and Similar matters  (1) SA 594 (GP); ^ Constitution of South Africa 1996 section 34; Phillips and Others v National Director of Public Prosecutions 2006 (1) SA 505 para 48. Company Law Today comments - The situation is made extra hard for consumers to get to Bloemfontein and further, pressure is used to beat the consumer who is prejudiced by the exclusion of a valid defense and an empty pocket.
The full Bench dealt with seven applications brought before the High Court with concurrent jurisdiction. Three matters were pertinent - i) why the High Court should entertain matters that fell within jurisdiction of the Magistrates' Courts; ii) whether the High Court was obliged to entertain such matters on the basis of concurrent jurisdiction; iii) whether there was an obligation on financial institutions to consider the cost implication and access to justice of financially distressed people when a particular forum was considered. The access to justice issue was decided in Thobejane** by a full Bench where the interests of justice was challenged in terms of monetary value claimed within the Magistrates Court jurisdiction. An exception occurred when the High Court granted leave regarding an unusual matter (inefficiency of any other Court, real or perceived and convenience for a Plaintiff alone was held not to constitute sufficient ground for such leave). The Banks inter alia urged existing common law as to concurrency of jurisdiction and the Constitutional^ right of access to courts, where they suggested the High Court had no inherent jurisdiction to deprive litigants of their existing access to Courts of concurrent jurisdiction at section 8(3) of the Constitution.