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REPUBLIC OF SOUTH AFRICA

GAUTENG HIGH COURT

(LOCAL DIVISION JOHANNESBURG)

CASE NO: 16312/2013

DATE: 02 DECEMBER 2013

In the matter between

CARLIN MEDICAL EXTRUSIONS (PTY) LTD............................................................PLAINTIFF

And

LIGHT-BE-LIGHTING (PTY) LTD................................................................FIRST DEFENDANT

GUSTAV JOHANN KRITZINGER.........................................................SECOND DEFENDANT

HERBERT LEEPILE....................................................................................THIRD DEFENDANT

ANTHONY HAWLEY................................................................................FOURTH DEFENDANT

HERMANUS BOSMAN FOUCHE..............................................................FIFTH DEFENDANT

Practice – jurisdiction - concurrent jurisdiction of high court and magistrate’s court - summary judgment claimed for an amount within monetary jurisdictional threshold of civil regional court - high court bound to hear matter properly before it if it has jurisdiction - not an abuse of court process where matter within monetary jurisdiction of civil regional court brought in high court - high court can if appropriate discourage such by awarding costs on magistrate’s court scale or deprive a party of costs - high court has inherent jurisdiction to regulate its proceedings and prevent abuse of its process.

Held: Judgment in Kintetsu World Express South Africa (Pty) Ltd and another v LCD Consultants; Aveng Trident Steel (Pty) Ltd v Steel Plate and Piping (Pty) Ltd; Trident Speciality Steel v Patricia Nomambele Ngobozane (11741/13, 13043/13, 14213/13) [2013] ZAGPJHC 241 (2 October 2013) clearly wrong and not followed.

J U D G M E N T

VAN OOSTEN J:

[1] This is an application for summary judgment against the third defendant (the defendant). The defendant is in default of filing an affidavit resisting summary judgment or appearance at the hearing of the matter. The plaintiff’s claim against the defendants is for payment of the sum R173 485-20, interest thereon and costs on the attorney and client scale. The plaintiff’s cause of action against the first defendant is based on goods sold and delivered pursuant to a written credit facilities agreement, concluded between the plaintiff and the first defendant. The remaining defendants duly bound themselves as sureties and co-principal debtors in favour of the plaintiff for the due and punctual payment by the first defendant to the plaintiff of all amounts owing.

[2] The plaintiff has satisfied all requirements for an entitlement to summary judgment. Judgment in the normal course would have followed had it not been for the recent judgment in this Division of Monama J, in Kintetsu World Express South Africa (Pty) Ltd and another v LCD Consultants; Aveng Trident Steel (Pty) Ltd v Steel Plate and Piping (Pty) Ltd; Trident Speciality Steel v Patricia Nomambele Ngobozane (11741/13, 13043/13, 14213/13) [2013] ZAGPJHC 241 (2 October 2013). In that matter, as I shall presently deal with in more detail, the learned Judge dismissed three unopposed applications for payment of amounts below the jurisdictional threshold of the regional civil court of R300 000-00, on the basis that the those applications constituted an abuse of the process of the court. The plaintiff’s claim in the present matter is for less than the regional civil court jurisdictional limit and it follows, should I be bound to follow the judgment of Monama J, that the application should be dismissed for lack of jurisdiction of this court to adjudicate the matter. In the view I take of the non-binding nature of the judgment of Monama J, I granted summary judgment and indicated that reasons would be furnished at a later date. What follows, are those reasons.

[3] In Kintetsu the court dealt with three unopposed applications for payment of the sums of R138 278-84, R192 673-36 and R291 072-89 respectively in respect of goods sold and delivered. One firm of attorneys acted for the applicants in all three matters. The learned Judge refers in his judgment to the ‘strong view’ he had expressed to counsel for the applicants ‘to dismiss the applications unless cogent reasons are advanced why these matters were not dealt with in the appropriate regional court’. Counsel, with reference to heads of argument filed, relied on three grounds in support of the applicants’ entitlement to institute the proceedings in the high court. I do not consider it necessary to deal with any of those grounds as the matter falls to be decided on a matter of principle which I shall presently deal with. Monama J rejected the submissions advanced and proceeding from the premise that ‘litigants are entitled to have reasonable access to justice as provided for in the Constitution of the Republic of South Africa’ held that ‘litigants cannot circumvent the need to inexpensive justice by refusing to approach an appropriate regional court for their relief on the basis that such courts are ineffective’. In dismissing the applications the learned Judge reasoned:

I could have deal (sic) with the matter and award the costs on the regional civil court scale. However, the facts of the cases do not justify such approach. This approach does not amount to the closing of the doors to the litigant. However, the time has come to demonstrate that an abuse cannot be tolerate (sic). The applicants’ attorneys embarked on this practice in more than one matter and the proliferation is on the increase. The three matters are indicative of the attitude of the applicants or their legal representative. In order to give an effect to these increased jurisdictions, the court must insist that the regional civil courts are utilised. These are not appropriate cases where the costs of the magistrate (sic) court will address the flagrant disregard of the rules and the Act. There is a distinct division between the court (sic) and their jurisdiction. The litigants are not large to convert the high court to the regional civil court. Such conversion amount (sic) to an abuse… The high court must be seen to be discouraging the litigants who bring the matter that properly belong to the regional civil court. A prudent litigant is expert to determine any limitation upon the litigation prior to the institution of a claim. If they fail to do so then they do so at their own risk.’

In my respectful view, for the reasons that follow, the judgment is clearly wrong. I accordingly do not consider myself bound to follow it.

[4] The issue concerning matters pursued in the high court where the amount claimed falls within the jurisdiction of a lower court was dealt with in a number of cases, particularly in this Division. It is best to start with the judgment of Coetzee DJP in Standard Bank of South Africa v Shiba; Standard Bank of South Africa v Van den Berg 1984 (1) SA 153 (W) where the learned Judge, analogous to the approach adopted by Monama J in Kintetsu, disapproved of the practice by certain large financial institutions at the time in having their ‘debt collecting’ done in the high court, regardless of the fact that the claims fell within the jurisdictional limit of the magistrates’ courts and dismissed the two applications before him. Of concern to the learned Judge was ‘the danger of fouling up the cogs’ thereby hampering the proper functioning of the courts. Those views did not find favour with other judges resulting in a full court of this Division being convened in terms of s 13(1)(b) of the Supreme Court Act 59 of 1959. The full court in Standard Credit Corporation Ltd v Bester and others 1987 (1) SA 812 (W) in regard to eight similar matters overruled Shiba and, having extensively reviewed the authorities dealing with this aspect, concluded (p 820I) that:

‘…courts should be extremely wary of closing their doors to any litigant entitled to approach a particular court. The doors of courts should at all times be open to litigants falling within their jurisdiction. If congested rolls tend to hamper the proper functioning of the courts then the solution should be found elsewhere, but not by refusing to hear a litigant or to entertain proceedings in a matter within the court’s jurisdiction and properly before the court.’

The ratio decidendi has endured the test of time, being a judgment of the full court is binding on the stare decisis rule (as even Coetzee DJP grudgingly was bound to accept in Sealandair Shipping and Forwarding v Slash Clothing Co (Pty) Ltd 1987 (2) SA 635 (W) 639I-J), and although expressed in an earlier era, finds resonance not only in the Constitution but also in the current legislation relevant to the jurisdiction of the courts.

[5] The right of access to the courts, which is the true principle here involved, is enshrined in s 34 of the Constitution. The right, in terms of s 36 of the Constitution, may only be limited in accordance with the constitutional values and principles enumerated in the section. Section 21 of the Superior Courts Act 10 of 2013 provides for the jurisdiction of high courts ‘over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance’. The wording of the section and its predecessors is couched in wide terms with the obvious intention to interfere with the principles of common law as little as possible (Veneta Mineraria SPA v Carolina Collieries (Pty) Ltd 1987 (4) SA 883 (AD) H-J). In the absence of clear and definitive provisions limiting the jurisdiction of high courts there is a strong presumption against legislative interference with the jurisdiction of the high courts (Lenz Township Co v Lorentz NO en andere 1961 (2) SA 450 (AD) 455 A-D). As I have remarked in Geyser v Nedbank Ltd and others: In re Nedbank Ltd v Geyser 2006 (5) SA 355 (W), jurisdiction ought to be amplified rather than limited. Juxtaposed hereto are the provisions of s 29 of the Magistrate’s Court Act 32 of 1944, and in particular s 29(1)(g) which is relevant for present purposes. It provides for the jurisdiction of the magistrates’ courts in respect of causes of action, ‘where the claim or the value of the matter in dispute does not exceed the amount determined by the Minister from time to time by notice in the Gazette’. The amount determined in respect of courts for the regional divisions, in accordance with the section, is ‘above R100 000-00 to R300 000-00’ (see Jones & Buckle The Civil Practice of the Magistrates’ Courts in South Africa Act 118).

[6] I have not been able to find any limitations as to the monetary amount of the causes of action in respect of which the high court has jurisdiction. Had it been the intention of the legislature to impose such restrictions, or to oust concurrent jurisdiction, or to bestow the regional civil court with exclusive jurisdiction in regard to causes of action falling within the monetary limits of its jurisdiction, the legislature would have used clear words to that effect. It has in my experience always been the practice of this court, in acknowledgement of the concomitant jurisdiction of this court and the magistrates’ courts, to entertain and adjudicate matters in which the amount claimed falls within the jurisdiction of a lower court, subject of course to an appropriate order as to costs. The discretion which the court has in regard to costs provides a powerful deterrent against preference to the high court where the lower court would have been more convenient or even perhaps more appropriate (see Goldberg v Goldberg 1938 WLD 83 at 85; Mofokeng v General Accident Versekering Bpk 1990 (2) SA 712 (W)). But, a party remains entitled to a free choice of the forum in which to bring proceedings (Cf Sparks v David Polliack & Co (Pty) Ltd 1963 (2) SA 491 (T) 494H-495C) on condition that such court has the necessary jurisdiction and subject to the possibility of an order limiting or, if appropriate, disallowing costs. On the other hand an order for costs on the high court scale may be justified (Sealandair supra 642F-I; Soleprops 39 (Pty) Ltd v Miltiaes Korssketides t/a Prime Grill Boksburg (09/50779, 09/30950) [2013] ZAGPJHC 31 (1 March 2013) para [13]). Each case must be decided on the circumstances of that particular case (Koch v Realty Corporation of South Africa 1918 TPD 356 at 359). The high court will obviously, in its inherent discretion, prevent an abuse of the process of the court. The meaning of the phrase ‘debt collection’ as constituting an abuse of the court process, in my view, is unclear, and will hopefully now be laid to rest: the mere fact of one firm of attorneys bringing several proceedings in this court on behalf of a single client for the recovery of amounts falling within the jurisdiction of a lower court, cannot and does not constitute ‘debt collecting’. And assuming that it does, it can never in itself constitute sufficient reason for this court to refuse to entertain the proceedings. Such refusal will only follow once an abuse of the process of the court occurs, for example in using the procedures of the court for purposes not intended or designed therefor, to the prejudice of the other party to the proceedings. What will constitute an abuse of the court process need not be addressed here: suffice to say the high court has an inherent jurisdiction to regulate its proceedings and prevent an abuse of the machinery of the court (Standard Credit Corporation Ltd v Bester, supra 819E).

[7] In the result I grant summary judgment against the third defendant in terms of the draft order handed in, marked “X”.

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR PLAINTIFF ADV R ROBINSON

PLAINTIFFS’ ATTORNEYS KWA ATTORNEYS

DATE OF HEARING 27 NOVEMBER 2013

DATE OF JUDGMENT 2 DECEMBER 2013

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