Letters to the editor – December 2018

December 1st, 2018
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PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za

Fax: (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

Happenings at the Gauteng Division and Limpopo Division of the High Court

I would like to discuss what happened in the Gauteng Division of the High Court in Pretoria, as well as the Limpopo Division of the High Court in Polokwane and ask for the views of other legal practitioners regarding the current state of our courts.

The judgment (Nedbank Ltd v Thobejane; Firstrand Bank Ltd v Malatjie and Another; Standard Bank of South Africa v Mpongo; Absa Bank Ltd v Van der Merwe and Another; First Rand Bank Ltd v Mahlangu; Standard Bank of South Africa v Wooditadpersad and Another; Nedbank Ltd v Sonko; Standard Bank of South Africa Ltd v Nkwinika; Firstrand Bank Limited v Langbehn and Another; Standard Bank of South Africa v Lempe; Standard Bank of South Africa v Goeieman and Another; Absa Bank Limited v Igwilo and Another; Absa Bank Ltd v Pillay and Another (GP) (unreported case no 84041/15; 93088/15; 99562/15; 36/16; 736/16; 1114/16; 1429/16; 3429/16; 6996/16; 16228/16; 29736/1; 30302/16, 26-9-2018) (Tolmay J (Ledwaba DJP and Mothle J concurring)) regarding monetary jurisdiction, which was handed down in September in the Pretoria High Court, is mostly based on the court’s issue regarding space and the court being ‘clogged up’. How is this based on law or the rule of law? Is it not the court’s administration who should attend to the need of finding space for all the files? As it is, legal practitioners are not able to access old files, which are stored at the court’s offsite storage due to unpaid fees to the storage company. The storage company is refusing to release those files, as the court staff have advised legal practitioners as to why files cannot be accessed. A judgment has come out in a court with concurrent jurisdiction stating which matters can be heard before the court. What law is this based on? Is the court not supposed to sort out their internal administration issues themselves and not make it the public’s problem? The plaintiff has the right to choose out of which court they want to litigate. On which rule can a judge make the order curbing the plaintiff’s right to approach the High Court?

At the Gauteng Division of the High Court there are registrars raising queries, which are self-explanatory, but they still raise these queries, causing a backlog, not only for the plaintiff, but also for the court. For example, a recent query by a registrar was where a plaintiff proceeds with legal action against a juristic entity with sureties, the registrar is of the opinion that the plaintiff may not proceed against the sureties and that those prayers should be removed as the plaintiff is not entitled thereto. Kindly advise on this issue?

The next court with many issues is the Limpopo Division of the High Court in Polokwane. There appears to be a rationale that the court favours the consumer, regardless of the facts before it, namely a consumer’s breach of agreement. Before counsel even makes submission, the court has already decided that the ‘big bad bank’ should be more sympathetic to the consumer. Is this not prejudicial and biased towards the plaintiffs? Is the court not supposed to be objective and hear both sides before deciding in favour of a consumer who has been afforded leniency and opportunities to remedy the issue with the plaintiffs? A legal practitioner will now stand before the court and the court defends the matter, treating an unopposed matter as a summary judgment opposing the matter on behalf of the consumer. How is this objectivity?

There is no uniformity at the Polokwane High Court. Every week matters are being removed and struck off the roll because the court feels that more should be done to assist consumers. Some of these matters have been before the court a few times and have been remanded for a different reason every time. Even when one complies with what the court has requested, the matter is placed before the court again and the court finds a new reason to raise concern. My question is what does the court want? Does the plaintiff not have the right of recourse against defaulting consumers or is the court just there for the consumer’s protection? This has come to the extent that a judge actually asked a counsel why they were so insensitive, why do they not show sympathy for the consumer? How is this showing objectivity by the court? Is showing sympathy for one or the other party not stating that you do not condone what the other party is doing and thereby choosing a side?

I would like to hear whether other legal practitioners have had similar experiences.

Anonymous, Pretoria

Full Bench judgment by Tolmay J (Ledwaba DJP and Mothle J concurring)

Coming out of the Gauteng Division of the High Court, Pretoria, Tolmay J (Ledwaba DJP and Mothle J concurring) made the following order in Nedbank Ltd v Thobejane; Firstrand Bank Ltd v Malatjie and Another; Standard Bank of South Africa v Mpongo; Absa Bank Ltd v Van der Merwe and Another; First Rand Bank Ltd v Mahlangu; Standard Bank of South Africa v Wooditadpersad and Another; Nedbank Ltd v Sonko; Standard Bank of South Africa Ltd v Nkwinika; Firstrand Bank Limited v Langbehn and Another; Standard Bank of South Africa v Lempe; Standard Bank of South Africa v Goeieman and Another; Absa Bank Limited v Igwilo and Another; Absa Bank Ltd v Pillay and Another (GP) (unreported case no 84041/15; 93088/15; 99562/15; 36/16; 736/16; 1114/16; 1429/16; 3429/16; 6996/16; 16228/16; 29736/1; 30302/16, 26-9-2018) (Tolmay J (Ledwaba DJP and Mothle J concurring)):

‘To promote access to justice as from … 2 February 2019 civil actions and/or applications, where the monetary value claimed is within the jurisdiction of the magistrates’ courts should be instituted in the magistrate’s court having the jurisdiction, unless the High Court has granted leave to hear the matter in the High Court.’

This matter raised two concerns but for the purpose of this letter I will only focus on the court’s first concern, which is the ever-increasing tendency by litigants, mainly banks and other commercial institutions, to enrol the High Court in, foreclosure applications with amounts falling within the jurisdiction of the magistrate’s court.

The above judgment raises a concern when taking into account that the magistrate’s court is a creature of statute. In the case of Absa Bank Ltd v Mokebe; Absa Bank Ltd v Kobe; Absa Bank Ltd v Vokwani; Standard Bank of South Africa Ltd v Colombick and Another (GJ) (unreported case no 2018/00612; 2017/48091; 2018/1459; 2017/35579, 12-9-2018) (Tsoka, Pretorius and Wepener JJ) Tsoka J held that in all matters where execution is sought against a primary residence, the entire claim including the monetary judgment, must be adjudicated at the same time.

The monetary judgment is part of the cause of action. Where execution against immovable property is concerned and the issues are connected and must be brought in one proceeding and not piecemeal. Tsoka J outlined that all the facts should be placed before the court to sustain relief.

Against the above background it is important to inquire whether the magistrate’s court has the power to adjudicate such matters and grant orders for monetary judgment, that property be declared as executable property and set a reserve price simultaneously.

On 17 November 2017 an amendment to the rules Regulating the Conduct of the Proceedings of the Provincial and Local Divisions of the High Court of South Africa were gazetted under GN R1272 GG41257/17-11-2017.

In terms of the notice, the rule change came into operation on 22 December 2017. The amendment is rather extensive and has a wide-ranging effect on the foreclosure process pertaining to loans secured by bond through financial institutions, as well as the subsequent execution process pertaining thereto.

It is for this reason that I write this letter that the Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa does not entertain this aspect, nor does s 66 of the Magistrates’ Courts Act 32 of 1944. It is of great importance that the Magistrates’ Court Rules should be amended to enable magistrates to deal with foreclosure matters effectively, and subsequently to have the power to adjudicate matters where execution is sought against a primary residence simultaneously with monetary judgment.

Teboho Lenake, attorney, Pretoria

Erratum

A paragraph in article, Brian Agar ‘Maintenance of common property in sectional title schemes’ (2018 (Oct) DR 19) was published incorrectly.

The paragraph ‘The Sectional Titles Schemes Management Act’ should read: ‘The Sectional Titles Schemes Management Act 8 of 2011 (the Act) took effect on 7 October 2016. This legislation repeated previous laws, which required a body corporate to maintain common property, essentially the land and all improvements other than the owners’ sections shown on the sectional plans. At the same time, it introduced a new provision, which required a body corporate to establish a reserve fund in addition to the administrative fund ‘to cover the cost of future maintenance and repair of common property’ (see s 3(1)(b) of the Act)’.

De Rebus would like to apologise for the mistake and for any inconvenience caused.

This article was first published in De Rebus in 2018 (Dec) DR 4.

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