By Dr James Lekhuleni
Section 35 of the Magistrates’ Courts Act 32 of 1944 (the Act) regulates the transfer of matters from one magistrate’s court to another. A transfer of a matter can be in the form of consent by parties or on application by one of the parties in terms of r 55 of the Magistrates’ Court Rules. The question whether a matter can be transferred from the district court to the regional court for hearing and vice versa has been a bone of contention in recent times, especially after the regional court was given civil jurisdiction in terms of the Jurisdiction of the Regional Courts Amendment Act 31 of 2008.
There are two schools of thought on this question. The first school of thought believes that s 35 applies both horizontally and vertically (ie, a case can be transferred from the regional court to another regional court and from the regional court to the district court and vice versa). The second school of thought believes that s 35 only applies horizontally (ie, from regional court to regional court and from a district court to district court). The views of the two schools of thought are discussed hereunder.
In terms of s 29(1)(g) read with s 29(1A) of the Act, the minister is empowered to determine different jurisdictional amounts in respect of district and regional courts. Such determination is aimed at delineating the monetary jurisdiction of the two courts respectively. The minister has since determined the minimum and the maximum monetary jurisdiction of the respective courts as R 200 000 for district courts and above R 20 000 up to R 400 000 for regional courts in terms of GG37477/27-3-2014. It will be shown hereunder that the determination of the minimum amount by the minister is of no consequence in so far as the monetary jurisdiction of the regional courts is concerned. To this end, a door has been opened for forum shopping between the regional courts and the district courts.
The first school of thought: Both horizontal and vertical application
In Matlhasa v Makda and Another (GJ) (unreported case no 2015/17438, 4-9-2015) (Mphahlele J) the plaintiff sued the defendant for damages in the regional court. The matter was defended. The parties agreed to transfer the matter from the regional court to the Vereeniging District Court. The application was granted by the regional court. The file contents were transferred to the district court. In other words, the regional magistrate believed that there was nothing wrong to transfer the matter from the regional court to the district court (vertical application). When the matter appeared before the district magistrate, he refused to allocate a trial date as he held the view that there was no provision in our law specifically allowing any matter to be transferred from a regional court to a district court. He found that since the action was already instituted in the regional court, the matter could not be transferred subsequently to a district court. The plaintiff applied to the High Court to review the decision of the magistrate for refusing to allocate a trial date.
The High Court held that the finding of the magistrate – that there is no provision in our law allowing any matter to be transferred from the regional court to the district court – was unfounded and incorrect. The High Court found that the Act defines a court as a magistrate’s court for any district or for any regional division. The High Court held that the regional court was correct in transferring the matter to the district court on the consent of the parties. The decision of the district magistrate to refuse to allocate a date was set aside and the plaintiff was allowed to proceed with the matter in the district court.
The implications of this case are that a regional court may transfer a matter to the district court by consent or on application by one of the parties in terms of s 35. If a matter is so transferred, the district court is bound to deal with the matter.
The second school of thought: The vertical application
In Botha v Singh and Others (GP) (unreported case no 30761/14, 21-5-2015) (Kganyago AJ) the plaintiff issued summons against the Road Accident Fund (RAF) for damages in the district court. The summons was issued in 2009 before the coming into operation of the Jurisdiction of the Regional Courts Amendment Act giving regional courts civil jurisdiction. Subsequent to the Jurisdiction of the Regional Courts Amendment Act coming into operation, the plaintiff engaged the services of an actuary to calculate damages. After the actuarial report was prepared, it was found that the damages suffered by plaintiff exceeded the jurisdiction of the district court. The plaintiff then amended the summons and the RAF did not object.
The plaintiff and RAF subsequently agreed to transfer the matter from the district court to the regional court as the claim now fell within the monetary jurisdiction of the regional court. Despite the agreement, the plaintiff still filed an application to transfer the matter in terms of s 35. The matter was duly transferred from the district court to the regional court in terms of a court order. At the regional court, the regional magistrate refused to allocate a date for the matter and informed the parties that the regional court did not have jurisdiction to deal with the matter. The applicant instituted an action in the High Court to compel the regional magistrate to allocate a date of trial. The applicant argued that the order transferring a matter to the regional court stood until it was set aside by court.
The High Court held that s 35 does not specify to which court the parties must transfer their action or proceedings to, but refers to any other court. The court held that what is important is that the parties must consent or any other party to the action or proceedings may bring an application for such purpose. The court found that the order granted by the district magistrate to transfer a matter to the regional court was a valid order. The High Court then deprecated the conduct of the regional magistrate for refusing to allocate a date. The court held that the regional magistrate exercised powers of review, which he did not have when he refused to allocate a trial date. The regional magistrate was ordered to allocate a date of hearing within 60 days from date of the court order.
From this case, it is evident that litigants may transfer matters from the district court to the regional court by agreement or on application. In such cases, regional magistrates must comply with such orders of transfer. On receipt of cases from the district court, the regional magistrates must either allocate a date for the hearing of the matter or challenge the validity of the order of transfer through the right channels. It is, therefore, unmistakably clear that matters can be transferred from the regional courts to the district courts and vice versa. However, this will also be dependent on the substantive jurisdiction of the court. Regional magistrates and district magistrate have to respect orders transferring matters to their courts.
The district court or the regional court?
Ever since the coming into operation of the Jurisdiction of the Regional Courts Amendment Act, the view held by a number of regional magistrates was that the regional court does not have jurisdiction in matters falling within the monetary jurisdiction of the district court. This view was overruled by the Western Cape High Court in the case of Minister of Police v Regional Magistrate Oudtshoorn and Others (WCC) (unreported case no 15587/2013, 6-11-2014) (Binns-Ward J), in which the court held that parties are at liberty to institute actions in the regional court whether the district court had jurisdiction or not. In this case, the plaintiff instituted summons against the Minister of Police for payment of R 100 000 for unlawful arrest and detention. The plaintiff claimed R 20 000 for malicious prosecution against the Minister of Police. The defendant filed a plea and denied liability and prayed for the dismissal of the plaintiff’s claim. After the closure of pleadings, the defendant amended its plea and raised a special plea of jurisdiction to the plaintiff’s summons.
In its special plea, the defendant pleaded that the regional court did not have jurisdiction to try the matter as the monetary value of the plaintiff’s claim fell within the jurisdiction of the district court and that the plaintiff should have instituted action in the magistrate’s court. The regional magistrate found that the minister acted ultra vires when he determined the jurisdiction of the regional court in that the notice of the minister provides a minimum, as well as a maximum, which is in conflict with s 29(1)(g) of the Act. In terms of s 29(1)(g), the minister could only determine the maximum of the court’s monetary jurisdiction. The regional magistrate dismissed the special plea on those grounds.
The applicant applied to review the decision of the magistrate particularly based on reasons the regional magistrate gave that the Notice of the Minister was in conflict with the Act and that the minister acted ultra vires.
The High Court considered s 29(1)(g) of the Act and found that the regional magistrate had to decide whether the claim fell within his monetary jurisdiction. The court held that in determining his monetary jurisdiction, the regional magistrate was entitled to disregard the words, ‘[a]bove R 100 000 to’ as of no operative effect. The court found that the words ‘[a]bove R 100 000 to’ does not fit into the determination in terms of s 29(1)(g) of the Act. The court found that s 29(1)(g) has nothing to do with the determination of a lower limit to the magistrate’s court’s jurisdiction but the maximum limit. The court eventually found that an interpretation in terms of the determination by the minister leads to an absurd results.
The High Court eventually dismissed the application for review and also found that there was another reason for dismissing the special plea. The other ground was that the special plea was filed after litis contestatio, which is not permissible in law (Zwelibanzi Utilities (Pty) Ltd Adam Mission Services Centre v TP Electrical Contractors CC (SCA) (unreported case no 160/10, 25-3-2011) (Cloete, Heher, Snyders, Majiedt and Plasket AJA)). The court found that by failing to take the point before pleadings had closed, the applicant was taken to have submitted to the court’s jurisdiction.
From the decision of the High Court, if follows that a plaintiff has a choice to issue summons in the regional court or in the district court for claims falling within the monetary jurisdiction of the district court. The determination by the minister that the monetary jurisdiction for the regional court is ‘above R 200 000 to’ has no operative effect.
This decision has a potential of encouraging forum shopping. The plaintiff may choose to issue summons in the regional court for claims falling within the monetary jurisdiction of the district court because the district court’s court roll is clogged and the turnaround time for the enrollment of cases for trial is long. In the result, there is a great potential for the regional courts to be clogged with matters, which should have been dealt with by the district court. It remains to be seen how things will unfold in the near future. There is a sizeable number of cases observed in recent times falling within the monetary jurisdiction of the district court, which are instituted in the regional courts. It is doubtful whether it was the intention of the legislature to create a parallel jurisdiction between the regional court and the district court. I submit that in order to discourage forum shopping, regional courts should ensure that costs in those cases are granted in terms of the district court tariffs.
Dr James Lekhuleni BProc (UNIN) LLB (UL) LLM (UP) LLM (UP) LLD (UWC) is a regional magistrate in Cape Town.
This article was first published in De Rebus in 2017 (March) DR 22.