The principle of equality does not require everyone to be treated the same, but simply that people in the same position should be treated the same. The government may, for various reasons, classify people and treat them differently. This is because it is not feasible to run the affairs of citizens without differentiation and classifications that impact on people differently (Sithole and Another v Sithole and Another 2021 (6) BCLR 597 (CC) at para 19). In my view, s 45(1) of the Magistrates’ Courts Act 32 of 1944 (the Act), which deals with jurisdiction by consent of parties and s 50(1) of the same Act, which deals with removal of actions from court to provincial or local division, are both devoid of rationality insofar as the transfer of matters is concerned as will be shown below.
Litigants possess slightly differing rights and powers insofar as the conduct of the proceedings before court is concerned. The plaintiff is empowered to institute proceedings in any court subject to the jurisdictional limits – and the defendant may not tell the plaintiff where the latter should sue. Does this mean that a plaintiff who institutes proceedings in the magistrates’ court is barred from transferring the matter to the High Court when new circumstances permit? As it stands, the plaintiff is barred from doing so unless the defendant concedes to such transfer. Section 45(1) of the Act reads:
‘(1) Subject to the provisions of section 46, the parties may consent in writing to the jurisdiction of either the court for the district or the court for the regional division to determine any action or proceedings otherwise beyond its jurisdiction in terms of section 29(1)’ (my italics).
The flaw in this section is that it requires both parties to consent – it fails to guard against the unreasonable refusal to consent by the defendant. Additionally, does it then mean if parties consent, judicial oversight is ousted? If the defendant does not agree with the plaintiff regarding the transfer, does this mean it is the end of the road for the plaintiff because in any event, s 50(1) of the Act fails to assist? The requirement of joint consent and exclusion of on application to court by either party in s 45 creates a loophole.
Section 50(1) of the Act in the relevant parts read:
‘Any action in which the amount of the claim exceeds the amount determined by the Minister from time to time by notice in the Gazette, exclusive of interest and costs, may, upon application to the court by the defendant, or if there is more than one defendant, by any defendant, be removed to the provincial or local division having jurisdiction where the court is held, subject to the following provisions –
(a) notice of intention to make such application shall be given to the plaintiff, and to other defendants (if any) before the date on which the action is set down for hearing;
(b) the notice shall state that the applicant objects to the action being tried by the court or any magistrate’s court’ (my italics).
From the reading of s 50, it grants the defendant(s) unfettered power of transfer to the exclusion of the plaintiff. Of course, in Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA) the Supreme Court of Appeal (SCA) held ‘[t]here is no statutory equivalent for the plaintiff for an obvious reason. A plaintiff chooses the forum in which to litigate and must bear the consequences of doing so. A plaintiff, having instituted an action in the magistrates’ court is, of course, free to change tack by abandoning the action in the lower court and commencing proceedings in a High Court with attendant costs implications’ (at para 10).
The SCA further held that ‘[i]f there is a case in which it is necessary to fashion a constitutionally acceptable remedy because of the interests of justice, this is not it’ (at para 27). It is worthy of note that the SCA in Oosthuizen was not called on to decide primarily, the constitutionality of s 50 of the Act, but had to determine whether, absent any statutory provision permitting transfer of an action to a High Court by a plaintiff, a court can exercise its inherent powers as set out in s 173 of the Constitution to order such transfer.
Section 45 does not adequately allow for a legal redress because it fails to allow a court to order transfer on application by either party instead it subjects such transfer to the joint consent of the parties, and this is irrational. On the other hand, the irrationality of s 50(1) lies with the fact that it provides that any action ‘may, upon application to the court by the defendant, or if there is more than one defendant, by any defendant, be removed to the provincial or local division having jurisdiction where the court is held’ (my italics). This is inconsistent with s 9 of the Constitution. The sections treat litigating parties differently absent any rational justification. A plaintiff who issues processes in the magistrates’ court due to financial circumstances is debarred from transferring the same matter to the High Court, should new circumstances arise.
The provisions of the Act continue to treat litigating parties differently and unfairly albeit that a plaintiff may be correct in law not to institute a claim in the High Court during the initial stages of litigation. Should the plaintiff have additional evidence or information that justifies transfer the defendant may unjustifiably refuse. Circumstances of a case may change, and developments may occur to peg the jurisdiction of a High Court and the fact that the plaintiff is the ‘master of its own proceedings’ should not be a hill the plaintiff should die on.
All law is subject to the Constitution and must be consistent with it. What then is the appropriate proposed remedy in these circumstances? Can the current provisions of the Magistrates’ Court Act be afforded a harmonious interpretation that will save them from severance? Noteworthy is that where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it should be preserved. However, if the meaning and the preservation are not possible, one should then resort to the remedy of reading in or notional severance (Chisuse and Others v Director-General, Department of Home Affairs and Another 2020 (6) SA 14 (CC) at para 55). Section 39(2) of the Constitution obliges every court, where reasonably possible, to interpret every statute in a manner that makes it consonant with the Constitution. Thus, a claimant who argues for a declaration of invalidity must not succeed if the impugned provision is reasonably capable of a meaning that is constitutionally compliant.
Here we are dealing with statutory provisions that acknowledge the differing positions of two litigants. Both sections do not pass the constitutional muster, their wording falls foul of the provisions of s 9 of the Constitution, especially the word ‘everyone’, which enjoins all citizens equal protection and benefit of the law. The appropriate remedy will, therefore, be to afford a reading-in to the above provisions. The other relevant parts still remain relevant, the only thing that makes the provisions inconsistent with the Constitution is the omission of the plaintiff and/or the defendant on each transfer avenue without any rational justification. There is no justifiable limitation where one party is empowered more than the other especially if the parties are on the same footing.
Clarrence Mangena LLB (Univen) is a legal practitioner at Clarrence Mangena Inc in Polokwane.
This article was first published in De Rebus in 2021 (Aug) DR 8.
