Unjustifiable restriction of the constitutionally entrenched right of access to courts

June 1st, 2021

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This article questions the justifiability of the procedural limitation imposed in terms of s 29(1) of the Magistrates’ Courts Act 32 of 1944 (the Act) with specific reference to the constitutional right of access to courts. For reasons set out herein, I submit that s 29(1) in limiting motion proceedings imposes an unjustifiable limitation on the right of a potential claimant (applicant) to have their claim adjudicated in the most efficient, expeditious and cost-effective manner, which the circumstances of their case permits.

The magistrate’s court does not enjoy inherent jurisdiction, such as that possessed by the High Courts, and its jurisdiction is found within the four corners of the Act (Mason Motors (Edms) Bpk v Van Niekerk 1983 (4) SA 406 (T) at 409). Put differently, whereas a magistrate’s court is limited to what the law permits, a High Court is only restricted by what the law forbids (Joseph Herbstein, Louis de Villiers van Winsen, Andries Charl Cilliers and Cheryl Loots The Civil Practice of the Supreme Court of South Africa 4ed (Cape Town: Juta 1997)).

The problem

Section 29 of the Act provides as follows:

‘Jurisdiction in respect of causes of action –

(1) Subject to the provisions of this Act and the National Credit Act, [34 of] 2005, a court, in respect of causes of action, shall have jurisdiction in –

(a) actions in which is claimed the delivery or transfer of any property, movable or immovable, not exceeding in value the amount determined by the Minister from time to time by notice in the Gazette;

(b) actions of ejectment against the occupier of any premises or land within the district or regional division: Provided that, where the right of occupation of any such premises or land is in dispute between the parties, such right does not exceed the amount determined by the Minister from time to time by notice in the Gazette in clear value to the occupier;

(c) actions for the determination of a right of way, notwithstanding the provisions of section 46;

(d) actions on or arising out of a liquid document or a mortgage bond, where the claim does not exceed the amount determined by the Minister from time to time by notice in the Gazette;

(e) actions on or arising out of any credit agreement as defined in section 1 of the National Credit Act, 2005 … ;

(f) actions in terms of section 16 (1) of the Matrimonial Property Act, [88 of] 1984, where the claim or the value of the property in dispute does not exceed the amount determined by the Minister from time to time by notice in the Gazette;

(fA) actions, including an application for liquidation, in terms of the Close Corporations Act, 1984 (Act No. 69 of 1984);

(g) actions other than those already mentioned in this section, 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.

(2) In subsection (1) “action” includes a claim in reconvention.’

Statutory limitations placed on the competence of a court usually relates to territory, subject matter, the amount in dispute and the parties to the dispute (see generally ss 26 and 28 of the Act). Section 29 of the Act does, however, impose an additional restriction on the power of the magistrate’s court, namely in respect of the form of proceedings, which is permissible in relation to the nature of the relief sought by a party.

The reference to ‘actions’ used in s 29(1) of the Act must be accorded the meaning of proceedings initiated by means of summons, thereby precluding the court from adjudicating claims for the relief listed in s 29(1) of the Act, if instituted by means of application (motion) (see, inter alia, E Castignani (Pty) Ltd v Claude Neon Lights (SA) Ltd 1969 (4) SA 462 (O); In Re Pennington Health Committee 1980 (4) SA 243 (N)).

As matters presently stand, motion procedure may be utilised only for the attachment of property to found or confirm jurisdiction, for interdictory relief and for spoliatory relief. In respect of the majority of causes of action, which would typically serve before a magistrate’s court, its jurisdiction is restricted to adjudication of the issues by means of the action procedure. A prospective litigant is accordingly deprived of a choice between motion proceedings and the cumbersome trial (action) proceedings, even where no real factual dispute exists between the parties. In fact, a litigant is required to choose between two equally unsatisfactory options to –

  • either initiate action proceedings in the Magistrate’s Court; or
  • to approach the applicable High Court with jurisdiction by means of motion proceedings.

The latter option is disproportionately expensive for litigants residing in rural areas, requiring the appointment of a correspondent legal practitioner at the seat of the High Court at the risk of the High Court only awarding costs on the magistrate’s court scale, resulting in a considerable discrepancy between the litigant’s actual legal costs (attorney and own client scale) and the costs recoverable on the party-and-party scale.

The matter of Minister of Safety and Security and Another v Bosman 2010 (2) SA 148 (C) provides a startling example of the effect of s 29 of the Act on the right of access to courts. In this matter the court held that condonation for non-compliance with s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 cannot be obtained in the magistrate’s court by means of application procedure.

Consequently, a plaintiff who intends to claim damages from the state and who failed to deliver a letter of demand within six months from the date on which their damages arose, is compelled to institute action in the High Court (which court can grant condonation through motion proceedings), despite the fact that their claim falls within the monetary jurisdiction of the magistrates’ courts’ jurisdiction.

Right of access to courts

Section 34 of the Constitution affords everyone the right of access to the courts.

The expressly stated purpose of the revised Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa is to promote access to the courts and to ensure that the right to have disputes that can be resolved by the application of law by a fair public hearing before a court is given effect to. Such access must be affected by facilitation of an expeditious handling of disputes and the minimisation of costs involved (r 1(1) read with r 1(2)). In D F Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) it had been held at p 301 of the judgment, that the ‘Rules of Court are designed to ensure a fair hearing and should be interpreted in such a way as to advance, and not reduce, the scope of the entrenched fair trial right (s 34 of the Constitution)’.

While addressing the conference on Access to Justice held during 8 to 10 July 2011 in Sandton the then Chief Justice, Sandile Ngcobo, referred with approval to Lord Woolf’s eight basic principles of a civil justice system. These are:

‘1.It should be just in the results it delivers;

2. It should be fair and be seen to be so by:

    • Ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights;
    • providing every litigant with an adequate opportunity to state his own case and answer his opponents; [and]
    • treating like cases alike.

3. Procedures and costs should be proportionate to the nature of the issues involved.

4. It should deal with cases with reasonable speed.

5. It should be understandable to those who use it.

6. It should be responsive to the needs of those who use it.

7. It should provide as much certainty as the nature of particular cases allow.

8. It should be effective, adequately resourced and organised so as to give effect to the stated principles’ (H Fabricius SC ‘Access to justice: The Woolf Report’ (1996) 9 Consultus 108).

There seems to be no rationally justifiable basis to confine the adjudication of causes of action listed in s 29 of the Act to the action procedure only. In fact, the ambit of s 29 of the Act has subsequently been eroded by certain legislative developments outside of the Act:

  • Legal proceedings for eviction in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) are not confined to action procedure only and application procedure may be followed. In the context of the PIE Act, the word ‘proceedings’ includes action, as well as application proceedings and to this extent it, therefore, has a wider meaning than the word ‘action’ in s 29(1)(b) (see Nduna v Absa Bank Ltd and Others 2004 (4) SA 453 (C) at 457).
  • The jurisdiction to adjudicate applications for the review of administrative action extends to the magistrate’s court in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). A ‘court’ includes ‘a magistrate’s court for any district or for any regional division established by the Minister for the purposes of adjudicating civil disputes’. The Rules of Procedure for Judicial Review of Administrative Action published under GN R966 GG32622/9-10-2009 have, however, not yet taken effect.
  • Applications for access to information in terms of ss 78 to 82 of the Promotion of Access to Information Act 2 of 2000 (PAIA) may be brought in the magistrate’s court. The Rules of Procedure for Application to Court in terms of the Promotion of Access to Information Act 2 of 2000 published under GN R965 GG32622/9-10-2009 had taken effect on 16 November 2009.
  • Section 69 of the Close Corporations Act 69 of 1984, affords a magistrate’s court jurisdiction to hear applications for the liquidation of a close corporation (see also s 7 of the Close Corporations Act).
  • Sections 23 to 29, as well as ss 42 to 44 of the Children’s Act 38 of 2005 contain various examples of motion proceedings previously limited to the High Court – these include:

–    the assignment of contact and care and guardianship to interested persons by order of court;

–    inter-country adoptions;

–    paternity determinations; and

–    termination, extension, suspension or restriction of parental responsibilities and rights orders.

Especially the adjudication of proceedings in terms of the PIE Act, PAJA and PAIA often involves vexed constitutional questions.

Insofar as a paternalistic sentiment might previously have been the motivating factor in limiting the motion competency of the magistrate’s court, such disposition did clearly not keep up with constitutional values.


The jurisdictional restrictions in terms of which a magistrate’s court is barred from adjudicating by means of motion proceedings the disputes listed in s 29(1)
of the Act constitutes an unjustifiable restriction of the constitutionally entrenched right of access to the courts contained in s 34 of the Constitution.

  • An amendment of ss 29, 30 and 56 of the Act is, therefore, imperative.
  • The required amendment is easily achieved by –

–    consolidating ss 29 and 30 of the Act;

–    substituting the word ‘actions’ where it appears in s 29(1)(a) to (1)(g) for the word ‘proceedings’;

–    deleting s 29(2), alternatively replacing s 29(2) with the following:

‘(2) any reference to ‘proceedings’ in subsection (1) includes a claim in reconvention, an application and a counter-application.’

–    r 56(1) and r 56(2) would be rendered obsolete by the above amendments and must be repealed; and

–    finally, r 56(3) must be amended by simply substituting the words: ‘referred to in sub-rule (1), for the following: for an interdict or attachment or for a mandament van spolie’.

Marunelle Hitge BCom LLB (NWU) is a legal practitioner at Du Toit Smuts & Partners Attorneys in Mbombela.

This article was first published in De Rebus in 2021 (June) DR 12.

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