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Litigation: High Courts told to hear Credit Act issues

The SCA has ruled that High Courts are obliged to hear any matter that falls within their jurisdiction, including National Credit Act matters, even where they share concurrent jurisdiction with other courts. A Daily Dispatch report says the SCA’s judgment will come at some costs to the Gauteng High Court (Pretoria) and the Eastern Cape High Court (Makhanda), whose rolls are clogged with matters which those courts believe should rather be heard in the Magistrate’s Court or other High Courts.


However, the SCA said all courts should be extremely wary of closing their doors to any litigant entitled to approach it on matters falling within their jurisdiction – even if that jurisdiction was shared by lower or other courts. Both Eastern Cape Judge President Selby Mbenenge and his Gauteng counterpart, Judge President Dunstan Mlambo, decided to place several of these cases before a Full Bench in their divisions. The full Bench sitting in Gauteng found that the matters should be issued in the Magistrate’s Court despite the High Court sharing jurisdiction and it was an abuse of process to use the High Court. The majority of the Full Bench of the Eastern Cape Court disagreed and rather held that the National Credit Act as a matter of course ousted the jurisdiction of the High Court and, for this reason, litigants were obliged to use the Magistrate's Courts. However, Acting SCA Judge Roland Sutherland, with four other judges concurring, ruled that all courts were obliged to hear any matter that fell within their jurisdictions.


The SCA also rejected that the National Credit Act ousted the jurisdiction of the High Court. ‘Far from impliedly ousting the jurisdiction of the High Court, the NCA expressly recognizes that the High Court has jurisdiction, concurrent with Magistrate’s Courts.’ According to the Daily Dispatch report, he dismissed the Gauteng High Court’s finding that using the High Courts in these matters amounted to an abuse of process. He said in cases falling within the monetary jurisdiction of the Magistrate’s Court, the banks usually only sought cost orders on the cheaper Magistrate’s Court scale. ‘In any event, it is difficult to see how litigants can be accused of abusing the process by exercising a choice that the law gives them.’ He also dismissed as ‘wrong’ the Gauteng court’s finding that a court could refuse to hear matters to reduce its workload. The SCA ruled that the High Court must entertain all matters that fall within its jurisdiction, including those matters where it shared concurrent jurisdiction with Magistrate’s Courts. Similarly, he said the main seat of a High Court division had to entertain all matters that also fell within the concurrent jurisdiction of all its local High Court seats.

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