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[1]          At the heart of this application is whether a High Court may decline to adjudicate a matter over which it and the Magistrates’ Courts have concurrent jurisdiction. A related question is whether the main and local seats of a Division of a High Court may each refuse to hear a matter in respect of which the other has concurrent jurisdiction.[1]

[2]          The application arises from 13 matters instituted in the Gauteng Division of the High Court. It is brought by the South African Human Rights Commission (SAHRC), which was an amicus curiae before the High Court and Supreme Court of Appeal. The 13 matters concerned the enforcement of payment by the first to third respondents, Standard Bank of South Africa Ltd, Nedbank Ltd and FirstRand Bank Ltd (the banks), against debtors who are all natural persons. The debtors had either taken up mortgages or purchased motor vehicles on credit and had defaulted on repayment. They took no part in the High Court proceedings. The banks sought default judgment and – in the case of mortgages – orders declaring the debtors’ residential properties specially executable. It must be noted that in respect of most of these matters, the amounts claimed fell within the Magistrate’s Court’s jurisdiction.

[3]          The matters were set down for hearing before a Full Court of the Gauteng Division of the High Court in terms of a practice directive issued by the Judge President of that division. The directive required the parties to address the following questions: whether the High Court is obliged to entertain matters that fall within the jurisdiction of the Magistrate’s Court purely because the High Court has concurrent jurisdiction; whether the provincial division of a High Court is obliged to entertain matters that fall within the jurisdiction of a local division simply because the provincial division has concurrent jurisdiction; and whether financial institutions ought not to consider costs implications and access to justice concerns of financially distressed people when deciding in which of two courts with concurrent jurisdiction to litigate.[2] Even after set down, the debtors did not participate. At the High Court’s request, the Pretoria Society of Advocates assisted them pro bono.

[4]          Three of the matters were subsequently withdrawn because the debts had been settled and another was withdrawn as the amount claimed exceeded the jurisdiction of the Magistrate’s Court.

[5]          The Full Court held as follows: it is an abuse of process of court to institute in the High Court claims that fall within the jurisdiction of the Magistrate’s Court; and the High Court may exercise a discretion to entertain matters over which it has concurrent jurisdiction with the Magistrate’s Court.[3]

[6]          On appeal, the Supreme Court of Appeal overturned the decision of the Full Court. In its reasoning it highlighted the significance of sections 21 and 27 of the Superior Courts Act,[4] which it described as “critical provisions” of the Act and section 169(1) of the Constitution.[5] Relying on Agri Wire,[6] it held that it was obligatory for the High Court to entertain matters in respect of which it has concurrent jurisdiction with the Magistrate’s Court (mandatory jurisdiction principle).