The bank wants to repossess my car,can they issue summons in the High Court?

Last Updated On June 17, 2020

The issue of the ability of the High Court to hear matters falling within the monetary jurisdiction of the Magistrate’s Court was considered in the matter of Nedbank Ltd v Thobejane and Similar Matters 2019 (1) SA 594 (GP); [2018] 4 ALL SA 694 (GP) (hereafter Thobejane).1

In this case, the Court ruled that actions and/or applications should be instituted in the Magistrate’s Court where the monetary value of the claim falls within its monetary jurisdiction, except for those matters where the High Court has specifically granted leave for them to be heard before it. 2

Plaintiffs, especially financial institutions, had developed a practice of launching their proceedings in the High Court based on concurrent jurisdiction despite their matters falling within the monetary jurisdiction of the Magistrate’s Court. This practice led to the Thobejane case and the decision by the Court. 3

This practice, it was argued, detracted from debtor’s right to access to justice in terms of section 34 of the Constitution.4

In the matter of Nedbank Ltd v Gqirana NO and Another, and Similar Matters 2019 (6) SA 139 (ECG) (hereafter “Gqirana”)5, the Court had to decide on whether the approach followed in Thobejane should be adopted within its jurisdiction. 6

The legal issue at hand was that banks and financial institutions institute applications for the recovery of costs in the High Court, where such costs actually fall within the Magistrate’s Court.7

The court in its findings, firstly looked at section 173 of the Constitution, which provides that the High Court has inherent powers to regulate its procedures and to alter the common law in the interest of justice.8 The Court furthermore considered the issue of matters brought to the High Court, which fall within the ambit of the National Credit Act (hereafter “NCA”). 9

The Court considered section 29(1)(e) of the NCA, which provides for unlimited monetary jurisdiction of NCA matters in the Magistrate’s Court.10

The Court further determined that in NCA matters, it was clearly the intention of the legislature that matters falling within the ambit of the NCA must be brought to the Magistrate’s Court and not the High Court.11

The Court thus held that there is concurrent jurisdiction between the Magistrate’s Court and the High Court. However, it should be noted that this concurrency may be amended by direct legislative action.12

Therefore, the NCA gives unlimited monetary jurisdiction to the Magistrate’s Court and seeks to benefit previously disadvantaged individuals. Furthermore, although there is no express indication that the Magistrate’s Court has exclusive jurisdiction over NCA matters, it is clearly the intention of the legislature that matters falling within the ambit of the NCA must be heard first in the Magistrate’s Court and not in the High Court. This would be the situation for all matters except for those exceptional matters.13

Why is this judgment important, and what can we learn from it?

This judgment reflects on how courts are actively trying to give expression to the intention of the legislature in as such to give benefit to consumers and persons through legislations such as the NCA.14

The judgment also limits all High Court jurisdiction in matters regulated under the NCA to be brought in the Magistrate’s Court first.15

The decision in Gqirana is however narrower than that in Thobejane, as it requires that proceedings instituted in the Magistrate’s Court are to be limited to those civil matters falling within the scope of the NCA.16

Therefore, considering the above, it can be said that a bank cannot issue a summons in the High Court on any claim covered by the NCA. The bank will have to institute proceedings in the Magistrate’s Court first, as these matters fall within the scope of the NCA.

Palesa Malebo, Van Velden-Duffey In