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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: CIVAPP R/C NO: 06/2018

In the matter between:

C.P BRAND BOERDERY               APPELLANT                                                                   

 

And

J.P DU PLESSIS                              RESPONDENT   

In re:

C. P. BRAND BOERDERY                PLAINTIFF         

And

JP DU PLESSIS                                  DEFENDANT  

JUDGMENT.

GURA J & MORWANE AJ:

INTRODUCTION.

1.    The appeal herein lies against the decision of the regional court sitting in Klerksdorp, in upholding a special plea raised by the Respondent. The Appellant had instituted a civil suit against the Respondent for payment of an amount of R121 216.20. The Respondent raised a special plea of lack of jurisdiction by virtue of the fact that the amount was below the monetary jurisdiction of the regional court of R400 000,00.

2.     Since the coming into operation of the Regional Court’s Amendment Act, No 31 of 2008 the view held by many regional court magistrates was that the regional court does not have jurisdiction in matters that fall within the monetary jurisdiction of the district courts.

MONETARY JURISDICTION IN THE REGIONAL COURT.

3.     The above view was settled in  the Minister of Police vs Regional Magistrate Oudtshoorn and Others (15587/2013) [2014] ZAWCHC 165(6 November 2014) wherein the Court held that :

            ‘parties are at liberty to institute actions in the regional courts whether the district courts had jurisdiction or not in those cases.’

4.     The regional magistrate in the Oudtshoorn matter found that the Minister acted ultra vires when he determined the jurisdiction of the regional court. The notice of the Minister provided for a minimum and a maximum amount and in clear contradiction with Sec 29(1)(g) of the Act. In fact in terms of Sec 29(1)(g), the Minister could only determine the maximum of the court’s monetary jurisdiction.

5.    Sec 29 (1)(g) of the Magistrate’s Court Act 32 of 1944 states that;

            ‘Subject to the provisions of this Act and the National Credit Act, 2005(Act 34 of 2005), a court in respect of causes of action, shall have jurisdiction in 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.’ 

6.     In consideration of Sec 29(1)(g) the High Court found that the regional magistrate in considering his monetary jurisdiction was entitled to disregard the words ‘ above R100 000,00’ as of no operative effect. The High Court found that Sec 29(1)(g) has nothing to do with the determination of a minimum limit of a magistrate’s court but the maximum limit thereof. Wherefore the determination of the jurisdiction of the regional court is what the magistrate was seized with. The magistrate had no duty to pronounce on the validity of the law.

7.     In Tecmed Africa (Pty) Ltd v Minister of Health and Another [2012] ZASCA64; [2012] 4 All SA 149(SCA) it was  reiterated that ;

‘Appeals do not lie against the reasons for the judgment but against the substantive       order of a lower court.’  

8.    The regional magistrate in the matter before this court upheld the special plea of lack of jurisdiction based on the amount of the Appellant’s claim of R121 216.20 and dismissed the Appellant’s claim with costs. In his reasons the regional magistrate stated that he is not bound by the Oudtshoorn decision.

9.     It is therefore as stated in the  Oudtshoorn  matter that;

            ‘there is no requirement  in law that a litigant must sue in  a lower court if his claim  falls within  its  monetary jurisdiction, and the  implication to the contrary in the special plea was therefore bad in law. Claims are often brought to the High Court       that might have been instituted in the magistrate’s courts. The appropriate means of   discouraging the burdening of higher courts with claims that could have been instituted  in lower courts is by way of orders limiting the costs to those that could        have been recovered in the lower court.’

STARE DECISIS  RULE.

10.  In addition to his ruling that he is not bound by the Oudtshoorn decision, in the present case, the regional magistrate ruled that in the application of the stare decisis rule the Oudtshoorn decision cannot be regarded as setting a precedent.

11.  Stare decisis obligates the courts to follow historical cases when making a ruling on a similar case. It ensures that cases with similar facts and scenarios are approached in the same way. Therefore simply put it means ‘stand by that which is decided.’  See Camps Bay Ratepayers’ And Residents’ Association and Another v Harrisson and Another 2011 (4) SA 42 (CC).

12.  The matter before this Court is one with almost similar facts and scenario as in the Oudtshoorn decision, in that the Respondent raised a special plea against the Appellant’s claim for an amount regarded not to fall within the jurisdiction of the regional court and falling within that of the district court.

13.  In both matters the regional courts had to simply determine whether they have jurisdiction or not and that was the crux of the matter. In both matters the special plea(s) were premised on an interpretation of the wording of a determination published by the Minister in terms of Sec 29(1)(g) of the Magistrate’s Court Act 32 of 1944.

14.  The regional magistrate in the matter before this Court deviated from the precedent set in the Oudtshoorn decision on the basis that on the application of the stare decisis it has not set a precedent. As stated above that, appeals do not lie against the reasons for the judgment but the substantive order of the lower court. The regional court in this matter ruled that the plaintiff should not have issued his summons in the regional court by virtue of the amount being below R200 000.00.

15.  The Court  in the Oudtshoorn  held as follows;

            ‘that construing the notice in the manner contended for by the applicant’s counsel, on the other hand, would lead to the most absurd results. It would imply the    introduction of a novel and peculiarly dichotomous concept of jurisdiction; one entirely foreign to the hierarchical structuring of our court system in respect of the monetary jurisdiction of first instance courts. It would mean that a regional court could not try a claim pleaded in an amount within the monetary jurisdiction of the district magistrate’s courts, but it could give judgments within the district courts’ monetary jurisdiction.

16.  The Court went on to state that ;

            ‘subsidiary legislation falls to be construed to give effect to the purpose and objects of the principal legislation from which it derives.’ This was also the reasoning inSouth African Reserve Bank vs Khumalo 2010(5) SA 449 (SCA).

17.  It then follows that a Plaintiff has a choice to issue summons in the regional court or in the district court for claims fairly within the monetary jurisdiction of the district courts. The determination Minister that the monetary jurisdiction for the regional court is above R200 000.00 has no operative effect. The regional court’s order in upholding the Respondent’s special plea of lack of jurisdiction was therefore wrong.

18.  The last issue to be dealt with is the issue of costs. The Respondent was not wrong in raising their special plea. The fact is that costs have been incurred and the successful party should be compensated for the said costs. As is always trite, the costs should follow the results.

Order

19.  Therefore the following order is made;

1.    The appeal is upheld;

2.    The decision of the regional court is set aside;

3.    The case is referred back to the regional court, Klerksdorp for the trial to continue before a different regional court magistrate;

4.    The respondent to pay costs.

SAFIRA P MORWANE

ACTING JUDGE OF THE HIGH COURT

I agree.

SAMKELO GURA

JUDGE OF THE HIGH COURT

APPEARANCES:

DATE OF HEARING:                              08 FEBRUARY 2019.

DATE OF JUDGMENT:                           30 MAY 2019.

COUNSEL FOR APPELLANT:                 ADV G. ACKERMAN.

COUNSEL FOR RESPONDENT:                 

ATTORNEYS FOR APPELLANT:            NIENABER & WISSING INC.       

ATTORNEYS FOR RESPONDENT:        KOBUS BURGER ATTORNEYS.

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