In the matter of André Vernon Oosthuizen v Road Accident Fund a full bench of the Supreme Court of Appeal dealt with an appeal from the North Gauteng High Court (Pretoria) relating to that Court’s dismissal of the Appellant’s application to have his civil case transferred from the Magistrate’s Court for the District of Pretoria to the North Gauteng High Court.  

In dismissing the appeal with costs the Court examined the applicable statutory regime.  The Court noted that whereas Section 50(1) of the Magistrate’s Court Act 32 of 1944 allows for a Defendant to request a transfer of a case from a Magistrate’s Court to High Court having jurisdiction, there was, for obvious reasons, no statutory equivalent thereto for the Plaintiff to do so, the basis thereof being that as Plaintiff, he or she chooses the forum in which to litigate and must bear the consequences of doing so.  The only course open to a Plaintiff in this situation is to abandon the action in the lower Court and commence proceedings in a High Court with an attendant cost implication.

In the instant matter this was not a course open to the Appellant, as more than 5 years had passed since the date of the collision which had given rise to the action, and consequently he would have been met with a defence of prescription if he withdrew the Magistrate’s Court Summons (it having been established that the quantum of his damages exceeded the jurisdictional limit of the Magistrate’s Court) and re-issued Summons out of the High Court.

The Court further held that it was due to the lack of statutory or other authority for the transfer of the matter in the manner which the Appellant sought, that the Appellant contended for the exercise of the inherent jurisdiction of the High Court to rescue the situation.  It was argued on behalf of the Appellant that a failure to order a transfer of the action from the Magistrate’s Court to the High Court would result in grave injustice to the Appellant and that this would be against constitutional norms.  The Supreme Court of Appeal held that a Court’s inherent power to regulate its own process is not unlimited and does not extend to the assumption of jurisdiction which it does not otherwise have.  Referring to Section 173 of the Constitution the Court held that the High Court is not given carte blanche to meddle or interfere in the affairs of inferior Courts, and further that a High Court may only act in respect of matters over which it already has jurisdiction.  It was consequently held that a High Court cannot therefore stray beyond the compass of Section 173 by assuming powers it does not have.  In regard to the Appellant’s general submission that the “interests of justice” required of the High Court to use its inherent jurisdiction to order a transfer of the case to the High Court, the Court interpreted the submission to mean that in appropriate circumstances a Court was obliged to create a remedy for the Appellant when none exists.

The Court further held that the Appellant was legally represented and fully informed about the implications of the injuries sustained by him and further noted that the attorneys, even when they became aware of the full extent of the claim, nevertheless persisted in the path that led them to the application to the High Court, which was the subject matter of the appeal, and held that the attorneys ought to have switched forums when it became clear that they should do so to predict their client’s interests.

The Court accepted the argument advanced on behalf of the Respondent that to allow the transfer of the case in the prevailing circumstances would be more than overcoming a procedural hurdle but would be akin to “breathing new life” into a claim that had been extinguished by prescription, as the relevant time period had long since expired by the time that the transfer was sought.

The Court went on to hold that the Appellant’s access to Court had not been impeded by a lacuna in the law but because of the fact that his attorney had chosen the wrong forum and persisted therein when it was clear on the available evidence that a change of forum was imperative.

Finally, it was held that a High Court may not use its inherent jurisdiction to create a right. With regard to the fact that prescription had intervened to extinguish part of the Appellant’s claim by virtue of proceeding in the incorrect forum the Court held that the Appellant’s attorneys were to blame and in that regard the Appellant had a remedy.  The appeal was consequently dismissed with costs.

For a full copy of the judgment of the Supreme Court of Appeal click here.