Welcome to the twenty second edition of Independent Actuaries & Consultant’s (IAC’s) monthly newsletter.
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In this Newsletter:
This was an appeal against a judgment of the North Gauteng High Court dismissing the appellant’s application to have his civil case transferred from the Pretoria magistrates’ court to the North Gauteng High Court.
The appellant sustained serious bodily injuries as a result of a motor collision which took place on 1 March 2003. In March 2004 the appellant issued summons against the respondent in the Pretoria Magistrates’ Court. During December 2004 the appellant’s attorney discovered that the quantum of the appellant’s claim exceeded the jurisdiction of the magistrates’ court but persisted with his claim in the Magistrates Court. On 25 June 2008, the appellant’s attorney wrote a letter to the Fund advising it that further medical reports revealed that the appellant’s claim exceeded the jurisdiction of the magistrates’ court and requested a consent to a transfer of the case to the high court. There was no reply and the appellant launched an application in the North Gauteng High Court for the transfer of the case to that court.
The Fund opposed the application on various grounds and the high court found in favour of the Fund. The question on appeal is whether the court below was correct in its reasoning and conclusion. It was contended on behalf of the appellant that a failure to order a transfer of the action from the magistrates’ court to the high court would result in grave injustice to the appellant and that this would be against constitutional norms. The injustice flowed from the fact that although the appellant had a substantive right to claim damages from the Fund the appellant is precluded from pursuing it in the high court because of the statutory oversight to cater for a transfer from the magistrates’
court at a plaintiff’s instance.
The inherent jurisdiction of the high court is entrenched in s 173 of the Constitution. Section 173 does not give any of the high courts carte blanche to interfere in the affairs of inferior courts. A high court can only exercise its inherent jurisdiction in relation to the regulation of its own process when confronted with a case over which it already has jurisdiction (my italics) and when faced with procedures and rules of the court which do not provide a mechanism to deal with an instant problem. As far as the appellant’s submission that the ‘interests of justice’ required the high court to use its inherent jurisdiction to order a transfer of the case to the high court is concerned the court found that the appellant’s access to court was not impeded by some lacuna in the law (my italics). His attorneys chose the wrong forum and persisted therein when it was clear on the available evidence that a change of forum was imperative to protect his interests.
Furthermore the appellant is not without remedy (my italics). He has a right to institute a claim for compensation against his attorneys for the difference between what might be recovered through the magistrates’ court and the full extent of his loss A high court may not use its inherent jurisdiction to create a right (my italics). The appellant had a right to institute action in the appropriate forum to the full extent of his claim. Prescription has extinguished part of his claim. The court held that if there is a case in which it is necessary to fashion a
constitutionally acceptable remedy because of the interests of justice, this is not it. The appeal was dismissed with costs Should Parliament fail to amend the specific provisions dealing with passenger claims before 16 August 2012 (as per Mvumvu judgement – refer May 2011 newsletter), and the claim becomes “unlimited” or if they get their act together and a different compensation regime is enacted for passenger claims, claimants who issued summons in the Mag court might be faced with a situation where they will in any event not benefit. Based on Oosthuizen there are two factors weighing against a claimant successfully transferring his claim where he has issued summons in the Mag court and prescription has taken place namely, “the high court can only exercise its inherent jurisdiction … when confronted with a case over which it already has jurisdiction” and “A high court may not use its inherent jurisdiction to create a right.” especially if prescription has extinguished part of a claim.
However, such a scenario would not be based on any fault or oversight on the part of the claimant or his attorney but it would be a case of “the appellant’s access to court being impeded by some lacuna in the law” and “Furthermore the appellant is … without remedy.” These two factors might convince the court that “it is a case in which it is necessary to fashion a constitutionally acceptable remedy because of the interests of justice”. Interesting times lies ahead.
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Now for some words of wisdom –
“Treasures of wickedness profit nothing, but righteousness delivers from death” – Proverbs