Parliament has now published draft legislation to deal with passenger claims in light of the Mvumvu judgement.
I expressed the opinion in my July newsletter (issue no.24) that if parliament does not enact some mechanism for passenger claims, where summons was issued in the Mag court and prescription has taken place, to be transferred to the High court, some claimants might not receive any benefit from a different compensation regime.
This is exactly what has transpired.
Based on the Oosthuizen judgement (again this is available under the judgement tab at the top of this page), as discussed in my July newsletter, 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”
What are your views on this?