South Africa is lauded as country with a progressive Constitution which is founded on the supremacy of the Constitution and the rule of law. The Constitution of South Africa guarantees everyone a number of fundamental human rights, including the right to have access to courts which is enshrined in section 34. This right is commonly referred to as the right to have access to justice. This right is recognised as a basic human right under international law and in constitutions of democratic countries across the world.
The Universal Declaration of Human Rights recognises the right of access to justice as a fundamental human right which is a vital ingredient in the protection and enforcement of other human rights. The Sustainable Development Goals (SDGs) have also acknowledged access to justice as a vital cog to human rights. SDG 16 calls for all societies to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.”
The ability to access courts ensures that rights guaranteed in the Constitution do not atrophy and become hollow shibboleths. Access to justice is also regarded as a vehicle through which other human rights may be protected, promoted and enforced through the justice system. However, in light of the soaring levels of poverty, inequality and unemployment and the high cost of living, together with the ever-widening chasm between the ‘haves’ and ‘have-nots’ it is doubtful that everyone in South Africa is able to access justice.
The costs of legal services have become prohibitive thereby gravely restricting those who are able to access justice. According to research, the average South African household would need to save a week’s income in order to afford a one-hour consultation with a legal practitioner. Thus, as former Chief Justice, Dikgang Mosenke aptly put it, “proper access to justice is often a function of one’s bank balance”. Therefore, the judgment handed down on Wednesday, 26 September 2018 by the full bench of the High Court in Pretoria in the matter of Nedbank limited v Thobejane and other related matters, is timely as it seeks to enhance access to justice for the vulnerable segments of our society.
The Thobejane matter concerns a practice by the banks to institute legal proceedings against defaulting home owners in the High Court when the Magistrates’ Court closer to the debtors’ homes also has jurisdiction to hear the matter. Some of the debtors’ homes were situated hundreds of kilometres away in Limpopo and the North West. None of them defended the actions against them, and the banks proceeded to apply for default judgments.
A contextual background will assist in this regard. The Constitutional Court in a number of cases has ruled that only a judicial officer (judge or magistrate) can declare immovable property specially executable (to be sold on forced sale such as an auction). In the aftermath of these cases judges had to adjudicate on these foreclosure matters and this resulted in the increase in the number of executions applications brought before judicial officers, and in divisions of the High Court in particular. It was apparent that some of the matters could have been dealt with by the Magistrates’ Courts situated closer to the debtors’ homes. Concerned with this practice by the banks, in 2016, the Judge President of the High Court in Pretoria (“Pretoria High Court”) consolidated thirteen applications to foreclose on home loans and to declare the distressed debtors’ homes specially executable.
The Judge President referred the matters to the full bench of the Pretoria High Court for hearing. He issued a directive calling on the major banks and all interested parties, such as the South African Human Rights Commission (the SAHRC or the Commission) and the National Credit Regulator to make submissions on whether or not the High Court should entertain matters that fall within the jurisdiction of the Magistrates’ Courts. The central question was whether there is an obligation on financial institutions to consider the cost implications and principles relating to access to justice of financially distressed debtors when deciding on whether to institute legal proceedings in the lower or superior courts.
The Commission was admitted as an amicus curiae (friend of the court). None of the concerned homeowners were formally represented in court. The Commission argued that it is a well-known fact that Magistrates’ Courts are more accessible due to their number and geographical location across South Africa. Also, litigation in the High Courts is costly and thus potentially prohibitive to a debtor already beset by limited financial resources. The Commission also submitted that the right of access to justice dictates that financial institutions are obliged to take into cognisance the cost implications and access to justice of financially distressed people in choosing a forum where a matter should be heard.
Thus, the Commission submission was that although it might be legally permissible for the High Courts to hear matters that also fall within the jurisdiction of the Magistrates’ Courts, the High Courts should not always entertain matters falling within the jurisdiction of the Magistrates’ Courts. It was also argued that creditors should not circumvent inexpensive justice by refusing to approach an appropriate Magistrates’ Court for their relief on the basis that such courts are allegedly ineffective.
The Commission further argues that the practice by the financial institutions constitute a violation of the rights of distressed debtors, in particular access to justice which in the context of this matter is a procedural right that can be used to safeguard other rights in the Bill of Rights, in particular the right to have access to adequate housing in terms of section 26 and the right to property in section 25 of the Constitution.
The Pretoria High Court supported the submissions made on behalf of the Commission. Judge Tolmay, penning for the Court, stated that numerically, there were many more Magistrates’ Courts in comparison to the number of High Courts in the country. In comparison, Magistrates’ Courts are closely situated to many members of the society thereby lessening the burden and cost of litigation. The judge also highlighted the administrative burdens posed by the preference of litigants to pursue their matters in the High Court. According to the judge this practise was causing delays which had the potential to impair access to justice for the debtors and threatens to unsustainably burden divisions of the High Court.
In order to avoid fouling up the vital cogs of the administration of justice system, the Pretoria North High Court ordered that with effect from the 2nd February 2019, civil actions and applications, where the monetary value claimed is within the jurisdiction of the Magistrates’ Courts, that these matters be instituted in the Magistrates’ Courts having jurisdiction. The Court further held that the High Court has the power to transfer a matter to another court, if it is in the interest of justice to do so.
The judgment by the Pretoria North High Court is progressive. In interpreting and developing the common law, the Court takes into account that this has to be done within the prism of the Constitution. The judgment acknowledges the prevailing deep seated inequalities in our society and recognises that access to justice is better served when courts are made accessible to the majority members of our society.
This is a milestone judgment which goes a step further towards entrenching access to justice in our country. The judgment strikes a delicate balance between the oft-competing rights of the litigants to use the administrative justice system to recover debts owed on the one hand and also allowing the rights of indebted respondents to access courts on the other.
When litigants, as in this case financial institutions, use courts which are situated hundreds of kilometres away from indebted debtor’s homes, it is not only the antithesis of the rule of law but it also has a hollow-ring on the right of access to justice which is of cardinal importance in the country.
Peacemore Mhodi is a Research Advisor to Commissioner Ameermia who is the focal area commissioner on the right to housing, water and sanitation at the South African Human Rights Commission. Osmond Mngomezulu is a Senior Legal Officer at the South African Human Rights Commission.