In December 2022 the Constitutional Court held that a High Court may not decline to adjudicate a matter over which both it and the Magistrates’ Courts have concurrent jurisdiction. Where a number of banks had brought actions for the enforcement of credit agreements in the High Court where the amounts at stake fell within the jurisdiction of the Magistrate’s Court it was held that the High Court should not decline to exercise that jurisdiction.

Section 169(1) of the Constitution provides that the High Court “may decide any matter not assigned to another court by an Act of Parliament”. The word “may” in this context does not give a discretion to the High Court to turn away matters brought before it by way of exercising a discretionary power. How the court decides to exercise the discretion it enjoys is a separate issue. That issue includes considerations as to whether in exceptional circumstances jurisdiction is not exercised by reason of, for example, abuse of process, or the stay of proceedings pending some other form of dispute resolution (such as arbitration), or on the grounds of comity where the matter is best left for adjudication by a foreign court which has a closer connection to the matter. In all these cases however the court does not refuse to exercise jurisdiction. It exercises its jurisdiction in a certain way. There is no general rule obliging it to exercise such a discretion to insist that a matter be litigated in the Magistrate’s Court where it enjoys concurrent jurisdiction.

The court recognised that there is a problem with the fact that some defendants, because of geography and money, are prevented from attending High Court proceedings some distance away from their own domiciles. This was considered to be a matter for the legislature and the issue was referred to the Minister of Justice.

South African Human Rights Commission v Standard Bank of South Africa and Others [2022] ZACC 43