South Africa: Court Practice Directives Cannot Override The Superior Courts Act

In Frank Mhlongo and Others v Tryphinah Mokoena N O and Others, the question before the Supreme Court of Appeal ("SCA") was whether a judge president, through practice directives, could remove certain areas from a court's jurisdiction.

The case was first heard in the Pretoria High Court, where the beneficiaries of the Nhlangwini Community Trust instituted an application against the trustees of the trust, the Master of the High Court, the trustees' previous and current firm of attorneys and the Minister of Justice.

The relief sought by the beneficiaries included an order compelling the trustees to furnish various financial documents related to the trust and information disclosing previous and future payments.

Relying on the Gauteng Division Practice Directive No 1 of 2015, the trustees argued that the Pretoria High Court had no jurisdiction to hear the matter because the farm owned by the trust was located in Mpumalanga. The directive provided that the Gauteng Division ceased to have jurisdiction over matters arising within the Mpumalanga Circuit Court's jurisdiction.

The Pretoria High Court found that, by virtue of the directive, it ceased to have jurisdiction over matters emanating in areas falling within the Mpumalanga Circuit Court's jurisdiction. Therefore, the Pretoria High Court concluded that it did not have jurisdiction to hear the matter.

The beneficiaries pursued an appeal to the SCA. The SCA had to consider:

• Whether the Pretoria High Court had jurisdiction to hear the application and;
• whether section 7(1) of the Superior Courts Act, provided the judge president power to exclude the jurisdiction of the Pretoria High Court to hear matters arising in the Mpumalanga Circuit Court's jurisdiction.

The practice directive provided that the Pretoria High Court would cease to have jurisdiction over matters arising within the area of the Mpumalanga Circuit Court. The SCA highlighted that, in the case of The National Director of Public Prosecutions (Ex Parte Application), the court held that practice directives may not derogate from legislation, common law or rules of the court that have a binding effect.

The SCA referred to the Superior Courts Act, which provides that the minister, after consultation with the Judicial Service Commission could, by notice in the gazette, determine the area of jurisdiction of a division of a court. The SCA also noted that the minister had published a notice stating that the Pretoria High Court had jurisdiction in the geographical area of Mpumalanga.

The SCA held that the circuit courts were not established as self-standing divisions of the High Court and therefore the Pretoria High Court maintained jurisdiction over matters arising in Mpumalanga. The SCA noted that at the time of the application, the minister's notice for the Mpumalanga division to be a separate division had not come into effect. Consequently, the Pretoria High Court retained its jurisdiction over the two circuit courts in Mpumalanga.

The SCA also held that the Superior Courts Act only provided a judge president the power to alter the boundaries of any circuit court under a particular division. However, the Act also provides that only the minister has the power to determine the jurisdictional areas of various divisions of the High Court.

Taking the above into account, the SCA found that the Pretoria High Court erred in finding it had no jurisdiction to hear the matter by virtue of the directives issued by the judge president.

In the SCA's view, the practice directive ousting the jurisdiction of the Pretoria High Court was null and void as the judge president acted beyond his powers.

The SCA therefore set aside the Pretoria High Court's jurisdiction and granted an order dismissing the lack of jurisdiction point in limine relied upon by the trustees' representative. The SCA also rejected the argument that the practice directive was valid by virtue of the Constitution, allowing a court to regulate its own process.

The Pretoria High Court order dismissing the application was also criticised by the SCA. The SCA pointed out that even if the point in limine was upheld, the Pretoria High Court was incorrect in dismissing the application. Instead, because the merits of the application were not dealt with, the upholding of the point in limine, should have resulted in the application being struck from the roll, as opposed to being dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.