A Law Matter : High Court vs Regional Court

[Pho3nix]

Hi all,

A mate of mine was in an accident 2 years back. Insurance refused to pay out and the other party put blame on my mate. Party skipped a robot.
Now 2 years later, there is a court case as to be expected but my mate is having no joy from his lawyers.

His primary passed away and the new guy moved the case to the Pretoria High Court when it was understood it was supposed to be at the regional court near where the accident occurred.
Any advice would be appreciated.

Any questions will be get delayed answers as I need to ask.

 

[Alton Turner Blackwood]

I have never heard of a case like this skipping the smaller courts and going straight to the High Court. They don't have time for cases like these, only much serious matters.

So I smell BS!

 

[Pho3nix]

I have never heard of a case like this skipping the smaller courts and going straight to the High Court. They don't have time for cases like these, only much serious matters.

So I smell BS!

Assumption is that it was moved there as either:
1. An advocate is needed there and 1 day is R12k.

OR

2.Because the damage being sued for is just of R200k.

 

[froot]

Assumption is that it was moved there as either:
1. An attorney is needed there and 1 day is R12k.

OR

2.Because the damage being sued for is just of R200k.

Attorney? Surely you mean an advocate.

 

[Paul Hjul]

INAL etc ....

The Pretoria High Court (currently called the North Gauteng [Provincial Division of] High Court [of South Africa] - depending on where it is referred to the Constitution speaks of High Courts the legislation and government policy speaks of one High Court) is an old creature that has existed as the TPD of the Supreme Court of South Africa it has judges and all the other stuff of a superior court. Unfortunately the NGPD is also horrendously busy as a court and unfortunately the size of the court is unwieldy for the structures in place.
The regional court started its life in the 40s with a proper introduction in 1952 and essentially what it was (and at its core remains) is an elevation of the district magistrates court. At the time magistrates couldn't incarcerate people for more than 6 months on most offences and the workload for robbery and so on for the Supreme Court was becoming a problem, quite importantly we didn't follow summary process in criminal matters as we do now - civilized countries have a preparatory trial and a criminal trial for most serious crimes and the preparatory trial requires the prosecution to show that they have a case to a lower court - summary trial meaning that you have one trial, the effect of a summary process is that trials aren't summary and often have bizarre trials in trials. In the US the preparatory trial is done (federally and in many states) by a grand jury who must deliver a bill of indictment which while often notoriously easy to secure often ties the prosecutions hands to prosecute [there is a particular turd in mind here - imagine if a jury indicted on the facts political interference is less of a way out]. Because of apartheid - something the ANC has held over - our prosecutors make the call that there is a case and no preparatory trial is held. Bizarrely some of our magistrates assume the power to demand the prosecutor satisfy the magistrate that the state will win a case on less serious charges when a warrant is sought or at the request of certain accused (in DUI matters for example) but that is simply a perversion of the system and abuse of office for which they are not held accountable. Moreover the problem with our summary trial system is that in many matters the bail hearing becomes a preparatory trial - consider the Oscar matter. Eventually the regional divisions grew to cover very serious criminal matters (murder and rape) and the district courts got a lot more power as well. After 1997 the regional divisions were aligned to the provinces. However the regional court remains a magistrates court presided over by a regional magistrate they are not presided over by judges. Regional courts sit at the magistrates offices but a whole province is generally considered one region and regional magistrates serve the entire region rather than at a district (like your district magistrates) in 2010 the regional courts were given civil and "family" jurisdiction by merging in the divorce courts (another story) and their civil jurisdiction is R500 000.00 and the rules of court are the same as the district civil court so it is really just a district court with a higher limit and potentially a more qualified magistrate. The idea is a disaster because well you experienced and skilled regional magistrates have not for the most part had extensive civil experience etc ... (Also merging murder and matrimony into one court is simply amusing).
So there isn't actually - contrary to what the Minister of Justice is saying - a "closer" regional court than a High Court because there is fewer regional divisions than their are High Courts (to be back to divisions of the High Court soon) but what does of course happen is that the regional court sits at your district court - but on occasion so can the High Court on circuit.

There is no fixed rules for a case to go to the High Court or the magistrates court and the plaintiff has a choice to make. The choice is made on a whole array of factors. A major consideration for years was the R100 000 limit of the district court but the regional court has R300 000 as its limit so if you have a suit for 400k or even 500k the extra legal fees to go to the High Court may steer you to tolerate the regional court. I also suspect that many attorneys prefer the regional court - their ability to make money is paradoxically a lot more in the lower courts and they wont require a correspondent and are unlikely to brief counsel - and theoretical and jurisprudence concerns are not for the money making practitioner.

Once the suit is in the High Court you can't have it moved by the court to the regional court - there is case law on this concerning the Road Accident Fund - but provided certain steps haven't been taken it can be withdrawn from one court and re-instituted in another but personally I'd rather deal with the High Court if there is any prospects of complications. One nice thing about regional courts is that for the most part the court rooms provisioned for them are quite nice to argue in - comfy chairs - in comparison to court rooms used for district courts in the same building and many court rooms at the High Courts [of course this is another possible reason why a practitioner may prefer regional court].

If your mate had instructed the attorney to institute suit in one court and they instituted in another then there is a serious problem with the best solution I believe being that the attorney's firm acknowledge that they made a clerical error and proffering any wasted costs. As I see it as the plaintiff chances are that going to the High Court could reduce your costs on success but will be considerably more on failure also you may have to provision more money on legal fees to be recovered (paying for counsel). The big question really would be whether the "new guy" made a mistake and if so whether it has consequences and repairing them. If suit can be withdrawn and re-instituted in the regional court what benefit is accomplished other than for the respondent at suit to have more time. If the parties are in agreement that this be dealt with on the costs scale of the lower courts then I don't see why such an agreement can't be made an order but if the parties are in agreement you could have more success with arbitration.

Of course it is all a disaster and the fact that our current president is a recalcitrant doesn't help.
---
South Africa has a very good legal system where the politicians didn't deliberately undermine it. Our criminal justice system unfortunately has been fundamentally destroyed by 70 years of corrupt governments and is far from meeting any standard of being a "civilized system of law".

 

[Pho3nix]

Attorney? Surely you mean an advocate.

Yes, that what I meant

/snip

Once the suit is in the High Court you can't have it moved by the court to the regional court - there is case law on this concerning the Road Accident Fund - but provided certain steps haven't been taken it can be withdrawn from one court and re-instituted in another but personally I'd rather deal with the High Court if there is any prospects of complications. One nice thing about regional courts is that for the most part the court rooms provisioned for them are quite nice to argue in - comfy chairs - in comparison to court rooms used for district courts in the same building and many court rooms at the High Courts [of course this is another possible reason why a practitioner may prefer regional court].

If your mate had instructed the attorney to institute suit in one court and they instituted in another then there is a serious problem with the best solution I believe being that the attorney's firm acknowledge that they made a clerical error and proffering any wasted costs. As I see it as the plaintiff chances are that going to the High Court could reduce your costs on success but will be considerably more on failure also you may have to provision more money on legal fees to be recovered (paying for counsel). The big question really would be whether the "new guy" made a mistake and if so whether it has consequences and repairing them. If suit can be withdrawn and re-instituted in the regional court what benefit is accomplished other than for the respondent at suit to have more time. If the parties are in agreement that this be dealt with on the costs scale of the lower courts then I don't see why such an agreement can't be made an order but if the parties are in agreement you could have more success with arbitration.

Of course it is all a disaster and the fact that our current president is a recalcitrant doesn't help.
---
South Africa has a very good legal system where the politicians didn't deliberately undermine it. Our criminal justice system unfortunately has been fundamentally destroyed by 70 years of corrupt governments and is far from meeting any standard of being a "civilized system of law".

Thanks for the in-depth answer it really is appreciate. As I understand it my friend didn't ask them to take it to any particular court but "assumed" it would go to a district court.
The law firm in question won't be making any money from a win in this regard as my mate was sued and didn't counter-sue.

Questions though :
Wouldn't a case at a district court cost considerably less in legal fee's compared to a high-court case?
Also with the case almost 1 calender month away, is it still possible to get it removed from the high-court to the district court.

 

[Paul Hjul]

well the general case is that it is much cheaper in the district court than in the High Court particularly because there are counsel costs, but this isn't necessarily the case. For example an uncontested divorce in the High Court has an advocate appearing at a different tariff and the instructing fees and so on from the attorney's all comes together and you can end up with a sum at the end of the day, dealing with the same matter through a local firm and the regional court (as the divorce court) has the attorney's charging more and if there are delays and nonsense the costs go up horribly. Errors drive costs up more than anything else.

If your mate is the one being sued then his lawyers don't pick the court. Of course if the plaintiff has decided to go to the High Court you mate could pray that costs be on the magistrates court scale and that counsel fees be borne by the plaintiff if the expenses are a waste. In SA (apart from contingency) lawyers make money for work not victory.