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Judgment reserved in SAHRC ConCourt case against three banks

The Constitutional Court in Braamfontein. Photo: Nicholas Rama

The Constitutional Court in Braamfontein. Photo: Nicholas Rama

Published May 20, 2022

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Cape Town - Judgment has been reserved in the Constitutional Court case brought by the South African Human Rights Commission’s (SAHRC) against three major banks for repossessing homes when small amounts were owed on mortgages.

The three banks in the case were Standard Bank, Nedbank and FNB and the matter revolved around the issue of the banks avoiding the magistrate’s court despite it being more accessible than the high court to impoverished respondents.

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In an earlier case the North Gauteng High Court in Pretoria ruled that there was an obligation on all litigants to consider access to justice when filing actions or applications, and that the courts had a duty to guarantee access to justice by exercising proper jurisdictional oversight.

The banks disagreed and appealed to the Supreme Court of Appeal (SCA) where it was found that a high court lacks the authority to decline to consider a case that falls under its jurisdiction, and that it is in fact obliged to hear such matters.

It was this ruling that drove the SAHRC, which aligned itself with the position taken by the high court, to the Constitutional Court seeking leave to appeal against the SCA decision.

The SAHRC argued that the individuals against whom summons were issued in the high court by the banks were for amounts that were relatively small, yet the debtors were apparently unable to pay the amounts despite the threat of losing their homes.

Appearing on behalf of the SAHRC advocate Matthew Chaskalson said: “The highest amount of the alleged arrears was R20 782 and the alleged arrears went down as low as R7 271.”

Standard Bank’s advocate Kate Hofmeyer argued that the Constitution reserves to Parliament the task of deciding what matters would be dealt with by which court.

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For Nedbank, advocate Alfred Cockrell SC said the SAHRC’s criticisms of the SCA judgment, the rights body had not disputed the SCA’s conclusion that the determination in the interests of justice could not be made in the abstract but would depend on each case.

“Listening to the arguments before the court it became apparent, at least to me, that different participants in the litigation as it has progressed, different parties have understood the issue in different ways,” Cockrell said.

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