The Standard Bank of South Africa Ltd and Others v Thobejane and Others; The Standard Bank of South Africa Ltd v Gqirana N O and Another

Several commercial banks instituted unopposed applications in the High Court against defaulting debtors for payment and execution on mortgaged property or credit agreements, even though the matters fell within the monetary jurisdiction of the Magistrates’ Courts. Acting on concerns about High Court roll congestion, access to justice, and potential prejudice to financially distressed debtors, the Gauteng and Eastern Cape High Courts (as full courts) questioned whether the High Court could or should decline to hear matters where Magistrates’ Courts had concurrent jurisdiction, and whether banks were obliged to litigate in lower courts. Divergent declaratory orders were issued, prompting appeals to the Supreme Court of Appeal.

All appeals were upheld. The orders of the Gauteng and Eastern Cape High Courts were set aside and replaced with declaratory orders confirming that High Courts are obliged to entertain matters within their jurisdiction despite concurrent jurisdiction with Magistrates’ Courts or local seats, and that financial institutions have no legal obligation to consider cost or access-to-justice implications when choosing a competent forum. No orders as to costs were made.

This judgment authoritatively clarifies the doctrine of concurrent jurisdiction in South African law, confirming that High Courts cannot decline jurisdiction on discretionary or policy grounds. It rejects attempts by lower courts to restructure litigation pathways in the name of access to justice without legislative mandate, reinforcing separation of powers and legal certainty in forum selection.