Story audio is generated using AI
Minister Mmamoloko Kubayi acted “capriciously” in removing Madibeng in the North West from the jurisdiction of the high court in Pretoria and the move will negatively affect litigants’ right to access court, an attorneys’ association argues in court papers. Madibeng Attorneys’ Association, a group of legal practitioners from the district, which is located on the boundary that separates the North West and Gauteng, have taken Kubayi to court seeking to review and set aside a recent decision to place the district in the jurisdiction of the Mahikeng high court and no longer under Pretoria. The association contends residents’ right to access courts will be negatively affected by the decision, which now forces them to litigate in Mahikeng, located about 260km from Brits (Madibeng) instead of Pretoria, which is 51km away. “Mahikeng is approximately 262km away and the estimated journey takes three hours and 15 minutes. The notice [by Kubayi] therefore replaces the existing route to the high court with a travelling distance more than five times as great,” association representative Cornelus Lourens argued in an affidavit before the Pretoria high court. Kubayi published the contested notice detailing changes to areas falling under jurisdiction of high courts last month. Lourens said the change by Kubayi placing Madibeng in the jurisdiction of Mahikeng will affect attendance at hearings and trials, consultations associated with them, the transport of witnesses, and the time and expense borne by litigants and practitioners. Madibeng has been under the Pretoria high court jurisdiction for years, but the government notice changed that from July 1. Lourens argues Kubayi acted contrary to the recommendations of the committee that looked into high courts’ jurisdiction and matters of access to courts in the country. The committee was chaired by retired justice Dikgang Moseneke.The Moseneke report recommended that the Pretoria high court continue to exercise jurisdiction over Madibeng until a local seat of the North West Division was established at Rustenburg. Lourens argued that though the report was a recommendation, Kubayi departed from its findings without advancing any reasonable grounds. “The applicant accordingly contends that the Madibeng determination was taken arbitrarily or capriciously and is reviewable under section 6(2)(e)(vi) of Paja,” he said, referring to the Promotion of Administrative Justice Act.Madibeng lies geographically within the North West province. Lourens, however, contended that that fact does not by itself determine the division of the high court under whose jurisdiction it falls. “Section 6(3)(b) of the Superior Courts Act permits a division’s area of jurisdiction to comprise any part of one or more provinces.”He argued the application does not seek to permanently place Madibeng in the Pretoria high court jurisdiction but only temporarily until the establishment of a high court in Rustenburg. “The notice does not explain why the minister departed from the committee’s Madibeng recommendation, or why it retained Ga-Rankuwa and Moretele within Pretoria’s jurisdiction while transferring Madibeng before a Rustenburg local seat existed,” he said. “The notice affects the practical accessibility of the high court and the orderly administration of justice throughout the district.”The minister is yet to file an answering affidavit.The case has been set for hearing on September 1. Business Day
