The Pretoria Society of Advocates and Pretoria Attorneys Association have initiated a legal challenge to review and set aside justice minister Mmamoloko Kubayi’s decision limiting areas under the jurisdiction of the high court in Pretoria.The department of justice & constitutional development in a recent Government Gazette, signed by Kubayi, made changes to areas falling under high court jurisdictions in different provinces, effective from July.The notice ended the concurrent jurisdiction for the Johannesburg and Pretoria high courts regime which means the high courts now have defined geographical area of jurisdiction. Kubayi now faces a legal showdown for curtailing the Pretoria high court’s province-wide jurisdiction to only Tshwane areas. Litigants before the change could bring any Gauteng matter regardless of whether the cause of action arose in Johannesburg, Ekurhuleni, Sedibeng or the West Rand before the high court in Pretoria. They now have to toe the line and institute litigation in the specified jurisdiction or face the financial costs of litigating at a wrong court. Advocate Coreth Naudé, chair of the Pretoria Society of Advocates, in court papers argues the provision of the Superior Courts Act that Kubayi relied on to make the change does not empower the minister to determine the area under jurisdiction of a main seat.The minister acted beyond her powers, she argues.“There is no provision in section 6 (3) or anywhere else in the Superior Courts Act empowering the minister to determine the area under the jurisdiction of a ‘main seat’ as a distinct exercise of power,” Naudé says. Pretoria is the main seat for Gauteng.The litigation is mainly focused on setting aside Kubayi’s decision, which confines the Pretoria high court exclusively to the Tshwane district. Naudé contends the move collapses the longstanding ability of Pretoria-based advocates to appear in matters arising throughout Gauteng in the Pretoria high court. The applicants seek for the matter to be considered on an urgent basis by the court, Naudé says, and the decision by the minister currently being implemented creates “ongoing legal uncertainty” adding that “thousands of pending matters in the Gauteng division are potentially affected”.“The scale of the disruption is not speculative; it is a necessary consequence of abruptly abolishing concurrent jurisdiction across the busiest division in the country with a transitional provision that protects only a fraction of pending work.”The Pretoria and Johannesburg high courts are described as the busiest courts in the country due to caseload and having more judges on the bench compared with other provinces.Though the notice provides protection to matters placed on the court roll for trial, Naudé maintains that it did not necessarily cover matters in motion, urgent and other court rolls not yet on trial and could affect “thousands” of pending proceedings. “Every court day that passes under the exclusive jurisdiction regime causes irreversible prejudice in the form of lost forum choice, disrupted proceedings, and the forced transfer or reinstitution of matters,” she says. Snapshot of the Government notice announcing areas under high court jurisdictions. (Government Gaze) “The right of access to courts under section 34 and the constitutional duty to protect the accessibility and effectiveness of the courts under section 165(4) are being impaired daily.” The concurrent jurisdiction, which gives the high court province-wide jurisdiction, that existed under the previous regime was not abolished by the Superior Courts Act, Naudé argues, adding that the minister has no power to abolish that concurrent jurisdiction by notice; legislative intervention by parliament would be required. “Decisions of this magnitude, affecting the daily functioning of the busiest division in the country, cannot lawfully be taken by the executive acting unilaterally or after merely formal consultation.”Kubayi has a positive constitutional obligation under section 165(4) of the constitution to protect courts’ accessibility. Naudé contends the jurisdiction changes in Gauteng “does the opposite”.“It diminishes accessibility, undermines effectiveness and was arrived at through a process that failed to respect the institutional independence of the courts. It is inconsistent with sections 165(2), (3) and (4) of the constitution.” Kubayi in the notice details the jurisdiction change was made after consultation with the Judicial Service Commission (JSC). The Pretoria Society of Advocates has asked for a paper trail of the consultation to be placed on the court record to prove the decision was made after consultation. Naudé says the effect of the decision means the local seat (Johannesburg) has a far larger geographic area of jurisdiction than the main seat and undermines the institutional coherence and effectiveness of the Gauteng division. “The division’s most senior court is reduced to a residual local role while the local seat asserts the dominant geographic and commercial jurisdiction.” Confining Pretoria to Tshwane, Naudé says, also risks underutilising the judges and infrastructure of the Pretoria seat while overburdening Johannesburg, which already has a heavy caseload, sometimes described by judges as a “nightmare”.The Pretoria high court now has jurisdiction over the Tshwane magisterial district, Atteridgeville, Bronkhorstspruit, Cullinan, Ekangala, Mamelodi, Moretele, Ga-Rankuwa, Pretoria North and Soshanguve districts. Snapshot of the department of justice government gazette on jurisdictions of courts. (Government Gazette ) Johannesburg jurisdiction covers Ekurhuleni magisterial district; Palm Ridge and Benoni, Boksburg, Brakpan, Daveyton, Germiston, Kempton Park, Nigel, Springs, Tembisa and Tsakane sub-districts. The Johannesburg district; Johannesburg and Alexandra, Booysens, Lenasia, Randburg, Roodepoort and Soweto sub-districts. The Sedibeng magisterial district; Vereeniging and Lesedi (Heidelberg), Midvaal Meyerton, Sebokeng and Vanderbijlpark sub-districts. The West Rand district; Krugersdorp and Fochville, Kagiso, (Merafong) Oberholzer, Randfontein and Westonaria sub-districts. Justice ministry spokesperson Palesa Rammitlwa told Business Day the minister was studying the court papers and would take legal advise on the issues raised in the court papers. The challenge by the Pretoria legal practitioners marks a second litigation attacking Kubayi’s signed notice. The first legal challenge was initiated by Madibeng Attorneys’ Association in the North West. Business Day