Justice is as vital as air, and South Africa is running out - Paul Hoffman

Key topics:SA’s justice system is crumbling under delays and underfundingState capture and corruption still plague criminal prosecutionsCivil trial backlogs stretch to 2031, straining access to justice.Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..By Paul Hoffman*“Justice is not a luxury, it is something we need like air and clean water”.The author of the quote is Vera Jourova, a Czech lawyer and politician, who until 2024 was the European Commission vice chair responsible for overseeing the rule of law for the EU. She feels it is more important than ever to fund justice systems properly, so they can maintain public confidence – not least given the threats to democracy in many European countries. She is quoted by the Financial Times of London in a recent article headed “Broken Justice: how Europe let its courts decay”. The theme of the article resonates with those who work, litigate in and rely on the functionality of the courts in SA. The statistics quoted by the FT also reveal a dire situation in the courts of England and Wales, where the crown court backlog has almost doubled since the fourth quarter of 2019. Indeed, the rule of law is taking strain around the world when it comes to dispensing justice in the civil and criminal courts of the countries that are willing to be studied.The World Justice Project keeps a “Rule of Law Index” to monitor the state of the rule of law around the world. For SA: the 2024 ranking is 57th out of 142 countries in which statistics are extracted. Our overall scores have declined since 2020, which reveals a failure of the renewal project of the Ramaphosa administration as regards the rule of law in SA. Countries in Scandinavia, Western Europe and the Commonwealth of Nations that were part of the British Empire dominate the high rankings in the Index.Specifically on access to justice in the civil and criminal courts, the scores of SA are revelatory. As regards civil justice, SA ranks 50th, while for criminal justice the ranking is 55th. The “Absence of Corruption” factor is measured at 0.46, which places us 69th in the world and 7th from bottom in our regional ranking in Africa.The way in which access to civil and criminal justice is measured for the purposes of the WJP Rule of Law Index is, quoting from the index itself:“Civil JusticeFactor 7 of the WJP Rule of Law Index measures whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system. It measures whether civil justice systems are accessible and affordable as well as free of discrimination, corruption, and improper influence by public officials. It examines whether court proceedings are conducted without unreasonable delays and whether decisions are enforced effectively. It also measures the accessibility, impartiality, and effectiveness of alternative dispute resolution mechanisms.”Read more:.Court slams brakes on VAT hike after DA, EFF win legal battle.“Criminal JusticeFactor 8 of the WJP Rule of Law Index evaluates a country’s criminal justice system. An effective criminal justice system is a key aspect of the rule of law, as it constitutes the conventional mechanism to redress grievances and bring action against individuals for offences against society. An assessment of the delivery of criminal justice should take into consideration the entire system, including the police, lawyers, prosecutors, judges, and prison officers.”The effect of systemic corruption stemming from the state capture conspiracies in SA plays a major role in depressing the scores obtained by the researchers who compile the Index. The Zondo Commission of Inquiry brought into sharp relief the levels of corruption and the inability of the criminal justice system to cope with serious corruption. State capture is ongoing, in the opinion of Paul Pretorius SC who was the main evidence leader during the hearings of the Commission. The hearings spanned some 400 days and involved the evidence of around 300 witnesses. The Commission found that 97 senior members of the then dominant political party, the ANC, ought to face investigation on account of criminal charges. Fewer than a handful have, despite the admission by the President during his evidence in the Commission that the ANC is “accused number one” when it comes to state capture. Dysfunction in the investigative and prosecutorial functions of the state have bedeviled all efforts to bring those involved in state capture to justice. Significantly, the looting resulting from state capture exceeds a trillion rand. However, by December 2023, more than a year after the report of the Commission was published, only approximately R10 billion had been recovered by the limping criminal justice administration, mainly from businesses that were willing to return their ill-gotten gains.Gangsterism, extortion, gender-based violence, kidnapping and all manner of other violent crime are rife in SA.On the civil litigation side, half of the bigger cases pending countrywide fall within the jurisdiction of the Gauteng High Court, which sits in Johannesburg and Pretoria. The judge president, Dunstan Mlambo, has introduced a new system of compulsory mediation to relieve the pressure on his courts. He points out that:The last occasion the Judicial establishment of the Gauteng Division of the High Court was increased was in 2008, yet the caseload of the Division continued to rise and has now reached unmanageable levels. The state of the Civil Trial rolls, in particular, is a source of serious concern. Civil Trial dates in the Division are currently issued as far ahead as 2031 i.e. seven years in the future. This state of affairs is self-evidently unacceptable and intolerable. The right of access to Courts, as guaranteed in section 34 of the Constitution, is not capable of being properly honoured by such lead-time for dates of hearing. It would be irresponsible for me as the Head of the Gauteng Division to ignore this situation and not develop and initiate appropriate means in an effort to address and overcome the problem. Accordingly, to ensure access to justice and to the Courts, as well as to fulfil the objective of providing an effective litigation service within reasonable timelines, revision of Court processes must be made. It is critical to ensure that cases that genuinely deserve the attention of a Judge are able to be timeously heard. Moreover, it is critical that cases that do not reasonably require a Judge to resolve the parties’ dispute do not clog up the Court roll and consume precious Court time. Currently the majority of cases on the Civil Trial roll are capable of resolution through mediation, settlement and other alternative dispute resolution means. These are the cases that take up a sizeable portion of the Civil Trial roll and inevitably cause deserving cases to wait for inordinately long periods for a hearing. The statistics of cases accommodated on the Civil Trial roll of this Division evince that 85% of them are settled on the morning of the trial date. These are matters where the parties had obtained trial dates two to three years before. Furthermore, a sizeable number of cases per week are dealt with in the Default Judgement and Settlement rolls of the Division.” Read more:.Sakeliga takes CR & Cabinet to court to halt destabilisation from failing municipalities….The innovation introduced by the judge president has not been universally welcomed and is the subject matter of an application challenging its constitutionality, in which the applicant seeks direct access to the Constitutional Court in the interests of justice. Dan Mafora of CASAC doubts the constitutionality of making mediation compulsory: Others are not so negative about the idea. Besides the failure of government to appoint more judges to keep pace with the increase in litigious activity, both civil and criminal, the productivity of the courts is waning due to failures of service delivery in matters as mundane as electricity supply, availability of potable water, operational air-conditioning, functional libraries and computers, suitable back-up staff, sanitation that works, maintenance of buildings and the like. Lower courts sit for as little as an hour and a half per day on average. Cases are struck off the roll for want of proper preparation, or because the justice department has not secured the services of an interpreter. The use of AI or remotely located interpreters via an electronic link have not been tried.The law requires that the public administration must promote the efficient, economic and effective use of resources. These values and principles, laid down in Section 195 of the Constitution, are conspicuous by their absence in the courts and justice administration of SA. Lack of funds is no excuse; functioning courts would enable the state to claw back a great deal of the loot acquired through state capture and other corrupt activities. Government has neither respected the rule of law nor taken appropriate steps to enforce properly the “Glenister case” decision of the Constitutional Court, which found that dealing with corruption should be the work of a single body outside executive control. No such body exists. Until it does, the misappropriation stemming from corruption with impunity with continue. Air and clean water will be in short supply..Paul Hoffman SC,* a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt..This article was first published by Daily Friend and is republished with permission

Justice is as vital as air, and South Africa is running out - Paul Hoffman

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