Judiciously speeding up legal action – Chuck Stephens

The struggles of the South African judiciary are well-documented. Many cases in South Africa are postponed time after time, with criminals only having their day in court years after the alleged crime has taken place. Chuck Stephens of the Desmond Tutu Centre for Leadership wonders how it can be sped up. He notes that currently, there are less than 300 judges serving in courtrooms across the country. ‘Currently there is a recruiting process going on to fill almost 100 vacancies. That’s a 25% increase! How did the number of judges droop so low?” Stephens remarks that he himself is involved in a court case that has been dragged on for five years. He writes, “The Magistrates Guidelines indicate that civil cases should take about nine months. But no amount of complaining to the Department of Justice or to the Magistrates Commission speeds things up.” The solution for these delay tactics? Bring ‘Batho Pele’ into the courtroom, says Stephens. “Every bench in South Africa should be given an egg-timer. Let’s bring Batho Pele into the court rooms. No one is above the law – not even the judges.” – Jarryd Neves

By Chuck Stephens* 

There is good reason to keep the functions of investigation and prosecution apart. But not too far apart, as the NPA found out. Having Hermione Cronje nearby to Shamila Batohi has helped to speed up some unreasonable delays, and to improve the NPA’s batting average.

But on the whole, the Judiciary’s track record is unacceptably slow. Judge Hlope knows the ropes and used them to slow down the investigation into his misconduct. It took twelve years for the JSC to nail him!

Jacob Zuma’s trial is starting soon. We hope. Maybe next month? But fifteen years on, one has to wonder if the delays were only from political interference?  Or is the Judiciary once again moving too slow? What can be done to speed it up?

There are less than 300 judges in South Africa. Currently there is a recruiting process going on to fill almost 100 vacancies. That’s a 25 percent increase! How did the number of judges droop so low? Isn’t there a faster way to fill vacancies? Demand has surpassed supply, slowing down service delivery.

What about using more ADR (alternative dispute resolution)? Maybe courts should really be the last resort? Unless at least one or more ADR structures have been utilised, the courts should turn cases away. The problem is that entities like the Public Protector turn away more cases than they take on. So even with ombuds services and Section 9 institutions, the courts get clogged.

There are always three factors to keep your eye on – quality, time and cost. As far as I can tell, the courts do not think very long about the cost factors, they just keep punting cases from one level to the next. Appeals are too frequent. Yes, they can be declined if there is no reasonable prospect of success, but meanwhile the winners are delayed in seeing justice prevail.

Quality is the big factor. The courts want to keep their sterling reputation intact. They cannot risk being accused of poor decisions. Yet this could be feeding the unreasonable delays.

Have you ever watch a chess match? Sometimes they have an egg-timer on the table. You make your move, then turn it over. Your opponent has to make his move before time is up. And so forth. This speeds up the game. The time factor is included with the quality factor. The Judiciary needs to introduce stiffer time regulations.

I am involved in a civil case that has been sub judice for almost five years in a Magistrates Court! The Magistrates Guidelines indicate that civil cases should take about nine months. But no amount of complaining to the Department of Justice or to the Magistrates Commission speeds things up.  If anything, it is the opposite.  The clerks and the attorneys know how the game is played and they can keep “ball possession” so long that they run out the clock.  This abuses the Judiciary. It is a miscarriage of justice.

Batho Pele states:

Service Standards – citizens should be told what level and quality of public services they will receive so that they are aware of what to expect.

My experience is that the Judiciary is quite unpredictable. For example, the Magistrates Manual says one thing – but reality is quite another thing.

Judicial overreach erodes the quality of court decisions. It adds to costs because it generates appeals by the lack of balance in any given decision. (Remember, justice is usually represented by a scales.) When one side loses too badly, they will appeal.

Then there is judicial overrun. Judges get lost in the quality factor to the extent that they lose track of the time. In many cases, delays are as bad as – or worse than – losing a case.

Maybe this chess game of Justice should be played with an egg-timer on the table? Magistrates must hand down a decision within one month, regional courts within two months, high courts within three months, and supreme or apex courts within four months. Or throw it away. Discard it.

That will waste a lot of money, as costs of running the courts will be wasted. But right now, the courts are wasting the time and money of its clients. Shouldn’t this run both ways?

This sounds harsh, but the problem is – in this race to the bottom – that lawyers abuse the justice system.  They know that they can count on delays.  So they take on far more clients and cases than are humanly possibly for one attorney to cope with. Their desks pile up to the ceiling with open files. They actually play for time; it gets fatalistic and even cynical. For example, once they get a case going, they can demand progress payments from clients who took them on expecting results.  But the judiciary no longer delivers results. It is all and only about activities.

In one case, we were given a pre-trial date by the Magistrates Court in February 2018. Our attorney rocked up only to find that the court had failed to notify the attorney on the opposite side. Of course we still had to pay for our attorneys time and travel. So the court set another date – in November 2018. Nine months wait just to reach pre-trial!  The Magistrates Manual says that whole civil cases should be completed in that time frame.

Then guess what? The day before that November pre-trial, the opposing attorney called our attorney and said he was double booked. Could we re-schedule? So it was punted again – to July 2019. The case finally arrived at trial in February 2021. These delays were both unreasonable and contrived.  The lawyers just shrug and say that’s the way it is.  It gives them more time, after all, to demand further progress payments.

Then when the client loses hope and maybe emigrates (gatvol), the lawyers sit on this gold-mine. In due course, they reap the harvest. The Judiciary takes care of its own. By the time that the fruit ripens, the farmers will have long since retired. So the benefits accrue to the law firm. Some lawyers must see this as a second retirement plan – so why would they want to speed it up?

Every bench in South Africa should be given an egg-timer. Let’s bring Batho Pele into the court rooms. No one is above the law – not even the judges.

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