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Wheels of justice – slow or fast?

Online since 2.11.2015 • Filed under Advertorial • From Issue 16 page(s) 59
Wheels of justice – slow or fast?

Since time immemorial a litigant is often heard saying: ‘The wheels of justice grind very slowly forward’. Respected property legal specialist and practicing advocate at the Cape Bar, Advocate Bryan C Hack, writes for TO BUILD on this topic.

During breaks, litigants have often been heard sharing tales of court cases taking years to complete. This is normally accompanied with an incredulous, and oft-repeated question, ‘why’? The explanation is relatively simple. I speak with specific reference to the Western Cape Division of the High Court in sharing this view. When the court opens at the beginning of the year, new matters are given a numerical sequence starting with 001. On average at the end of every year, that number has climbed to approximately 25 000 – in other words, every year an average of 25 000 new cases are brought to the Western Cape High Court. The Department of Justice provides approximately 36 to 38 judges. Assuming that 50% of them are dealing with criminal and not civil matters, this leaves around 18 judges to hear with civil matters. Fridays are set aside to deal with appeals from the lower courts or appeals to two or three judges from a single judge of the High Court. Therefore, the 25 000 new matters every year have to be processed in four days of the week by 15 or 16 judges. The mathematics explains why there’s an ever increasing backlog. A number of matters will be settled or withdrawn. Nevertheless the vast volume of disputes that come to the High Court in the Western Cape, and in all other divisions in South Africa, is substantial. And many run for several days before a judge.

Rules and processes

A further complaint, sometimes justifiable, is that there are multiple rules that have to be adhered to prior to the matter coming before a judge. These include the process of discovery of relevant documents, requests between the parties for further information, and the exchange of documents regarding the evidence of experts that will be called. Cases concerning building disputes seem to be greatly at risk of being delayed because of these rules. In recent year, the Western Cape Division has introduced a case management process where judges are given the files in cases that are still in the preparation stage so as to assist, guide and, where necessary, direct the parties to comply with the rules. The introduction of this case management system has caused a significant reduction in the time delay between the original issuing of summons and the date at which a matter can be declared trial ready. After a matter has been declared trial ready, it is only a few months before a final date is given. In recent years, it is reasonable to say that if the parties and, more specifically, their legal representatives cooperate with the case management judge, the wheels of justice have significantly picked up speed. Additionally, the alternative dispute resolution proceedings have also flourished. Increasingly in building matters, parties are choosing to follow mediation and/or arbitration proceedings. The state is also intervening in the form of legislation to encourage the resolution of disputes extra curial (ie outside of the courts) and by these means. If parties are prepared to embrace alternative dispute resolution and give it the necessary status, it can significantly speed up the time in which disputes are settled. In the spirit of the theme of this addition, I am happy to report that the wheels of justice are speeding up.

 

Adv BC Hack

E hack@capebar.co.za

Issue 16

Issue 16

November 2015

This article was featured on page 59 of
To Build Magazine Issue 16.

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