A previous article under the heading “Is Lady Justice wavering?” caused quite a stir.
The article referred to a statement by the well-known economist Dawie Roodt who claims that the element of control characterises present-day State practices.
In the Judicial system the factual situation is that practice directives and the case management system in particular, have in many ways eroded the rights of legal practitioners to conduct civil litigation at their own pace and discretion. These measures have also resulted in delays, escalation of costs and a general breakdown of the system that has become intolerable.
Case management has eroded the principle of the Plaintiff being dominis litis. It has drawn the court and the judge into the realm of the attorney-and-client relationship and the administrative system. Other measures, specifically in the Mpumalanga High Court, to the effect that parties cannot postpone a matter sine die, and that parties are not permitted to settle on the day of the trial, have had a very negative impact on our legal practices and judicial management. These measures have proven to be a disaster in practice. How does one explain to a client, who suddenly, on the trial date develops an urge to settle, that it involves major ramifications?
Let’s get to the facts – a few examples serve to illustrate the disastrous effect of these measures.
A client instructs a firm to institute a claim against the Road Accident Fund. When summons is eventually served, the Fund fails to defend the matter, as it often does. In terms of the Practice Directives, the matter cannot merely be set down on the unopposed roll for default judgment. Now the matter has to be case managed. Have you ever tried case managing a matter with the Road Accident Fund who is not interested in defending the matter in the first place? Eventually the matter is heard on the case management roll after a pre-trial conference had to be held – believe it or not – with a defendant that is not defending the matter! At the case management in court the presiding judge orders the defendant to enter an appearance to defend. The Fund duly defends the matter, fails to plead and is barred. So now we are back to square one, 2 years down the line. The client has suffered a grave injustice at the hands of the very system that should serve her.
A practice has developed since Covid to hear matters via Zoom and Teams. So-called “virtual hearings”. Practitioners are not permitted to return to court (with exceptions), despite Covid being long gone. There may be various reasons for this, however, lets rather not speculate. Virtual hearings pose various problems. Half the time “in court” is spent on signal disruptions, “I can’t hear you”, “put off your mike”, “put on your mike”, “we can’t see you”, “there is a disturbance on the line”; “sorry as a result of load shedding, we have no signal”. In the mean time clients are paying for these “appearances”.
A further disturbing development is the hearing by judges of matters in chambers without any appearances. On one occasion an appeal was struck off the roll for some administrative issue without the parties being afforded a hearing. The innocent party was deprived of its costs. In some instances practitioners are surprised to learn on the morning of the appearance that the matter “has been dealt with in chambers”. Can the practitioner charge a fee? This is an obvious disregard of the audi alteram partem rule. One doubts whether hearings in chambers are even constitutional. Are virtual hearings, as a permanent practice absent Covid or some other disaster, even constitutional?
A correspondent insists that counsel be briefed for case management. Counsel’s account for the 5 minutes in court and a little preparation is R50 000,00. Counsel argues that he was reserved for the day – justifiably, perhaps. Even so, those who claim that case management curbs costs, must think again.
A careful reading of rule 37 indicates that the draughtsmen intended case management to apply only to designated “categories” of actions, rather than as a blanket requirement for all cases. If all proceedings were intended, one might as well have abolished the rules that specifically deal with time-frames. Apart from all the delays it causes, it invariably requires additional appearances and thus additional costs. How anyone can argue that it curbs costs, boggles the mind. Whilst certain aspects of the rule, such as certification for trial readiness, does serve a purpose, the “blanket” interpretation of the rule needs to be addressed.
At the core of these “reforms” is the notion that the courts have a duty to protect the public against abuse by legal practitioners and to manage case flows. Cases must be “driven” by the courts to completion. The filing system must be monitored to ensure that no cases “stand still”. Why? Does it matter? Is this the task of our courts? And even so, is this the way to do it? I doubt it.
And so the stories continue. Hair raising stuff. The legal fraternity cannot endure this situation any longer. Ironically, our President last night called on his fellow South Africans to help to solve the countries’ problems. Problems he and his band of brothers have caused. Now we, the tax battered public, must help him. Whilst his call and his talk of a wonderful new power dispensation is the accustomed rhetoric mumbo jumbo, it at least pays lip service to a willingness to listen.
Mr President, can we start our contribution of assistance to the judiciary leg of the State, by suggesting that we return, not only to court but to the tried and tested judicial system of the past hundred years that has worked very well. Maybe then we will get a smile from Lady Justice.
English 
Afrikaans