Judge Murray Kellam from Australia delivered the keynote address Delivering Justice – International Trends in Civil Justice. Francis Antonie, Director of the HSF, chaired the Symposium. Professor Laurence Boulle, Professor Cathi Albertyn, Advocate Nazeer Cassim and Judge Dennis Davis were panellists in the discussion.
Judge Kellam presented his paper on civil court reform measures which have been implemented in the Australian justice system and highlighted their positive impact on the delivery of justice throughout the Australian justice system. The general nature of some of these reforms, he said, could provide precedence in a number of other jurisdictions around the world. He cited the United Kingdom as an example where Australian reform initiatives had informed the Woolf Reforms.
For Judge Kellam, the rule of law requires fair and just resolution of disputes through a fair but swift process (involving court and case management) at a reasonable expense. Delay and excessive expense, he said, negates the value of an otherwise just resolution, and systemic delay and expense will render the system inaccessible. He pointed out that the public must have confidence in not only the outcomes, but also the processes of the litigation. It was for this reason, he said, that South Africa’s litigation processes must be reviewed continuously, and refined as necessary.
Judge Kellam did acknowledge that in certain instances, court management added to the cost of litigation, but he went on to argue that in order for case management reform to be effective, there had to be a change in the culture of the parties involved, legal practitioners, and the judiciary. The key to achieving the desired results, he said, would be to identify the real issues at an early stage of the process.
Judge Kellam highlighted a range of other civil justice reforms in Australia relating to the discovery process (to reduce excessive reading of documentation), and to expert evidence (to counter misuse of expert witnesses). These reforms he said were a means of changing the very process of litigation in order to better deliver just outcomes to the parties involved in dispute.
The judge also spoke about alternative dispute resolution or ADR, that has become a statutory means for courts to resolve matters. Australian courts are able to order the mediation of a matter without the consent of the parties. Inputs from the panel Prof. Laurence Boulle
Lawrence Boulle said that the ‘meta-principle’ for judicial reform had to keep the ‘patient alive and well’ with the patient being Justice. To do this, he said, litigation has to be modified and transformed through comprehensive management that involves parties and the legal profession. Boulle spoke of the "hollowing out of the hearing process", to the point where it diminishes and sometimes even vanishes. Much of the legitimising theory for this transformation, he said, has emerged through the alternative dispute resolution movement. Key aspects would include a drive for more efficiency of performance throughout the system; a constitutional right to justice; the ‘de-legalisation’ of disputes and introducing a sense of self-determination. The demand side of the transformation process Boulle said tends to be much weaker than the supply side with professionals being reluctant to buy into the process and accepting non-legal solutions to disputes. The important thing therefore is to be able to change attitudes and cultures and facilitate an evolution into new ways of thinking. Central therefore to the process of moving from vested interests to new procedures Boulle concluded would be the running of pilot projects that would include the development of new administrative rules. Judge Dennis Davis
Judge Davis was forthright in his view that after 16 years of constitutional democracy, the legal culture in South Africa had remained unchanged. Taken as a given, that changes to the legal culture were imperative to accomodate the country’s diverse population in the 21st century, what these changes would be, remained to be understood. Picking up on Judge Kellam’s comments, Davis said that both the London Bar and the British courts acting as a barometer for standards in South Africa, would need thinking and debate, as well as the idea of adapting the Australian experience for South Africa. The demands of both countries he felt were different. Davis highlighted an example of the poverty of the current system: The counterproductive legal strategy adopted in litigation, which he described as the ‘Stalingrad process’ of litigation. Here, he said, the key motivator was to keep going as long as possible no matter what the cost, so cases would not be resolved. He cited competition law as a typical example of this.
Other examples cited were: The intervention of judges in case management at pre-trial as laid out in Rule 37 which simply does not happen - Rule 37 is in place to bring the judge actively into the adminstrative process, but it is not used; no serious conversations were being held on how to appoint judges. The paucity of discussion in this area he said was problematic for if as a country, we aspired to be global players, gathering expertise in the courts around intellectual property and copyright law (as opposed to in Chambers), was crucial.
| On the subject of ADR Davis was of the opinion that the country had a vibrant dispute resolution sector in labour law, nonetheless he felt it was tragic that this process was being used to resolve cases that should really be heard in the courts, in order to help develop precedence.
Moving to the subject of vernacular law, Davis said that for the vast majority of South Africans it was this law that had the most meaning. For this reason, he said, the question must be, how vernacular law can be regenerated so that it becomes a lived system and not a tool of populist politics? He was supportive of Judge Ngcobo’s finding recently where he said a case was to be sent back to the rural traditonal courts. Davis was of the opinion that this precedent needs to be developed further because it is precisely in vernacular law that the majority of South Africans find themselves dealing with their issues. Advocate Nazeer Cassim Nazeer Cassim stated strongly that the Justice System and the civil process in particular had failed South Africa and there was no longer respect for law and order in the country. Cassim cautioned against comparing the South African system of justice to other countries because the bulk of the South African population does not have the same access to education as other societies. Although the Woolf Report might have effected immense improvement in the United Kingdom, in South Africa the realities of South Africa are such that the majority of the population cannot afford the exorbitant legal fees to access the justice system. In contrast he continued, big business used the courts strategically and according to their own agendas. Such is the power of this sector, Cassim said, that the judges are fearful of tackling cases and being criticised by the Supreme Court of Appeal. The infrastructure problems; human resource problems (6000 advocates serving 40 million people); and exorbitant fees (a senior advocate will charge about R35 000 a day) are key ingredients for the failure of the system. The future for justice, he said, would be to move away from the current system that is rooted in the past and find other methods and interventionist approaches. In sum this would mean changing the mindset of the entire body of players (judges, administrators, advocates, attorneys, citizens) involved in the process.
Prof. Cathi Albertyn
Cathi Albertyn framed her introductory remarks in the form of questions: Do people think that courts are a place to resolve disputes? Are courts the appropriate place to resolve disputes? Are courts physically, geographically and cost effectively accessible to the people? Are South Africans receiving just outcomes from the courts? What can other jurisdictions do to make justice quicker and fairer? Are South Africans receiving quality services from the legal profession and are South Africans getting fair decisions from legal professionals? In support of Cassim’s stance, Albertyn took the argument further by saying that the majority of poor people (who have little ability to access courts) are more often than not unable to challenge unfair administration procedures that can turn their lives from a living hell to something akin to tolerable. The importance therefore of having institutions in place that are equipped to deal with unrepresented parties (she cited the CCMA as one example) is critical to meet the rights of all citizens. The glaring insufficiency of institutions and institutional arrangements in South Africa she said meant that this right is far from being realised. Furthermore, she added that legal aid board resources were scarce. What it did dispense was a disproportionate amount of resources to the criminal process. Civil law therefore is not seen as a priority. The pro bono system put in place provides a small light in the darkness, (setting aside a number of hours per week for law firms to provide their services). At present, these services were only ‘skimming the surface’ of real need in society.
Albertyn warned against a current move to take dispute resolution away from traditional courts (the customary system) that has been a meaningful alternative for vulnerable and marginalised South Africans unable to access higher dispute resolution.
She also pointed out that women’s interaction with the justice system, often through the maintenance courts, is highly unsatisfactory resulting in unjust outcomes. Research into the lower courts has shown that much more focus will have to be put on magistrates’ courts.
In concluding, Albertyn raised the point of a biased society – who are we putting in as presiding officers, what training are they getting and to which part of society are they delivering justice to?
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