AYANDA KHUMALO, GARTH DUNCAN AND LES MORISON: Simplifying to save Gauteng’s judicial system
The under-resourcing of the judiciary has reached crisis proportions
05 November 2024 - 05:00
byAyanda Khumalo, Garth Duncan and Les Morison
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SA’s constitution leaves no room for ambiguity: every person has the right to have any dispute that can be resolved by the application of law adjudicated in a fair and public hearing before a court, or where appropriate an independent tribunal or forum.
This right is not merely a procedural safeguard but a core principle enshrined in our constitutional framework. In a country where historically the majority was systematically denied access to justice under a regime that prioritised parliamentary sovereignty to entrench racial oppression, the constitution’s commitment to access to courts stands as a pivotal corrective measure.
But this core principle is difficult to reconcile with reality: despite the efforts of a dedicated leadership in the Gauteng division of the high court, matters on the civil trial court roll are being set down for 2027. And that’s not the worst of it. After finally getting your day in court you could wait months, or even years, for a judgment from an overworked, under-resourced judge who’s had to juggle hundreds (if not thousands) of other cases alongside yours. The under-resourcing of the judiciary has reached crisis proportions.
Several solutions have been proposed to alleviate the strain on Gauteng’s overburdened judiciary: specialised courts, alternative dispute resolution — in particular mediation — and Court Online (the judiciary’s e-filing and digital case management system). While these solutions all have their place, the fact remains that our judiciary is starved by chronic underfunding and limited resources.
In this context we believe solutions could lie in practical, cost-effective and simple measures to harness the capacity of courts in less burdened jurisdictions.
Jurisdiction
The first leg to the solution entails voluntary change of jurisdiction. Parties should be given the opportunity to litigate in a different yet still competent division of the high court, where that court roll may not be as burdened as Johannesburg or Pretoria.
Admittedly, this would not be without its challenges. Under our legal framework courts typically only have jurisdiction over people residing in, and causes arising within, their area of jurisdiction. Legislative amendment would be required to extend or confer jurisdiction to all high courts over all causes and defendants in SA.
However, where the parties consent they should be permitted to litigate in other divisions of the high court or move their cases to other high courts. While this may seem daunting, particularly given the financial strain such a move could impose on litigants, it may well be worth the trade-off — especially for well-resourced litigants, particularly large corporates.
Waiting years for a hearing could have far more severe economic consequences than footing the expense for a quicker resolution in another division. As an immediate measure, parties should strongly consider the addition of terms in new agreements, alternatively amending terms in existing agreements, so that courts can assume jurisdiction where they would otherwise not have jurisdiction. This solution should facilitate litigation before a court that can accommodate the dispute within the shortest time frame.
While critics may argue that this solution benefits only the wealthiest litigants — those who can afford to shift their lawyers around the country — its true aim is to alleviate pressure on the Johannesburg and Pretoria high courts. Diverting cases away from the Johannesburg and Pretoria high courts would indirectly benefit all litigants, especially those who cannot afford to shift their cases and must endure long waiting periods.
If parties that can voluntarily move their cases do so, the court’s dockets could be cleared faster, allowing indigent and average-income litigants to access justice more swiftly. This would create room for those most in need, improving, if not ensuring that access to justice is not a privilege but a reality for all, regardless of income.
This idea could even be taken further, by the establishment of an assignment portal that would assign matters, regardless of the jurisdiction of a defendant, to a court with the requisite capacity to hear them. This would necessitate a change in legislation and applicable norms and rules, but would have the effect of redistributing the burden on our court rolls and preventing the abuse by recalcitrant litigants of lengthy court delays.
Matters on motion
The second leg to the solution entails changing the rules to enable all matters to commence on motion, that is adjudicated on the papers rather than in a trial. Motions that run into disputes of fact could then be referred to evidence by the court on specific issues on which narrow discovery should be ordered. There would ideally be a prioritisation of simply drafted shorter motions.
That is not to say that our system should ignore or punish complexity. It would be hard to dispute that our courts are now confronted with constitutional matters, sophisticated commercial disputes and social justice issues that require detailed, comprehensive legal reasoning. We should embrace a system that prioritises and rewards concise, focused papers.
By starting all matters on motion, litigants will be incentivised to front-load their matters, get their witnesses deposed early on, procure the necessary evidence before launching their case and eliminate “tactical denials” so commonly seen in action proceedings. This would in turn encourage litigants to stick to the point, saving valuable court time and state resources. Shorter papers, sharper arguments and speedier decisions — it’s a win-win that will lighten the caseload.
Switching judges
A final proponent to the solution involves using judges from other jurisdictions for virtual hearings in Gauteng. Instead of merely expanding the rollout of Court Online to other provinces, we propose a more strategic approach: allowing judges from less burdened high courts to preside over matters in Johannesburg and Pretoria through virtual hearings.
These judges could be best used for the simpler, concise matters that started as motions but have been referred to evidence on specific, narrow disputes of fact, as per our suggestion above. By conferring authority on judges from different divisions to hear cases in areas experiencing congestion, we could effectively balance the workload across the country.
In the quest to overcome the overly burdened court roll in Gauteng we must recognise that the existing system requires urgent, realistic and lawfully possible reform alongside systemic change. Our proposal is but one cog of that change and should exist within a combined effort to dismantle systemic barriers that hinder the adjudication of cases before the courts.
Initiatives to increase access to alternative dispute resolution, such as empowering community advice offices to mediate disputes that need not proceed to court and ensuring that parties take their obligations seriously under Rule 41A of the Uniform Rules of Court to consider mediation, should continue.
However, the proposed solutions we offer here — voluntary jurisdiction shifts, commencing matters on motion, then distilling out the disputes of fact by court order where necessary, and relying on the capacity of judges from other divisions — are not just about streamlining processes or searching for efficiency; they are about reclaiming the promise of justice for everyone.
• Khumalo and Duncan are partners at Webber Wentzel, and Morison is an advocate. Matthew Ilsley, Khanya Thwala and Katy Hindle also contributed to this article.
Support our award-winning journalism. The Premium package (digital only) is R30 for the first month and thereafter you pay R129 p/m now ad-free for all subscribers.
AYANDA KHUMALO, GARTH DUNCAN AND LES MORISON: Simplifying to save Gauteng’s judicial system
The under-resourcing of the judiciary has reached crisis proportions
SA’s constitution leaves no room for ambiguity: every person has the right to have any dispute that can be resolved by the application of law adjudicated in a fair and public hearing before a court, or where appropriate an independent tribunal or forum.
This right is not merely a procedural safeguard but a core principle enshrined in our constitutional framework. In a country where historically the majority was systematically denied access to justice under a regime that prioritised parliamentary sovereignty to entrench racial oppression, the constitution’s commitment to access to courts stands as a pivotal corrective measure.
But this core principle is difficult to reconcile with reality: despite the efforts of a dedicated leadership in the Gauteng division of the high court, matters on the civil trial court roll are being set down for 2027. And that’s not the worst of it. After finally getting your day in court you could wait months, or even years, for a judgment from an overworked, under-resourced judge who’s had to juggle hundreds (if not thousands) of other cases alongside yours. The under-resourcing of the judiciary has reached crisis proportions.
Several solutions have been proposed to alleviate the strain on Gauteng’s overburdened judiciary: specialised courts, alternative dispute resolution — in particular mediation — and Court Online (the judiciary’s e-filing and digital case management system). While these solutions all have their place, the fact remains that our judiciary is starved by chronic underfunding and limited resources.
In this context we believe solutions could lie in practical, cost-effective and simple measures to harness the capacity of courts in less burdened jurisdictions.
Jurisdiction
The first leg to the solution entails voluntary change of jurisdiction. Parties should be given the opportunity to litigate in a different yet still competent division of the high court, where that court roll may not be as burdened as Johannesburg or Pretoria.
Admittedly, this would not be without its challenges. Under our legal framework courts typically only have jurisdiction over people residing in, and causes arising within, their area of jurisdiction. Legislative amendment would be required to extend or confer jurisdiction to all high courts over all causes and defendants in SA.
However, where the parties consent they should be permitted to litigate in other divisions of the high court or move their cases to other high courts. While this may seem daunting, particularly given the financial strain such a move could impose on litigants, it may well be worth the trade-off — especially for well-resourced litigants, particularly large corporates.
Waiting years for a hearing could have far more severe economic consequences than footing the expense for a quicker resolution in another division. As an immediate measure, parties should strongly consider the addition of terms in new agreements, alternatively amending terms in existing agreements, so that courts can assume jurisdiction where they would otherwise not have jurisdiction. This solution should facilitate litigation before a court that can accommodate the dispute within the shortest time frame.
While critics may argue that this solution benefits only the wealthiest litigants — those who can afford to shift their lawyers around the country — its true aim is to alleviate pressure on the Johannesburg and Pretoria high courts. Diverting cases away from the Johannesburg and Pretoria high courts would indirectly benefit all litigants, especially those who cannot afford to shift their cases and must endure long waiting periods.
If parties that can voluntarily move their cases do so, the court’s dockets could be cleared faster, allowing indigent and average-income litigants to access justice more swiftly. This would create room for those most in need, improving, if not ensuring that access to justice is not a privilege but a reality for all, regardless of income.
This idea could even be taken further, by the establishment of an assignment portal that would assign matters, regardless of the jurisdiction of a defendant, to a court with the requisite capacity to hear them. This would necessitate a change in legislation and applicable norms and rules, but would have the effect of redistributing the burden on our court rolls and preventing the abuse by recalcitrant litigants of lengthy court delays.
Matters on motion
The second leg to the solution entails changing the rules to enable all matters to commence on motion, that is adjudicated on the papers rather than in a trial. Motions that run into disputes of fact could then be referred to evidence by the court on specific issues on which narrow discovery should be ordered. There would ideally be a prioritisation of simply drafted shorter motions.
That is not to say that our system should ignore or punish complexity. It would be hard to dispute that our courts are now confronted with constitutional matters, sophisticated commercial disputes and social justice issues that require detailed, comprehensive legal reasoning. We should embrace a system that prioritises and rewards concise, focused papers.
By starting all matters on motion, litigants will be incentivised to front-load their matters, get their witnesses deposed early on, procure the necessary evidence before launching their case and eliminate “tactical denials” so commonly seen in action proceedings. This would in turn encourage litigants to stick to the point, saving valuable court time and state resources. Shorter papers, sharper arguments and speedier decisions — it’s a win-win that will lighten the caseload.
Switching judges
A final proponent to the solution involves using judges from other jurisdictions for virtual hearings in Gauteng. Instead of merely expanding the rollout of Court Online to other provinces, we propose a more strategic approach: allowing judges from less burdened high courts to preside over matters in Johannesburg and Pretoria through virtual hearings.
These judges could be best used for the simpler, concise matters that started as motions but have been referred to evidence on specific, narrow disputes of fact, as per our suggestion above. By conferring authority on judges from different divisions to hear cases in areas experiencing congestion, we could effectively balance the workload across the country.
In the quest to overcome the overly burdened court roll in Gauteng we must recognise that the existing system requires urgent, realistic and lawfully possible reform alongside systemic change. Our proposal is but one cog of that change and should exist within a combined effort to dismantle systemic barriers that hinder the adjudication of cases before the courts.
Initiatives to increase access to alternative dispute resolution, such as empowering community advice offices to mediate disputes that need not proceed to court and ensuring that parties take their obligations seriously under Rule 41A of the Uniform Rules of Court to consider mediation, should continue.
However, the proposed solutions we offer here — voluntary jurisdiction shifts, commencing matters on motion, then distilling out the disputes of fact by court order where necessary, and relying on the capacity of judges from other divisions — are not just about streamlining processes or searching for efficiency; they are about reclaiming the promise of justice for everyone.
• Khumalo and Duncan are partners at Webber Wentzel, and Morison is an advocate. Matthew Ilsley, Khanya Thwala and Katy Hindle also contributed to this article.
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