The Process
The legal process consists of two procedures to choose from when litigation is the only way forward.
- The Action Procedure involves the issuing of summons and a host of other pleadings and notices. This is the process that results in a trial and is usually used when there is a dispute about fact. This may require witnesses, but it will result in hours spent on some of the most uncomfortable furniture ever designed.
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The Application Procedure involves Affidavits, more affidavits and, if you get permission from the court, further affidavits. It culminates in the matter either being heard on the papers before a Judicial Officer or referred to trial as a result of a material dispute of fact which arises. In the former case, the Judicial Officer will apply his or her mind and either a judgment is handed down or an order is made.
The Rules
The above procedures were developed from a unique intermarriage of Roman-Dutch and English Common Law. In the 1960’s, however, the Legislature decided to more actively develop our already vast common law.
The procedures are regulated by legislation as well as precedent.
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Legislation: Superior Court Act and the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the Supreme Court of South Africa (“Rules”).
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Precedent: decisions, made by courts, in the interpretation and application of the Rules. So, for instance, legislation might state that you need to serve pleadings on someone via the Sheriff of the High Court (They don’t wear badges or cowboy boots any longer!) but the courts have held that if urgency warrants it, the litigant may then serve via fax or personally.
Legislation has allowed for the creation of Practice Manuals and Practice Directives. These are guidelines on how the Rules apply to the respective court. They provide not only clarity in how to follow the process but certainty in the outcome as well.
Cogs in the Machine
The participants in these procedures are numerous and find themselves at all corners of the socioeconomic compass. Members of the public constitute not only the largest source of legal challenges but they are also the largest source of revenue.
The second largest class of participants are Attorneys, who excel in administrative work and, some would suggest, trust-to-business transfers.
At present, Advocates are only able to receive work from Attorneys. This is as a result of the historical practice in terms of which advocates were deemed to be experts. This will change in due course – in accordance with the provisions in the Legal Practice Act – as advocates wishing to receive work from clients, other than attorneys, will merely need a trust account.
Another crucial component in the process is that of the court staff that provide the necessary administrative capacity needed to keep the process running as smoothly as possible. From the security guards at the entrance of the court, to the typists capturing orders, the system would be severely hampered should this crucial block stall.
The final cog in this machine is that of the Judicial Officer who must preside over the matter. The Judicial Officer is supposedly the pinnacle of legal certainty, having been selected supposedly from the ranks of only the most knowledgeable and successful legal practitioners.
Court Hearing
All rise! A command aimed at getting unconditional observance from the gallery and bar - it does not refer to hopes or expectations.
It is usually at this point that the litigants are surprised by applications framed in technical jargon (incoherent English) which seek to dispose of or to delay the proceedings. Many would suggest that nowhere is this more frustrating than in matters against the State.
The Judicial Officer’s decision is a simple one – the legal counsel, for the other litigants, have brought a valid point that will result in justice being delayed. It should be noted that justice and an outcome are not synonymous. The former refers to a state in which a grievance has been addressed, while the latter refers to an increase in grievance and costs!
An Order of Court
Justice is as important as the road taken to get there. Our law has been moulded by the audi alteram rule which states that the “other” side must be heard. This principle is embodied in Section 34 of the Constitution which mandates the right to a fair and public hearing.
This right can only be realised if the procedures work as they should. Being more prepared than your opposition does not mean the process is working. The use of technicalities to delay or subvert justice does not mean the procedures are working. These are merely indicators that the procedures have not been adequately transformed in accordance with constitutional norms and values. Justice delayed is justice denied and justice denied is a failure that South Africa can no longer afford.
Part of the solution has come in the form of the Norms and Standards for the Performance of Judicial Functions. These norms and standards apply to all things legal. The most striking example of this universal application relates to the time frames in which matters need to be concluded before courts. This extends to the time frames which Judicial Officers have in which to hand down judgments.
In a lecture delivered for the HSF entitled Delivering Justice – International Trends in Civil Justice, Judge Murray Kellam, from Australia, notes that for legal procedures to be effective, parties to the litigation need to have their matters ready for trial. This is most problematic when an organ of state is being litigated against. Kellam emphasises that courts have to have adequate administrative capacity and that the bench requires adequate judicial capacity.
To Appeal or Not to Appeal?
The hallmark of the current regime is marked by delays and, arguably, by abuse of process – not the type where you appoint a committee of your peers to investigate your alleged wrong doings. Litigation is costly in both time and resources.
The question that one is ultimately left asking is why did I not choose Alternate Dispute Resolution or, temptingly, trial by combat in which the legal teams fight it out to the death?
Chris Pieters
Researcher
chris@hsf.org.za
