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Delays in Judgements

Identifying the problem

Delays in judgements being handed down by some Court is leading to a denial of justice, especially where individual rights are involved, such as with interdicts, criminal matters and labour disputes.

One of the features we had recently added is to list the date(s) on which the matter was heard, together with the date of judgement.

On the homepage of our SharePoint site you will see a list of recent judgements, and in that view was have included both dates. A perusal of the list immediately highlights a problem with the system, which has been around for years and nothing has improved. In some courts it takes a long time for judgements to be handed down. In some cases, a very long time.

Courts with a good record

A quick glance at the list of judgements shows that one Court stands out as being quick to finalise cases, and that is the Supreme Court of Appeal. In general, the Court will hand down judgements at the end of the term during which the appeal is heard. That means sometimes within a week of the hearing.

If a judgement is not handed down within that pattern, you can be fairly sure that there will be a dissenting judgement or that something procedural has happened to prevent the Court finalising the matter (such as the recent case where counsel decided to file supplementary heads, without leave and at their own initiative, after the hearing).

There are those who will downplay this and point out that the SCA only hears a limited number of cases, and that they have the luxury of time. However, that is not necessarily the case. They generally hand down approximately 200 judgements a year. That means around 50 cases per term, which on average last six weeks.

Coupled with that is they have to read sometimes long and complex records, together with the obligations which go with being a senior Court from which, in most cases, there is no further appeal. On top of that is the often forgotten duty to consider hundreds of applications for leave to appeal.

It would be interesting for the Department of Justice to study why this Court is able to be so efficient in concluding matters. Is it because the Judges have less to do, or is it good workload management?

The Labour Appeal Court appears to be following the same trend of completing judgements by the end of their terms.

Even if one regards their workload as light, is this not what should be happening in all Courts?

Constitutional Court

The Constitutional Court, which theoretically has the lightest workload, given the number of cases (less than 100 judgements a year), does not appear to follow any clear pattern. They also have to deal with many applications for leave to appeal.

However, their delays appear to be that because there are at least nine Judges hearing any matter, there is a need to get agreement among those who heard the case. All too often (and it could be argued that this is a concern with the Court), there will be at least one dissenting judgement, or a concurring judgement which comes to the same conclusion in a different way.

That inevitably results in delays in judgements being handed down.

Trial Courts

When one looks the High Courts and Labour Court, there simply is no consistency. Some Judges are extremely good at handing down well-reasoned judgements within a week or two of the case being heard. Others can take literally years.

Even simple matters, such as applications for leave to appeal, can take several months to be finalised. It is not unusual to see a case where leave to appeal was argued (or in the Labour Court, submissions filed) months before a three or four page judgement is handed down granting or denying leave.

One cannot expect a Judge to rapidly produce a judgement after a several week trial which raised complex legal issues. However, one can ask the question why the Judge starts a new case while that judgement is outstanding? The longer the time between hearing a matter and handing down the judgement, the greater the chance that a grasp of the evidence will be lost.

In some cases, it appears that there are delays in judgements being handed down while the Judge attempts to prepare an academically sound treatise. If that is the case, it is an error – judgements are meant to explain the order that is granted based on the dispute before the Court. They are not meant to resolve issues of general interest.

What can be done?

Clearly, in some Courts, there is a lack of Judges or support for Judges. One would hope that the Judicial Services Commission is keeping an eye on this.

However, adding more Judges (or researchers) is the same as adding lanes to a freeway. It does not address traffic congestion apart from the first few weeks. Is the workload of the overworked Courts being handled properly? How can it be that Judges with long-outstanding judgements get given more cases to deal with, thereby merely adding to the outstanding judgements list?

Let’s take our attention away from the Judges for a moment. Are the cases being prepared and presented in a manner which lends itself to the judgement being handed down soon after the matter is heard? Are lawyers really adding any value to the system or are they charging their clients to confuse the system and slow it down?

The system, in theory, is sound: There are pleadings. They set out what the case is about, in broad terms. This is followed by a system or discovery and other pre-trial procedures to assist the parties to prepare for trial. Then there is supposed to be a pre-trial conference to further streamline the case, so that by the time it arrives at court the matter should be crystalised, for the Judge to then follow the evidence and be able to understand it. The parties then give closing arguments to assist the Court to come to a conclusion.

But, does that happen? It can be argued that what actually happens is months of posturing between opposing lawyers who are scared of missing something, so they rather deny everything until the last minute. Or instead of pushing their client’s seemingly strong case, they seek to undermine the other sides case by a series of procedural obstacles.

By the time the case arrives at the courtroom, the court file is several lever-arch files thick and there are bundles of documents which probably won’t even be referred to. As for crystalised issues, there probably aren’t any because both side replied to requests from the other by stating: “It’s a matter for evidence”, or “We can’t tell you how to run your case”.

If this is the problem, and it most likely is a contributing factor, should the Courts not start taking a harder line on counsel and attorneys who do not arrive at court with their cases properly prepared and reasoned, and without waging a war of words and paper but sticking to the material issues, as outlined in the pleadings? The only result is delays in judgements being finalised.

Solution

Whatever the problem, a solution has to be found. When the Public Protector argues that interim relief should not be granted because a review can take several years to be finalised, we know there is a huge problem. In terms of the Court Rules (if they are ever followed) a case should be ready to be heard within a matter of three-four months. If the lawyers restrict themselves to the material issues, the hearing should not be long. So in theory, from inception to conclusion (at trial stage at least) a case should not take even a year. We know that does not happen.

The answer appears to be a mixture of issues: Can something be learnt from the current efficiency of the SCA? Is the Judicial Services Commission appointing enough Judges? If there is a shortage, are there enough Acting Judges? Are the Judges being given assistance to write judgements explaining the reason for the order they are making (without writing an academic treatise).

Probably the most important, however: Are Judges being presented with cases read for trial and are the lawyers presenting their cases in a manner in which the Judge can know what the matter is about and thus write a reasoned judgement within a reasonable time?

Whatever the problem, justice is being delayed for the parties, who just want to know the outcome of their dispute. In some matters, such as criminal matters where freedom is sometimes on the line, or labour matters, where someone can be left without income and lose their homes (just to be told five years later that they should not have), every day can have serious consequences for the individual.

It cannot be disputed that delays in judgements can lead to a denial of justice.

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