Written by Roy Cokayne | Published on 25 July 2024
The civil justice system in Gauteng is in crisis, with a shortage of judges to hear and adjudicate civil trials and the high volume of cases being lodged leading to delays of up to five years before a matter is heard.
Nicolette de Witt, chair of the High Court Committee of the Pretoria Attorneys Association (PAA), said civil trials in the High Court in Pretoria are currently being allocated for January 2029 and the waiting time between the date of allocation of civil hearing dates and the hearing date itself “has reached an astonishing period of four and a half years”.
“These lead times are the longest they have been in the history of this division of the High Court,” she said.
“Under the [prevailing] circumstances … in Pretoria, the civil justice system is failing South African citizens and depriving them of their Section 34 Constitutional right of access to the courts.”
Section 34 of the Constitution of the Republic guarantees everyone the right of access to courts, more particularly “the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court …”
Meaningful access being denied
De Witt referred to certain sections of the ‘Interim Report of phase 2 of the Committee on the Rationalisation of Areas under the Jurisdiction of the Divisions of the High Court of South African and Judicial Establishments’, which stressed that access in Section 34 means “meaningful access”.
The report said: “Meaningful access requires that courts are staffed by an adequate number of competent and experienced judicial officers, capable of resolving the vast number of disputes before the court, otherwise the concept of access to justice would be rendered nugatory.
“Ensuring access to justice for all requires adequately staff[ed] courts capable of efficiently handling caseloads without undue delays or backlog accumulation.
“This is, moreover, required by the rule of law – a founding value of the Constitution,” according to the report.
‘Appoint more judges’
De Witt said it is “extremely urgent” that more judges are appointed this year in the High Court in Pretoria “as a crisis management measure” and called for the appointment of “at least 20 additional judges in the Pretoria division.
“If this is not done, the reality is that we may see trial dates being allocated beyond 2030 very soon.“It is nothing but a crisis if South African citizens must wait for four and a half years from the date of allocation of a hearing date to a hearing date,” she said.
The PAA is hoping newly appointed Minister of Justice and Constitutional Development Thembi Simelane will allocate the necessary funds for the appointment of more judges in the Gauteng Division to resolve this crisis.
Six-year wait
Advocate Justin Erasmus, CEO of the Personal Injury Plaintiff Lawyers Association, which represents about 400 personal injury lawyers, said the high case volumes have unfortunately highlighted the importance of the rationalisation of the various divisions of the high courts.
He said the High Court in Johannesburg is following closely on the heels of the High Court in Pretoria in terms of the protracted delay between the allocation of a trial date and the hearing of the trial itself.
Erasmus said plaintiffs – who are typically injured individuals in medical negligence and personal injury matters who have endured terrible injuries, loss of income and lost amenities of life – can now expect to wait about six years from the issue of summons until their first trial date.
“To them, the conclusion of their trials [is] a matter of life or death and judicial under resourcing has an effect that is unconscionable and unconstitutional,” he said.
Erasmus said they appreciate the efforts of the respective deputy judge presidents to meet the demands of the litigating public but even the current introduction of pro bono acting judges is having a limited effect.
He said the long term solution lies with proper resourcing of the courts, and in the interim there is a need to act “to avert a complete collapse”.
“Urgent consideration should be given to the appointment of more ‘paid’ acting judges to clear the growing backlog, shortening of the current extended recess periods during which the courts do not hear trial matters and … the removal of some of the time-consuming procedures contained in the current practice directives,” he said.
Costly knock-on effects (often payable by taxpayers)
Court delays have a serious impact not only on the victims but also on the legal processes and costs.
De Witt said most trials involve expert witnesses, and all expert reports older than two years will be deemed stale.
“This means additional costs for updated expert reports, which in terms of the Rules of Court and Practice Directives, are required to be filed before a trial date will be allocated.
“This doubles the expert costs incurred in matters and payable by defendants, in many instances these being state institutions, such as the MEC for Health, Prasa (Passenger Rail Agency of South Africa) or the Road Accident Fund (RAF),” she said.
Practitioners told they ‘ought to be alarmed’
Deputy Judge President of the Gauteng Division of the High Court in Johannesburg Roland Sutherland issued a notice last month to 42 entities, including various attorney and advocate associations, about the civil trial roll lead times in Johannesburg.
Sutherland said in the notice, a copy of which is in Moneyweb’s possession, that practitioners ought to be alarmed by the dates that are at present being issued for civil trials.
“The furthest dates issued are in November 2027, three and a half years hence. Dates in 2028 are about to be allocated.
“Trials of long duration – more than five court days – have already been set down to fill all available slots up to the end of 2025, and further set downs are being issued for term 2 of 2025.
“Slots for special opposed motions – requiring a day or more to argue – are full up to the end of term 1 in 2025 and term 2 of 2025 is steadily filling up,” he said.
Sutherland added that the RAF default judgment roll has matters set down until 27 August 2024 but at a rate of only 50 per week because only one judge per week can be deployed to deal with them.
“The demand to access this roll exceeds this rate of set-down and a backlog is building up. The lead times in other areas are within acceptable time-frames,” he said.
Between two and six judges vs the need for 20
Sutherland said the leadership of the division is acutely aware of the facts about the civil trial roll and acutely aware that such lead times are inconsistent with delivering an effective litigation service.
“The courts, as organs of state, whose function is to render an effective litigation service are severely compromised by the lack of judicial capacity to meet the demands of the litigating public.
“Despite the utilisation of pro bono additional acting judges of between 8-10 per week, the court is still not able to deploy enough judges to hear the cases at a rate that can reduce the civil trial lead times,” he said.
“It is estimated that in order to reduce the civil trial lead-time to less than 12 months would require about 20 judges in civil trials alone each week.
“With present resources, we can muster a range of between two and six judges per week during the course of a term to hear civil trials.”
Sutherland said steps are being taken to address the problem.
“Among the macro-considerations, is the need to conceptualise the court system as a component of a broader dispute resolution system and, in that context, to reframe the role of the courts, with their current capacity constraints within that paradigm.”