De­layed jus­tice is hardly ac­cess to jus­tice

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Pa­trick Bracher

THE US District Court for the Eastern District of Vir­ginia has con­tin­ued to up­hold a proud record for eight years. It has the fastest trial docket in the US. The me­dian time for get­ting a mat­ter to trial from the time sum­mons is is­sued is only 15.1 months. Re­mark­ably this in­cludes class ac­tions and pa­tent cases which are no­to­ri­ously slow to get to trial. By com­par­i­son, the me­dian pe­riod for New York courts is nearly 40 months.

This is real ac­cess to jus­tice and some­thing we in SA should be aim­ing for.

The well-known bread car­tel case be­gan with in­for­ma­tion re­ceived by the Com­pe­ti­tion Com­mis­sion in De­cem­ber 2006 of an al­leged car­tel op­er­at­ing in the West­ern Cape. Mem­bers of the car­tel have been fined sub­stan­tial amounts but a class ac­tion on be­half of con­sumers is nowhere near trial.

The events at Marikana took place in Au­gust 2012. The com­mis­sion of in­quiry even­tu­ally re­ported in June 2015 and we have yet to hear that any de­pen­dent of the de­ceased has been paid com­pen­sa­tion. Sur­viv­ing chil­dren of those killed in the event have had four years with­out any loss of sup­port dam­ages to get them through their school­ing.

The fault does not only lie in the court sys­tem. There are slow-act­ing lawyers and slow-act­ing clients and peo­ple with­out means to pur­sue their claims. There are also hope­less causes that clog up the courts.

A claim by the chair­per­son of the Na­tional Coun­cil of Prov­inces seek­ing an apol­ogy for some­thing said in Par­lia­ment ended in the Supreme Court of Ap­peal af­ter two years. The lit­i­gant was re­minded that a speech in Par­lia­ment is po­lit­i­cal speech that has been pro­tected since the 1600s.

Then are those for whom de­lay is wanted. A com­pany re­sisted the ef­forts of an in­ves­tiga­tive jour­nal­ist to get ac­cess to its share reg­is­ter for nearly three years only to be re­minded (if they needed re­mind­ing) that ac­cess is specif­i­cally al­lowed by the Com­pa­nies Act.

The prob­lem is not only in the courts. The Consumer Pro­tec­tion Act came into force in March 2011. The Consumer Com­mis­sion was in­un­dated with thou­sands of com­plaints by con­sumers who thought they fi­nally had an in­ex­pen­sive means of re­dress.

The com­mis­sion proved to be un­der­funded and thou­sands of frus­trated con­sumers lost con­fi­dence in the process which has only re­cently got back on track.

But the hype has been lost. Con­sumers who were promised per­sonal data pro­tec­tion be­fore the 2010 World Cup are still wait­ing. The in­or­di­nate de­lay in land claims and ser­vice de­liv­ery are lead­ing to so­cial un­rest. There are an­cient writ­ings to the ef­fect that the sword comes into the world when jus­tice is de­layed or de­nied.

De­layed jus­tice is not ac­cess to jus­tice. The Bill of Rights gives us the right to have any dis­pute that can be re­solved by law de­cided in a fair public hear­ing be­fore a court or other in­de­pen­dent tribunal.

It is a pity that the bill does not of­fer us a “fair and as fast as pos­si­ble” public hear­ing.

We all need to make an ex­tra ef­fort to move at the speed of the dig­i­tal age in pro­vid­ing jus­tice. This in­volves lit­i­gants, courts and lawyers in equal mea­sure.

When a mat­ter is ready for le­gal ac­tion all three need to make up the crew of the Rocket Docket.

It is a pity the Bill of Rights does not of­fer us a ‘fair and as fast as pos­si­ble’ public hear­ing There are an­cient writ­ings to the ef­fect that the sword comes into the world when jus­tice is de­layed or de­nied

Pa­trick Bracher (@PBracher1) is a di­rec­tor at Nor­ton Rose Ful­bright.

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