Dispute resolution comes at a price
Solution for expeditious and cost-effective justice may lie in the traditions of Africa’s indigenous communities
ACCESS to justice has always been an ideal cherished by the people of our continent. In the interests of nurturing cultures of openness and inclusiveness, indigenous communities’ dispute resolution mechanisms were historically informal and, perhaps surprisingly, effective.
The granting of colonial independence and the advent of democracy in various African countries in the 1960s saw the creation of formalistic court processes, with hard-and-fast rules of procedure. Still, true to Africa’s history, SA’s Bill of Rights acknowledges the important role less formal dispute resolution mechanisms play in facilitating access to justice. Specifically, section 34 of the constitution entrenches the right to have any dispute resolved by the application of law in a fair public hearing before independent and impartial tribunals or forums.
In line with this constitutional imperative, a number of regulatory bodies and corporate entities have established forums mandated with efficient, cost-effective and expeditious dispute resolution. But it has been argued that these forums foster a culture of legal intellectualism that frustrates this mandate. Indeed, the practices surrounding the ways in which many of these forums function have been lamented as defeating the purpose of resolving disputes timeously and cost-effectively. Most explicitly, the practice of involving expensive legal counsel in such proceedings has been criticised by the courts and bemoaned by legal commentators for escalating the costs of settling disputes beyond what was intended by legislation.
It is not only in high profile, corporate disciplinary hearings and inquiries where formal and legalistic representations are made, however. The practice has also filtered through to forums utilised by the public.
The ombudsman for short-term insurance, for instance, is tasked with providing consumers with a free, efficient and fair dispute resolution mechanism. A press release by the ombudsman announced a new appeals process in terms of which leave to appeal an ombudsman’s ruling must be lodged within 30 days of a decision and the ombudsman may, in his discretion, call on the appellant to pay a deposit (refundable if the appeal succeeds). This new rule will inevitably result in legal argument being led relating to the condonation of the late lodging of an appeal, and what constitutes a reasonable deposit.
The Council of Medical Schemes (CMS) is an autonomous statutory body tasked with regulating medical schemes in SA and is governed by the provisions of the Medical Schemes Act, No 131 of 1998 (the act). The act envisages two appeals processes that are, arguably, not mutually exclusive. Accordingly, a large percentage of the CMS appeals committee rulings deal with the issue of which section of the act an appeal has been lodged in terms of and whether the time periods entrenched in each section have been complied with. Much time is spent by adjudicators considering legal counsel interpretation of the two sections.
The cause of this trend towards formal and legalistic processes for dispute resolution is clear. The provisions relating to the forums’ procedures are inevitably drafted by the legally-minded. Painstaking legalese is not clearly understood by those who invoke the provisions most often — the public. The inevitable result is the need for the assistance of legal counsel to interpret technical and convoluted provisions.
This frustrating reality is clearly felt by members of the public utilising these forums. Conversation in forum rooms filled with people waiting to be heard centre around themes of inordinate delays, being intimidated by the presence of legal representatives in power-suits and, most dishearteningly, a feeling that the whole process is inherently unequal and unfair.
Contrary to popular belief, legal representatives have found it difficult to weigh the reality of these conditions against ethical imperatives. They are forced to grapple with having to charge two days’ worth of fees to argue a technical point without traversing the actual merits of their client’s appeal.
Overall, it is clear that this status quo is immensely frustrating to all the parties involved. Nonetheless, such frustration often produces apt and strikingly crisp solutions. Indeed, there are possible alternatives that may address many concerns.
The first option is to get rid of technical and procedural rules altogether. An inquisitorial system must be used with parties simply taking their turn to argue their cases in their own words, without legal representatives, and then receive notice of the outcome in good time. This process is already utilised in forums such as the CCMA.
The second option is to require that these forums must provide the facilities and manpower needed to handle hearings conducted in a manner akin to a court process. The current situation, in terms of which many forums only manage to hear three of the 10 scheduled matters as arguments on technical points last for up to four hours at a time, is clearly untenable. Specialised committees dealing with technical matters need to be constituted. In the interests of fairness, legal representation must be offered to those unable to foot the bill themselves. Less complex matters can be heard by other committees, without legal representatives.
Access to justice is a constitutional imperative. The justice system is overburdened and creative solutions for the expeditious, cost-effective and efficient resolution of disputes are needed. The wheels of justice may turn slowly in this young constitutional democracy, but its cogs can be oiled by the proper functioning of alternative dispute resolution forums in the tradition of our indigenous communities.