Dis­pute res­o­lu­tion comes at a price

So­lu­tion for ex­pe­di­tious and cost-ef­fec­tive jus­tice may lie in the tra­di­tions of Africa’s in­dige­nous com­mu­ni­ties

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - CHANDNI GOPAL & MANGALISO MT­SHALI

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.

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