COMMISSION OF INQUIRY INTO THE RATIONALISATION OF THE PROVINCIAL AND LOCAL DIVISIONS OF THE SUPREME COURT

THIRD AND FINAL REPORT

VOLUME I

PARTS FOUR AND FIVE


CONTENTS

CHAPTER 1

A SUMMARY OF THE MAIN ORAL SUBMISSIONS MADE BY INTERESTED PARTIES IN REGARD

TO THE DESIRABILITY AND FEASIBILITY OF IMPROVING ACCESS TO JUSTICE IN SOUTH AFRICA :

(1) BY THE INTRODUCTION OF A SYSTEM OF CASE MANAGEMENT AND COURT ANNEXED ALTERNATIVE DISPUTE RESOLUTION ; AND BY REQUIRING THE EXCHANGE OF WITNESS STATEMENTS OR WITNESS SUMMARIES ;

(2) BY A CIRCUIT COURT SYSTEM FOR THE ADJUDICATION OF CIVIL CASES ;

(3) BY THE CREATION OF A COMMERCIAL COURT SUCH AS THE COMMERCIAL COURT FUNCTIONING IN JOHANNESBURG

1.1 MR M.J.D. WALLIS, SC, ON BEHALF OF THE GENERAL COUNCIL OF THE BAR, AT A PUBLIC SITTING IN DURBAN ON 28 NOVEMBER 1995

1.2 THE HON MR JUSTICE I.G. FARLAM OF THE CAPE OF GOOD HOPE PROVINCIAL DIVISION AT A PUBLIC SITTING IN CAPE TOWN ON 8 JANUARY 1996

1.3 THE HON MR JUSTICE G. FRIEDMAN, JUDGE PRESIDENT OF THE CAPE OF GOOD HOPE PROVINCIAL DIVISION AT A PUBLIC SITTING HELD IN CAPE TOWN ON 8 JANUARY 1996

1.4 MR ATTORNEY M.T. STEYN, ON BEHALF OF THE LAW SOCIETY OF THE CAPE OF GOOD HOPE, AT A PUBLIC SITTING HELD IN CAPE TOWN ON 9 JANUARY 1996

1.5 ADV D. BOSMAN, A FULL-TIME MEDIATOR OF STELLENBOSCH, AT A PUBLIC SITTING HELD IN CAPE TOWN ON 9 JANUARY 1996

1.6 MR ATTORNEY O.D. HART OF VENN, NEMETH AND HART, WITH WHOSE SUBMISSION THE PIETERMARITZBURG LEGAL CIRCLE ASSOCIATED ITSELF, AT A PUBLIC SITTING HELD IN DURBAN ON 30 MARCH 1996

1.7 ADV A.J. DICKSON, SC. ON BEHALF OF THE PIETERMARITZBURG BAR, AT A PUBLIC SITTING IN DURBAN ON 30 MARCH 1996

1.8 THE HON MR JUSTICE C.F. ELOFF, JUDGE PRESIDENT OF THE TRANSVAAL PROVINCIAL DIVISION, AT A PUBLIC SITTING AT MIDRAND ON 9 APRIL 1996

1.9 THE HON MR JUSTICE H.C.J. FLEMMING, DEPUTY JUDGE PRESIDENT OF THE WITWATERSRAND LOCAL DIVISION, AT A PUBLIC SITTING AT MIDRAND ON 9 APRIL 1996

1.10 THE HON MR JUSTICE P.E. STREICHER OF THE TRANSVAAL PROVINCIAL DIVISION, AT A PUBLIC SITTING AT MIDRAND ON 9 APRIL 1996

1.11 THE HON MR JUSTICE J.F. MYBURGH OF THE TRANSVAAL PROVINCIAL DIVISIONAT A PUBLIC SITTING AT MIDRAND ON 9 APRIL

1.12 ADV E. BERTELSMANN, SC, OF THE PRETORIA BAR, ON BEHALF BOTH OF THE PRETORIA BAR AND THE PRETORIA ATTORNEYS ASSOCIATION AT A PUBLIC SITTING AT MIDRAND ON 10 APRIL 1996

1.13 ADV W.H.G. VAN DER LINDE ON BEHALF OF THE JOHANNESBURG BAR AT A SITTING AT MIDRAND ON 10 APRIL 1996

1.14 MR ATTORNEY C.H. COHEN OF JOHANNESBURG, AT A PUBLIC SITTING AT MIDRAND ON 11 APRIL 1996

1.15 MR ATTORNEY C.K. PETTY ON BEHALF OF THE LAW SOCIETY OF TRANSVAAL AND THE ASSOCIATION OF LAW SOCIETIES AT A PUBLIC SITTING AT MIDRAND ON 12 APRIL 1996

1.16 MR ATTORNEY A. TUGENDHAFT OF MOSS-MORRIS INC. OF SANDTON, AT A PUBLIC SITTING AT MIDRAND ON 15 APRIL 1996

1.17 MR ATTORNEY L. VILJOEN OF PRETORIA AT A PUBLIC SITTING AT MIDRAND ON 16 APRIL 1996

1.18 ADV D.D.J. ROSSOUW OF NELSPRUIT ON BEHALF OF THE PREMIER OF THE PROVINCE OF MPUMALANGA AND ALSO ON BEHALF OF THE ASSOCIATION OF ADVOCATES OF NELSPRUIT AT A PUBLIC SITTING AT NELSPRUIT ON 22 APRIL 1996

1.19 THE HON MR JUSTICE J.J. KRIEK, JUDGE PRESIDENT OF THE NORTHERN CAPE DIVISION OF THE SUPREME COURT, AT A PUBLIC SITTING AT KIMBERLEY ON 25 MAY 1996

1.20 MR E.M. DIPICO, PREMIER OF THE NORTHERN CAPE PROVINCE AT A PUBLIC SITTING AT KIMBERLEY ON 25 MAY 1996

1.21 THE HON MR JUSTICE R.H. ZULMAN AT A PUBLIC SITTING AT BLOEMFONTEIN ON 21 AUGUST 1996

1.22 ADV L. MPATI ON BEHALF OF THE PORT ELIZABETH REGION OF NADEL AT A PUBLIC SITTING AT EAST LONDON ON 5 OCTOBER 1995

CHAPTER 2

THE COMMISSION'S INVESTIGATIONS AND OBSERVATIONS IN AUSTRALIA

(A) WESTERN AUSTRALIA

2.1 A NOTE ON THE SIGNIFICANT ROLE OF THE DISTRICT COURT OF WESTERN AUSTRALIA

2.2 A PRE-TRIAL MEDIATION IN THE DISTRICT COURT

2.3 THE FAST-TRACK CRIMINAL COURT IN THE DISTRICT COURT

2.4 CIVIL CASEFLOW MANAGEMENT IN THE DISTRICT COURT

2.5 CASE MANAGEMENT IN THE SUPREME COURT OF WESTERN AUSTRALIA

(B) SYDNEY, NSW

2.6 A PANEL DISCUSSION ON MEDIATION AT MACQUARIE UNIVERSITY 49

2.7 A MEETING WITH THE HON MR JUSTICE M.E.J. BLACK, CHIEF JUSTICE OF THE FEDERAL

COURT OF AUSTRALIA, AND A NUMBER OF SYDNEY-BASED JUDGES OF THE AUSTRALIAN FEDERAL COURT

CHAPTER 3

THE COMMISSION'S INVESTIGATIONS AND OBSERVATIONS IN NEW ZEALAND ACKNOWLEDGMENTS(A) WELLINGTON

3.1 COURTESY CALLS ON SENIOR JUDGES AND A VISIT TO THE REGISTRY OF THE HIGH COURT IN WELLINGTON

3.2 A MEETING WITH THE CHIEF JUDGE OF THE DISTRICT COURT OF NEW ZEALAND

3.3 A VISIT TO THE NEW ZEALAND DEPARTMENT FOR COURTS

3.4 A MEETING IN WELLINGTON WITH TWO SPECIALISTS IN MEDIATION(B) AUCKLAND

3.5 A MEETING WITH THE EXECUTIVE JUDGE IN THE HIGH COURT, WATERLOO QUADRANT, AUCKLAND

3.6 AN INSPECTION OF THE HIGH COURT AND AN INTERVIEW WITH MS MARION NELLER IN CONNECTION WITH THE AUCKLAND CASE MANAGEMENT PILOT PROJECT

3.7 AN OUTLINE OF THE CASE MANAGEMENT SYSTEM IN AUCKLAND

CHAPTER 4

THE COMMISSION'S INVESTIGATIONS AND OBSERVATIONS IN CANADA

(A) BRITISH COLUMBIA

ACKNOWLEDGMENT

4.1 A VISIT TO THE LAW COURTS EDUCATION SOCIETY OF BRITISH COLUMBIA

4.2 A MEETING WITH THE HON MR JUSTICE JOHN C. BOUCK OF THE SUPREME COURT OF BRITISH COLUMBIA

4.3 CERTAIN RECOMMENDATIONS IN REGARD TO CASE MANAGEMENT IN THE TASK FORCE REPORT OF THE CANADIAN BAR ASSOCIATION

4.4 A MEETING WITH THE HON MR JUSTICE DUNCAN SHAW OF THE SUPREME COURT OF BRITISH COLUMBIA

4.5 A MEETING IN VICTORIA B.C. WITH AN EXECUTIVE OFFICER IN THE MINISTRY OF THE ATTORNEY GENERAL

(B) OTTAWA, ONTARIO

4.6 A MEETING AT THE OFFICES OF THE COMMISSIONER FOR FEDERAL JUDICIAL AFFAIRS

(C) TORONTO, ONTARIO

4.7 THE COMMISSION'S VISIT TO THE COMMERCIAL COURT OF THE ONTARIO COURT OF JUSTICE (GENERAL DIVISION)

CHAPTER FIVE

THE COMMISSION'S INVESTIGATIONS AND OBSERVATIONS IN THE UNITED STATES OF AMERICA

(A) DENVER, COLORADO

ACKNOWLEDGEMENTS

5.1 A VISIT TO THE SUPREME COURT OF COLORADO

5.2 A MEETING WITH THREE DISTINGUISHED COURT MANAGEMENT EXPERTS

5.2.1 THE JUSTICE MANAGEMENT INSTITUTE

5.2.2 DR BARRY MAHONEY

5.2.3 HARVEY E. SOLOMON

5.2.4 MAUREEN SOLOMON

(B) MINNEAPOLIS , MINNESOTA

ACKNOWLEDGMENTS

5.3 A PRESENTATION AT THE MEDIATION CENTER FOR DISPUTE RESOLUTION

(C) CHICAGO, ILLINOIS

ACKNOWLEDGMENTS

5.4 A PRESENTATION TO THE COMMISSION BY FOUR EXPERTS ON THE USE OF ADR IN THE CIRCUIT COURT OF COOK COUNTY ILLINOIS

5.5 THE SCREENING OF A MATRIMONIAL MEDIATION SESSION

(D) NEW YORK, NY

5.6 TECHNOLOGY AND JUSTICE AT THE MIDTOWN COMMUNITY COURT

CHAPTER 6

THE COMMISSION'S INVESTIGATIONS AND OBSERVATIONS IN SCOTLAND AND ENGLAND

(A) EDINBURGH , SCOTLAND

ACKNOWLEDGMENTS 97

6.1 A MEETING WITH THE RETIRING LORD PRESIDENT

6.2 THE CHILDREN'S HEARING SYSTEM

6.3 THE CULLEN REPORT : THE TERMS OF REFERENCE

6.4 THE CULLEN REPORT : A SUMMARY OF THE MAIN CONCLUSIONS

6.5 THE CULLEN REPORT : A SALUTARY CAVEAT

(B) LONDON , ENGLAND

ACKNOWLEDGEMENTS

6.6 THE WOOLF REPORT : BACKGROUND

6.7 THE WOOLF REPORT : EXTRACTS THEREFROM SET FORTH IN VOLUME II OF THIS REPORT

6.8 THE WOOLF REPORT : THE FIRST STAGE OF THE INQUIRY

6.9 THE WOOLF REPORT : THE SECOND STAGE OF THE INQUIRY

6.10 THE WOOLF REPORT : IMPLEMENTATION OF THE REFORMS

CHAPTER 7

RECENT SOUTH AFRICAN INITIATIVES IN REGARD TO CASE MANAGEMENT : THE NEW RULE 37A FOR THE CAPE PROVINCIAL DIVISION APPLICABLE FROM 1 DECEMBER 1997

7.1 A SEMINAR ON CASE MANAGEMENT HELD IN JOHANNESBURG DURING JANUARY 1997

7.2 A BRIEF GENERAL SURVEY OF THE NEW RULE 37A

7.2.6 THE MINUTE

7.2.7 THE DIRECTIONS HEARING

7.2.8 NOTICE OF DEFAULT AND THE DEFAULT HEARING

7.2.9 COMPLIANCE CERTIFICATE

7.2.10 THE FINAL CONFERENCE

7.2.11 THE NOT READY LIST

7.2.12 SUMMARIES OF EVIDENCE

7.2.13 POSTBOXES

7.2.14 SPECIAL OR INDIVIDUAL CASE MANAGEMENT

CHAPTER 8

HIGH COURT CIVIL PROCEEDINGS BEFORE A CIRCUIT COURT

8.1 CIRCUIT LOCAL DIVISIONS

8.2 THE APPOINTMENT OF REGISTRARS AND ASSISTANT REGISTRARS

8.3 THE RULES GOVERNING THE ISSUE OF PROCESS IN AND THE CONDUCT OF CIVIL PROCEEDINGS BEFORE A CIRCUIT COURT

8.4 THE GREAT BULK OF LEGAL WORK CURRENTLY DONE IN CIRCUIT LOCAL DIVISIONS IN SOUTH AFRICA IS CRIMINAL WORK

8.5 THE SOUTHERN CAPE LOCAL DIVISION

CHAPTER 9

THE BROAD GUIDE-LINES ADOPTED BY THE COMMISSION IN REGARD TO THE ISSUES RAISED IN PART FOUR OF THE THIRD AND FINAL REPORT

9.1 THE NECESSITY FOR THE INTRODUCTION OF CASE MANAGEMENT AND THE EMPLOYMENT OF ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES

9.2 A CIRCUIT SYSTEM FOR THE ADJUDICATION OF CIVIL CASES

9.3 THE COMMERCIAL COURT

9.4 WITNESS STATEMENTS AND SUMMARIES OF EVIDENCE

9.5 THE FEASIBILITY OF A DEPARTMENT FOR COURTS IN SOUTH AFRICA

9.6 ACCESS TO JUSTICE REQUIRES BASIC UNDERSTANDING OF THE JUSTICE SYSTEM AND THE FUNCTIONING OF ITS COURTS

CHAPTER 10

THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO IMPROVED ACCESS TO JUSTICE

10.1 CASE MANAGEMENT AND COURT-ANNEXED ALTERNATIVE DISPUTE RESOLUTION

10.1.1 FINDINGS

10.2 THE COMMISSION UNANIMOUSLY MAKES THE FOLLOWING RECOMMENDATIONS IN REGARD TO CASE MANAGEMENT AND COURT-ANNEXED ADR

10.3 A CIRCUIT SYSTEM FOR THE ADJUDICATION OF CIVIL CASES

10.3.1 FINDINGS

10.4 THE COMMISSION UNANIMOUSLY MAKES THE FOLLOWING RECOMMENDATIONS IN REGARD TO CIRCUIT COURTS FOR THE ADJUDICATION OF CIVIL CASES

10.5 THE COMMERCIAL COURT

10.5.1 FINDINGS

10.6 THE COMMISSION UNANIMOUSLY MAKES THE FOLLOWING RECOMMENDATIONS IN REGARD TO THE JOHANNESBURG COMMERCIAL COURT

10.7 THE CREATION OF A DEPARTMENT FOR COURTS IN SOUTH AFRICA

10.7.1 FINDINGS

10.8 THE COMMISSION UNANIMOUSLY MAKES THE FOLLOWING RECOMMENDATIONS IN REGARD TO A DEPARTMENT FOR COURTS FOR SOUTH AFRICA

10.9 IMPROVED ACCESS TO JUSTICE BY MEANS OF AN INFORMATION SERVICE TO EDUCATE THE PUBLIC

10.9.1 THE COMMISSION UNANIMOUSLY MAKES THE FOLLOWING RECOMMENDATIONS

10.10 FAST-TRACK CRIMINAL COURTS

PART FIVE

THE EXTENSION OF THE ORIGINAL CIVIL JURISDICTION


PART IV          CHAPTER 1

A SUMMARY OF THE MAIN ORAL SUBMISSIONS MADE BY INTERESTED PARTIES IN REGARD TO THE DESIRABILITY AND FEASIBILITY OF IMPROVING ACCESS TO JUSTICE IN SOUTH AFRICA :

1.1 MR M.J.D. WALLIS, SC, ON BEHALF OF THE GENERAL COUNCIL OF THE BAR, AT A PUBLIC SITTING IN DURBAN ON 28 NOVEMBER 1995 [ SEE PAGES 1 TO 10 IN VOLUME III OF THIS REPORT ] :

1.2 THE HON MR JUSTICE I.G. FARLAM OF THE CAPE OF GOOD HOPE PROVINCIAL DIVISION AT A PUBLIC SITTING IN CAPE TOWN ON 8 JANUARY 1996 [ SEE PAGES 11 TO 12 IN VOLUME III OF THIS REPORT ] :

1.3 THE HON MR JUSTICE G. FRIEDMAN, JUDGE PRESIDENT OF THE CAPE OF GOOD HOPE PROVINCIAL DIVISION AT A PUBLIC SITTING HELD IN CAPE TOWN ON 8 JANUARY 1996 [ SEE PAGES 13 TO 18 IN VOLUME III OF THIS REPORT ] :

1.3.1 In regard to Rule 37 Friedman JP explained to the Commission that he and his colleagues :-

1.3.2 Next Friedman JP addressed the Commission on the matter of case flow management :-

1.3.3 In developing his theme Friedman JP made copious references to an article published in two parts in the September and October 1995 issues of The Australian Law Journal entitled " Reforms to the Adversarial Process in Civil Litigation " by the Hon Mr Justice D.A. Ipp of the Supreme Court of Western Australia. In what follows reference to this article will be made as " the Ipp article ".

1.3.4 Judge Ipp is a graduate in Commerce and Law of the University of Stellenbosch. After practising as an attorney in Johannesburg he was a member of the Cape Bar from 1973 to 1981. Having joined the Western Australian Bar Association in 1984, he was appointed as Queen's Counsel in 1985 ; and as a Judge of the Supreme Court of Western Australia in 1989. Judge Ipp has made outstanding contributions to the development and application of case management in Western Australia. In 1994 he was a Fulbright Senior Scholar. The Ipp article is based on research carried out by Mr Justice Ipp at the Law School of the University of Virginia in the USA.

1.3.5 The Ipp article is a comprehensive analysis extending over some 56 pages of the ALJ. The ALJ [ at page 705 and again at page 790 ] gives the following useful synopsis of the Ipp article :-

1.3.6 At page 790 of the Ipp article the learned author describes thus the two basic models of pre-trial case management :-

1.3.7 Having referred to the above-quoted passages in the Ipp article, Friedman JP expressed the following views as to which of the two basic models would be suitable for South African conditions :-

1.3.8 " This brings me onto another topic under this same globular heading of 'Access to Justice' , and that is the question of ADR, Alternative Dispute Resolution. It would seem from our investigations that the leaders in this field are the United States, State Courts and Federal Courts. The Federal Judicial Center published a special issue in December 1994 on Alternative Dispute Resolution, and it deals in a fairly succinct form in a 26-page document with the various forms of Alternative Dispute Resolution."

1.3.9 At page 801 of the Ipp article the following is said under the heading of "Mandatory Mediation" :-

1.3.10 Having referred to page 801 of the Ipp article Friedman JP stressed the importance of mediation :-

1.3.11 Mentioning that a number of the American Courts have court-annexed systems of Alternative Dispute Resolution Friedman JP pointed to the lack of awareness of mediation on the part of local litigants as well as the comparative paucity of mediation facilities in South Africa :-

1.3.12 In response to a question by Mr Maluleke about the cost implications of mediation Friedman JP replied as follows :-

1.3.13 In the course of his address Friedman made particular reference to the destructive potential of discovery procedures in trial litigation :-

1.3.14 Friedman JP also explored the advantages of treating witness statements as evidence-in-chief :-

1.3.15 In connection with the issue of a possible Commercial Court for Cape Town Friedman JP said the following :-

1.3.16 Friedman JP considered not only that a Commercial Court was unnecessary for the Cape, but further that in principle it was wrong to accord preferential treatment to commercial cases over certain other cases in which urgency was a paramount consideration :-

1.3.17 In connection with civil circuit courts Friedman JP remarked :-

1.4 MR ATTORNEY M.T. STEYN, ON BEHALF OF THE LAW SOCIETY OF THE CAPE OF GOOD HOPE, AT A PUBLIC SITTING HELD IN CAPE TOWN ON 9 JANUARY 1996 [ SEE PAGES 19 TO 23 IN VOLUME III OF THIS REPORT ]

1.5 ADV D. BOSMAN, A FULL-TIME MEDIATOR OF STELLENBOSCH, AT A PUBLIC SITTING HELD IN CAPE TOWN ON 9 JANUARY 1996 [ SEE PAGES 24 TO 27 IN VOLUME III OF THIS REPORT ] :

1.6 MR ATTORNEY O.D. HART OF VENN, NEMETH AND HART, WITH WHOSE SUBMISSION THE PIETERMARITZBURG LEGAL CIRCLE ASSOCIATED ITSELF, AT A PUBLIC SITTING HELD IN DURBAN ON 30 MARCH 1996 [ SEE PAGES 31 TO 33 IN VOLUME III OF THIS REPORT] :

1.7 ADV A.J. DICKSON, SC. ON BEHALF OF THE PIETERMARITZBURG BAR, AT A PUBLIC SITTING IN DURBAN ON 30 MARCH 1996 [ SEE PAGES 34 TO 35 IN VOLUME III OF THIS REPORT ] :

1.8 THE HON MR JUSTICE C.F. ELOFF, JUDGE PRESIDENT OF THE TRANSVAAL PROVINCIAL DIVISION, AT A PUBLIC SITTING AT MIDRAND ON 9 APRIL 1996 [ SEE PAGES 36 TO 42 IN VOLUME III OF THIS REPORT]

1.9 THE HON MR JUSTICE H.C.J. FLEMMING, DEPUTY JUDGE PRESIDENT OF THE WITWATERSRAND LOCAL DIVISION, AT A PUBLIC SITTING AT MIDRAND ON 9 APRIL 1996 [ SEE PAGES 43 TO 46 IN VOLUME III OF THIS REPORT ] :

1.10 THE HON MR JUSTICE P.E. STREICHER OF THE TRANSVAAL PROVINCIAL DIVISION, AT A PUBLIC SITTING AT MIDRAND ON 9 APRIL 1996 [ SEE PAGES 47 TO 49 IN VOLUME III OF THIS REPORT ]

1.11 THE HON MR JUSTICE J.F. MYBURGH OF THE TRANSVAAL PROVINCIAL DIVISION AT A PUBLIC SITTING AT MIDRAND ON 9 APRIL 1996 [ SEE PAGES 50 TO 53 IN VOLUME III OF THIS REPORT ] :

1.12 ADV E. BERTELSMANN, SC, OF THE PRETORIA BAR, ON BEHALF BOTH OF THE PRETORIA BAR AND THE PRETORIA ATTORNEYS ASSOCIATION AT A PUBLIC SITTING AT MIDRAND ON 10 APRIL 1996 [ SEE PAGES 55 TO 57 IN VOLUME III OF THIS REPORT ] :

1.13 ADV W.H.G. VAN DER LINDE ON BEHALF OF THE JOHANNESBURG BAR AT A PUBLIC SITTING AT MIDRAND ON 10 APRIL 1996 [ SEE PAGES 60 TO 62 IN VOLUME III OF THIS REPORT ] :

1.14 MR ATTORNEY C.H. COHEN OF JOHANNESBURG, AT A PUBLIC SITTING AT MIDRAND ON 11 APRIL 1996 [ SEE PAGES 98 TO 100 IN VOLUME III OF THIS REPORT ] :

1.15 MR ATTORNEY C.K. PETTY ON BEHALF OF THE LAW SOCIETY OF TRANSVAAL AND THE ASSOCIATION OF LAW SOCIETIES AT A PUBLIC SITTING AT MIDRAND ON 12 APRIL 1996 [ SEE PAGES 102 TO 110 IN VOLUME III OF THIS REPORT ] :

1.16 MR ATTORNEY A TUGENDHAFT OF MOSS-MORRIS INC. OF SANDTON, AT A PUBLIC SITTING AT MIDRAND ON 15 APRIL 1996 [ SEE PAGES 158 TO 159 IN VOLUME III OF THIS REPORT ] :

1.17 MR ATTORNEY L. VILJOEN OF PRETORIA AT A PUBLIC SITTING AT MIDRAND ON 16 APRIL 1996 [ SEE PAGES 163 TO 167 IN VOLUME III OF THIS REPORT ] :

1.18 ADV D.D.J. ROSSOUW OF NELSPRUIT ON BEHALF OF THE PREMIER OF THE PROVINCE OF MPUMALANGA AND ALSO ON BEHALF OF THE ASSOCIATION OF ADVOCATES OF NELSPRUIT AT A PUBLIC SITTING AT NELSPRUIT ON 22 APRIL 1996 [ SEE PAGES 170 TO 173 IN VOLUME III OF THIS REPORT ] :

1.19 THE HON MR JUSTICE J.J. KRIEK, JUDGE PRESIDENT OF THE NORTHERN CAPE DIVISION OF THE SUPREME COURT, AT A PUBLIC SITTING AT KIMBERLEY ON 25 MAY 1996 [ SEE PAGES 184 TO 187 IN VOLUME III OF THIS REPORT ] :

1.20 MR E.M. DIPICO, PREMIER OF THE NORTHERN CAPE PROVINCE AT A PUBLIC SITTING AT KIMBERLEY ON 25 MAY 1996 [ SEE PAGE 188 IN VOLUME III OF THIS REPORT ] :

1.21 THE HON MR JUSTICE R.H. ZULMAN AT A PUBLIC SITTING AT BLOEMFONTEIN ON 21 AUGUST 1996 [ SEE PAGES 193 TO 199 IN VOLUME III OF THIS REPORT ] :

1.22 ADV L. MPATI ON BEHALF OF THE PORT ELIZABETH REGION OF NADEL AT A PUBLIC SITTING AT EAST LONDON ON 5 OCTOBER 1995 [ SEE PAGES 75 TO 79 IN VOLUME II OF THE FIRST INTERIM REPORT ] :

CHAPTER 2

THE COMMISSION'S INVESTIGATIONS AND OBSERVATIONS IN AUSTRALIA

(A) WESTERN AUSTRALIA

2.1 A NOTE ON THE SIGNIFICANT ROLE OF THE DISTRICT COURT OF WESTERN AUSTRALIA :

2.1.1 This Court exercises original jurisdiction within the State of Western Australia in both civil and criminal matters. The civil jurisdiction extends to causes of action up to a value of $250,000 and up to an unlimited amount in respect of personal injury claims. In civil cases there is an effective system of compulsory mediation. This results in more then 70% of the cases entered for trial being settled.

2.1.2 The criminal jurisdiction is in respect of all indictable matters other than the most serious crimes (such as murder and aggravated sexual assault). The District Court comprises 19 Judges and 5 Registrars. Almost 75% of the court's business is conducted in Perth. The balance is disposed of on circuit at 11 regional centres. The District Court is an intermediate Court between the Magistrates Court and the Supreme Court. There are 16 Judges on the Bench of the Supreme Court. Appeals from a judgment of the District Court are heard by a three-Judge bench of the Supreme Court. Throughout Australia District Courts such as the District Court of Western Australia play a very important role in the administration of justice in the Commonwealth. Judges of the District Court are generally appointed from the ranks of senior practitioners.

2.2 A PRE-TRIAL MEDIATION IN THE DISTRICT COURT

2.2.1 Through the good offices of Judge Peter Blaxell (who gave the Commission every possible assistance during its visit to the District Court at 30 St George's Terrace in Perth) we sat in (with the prior consent of the parties) on a pre-trial mediation conference in a personal injuries case in which all the issues save the quantum of damages had already been resolved. The mediator was Principal Registrar Harding. He formerly practised as a solicitor in England ; and he is now a Registrar/Magistrate who performs both administrative and judicial duties in the District Court.

2.2.2 The parties were accompanied by their respective legal representatives. The mediator spoke first with the one side in the absence of the other, and then the process was reversed. The Commission was impressed with the dispassionate fashion in which the mediator discussed the imponderables of determining quantum with each side in turn ; with the complete neutrality displayed by him throughout ; and with his constant reminders to the litigants that while he (the mediator) from time to time ventured his own opinion as to what a court might or might not award in the way of damages in the particular case, the litigants should avail themselves of the advice of their respective attorneys.

2.2.3 When the mediator had spoken to each side in turn the proceedings were adjourned to enable the parties and their legal advisers to meet in private. Some 15 minutes latter they returned to the conference room to announce that they had agreed on quantum ; and the terms of the settlement were recorded.

2.3 THE FAST-TRACK CRIMINAL COURT IN THE DISTRICT COURT :

2.3.1 Within the District Court the following system has been adopted in order to expedite the disposal of criminal trials. An accused who is prepared to record a plea of guilty within a period of two months after his arrest is brought before the Fast-Track Court for sentence. There the presiding Judge explains to him that because of his promptness in pleading guilty the Court will impose upon him a sentence less stiff than that which the Judge would ordinarily have considered to be appropriate. He then sentenced him accordingly.

2.3.2 The Commission witnessed a matter being despatched in the Fast-Track Court presided over by Chief Judge Hammond. In the opinion of the Commission this is a procedure which might be usefully adopted in South Africa - both in the lower Courts and in the High Court. Upon the adjournment of the Court Chief Judge Hammond explained to us that although the Judge presiding in the Fast-Track Court has an unfettered discretion in fixing the reduced sentence, on account of the fact that the accused's appearance in this Court spares the complainant in a sexual offence the ordeal of testifying in open court, judicial policy favours a liberal "discount" (about 40%) in the case of sexual offenders and (about 30%) for other offenders who avail themselves of the Fast Track Court.

2.4 CIVIL CASEFLOW MANAGEMENT IN THE DISTRICT COURT :

2.4.1 Chief Judge Blaxell and members of his Registry gave the Commission a thorough and instructive guided tour of the District Court Registry. In particular we were shown how the computerised system enables the progress of a particular case through the caseflow system at any given stage to be determined within seconds.

2.4.2 Although the Supreme Court Rules governing caseflow management apply also to the District Court, the implementation of caseflow in the District Court is a recent innovation. Moreover, it has not been possible to adopt the same system of caseflow management as has been developed in the Supreme Court because of the greater volume of litigation in the District Court and the lack of a sufficient number of Registrars to provide "hands-on" management in every action.

2.4.3 Although the District Court caseflow management system is more rudimentary than that of the Supreme Court, it appeared to the Commission to function very effectively. A fairly full description of it is here necessary because, in the opinion of the Commission, it may provide a useful model for South Africa with its limited manpower and financial resources. What follows is based on a paper on Civil Caseflow Management in the District Court delivered by Judge Blaxell on 25 October 1995 to a Seminar of The Law Society of Western Australia.

2.4.4 The District Court relies on a system of computer monitoring with "hands-on" management confined to the minority of actions which fail to follow a pre-determined standard path. The computer identifies those actions in need of special attention.

2.4.5 There is a single standard "track" for all actions, regardless of type, which can nevertheless be varied to meet the needs of an individual case. The timetable for the great majority of actions is as follows :-

Action Maximum time from filing of appearance
Close of pleadings 60 days
Completion of discovery 180 days
Entry for trial 210 days
Pre-trial Conference 270 days
TRIAL 400 days
JUDGMENT 490 days

2.4.6 Once an appearance is filed the Court computer automatically generates and sends to each party a "case timetable". Thereafter a computer generated "reminder notice" is sent to the parties 14 days ahead of the deadline for each milestone. The notice states that summons for directions will issue if the deadline is not met. Whenever a milestone is not met the computer issues a summons for directions returnable before a Registrar. At the hearing of each summons, and in addition to the usual powers in respect of default, The Registrar also has the power to vary the timetable for the particular action.

2.4.7 As appears from 2.4.5 above the timetable applies also to the Court. The standard period for delivering judgment is 90 days from the completion of the trial.

2.5 CASE MANAGEMENT IN THE SUPREME COURT OF WESTERN AUSTRALIA :

2.5.1 The Commission is deeply indebted to the Hon Mr Justice D.A. Ipp for his generous assistance to it in devising a suitable programme for matters to be seen both in the District Court and in the Supreme Court ; and for the time and trouble taken by him in explaining to us the system of case management employed in the Supreme Court of Western Australia. Judge Ipp further arranged for the Commission to spend some time with Master Registrar Martin and two of her assistants. They went to great pains to demonstrate the functioning of the computer system employed in the monitoring of case management in Perth.

2.5.2 The Commission's visit to Perth took place at the end of August 1996. In November 1996 the ambit of case management in Western Australia was considerably expanded. The brief description of the case management system in the Supreme Court of W.A. which follows is based on Judge Ipp's explanation to us in his Chambers in Perth and on the contents of a speech on case management delivered by Judge Ipp as the main speaker at a seminar held in Johannesburg on 24 January 1997 (and therefore subsequent to the changes to the system effected in November 1996).

2.5.3 The Expedited List in the Supreme Court of Western Australia :

In 1990 the Expedited List was introduced in order to provide speedy justice to cases meriting expeditious adjudication. The list is not limited to commercial cases and the consent of both parties is not necessary. The administration of the list is in the hands of one Judge who has a wide discretion to make orders to meet the exigencies of the particular case. Interlocutory hearings are swiftly despatched. The parties file written arguments which are read overnight by the Judge ; and at the hearing each side is allowed no more than 15 minutes for argument. There is no appeal against interlocutory orders. Through closely supervised deadlines imposed by the administering Judge, 70% of the cases on the Expedited List are disposed of within four weeks. A feature of the Expedited List which soon became very popular was court-appointed mediation.

2.5.4 The Long Cause List :

As the benefits of continual supervision by a single Judge of long and complex cases became apparent, there was established for cases of an estimated duration of 10 days or more a Long Cases List which likewise fell under the control of a single Judge who heard both all important interlocutory applications and the trial itself.

2.5.5 The 1991 Changes :

In 1991 the entry for trial rules were amended so that no case could be entered for trial unless the solicitor concerned certified -

  1. that they held signed statements from all lay witnesses ;
  2. that statements of expert witnesses had been exchanged ;
  3. that counsel was of the view that no amendments of the pleadings were necessary ; and
  4. that a written advice on evidence had been received and complied with.
  5. Once a case was entered on the trial list it was treated like an Expedited List Case.

2.5.6 The November 1996 Changes :

In November 1996 there was introduced case management for all cases not falling within either the Expedited List or Long Cases List. Control is exercised by requiring the parties to report to the court at fixed strategically determined "milestone" dates. Here it is important to mention that in the Supreme Court of W.A. "Registrars" are officers of the Court who have had experience as lawyers in the legal profession for 8 years or more. The parties have to report for the following three conferences :

  1. a conference before a case management registrar within 28 days after appearance to defend has been entered ;
  2. a conference before a registrar within 28 weeks after entry of appearance ; and
  3. a listing conference before a Judge after the case has been entered for trial.

At the conferences before the registrar orders are made governing the interlocutory steps preceding trial ; dates for the completion of the various interlocutory stages are set and monitored. All interlocutory applications are ordinarily heard by the registrar.

2.5.7 Mediation :

Critical to operation of the case management applied in Western Australia is the certainty of the trial date. One problem with predetermined trial dates is that settlement either at, or very shortly before, the trial makes it difficult to find a replacement case on the trial date. In order to obviate the waste of judge-time which might then ensue the Court has recourse to mediation. Once the case is entered for trial the Judge in charge of the Civil List generally orders mediation before a mediation registrar. This takes place more than a month before the trial date, the object being to facilitate settlement on a date sufficiently early to replace the settled case with another in the trial list. The combination of fixed trial date and the mediation procedure has been very effective. Some 70 % of the cases sent to mediation are settled.

2.5.8 Exchange of Witness Statements :

It has become customary to order the exchange of witness statements in most cases. The approach of the Bench to witness statements is, however, flexible. Witnesses are readily allowed to augment their written statements by oral evidence ; and awareness of this judicial flexibility removes the temptation towards over-elaboration in the drafting of written statements.

2.5.9 Curtailment of Discovery :

In terms of the rules the court is empowered :-

  1. to order discovery in regard to particular issues alone ;
  2. to confine discovery to documents which are directly relevant to the issue ; and
  3. to limit discovery where its cumulative effect is considered to be unreasonable or where the burden or expense of discovery would outweigh its probable benefit.

2.5.10 The roles of the Bench and the practising professions in implementing case management :

Judge Ipp explained to us that the successful implementation of case management depends not merely on the content of the rules made to govern its procedures. What is essential is a change in the culture of thinking of Judges and practitioners alike. Judges have to be firm in their insistence on compliance with deadlines. The co-operation of practitioners is vital. The innate conservatism of lawyers is resistant to change. In Perth practitioners had initially displayed antagonism to the innovations. Having witnessed the benefits of case management, both for their clients and for themselves, they were now enthusiastic about it ; and their co-operation was assured.

(B) SYDNEY, NSW

2.6 A PANEL DISCUSSION ON MEDIATION AT MACQUARIE UNIVERSITY :

2.6.1 The Commission participated in a panel discussion with Mr C. Tidwell, a senior lecturer in the Graduate School of Management, Mr Andrew Heys, a lecturer in the same department ; and two members of the University's Law School : Mr Frank Astill and Mr Michael Noone.

2.6.2 Mr Tidwell expressed certain reservations about mediation as an effective form of Alternative Dispute Resolution. The theory was that parties in a conflict situation should through communication via the mediator achieve their own solution. A problem which tended to arise in practice, however, was that the mediator often imported into the process his own agenda. In the result the solution achieved was that of the mediator rather than that of the parties themselves. According to Mr Tidwell this position frequently arose when a lawyer acted as the mediator. Mr Noone, on the other hand, took the view that the success of mediation as a form of ADR depended heavily on the support and co-operation of the practising professions.

2.6.3 During 1995 Mr Noone had spent two months in South Africa. During his visit he had travelled about a good deal, and he had seen much mediation in practice. He had met many members of IMSSA and ADRASA. While their level of training and experience had impressed him, Mr Noone was interested to note that none of them was engaged in mediation involving legal disputes. The South African mediators appeared to him to be occupied chiefly in the mediation of labour disputes.

2.6.4 During the ensuing panel discussion one of the views strongly expressed by our hosts was that actual practical experience in conducting mediation was more important than mere theoretical training in the art.

2.7 A MEETING WITH THE HON MR JUSTICE M.E.J. BLACK, CHIEF JUSTICE OF THE FEDERAL COURT OF AUSTRALIA, AND A NUMBER OF SYDNEY-BASED JUDGES OF THE AUSTRALIAN FEDERAL COURT :

2.7.1 In the course of an instructive discussion with the Chief Justice (who is based in Melbourne but who happened to be in his Sydney chambers) and a number of the Judges of his Bench, we were told that the Federal Court had been a pioneer in the introduction of case management in Australia. From the beginning of a trial the whole progress of the case is subject to supervision. Directions hearings are conducted by a Federal Judge and not a Registrar. It was mentioned to the Commission that mediation as a form of ADR had become very popular in recent times. The consent of both parties is required for mediation. Mediation in the Federal Court is strictly confidential. In court proceedings evidence as to anything said during mediation is inadmissible.

2.7.3 The Federal Court has a well-developed system of court-annexed mediation. Its history and its likely future expansion are usefully reviewed in an article by Black CJ entitled "The Courts, Tribunals and ADR" published in the Australian Dispute Resolution Journal [vol 7, May 1996, No 2, 138-152 ]. The system began with a pilot project in New South Wales in 1987 ; and it is now firmly established throughout the Federal Court. Here follow brief quotations from the article at pages 138-139 :-