THIRD AND FINAL REPORT
VOLUME I
PARTS FOUR AND FIVE
CONTENTS
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
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
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
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)
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
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
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
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
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
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
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 [ SEE PAGES 1 TO 10 IN VOLUME III OF THIS REPORT ] :
1.1.1 " The concept of civil circuits, when one starts with it in principle, it ought to work in the same way as a criminal circuit. The major difficulties are the logistical ones which flow from the fact that...civil work involves the filing of pleadings and notices and so on...and far more record-keeping and administration than the prosecution which is in effect managed by the Attorney-General's Office...I have given thought to that problem and I think that there would be grave difficulties in trying to constitute regional civil registries in South Africa."
1.1.2 "There are differing views within the different Bars around the country, on this aspect [ the desirability of otherwise of Specialist Courts ]. So I hesitate to express a collective view...Firstly I am firmly of the view that the strength, the merit of the Roman Dutch law, call it South African law...is its general application of legal principle. Notwithstanding the impression one occasionally gets, we have still not adopted the English precedent, case-by-case approach to the development of the law, with all the erratic shifts and changes and the lack of relationship between one area of the law and another which that implies...we are a legal system of broad principle and we develop within the framework of those broad principles...It is amazing, when one discusses with foreign lawyers...the solution they arrive at by statute, judicial decision or otherwise, how closely it bears a resemblance to what evolves from the principles of the Roman and Roman-Dutch law ; and I think we lose that the moment we start saying, Judge So-and-So is an intellectual property Judge, Judge X is a common law Judge, Judge Y is a criminal law Judge, Judge Z will do maritime matters and so forth. Of course the maritime law internationally is the classic example of those broad principles applied on the scale of the whole world. That's the first reason I'm against it."
1.1.3 " The second reason I'm against it is that I believe that overall we are a country which has vast potential, but limited skilled resources at this point...the end result is we need to conserve and use our resources as best we can, and...to take Judges away to seat them in special courts...is just wasteful of talent. Durban is to the best of my knowledge, the third or fourth largest centre for maritime litigation in the world... Nonetheless, there is not enough work here ...to keep one Judge busy as an Admiralty Judge all the time. No doubt if we did have one Judge here we could almost eliminate delays in Admiralty cases in Natal, but it would be to the detriment of other litigants, because the Judge would not be available to do other work. So that's the second reason I think it's a bad use of resources."
1.1.4 " And the third reason is that I think it makes the judicial job less attractive to those who have been trained and brought up in the wide range of the law...I think we need to attract people of quality to the bench. So those are my three reasons why I'm actually hostile to any fragmentation..."
1.1.5 " What happens when you have six judges who are sitting in a Commercial Court in Johannesburg, they are happily doing commercial work, most or all of the time, which perhaps lots of their colleagues would prefer to do rather than knocking around crime and doing personal injuries cases and so on, which are not as exhilarating frankly. What happens when Judge A is duly and properly elevated to the Appellate Division and Judges X and Y would both like to go to the Commercial Court. X gets it and Y doesn't. I can see room for a great deal of tension."
1.1.6 " That is not how the Commercial Court works in London. Appointments, whilst they are all Judges of the Queen's Bench Division, the Judges who sit in the Commercial Court are appointed as members of the Commercial Court and they are appointed from the Commercial Bar. And you must understand, because of the size in London where there are 7 thousand Barristers, you have a very distinct body. There is a Commercial Bar Association. The Commercial Bar is in fact a separate member of the International Bar Association, which is the biggest international body of Bars around the world. It has only 800 members. So 6,700 of the Barristers are not doing commercial work by and large."
1.1.7 " Largely, for the sort of reasons I've been canvassing, I do not believe that the notion of a statutory Commercial Court in South Africa is workable. I think the figure given by the Judge President of the Transvaal is in the two years since this experiment started they've handled about 50 cases on that basis."
1.1.8 " Notwithstanding the proud hopes of the system, I have recently been involved in a major case set down for a month, involving millions of Rand, a construction contract case, which right from the outset we were told by the Judge President, was to be dealt with as a commercial case, don't worry we will always have a Judge allocated. Well pressure of work was such that the Judge never arrived and we had this interlocutory application and that interlocutory application...One was told, well you'd better set down an application to compel the supply of further particulars for trial in the ordinary Motion Court. You better deal with applications for further discovery in the ordinary Motion Court. And the problem that generates is that every time you do it in a major case, a new Judge has to familiarise himself with the papers...We never got this Judge allocated. Eventually the case settled."
1.1.9 " I question how many Judges...in proper commercial court cases, would be kept fully busy, even in Johannesburg. But that it would only be a handful, at the most the JP has 6 there out of 53. Now, the benefits seem to me limited and the im`poverishment of the Bench overall seems to me catastrophic, particularly bearing in mind our system of elevation to Appeal Courts."
1.1.10 " A grave danger for the Appellate Division is to acquire as a Judge someone who says, look, all I have done for the last 30 years of my life is a fairly narrow range of commercial cases. That is the expertise I bring. Sorry, crime I know nothing of, defamation - I can't help you ; administrative law is a closed book to me, intellectual property is intellectual to somebody else's property. That is, you actually take bright and talented people and then by making them very narrowly focussed you make them unfit for the appointment to the Appellate Division. That can't be right."
1.1.11 " I think the better method is to evolve appropriate rules for the management of Commercial Court cases, or what will be broadly regarded as Commercial Court cases ; and, far more importantly, one needs to revisit the proposals which were rejected by Judge Galgut some number of years ago, because of the overwhelming opposition they met with from members of the Bench as it was then constituted."
1.1.12 " The members of the Commission have available to them, as I understand it, Lord Woolf's first Interim Report ; I brought it back for the Rules Board, I may say, which didn't have it. I have read it. If one looks at Lord Woolf's analysis, one looks at his solutions to it, they are very largely the solutions which were put up hy the Bars, including the Natal Bar and I think the GCB to Judge Galgut."
1.1.13 " The greater judicial role which was suggested to Judge Galgut by the Bars, at the time I think perhaps in a narrower context of presiding at Rule 37 conferences and pre-trial conferences. That is really the case management system, as it is called in Australia, which is a doctored Lord Woolf's fast track, multi-track case management system. They are all variations on the self-same theme. From my point of view, and I believes the Bars', we remain committed to that procedure as the best way of managing cases, of getting irrelevancies out of the way."
1.1.14 " And I'd like here to respond particularly to what Mr Maluleke said to me about elitism. We see no particular reason why Commercial Courts should be blessed with such benefits of management...In one sense, and I'm not saying it is a good thing, businesses are better capable of bearing delays than the person who is a quadriplegic."
1.1.15 " I would like to see the breadwinner who has lost a limb being able to get into Court because the case is properly and firmly managed from an early stage, and firm management in those cases can more readily be given because very often the practitioners who are appearing in them, for the plaintiff, may be novices, may be a little inexperienced, may not have the logistical back-up which could happen and the hoary old guard of the insurance company's lawyers sets out resolutely to raise the drawbridge and hold them off."
1.1.16 " I'm mot sure that's the right approach and I believe that proper case management would stop that where it is improper ; would stop the abuses of our pleading system, such as denying that a collision occurred to force somebody to give evidence ; refusing to agree or make a tender as to what the proper quantum of damages is. A Judge, who could say to people up front, look, I'm directing you, the insurance company, put in now a sealed expression of your views, one as to the likelihood of apportionment and the degree of it, and two, the proper quantum. And I'm going to bear that in mind when it comes to an award of costs at the end of the case. I think that might be a salutary inducement to settling cases timeously. It is that kind of thing which can be done and which benefits the ordinary litigant."
1.1.17 " Now, may I go to the witness statements. The underlying theory of exchanging witness statements was that it avoids trial by ambush and surprise. In principle that is acceptable, though I have some qualifications where you are bringing a case or defending a case where questions of fraud arise. Because there, by giving a warning to the other side who, may we presume for this purpose, is guilty of fraud, you merely compound the fraud. So that is one potential drawback."
1.1.18 " The system, when it was instituted in the early 1980's in England, had a great advantage. The parties agreed to it and they put up fairly clear, simple statements...rather more a witness summary. That was taken up by the Rules Board and then in 1986 they acquired the power to order disclosure of witness statements ; then in 1992 it became standard that you had to exchange witness statements. And then one got to the stage now where it is perhaps in the majority of cases, say 70%, more or less routine for the Judge to say, well, the witness statement will stand as the evidence in chief."
1.1.19 " That has had two major problems...it is grossly unfair to witnesses. They get no opportunity to get the feel of the witness box before they are confronted with hostile cross-examination...They don't prepare their witness statements, their lawyers do. They read them over with the eye of a layman and the first question that gets put is, why did you lie in page three, line 5. What do you mean did I lie ? Well, you said this, look at the letter over there, you were lying. ' Utterly unfair, but it happens, in that situation."
1.1.20 " That's the one side. The other side of that, and in an endeavour to meet that is...we put up witness statements, they're going to be exposed to cross-examination, you're not going to be able to lead anything in addition to this statement. Well, we've got to make the statements as complete and thorough as possible.' "
1.1.21 " And, if I may then return to the article [ in "Counsel", the Journal of the Bar of England and Wales Nov/Dec 1994 issue] :-
'The current practice with witness statements thus has the following drawbacks. First it gives a significant edge of advantage to the well financed litigant over the legally aided client of a small High Street practice. Secondly, if the statements stand as evidence in chief the ascertainment of the truth is made considerably more difficult. The Judge no longer observes the witness telling his own story in his own words. Thirdly, the cost of trial preparation has been greatly increased...The twenty thousand word statement may take only two minutes to verify, but it then takes a fortnight to be challenged in cross-examination...' "
1.1.22 " That is the real flaw of the system, there is no management to do it and there is no ethos to do it. But I don't believe we are going to solve those sort of problems by setting up some independent Commercial Court, we need the rules, we need training, we need change of attitude and...we need change of attitude and...
CHAIRMAN : Co-operation ?
MR WALLIS, SC : Yes, Once that is done then, and, the important change as I see it in the managed approach is that the Judge is enabled to overcome the lack of co-operation. That's the key to it working. The ability of the Judge to overcome the lack of co-operation and the willingness of the Judge to do so."
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 ] :
1.2.1 "CHAIRMAN" : ...For the record may we invite you briefly to tell us the essential mechanisms in the Cape Rule 37 techniques which represent a modest but a real step in the direction of caseflow management.
"FARLAM J : There are basically two points. The first is, there is provision for the Rule 37 conference, the one held after the close of the pleadings, to be presided over by a Judge. He sits in chambers - he normally sits in this court as a matter of fact - but it is notionally sitting in chambers and he does not come robed or anything of that kind. But before that, and this is the second part, the parties have to fill in a questionnaire. They are obliged to discover, they are obliged to request further particulars for trial and to respond to such requests automatically without request being filed for that within a certain period after the close of pleadings. They are supposed to have done all those things before the meeting is held over which the Judge presides. Both attorneys have to fill in a questionnaire and the rule requires the forms should be filled in by the attorney who is actually handling the case. And also it is desirable - it does not always happen in practice, but it is regarded as desirable - that that attorney should attend the conference himself or herself."
1.2.2 " The Judge then considers the matter. The parties are invited to say whether there are any directions that they require to be given by the Judge and the Judge can very often then and there, if there has not been compliance with the requirements in respect of discovery of the filing of requests for further particulars or the filing of a response thereto, to order that it be done and to fix time limits for them and to provide normally that the case may not be enrolled for trial until that has been complied with. The Judge can sometimes postpone the conference for a date in the future on the clear basis that everything that has not been done yet must be done before the resumed conference."
1.2.3 " The Judge can also deal with matters like separating issues. An order can be made under Rule 33(4)... for the separation of issues at that stage already. The questions of amendments to pleadings must be dealt with before the close of the conference. Very often the Judge is able to suggest ways of shortening proceedings which the parties had not thought of. Very often the parties themselves make suggestions, sometimes both of them, sometimes one of them and the suggestions are adopted at the conference."
1.2.4 " It is also not unheard of for the Judge even to suggest a possible basis for settling the case. The attorneys sometimes get up and say very candidly that they are very close to settling the matter, but there is a certain problem and the Judge then informally will give an indication as to how he thinks the problem can be dealt with which is acceptable and the case is settled then and there."
1.2.5 " ...our impression...is that the system does encourage settlements, that more cases are being settled....than would otherwise be the case...some attorney friends of mine say that they like the system because it enables them to come face to face with their opponents. So often they have been trying to get hold of their opponent to see if they cannot settle the matter and because the attorneys who are handling the matter are encouraged to be at the conference themselves, they get an opportunity and very often cases are settled in the passage outside while they are waiting for the conference to take place. So more cases are being settled, more cases are being settled earlier and that has the important knock-on effect also that it means delays are being reduced and other cases which cannot be settled are able to come up for hearing earlier."
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 :-
" are at present working out suggestions for improving the present procedure which we will again put before the profession when we have formulated them. Hopefully we will be able to come up with some suggestions which will be put to the Rules Board which will make the Rule 37 procedure even more effective than it is at the moment. That roughly is what the situation is."
1.3.2 Next Friedman JP addressed the Commission on the matter of case flow management :-
" The main thrust of case flow management involves, I feel, from what has been written and what we have gleaned from other countries, is that there has to be a far more hands-on policy on the part of the judiciary. This culture of involvement of the judiciary in the running of cases, must be accepted by the profession. These are fundamental principles. Because if you are going to have a system of case flow management it is no good having a system which does not involve the Judge in the running of the case. Because the present system in this country is such that the litigants and their legal advisers control the pace of litigation."
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 :-
[ p. 705 ] " The judicial system cannot cope with the increased demand for its judicial services and there is a pressing need for reform. The modern adversarial process is an historical development, not a planned, logical system, and has always been subject to pragmatic change. Although aspects are immutable, such as the elements relating to fairness in the proceedings, there is considerable flexibility within other elements. A striking change is the extension of judicial control. The changing role of lawyers has led to many difficulties in the system and legislative intervention to enforce appropriate standards of conduct is inevitable.
[ p. 790 ] Reforms of the pre-trial process through case management are continually occurring. The trend is to make orders at pre-trial conferences governing as much of the conduct of the trial as possible. There is a pressing need for discovery reform. The use of written statements as evidence in chief is becoming prevalent, as is mandatory mediation. Judicial intervention to avoid injustice during the trial is growing in acceptance. There is a need for judicial power to limit the length of trials in appropriate cases. The appellate process is particularly in need of reform. Possible reforms include limiting the length of appeals, limiting the need to deliver full reasons, introducing two-judge panels and mediating appeals."
1.3.6 At page 790 of the Ipp article the learned author describes thus the two basic models of pre-trial case management :-
" There are many different permutations in the techniques of pre-trial case management. There are, however, two basic models, and all pre-trial management techniques are, in some form or other, adaptations of them. These two models are, first, management involving continuous control by a judge, who personally monitors each case on an ad hoc basis, and, secondly, management where control is exercised by requiring the parties to report to the court (often in the form of a master or registrar) at a few, fixed, strategically determined, intervals or occurrences (sometimes called 'milestones') where the management of the case is part of the routine and structure control by the court over all or most of the cases in its registry.
Most forms of the first model are expensive, as they require constant attention by the judge and frequent interlocutory appearances by the parties. This is usually most suited to complex cases. There is a compelling need for all complex cases to be subject to case management of this kind.
It is worthy of mention that there is a form of this model which has proved to be extraordinarily successful for the management of all kinds of cases, and not only complex litigation. That is the case management system implemented by the United States District Court for the Eastern District of Virginia, known throughout the United States as the 'Rocket Docket.' "
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 :-
" The first one which involves continuous control by the Judge is employed in certain States in America where when a case comes in, when someone files a summons, that summons is immediately referred to a Judge who from that moment onwards controls the course of the litigation. That is, I would suggest, not the type of case management that we could possibly employ here because it involves too much time and it involves a certain amount of specialisation which we are not in a position, I do not think, to introduce here. I think that it is far better if we follow the second system of the Judge intervening at certain milestones and the parties being required and the litigants being required at certain stages in the proceedings to do certain things and for the Judge to exercise overall control over the progress of the litigation at those milestones."
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" :-
" Mandatory mediation occurs when courts order mediation between the parties. Mediation of this kind is a service provided by the court and is part of the adjudicatory process. There are some jurisdictions in which compulsory mediation may be ordered, a typical example being the mediation procedures of the Supreme Court of Western Australia. Mandatory mediation is to be distinguished from forms of voluntary alternative dispute resolution, which involve the voluntary submission of disputes to private mediators.
The provision of mediation provided by the courts is another important modern reform of the civil litigation process. It is part of the court's attempt to reduce backlogs and to cope with inadequate resources. It also reflects the belief that some disputes are better resolved through a consensual process rather than an adversarial one.
In mediation the mediator holds a series of joint sessions and separate meetings with the parties in an effort to facilitate agreement. If it is not possible for the mediator to effect a settlement of the entire action, he or she will endeavour to facilitate the resolution of independent issues in the case. Because settlement depends upon mutual agreement, the success of the cooperative process requires both the presence and meaningful participation of all relevant parties."
1.3.10 Having referred to page 801 of the Ipp article Friedman JP stressed the importance of mediation :-
" It is well-documented in the United States because they feel that a great deal of litigation - we all know it, it happens here too -they say that 90% of litigation in the United States is settled at trial or just before trial. That is our experience too. Because if it were not so we would not be able to function. But the problem is that these cases are settled at too late a stage. If they could be sent to mediation at an earlier stage then many of these cases would be settled without having to incur the costs of a full-scale trial eventually or even the procedures which lead up to a full-scale trial even if it is settled on the morning of the case. That is why alternative dispute resolution is so important."
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 :-
" I think that the problem, certainly in this country, is that litigants are not aware of the fact that they can go to mediation. That is the one problem. And even if they are aware, there are no proper structures in this country yet to which they can go. The result is that cases are settled really by the legal practitioners themselves and that happens at too late a stage in most cases. That is why, when one is considering access to justice one cannot leave out a consideration of the whole question of alternative dispute resolution."
1.3.12 In response to a question by Mr Maluleke about the cost implications of mediation Friedman JP replied as follows :-
" There are costs involved in mediation because mediators would not spend of their time without being paid for it. But the costs involved are minimal compared to the alternative, which is to go to the Supreme Court in a full-scale trial. Because if mediation is employed at an early stage, it would obviate all the additional costs over a long period of time with attorneys and counsel and witnesses being involved, expert witnesses, so the alternative dispute resolution, although it involves a cost structure, certainly has a tremendous advantage over the full-scale trial, if it can avoid that."
1.3.13 In the course of his address Friedman made particular reference to the destructive potential of discovery procedures in trial litigation :-
" If you have regard to the Report of the Woolf commission gentlemen, you will see that a very important aspect of that Report is the manner in which he approaches the question of discovery. Because discovery can overburden the proceedings. It can put a litigant, who is not wealthy, into a very disadvantageous position because he could be flooded with documentation which is not really relevant ; and with the aid of the photostat machine these days it is very simple for a practitioner to just roll of documents and flood his opponent with unnecessary documentation. That is why Lord Woolf has suggested a curtailment should be placed on the question of discovery."
1.3.14 Friedman JP also explored the advantages of treating witness statements as evidence-in-chief :-
" In England Lord Woolf has suggested that a deposition should be taken down from the witness and that should stand as evidence-in-chief. It not only cuts down the time taken in court, but it also makes the case which the plaintiff is intending to bring clearer, so that the defence knows what case it has to meet, so that you do not have these games going on where people keep their evidence, as far as possible, up their sleeves and do not reveal it until the last minute, all of which leads to more expansive and more expensive litigation."
1.3.15 In connection with the issue of a possible Commercial Court for Cape Town Friedman JP said the following :-
" As far as establishing a Commercial Court is concerned, we do not feel it necessary for us to introduce a Commercial Court in Cape Town.
LEON J : I have been told it is not working very well in Johannesburg.
FRIEDMAN JP : But whether it is or is not functioning, I am not prepared to comment on. All I can say is I have read the rules that apply to it as far as we are concerned it is not practical to introduce such a system in the CPD. The reason is a logistic one. We have at the moment 24 permanent Judges in this Division and we have had an extra one since the beginning of last year to cope with the additional criminal work which we have here. But 10 Judges are engaged daily in criminal trials in this Division which leaves you with 15 Judges to deal with the rest of the work. Two of those are permanently engaged in the motion court every week...So that half the complement of the Bench is already involved. Then we have the Income Tax coming here three times a year which we have to assign a Judge to. Then we have Water Court sittings. So if we were to introduce a Commercial Court in this Division I would have to allocate the work which would be identified as Commercial Court work to, say, five Judges. It cannot work if you have less than five, I do not think. Then one would not have enough Judges to deal with the ordinary run-of-the-mill work."
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 :-
" We feel that the system that is in operation here works sufficiently well. If a case is identified as being one to be dealt with urgently, the practitioners know that they can approach me and I will make whatever arrangements are necessary to have the case expedited, whether it be a commercial case or any other kind of case. One of the main objections, both from the judiciary and the practitioners in this Division to the establishment of a separate Commercial Court, is that there is no reason why a commercial case should receive preference over a case of personal injuries where the person is desperately awaiting an outcome so that he can carry on with his life after he has been injured. So unless one can devise a system whereby Commercial Courts are not given preference timewise over cases in which the community is involved on a personal level, it would be unfair. You could only do that, we feel, if you have a large Bench like you have in the Transvaal where you have over 55 Judges, and to allocate five of them to a Commercial Court does not interfere with the rest of the work and does not give commercial cases priority over cases which are as deserving."
1.3.17 In connection with civil circuit courts Friedman JP remarked :-
" As far as the second aspect of the Terms of Reference of the Commission is concerned, namely the question of civil circuit courts. We have such a system in the CPD. At least twice a year a Judge is sent down to the Southern Cape Circuit Division, where approximately 30 cases are disposed of over a period of two or three weeks. Most of them are settled there, but those which have to be heard are heard and witnesses are in the area, they do not have to come to Cape Town. We do it regularly there because that is where the bulk of the work is.
But if there is a civil case in any other Circuit Division we will send a Judge to that Division. We do it on an ad hoc basis and it...works well. We do not need to change the rules for that. And of course the Judge on circuit, to whatever circuit town he goes, does the unopposed divorces. I do not know whether that happens in other Divisions."
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 ]
1.4.1 " As far as the Commercial Court is concerned, we can have a Commercial Court if the need for that has been identified. The problem with the Commercial Court in Johannesburg is that it is based on agreement between the litigants. The litigants have to agree to go into the commercial lane. Where you have a recalcitrant defendant he does not agree to anything, so he would rather dig in his heels and say that I am not agreeing to that because I would prefer, without saying that, to stick to the common law or normal lane because that takes much longer and gives me more time to get my money together."
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 ] :
1.5.1 " Ek het twee grade, een in drama en ek het 'n LL.B. Ek het in 1978 begin by die landdroshof, daar gepraktiseer tot 1979 met landdrosrang. Toe het ek my leerklerkskap gedoen by mnr Steyn se firma, Silberbauers. Sedert 1982 was ek 'n prokureur in die Paarl. In 1986 het ek by die Kaapse Balie begin praktiseer tot 1992. Toe het ek bedank by die Balie en sedertdien praktiseer ek voltyds as 'n mediator in Stellenbosch."
1.5.2 " Wat ek wil sê hierso is, dit is belangrik om daarop te let dat daar 'n wesenlike verskil is tussen mediasie en skikkingsonderhandeling. Heelparty regspraktisyns, prokureurs en advokate, verkeer onder die indruk dat hulle mediasie toepas terwyl hulle inderdaad skikkinsonderhandelings toepas...Mediasie is die kliënte praat self en hulle besluit self en die mediator is 'n neutrale derde. Trouens, ek wil sover gaan deur te sê dat dit sou eerder tot die partye se nadeel wees dat regsverteenwoordigers teenwoordig is tydens 'n mediasie proses, want dit is my ervaring in die praktyk. Want as jy jou weer kom kry het die twee prokureurs die gesprek heeltemal oorgeneem en die ouens wat eintlik moet praat sit daarso en hulle sê nie 'n dooie woord nie."
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] :
1.6.1 " I firstly cover the question of a Circuit Civil Court in Natal. Mr Commissioner, I am of the view that a Circuit Civil Court will not be necessary. Apart from the expense of setting up such a Court, it seems to me that for civil matters one may well find oneself in a position of going out on a circuit with five or six matters on the roll, all of which are settled, and a Circuit Judge sitting there with nothing to do...I do not see the necessity for Civil Circuit Courts in Natal, particularly as I do not believe there is any place which is more than three hours travel from either Maritzburg or Durban."
1.6.2 "CHAIRMAN : Do you support the idea of case management ?
MR HART : Case management, I do. And if it is thought that that is not a....responsibility for Judges, then it seems to us that maybe there should be legally qualified registrars or the like, with management experience, with executive powers, to jog along cases and see that they get to court and to spend time in things like rule 37 conferences. Because if that is done, the parties will have to apply their minds to things properly and early and, in our view, that will reduce the time delays in litigation."
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 ] :
1.7.1 " As far as the Commercial Court...is concerned there is no difference between the opinions of Durban and Pietermaritzburg, and we support Durban in the creation of a Commercial Court, probably to be based in Durban...we feel that Durban is big enough to have such a Court ?"
1.7.2 " CHAIRMAN : One of the criticisms levelled against the Commercial Court in the Witwatersrand Local Division is that thus far it is dependent on the consent of both sides...
MR DICKSON : Mr Chairman, I certainly don't believe that it should be a matter of choice...I believe that the plaintiff should make a decision and if he wishes to take it to the Commercial Court, that should be the place it goes."
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]
1.8.1 " I felt the need to do something for Johannesburg what was being done for London for the London Commercial Court. The London Commercial Court was established at the turn of the century to cater specifically for what was termed 'commercial cases of some complexity'. The merchants and tradesmen and everybody were dissatisfied with what was going on and I just took it upon myself to start investigating this.
I set up a small informal Commission with myself as the self-appointed Chairman, members of the Johannesburg Bar, Attorneys Association, the Law Society and some judges and we had exploratory discussions and I found support for this. I also touched the other Judges President and the Chief Justice on this and they thought it was an idea which was well worth exploring. The Law Society was to such an extent supportive of this that they arranged for me to fly to London to explore, to examine the workings of the Commercial Court there."
1.8.2 " I went to London, I had discussions with the President of the Commercial Court, I was in fact invited to sit on the High Court in the Commercial Court and to see its workings. When I returned I decided to take the plunge and set up a Commercial Court.
I have not, of course, the statutory power to set up a court as such but I did the next best thing and that was to issue a Practice Direction which in terms amounted to this that if two parties to a civil suit in Johannesburg wished their case to be dealt with as a commercial case they could join and ask me to do that."
1.8.3 " The Practice Direction I issued then was discussed by the Minister of Justice in Parliament, he also supported the idea strongly and the original Practice Direction was altered later on, various procedures were provided and one important element in the set up of the Commercial Court was that once the Judge President designates a case as a commercial case a judge is assigned to the case and he lives with that case and all the little procedural hiccups which occur as the case proceeds is dealt with by him. The judges who are designated to this court are known to be judges who have had considerable experience in commercial matters and can deal quickly with these cases."
1.8.4 " Apropos something mentioned by Judge Flemming, I was concerned when I set up this court or arranged for this court by the Practice Direction about the danger of setting up a judicial elite.
This problem I discussed when I was in London with Lord Steyn, an expatriate South African who practised in the Commercial Court extensively, I asked him whether one does not create the danger that you create a judicial elite and he said no, it has not been the experience in London. The fact is that certain judges are known to have expertise in intellectual property matters, expropriation matters, criminal matters and all sorts of matters and they do not become elites because of this."
1.8.5 " The motivation was to cater for Johannesburg being the commercial centre in Southern Africa, the problem was to cater for that litigating problem in the same was as the London Commercial Court caters for cases of that sort in London.
The problem about the informal way in which this court was set up is that there are many persons, litigants, who prefer not to co-operate in having their case assigned or becoming commercial cases. The defendant who wants to drag his heels and gain as much time is not going to do that and that is why it needs statutory foundation so that as in London the case can be designated a commercial case, whether or not both parties like it."
1.8.6 " CHAIRMAN: Now in explaining to us what you had done in regard to the Commercial Court you will recall that you used the vivid phrase that once a case has been designated a commercial case, a particular judge is assigned to it and he then lives with that piece of litigation. Very broadly, what is your reaction to the notion of, not merely in relation to a Commercial Court but generally speaking in civil litigation, the notion of court management as a regular feature of civil litigation?
ELOFF JP: Yes that is a popular idea of Judge Ipp of Western Australia, and I have given this some thought. Yes, court management; but within limits. The difficulty is you have to deal in Transvaal with numbers, large numbers of cases. It is an idea which the Cape likes of having some sort of court management in the sense that every case has to have a judge presiding over it pre-trial. That is just not on as far as Transvaal is concerned because of the numbers."
1.8.7 " I mentioned earlier that we set down in Johannesburg 28 cases per day. If you have to have a judge presiding over a pre-trial minute of that you have to have a bench of 20 judges presiding over nothing but pre-trial conferences and I can assure you that some of these cases are quite complicated. For a judge to exercise a meaningful role over a pre-trial conference with a court file this thick, and complicated issues, is going to require an hour to deal with this. That sort of court management is not practicable."
1.8.8 " The next best thing is something which occurs in the Commercial Court but also in other cases where a matter is somewhat complicated. The parties approach me as Judge President or any Judge President and ask him to make special arrangements, I can give you a case in point. There was a very complicated case running into several millions involving the importation of Teak from the East and it was complicated and the pleadings bundle looked like this so the parties came to see me, I assigned a judge to this case and there were about four or five times when they had to come before him on all sorts of procedural wrangles and because of his understanding of the case, because he had been - I use the phrase living with the case - he understands it and he could quite rapidly resolve any disputes as they arose. But that, because of practical reasons can only occur in regard to certain particular cases.
Another sort of case that lends itself to that treatment is expropriation cases and I have done this quite often. When an expropriation case is pending then I call in the parties or they come to see me, I designate a judge to the case and he takes part in the pre-trial management of the case. But the sort of Judge Ipp idea will not work in Johannesburg."
1.8.9 " CHAIRMAN: Of course on the North American continent something much in vogue is the technique of Alternate Dispute Resolution, either as a completely voluntary option or in some jurisdictions annexed as a procedure annexed to the court as part of the litigation process. Briefly your ideas on that subject as a device for saving time and money?
ELOFF JP: That has happened and with some success. The question is who shall take the initiative and at what stage and how? I am aware of a very complicated engineering dispute which was threatening to go on for years and the parties themselves then agreed for the appointment of a senior advocate from Natal to sit as the mediator.
There is, in Johannesburg, this body that takes on these cases; but what is required is that somebody should take the initiative of invoking these people. Question, should not the judge do that? Yes, but at the stage when a case comes before a judge the parties are ready and the costs are incurred and it is a little late then to do it."
1.8.10 " Possibly some procedure could be invoked whereby cases could be identified at an early stage which call for mediation. In the United States, you refer to that, I have knowledge for instance of Denver, Colorado there they have got what they call a Court Manager and he, with computers, picks up cases which call for that sort of treatment and designates that.
It is a complicated matter, I simply do not know how one identifies in good time what cases are of that sort, not every case lends itself to mediation. I think the initiative should come from the parties themselves but often the lawyers would prefer to have a good and a healthy fight in court rather than submit to mediation."
1.8.11 " I now pass on to a few words about the Commercial Court. May I just recap and deal with certain important functions and advantages of the Commercial Court and these advantages were spelt out to me when in London. As I mentioned earlier I spoke to judges who had served on the Commercial Court and with advocates who had practised there and also with the Senior Commercial Court Judge in London.
The first and important thing is that the judges who serve there are known to be men who have had considerable experience in their practices of commercial matters. Now theoretically any judge should be equipped to deal with a commercial matter but it goes so much quicker if you do not have to explain to a judge what a charter party or a bill of lading or demurrage is or if he can interpret a balance sheet or if he is familiar with business practices in certain matters. It so greatly assists and the duration of the trial is cut down very substantially."
8.1.12 " It is also the London experience, if the judge who is on the Commercial Court is known to have had a very considerable commercial experience, whether at the Bar or his years on the bench, parties accept that he is an interventionist. It is very often necessary for a judge to be an interventionist, and to say to counsel now this second defence of yours, is it really worthwhile and they accept it.
The third feature is the one which I mentioned earlier that very often the commercial disputes are very complicated or perhaps lawyers make them so and when the matter comes to trial you have a pleadings like this and if the Commercial Court judge is assigned to the case at the close of pleadings and has quite an understanding of the pleadings, any interlocutory matters are dealt with expeditiously, he knows what the case is about, he can on short notice sit on an interlocutory application, when there is an application for leave to amend or an exception or an objection.
I can mention one case where there was a very big action in the WLD involving several millions of rands, it was a very complicated case and before the case came to trial there were about three or four interlocutory applications, I assigned this case to a particular judge and he dealt with all of these really expeditiously and then he also presided over a sort of pre-trial conference and the actual hearing time was reduced from a potential two months to three weeks."
1.8.13 " As far as the litigant is concerned, the advantage is that many litigants who are involved in a commercial dispute sometimes resort to arbitration. They resort to arbitration because then they know who the arbiter is. They fear, and let us spell it out with plain language, they fear that if they take their chances in court the case might come before a judge who is not that familiar with commercial matters, it can be long and drawn out and there is some uncertainty. Therefore, they resort to arbitration.
If they resort to arbitration it costs them an enormous amount, they have to pay the arbitrator, they have to pay for the venue, they have to pay for the cost of preparing a record and there is no appeal and it is for that reason that it is a very good next best thing to have a Commercial Court when it is known who the judges are and it is known that those are the judges who have commercial experience and can deal rapidly and expeditiously with the cases that come before them."
1.8.14 " May I just then respond to a point that was made that the Commercial Court in Johannesburg started off with a flourish and then did not attract all that much custom. I think there was, I gave one reason already and that is that certain parties would prefer not to have their case stamped or labelled a commercial case, they prefer to fight in the old system and gain time.
Another, I think more practical reason, is the following: when I created the Commercial Court in Johannesburg with a Practice Direction the rules of procedure which I then agreed upon were those which the Bar and the Side Bar agreed upon in discussions with me and they were fairly simple rules. But thereafter some rules were added, I think I myself was party to additional rules. I issued a varied Practice Direction which added further new rules including one which gave the right to the commercial court judge to require the parties to exchange witness statements.
That was a mistake, with hindsight I can say that now, and several senior counsel have come to see me and tell me that that is the reason why they would rather not use that avenue because they firmly believe that it is not in the interest of their client to do so. Whether that is the correct attitude I do not know, it is not for me to decide."
1.8.15 " I believe that in time to come we will follow what is done in Great Britain and that is to require, perhaps make it obligatory in most cases, for a short summary of the statements of witnesses to be produced. However, that is the reality, there was that sales resistance to the use of the Commercial Court largely because parties were concerned about the novelty of having to exchange witnesses statements.
In consequence of that I issued a new Practice Direction, the copy of which you have before you which again adopts the simpler procedure and only opens the door of the parties exchanging witnesses statements if they all agree. I altogether agree with Advocate Van der Linde who says that the way of dealing with this is perhaps to do it on a basis similar to that appertaining to Admiralty Courts where a case can be designated a commercial case and then special rules applicable to the commercial courts apply.
In London the Commercial Court has a practice of sitting every Friday dealing with what we might term interlocutory matters and it is then that most of the hiccups in a case are dealt with and disposed of and that is a very important part of a case and perhaps some sort of procedure can be adopted in the Commercial Court in South Africa.
I think that there is a real need for that court, given statutory foundation. It will be in the public interest, particularly having regard to the fact that Johannesburg is already the commercial centre of Southern Africa and is likely to increase playing that role. It is just possible that also, as in the London Commercial Court, the parties there will very often be foreign corporations who find it to their advantage to litigate in the Commercial Court in Johannesburg. So much for the Commercial Court."
1.8.16 " I should mention that it has been mentioned by Judge Flemming that judges going on circuit could hear divorces and unopposed motions. With respect, that is just not on. In these days judges going on circuit have such full programmes they can hardly cope. They are loaded, they start the morning very often at 08:00 and sit through to 20:00, Judge Curlewis just recently finished the Eastern Circuits and he finished 70 cases in a short space of two months and to do that he had to start in the mornings at 08:00 and sometimes sit through it until 20:00."
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 ] :
1.9.1 " Coming to the Commercial Court, you would have seen on the memorandum that I am in favour of the continued existence of the Commercial Court on the informal basis. If the people involved with that can work out the product which is wanted, we use it. But the situation is this, it is no good trying to keep up with the Joneses and say the London people have a Commercial Court, therefore, we also have one. Birmingham's works, therefore, we also want one. The London court, more specifically than the others, really originated about a century ago at the realisation of the need for expedition, the need for judicial intervention, let me stop there.
That embryonic idea, that realisation, the Englishmen never developed properly. It took the Canadians, the Americans, the Australians and Hong Kong to say we need something more of the same, call it fast lanes if you want to give it a name. We do fast lane without giving it a name and I am certain that I will give you facts and figures to show that we perhaps do better than the Cape with all the names."
1.9.2 " On the bench it has become a cliquish business, at the moment I do not even know who all the Commercial Court judges are but it does not work satisfactorily.
What has happened in fact is that whereas in the beginning there was a number of cases to come on, the figure has just sloped, and sloped and sloped and now there is, it went out with a fizzle. The rules originally were as one wants it, judicial intervention, special attention, exchange of witnesses statements, because it was so unattractive I believe that is the reason, the exchange of witness statements was abandoned.
Then all special rules were abandoned and it is now according to the ordinary rules of the court which means it is simply another case but with a special court...The fact is that the public do not want it. If defendants do not want to consent, why must they be forced" ?
1.9.3 " This is one of those rare cases where one can put the product on the market and see what the response is. It has been put on the market, the fact that the people do not want to consent shows that they do not want it. Now on what basis must people now be forced and then, in addition, it is not because of necessarily the complicated nature, the largeness of the amount or whatever the jurisdiction is and then I find that the dispute about the main lease with the lessee goes to the Commercial Court but I sit in Motion court with the same lease on the same grounds of dispute between the lessee and sub-lessee. So I decide the same issue, not in the Commercial Court. Again my statement is not against the Commercial Court, it is its operation. If we can develop it or if those involved with it can develop it into an acceptable product by all means yes, I am always in favour of experimenting and going forward, looking for solutions. But to force people, institutionalising it, no."
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 ]
1.10.1 " Mr Chairman, I just wanted to add a few words in respect of the Commercial Court and that I do in my capacity as one of the judges of the Commercial Court. The establishment of a Commercial Court was criticised by Judge Flemming, he said that the rules in that court are the ordinary rules of the court and he said that it merely created an elite and caused dissatisfaction. The Commercial Court may have certain disadvantages but on the other hand it is a necessity.
The attorneys and the advocates wanted a Commercial Court and in my view, the Judge President had no choice but to accede to their request to establish that facility. Judge Flemming said that he had no objection and that he was actually in favour, as I understood him, of retaining the Commercial Court on an informal basis.
That is the problem with the Commercial Court, it is under-utilised at the moment that is so but one of the reasons at least is that the parties can only come to the Commercial Court with the consent of the other party.
CHAIRMAN: So you suggest it ought to be made compulsory?
STREICHER J: It should be made compulsory and I can see no reason why it should not be made compulsory and for a party to object to that."
1.10.2 " CHAIRMAN: Just to assist the Commission could you give us a few practical illustrations from your own experience of the sort of civil trial which is designated a commercial case?
STREICHER J: Well there is a very broad definition of matters that can be designated commercial matters. It will be matters involving a substantial amount or an important principle. Only those matters will be designated commercial matters.
CHAIRMAN: And a matter of some complexity?
STREICHER J: Yes, complexity - that is complexity, a substantial amount and an important principle maybe."
1.10.3 " CHAIRMAN: Have you observed a disinclination on the part of certain defendants to submit to the ministrations of the Commercial Court?
STREICHER J: Oh definitely and that is both the advocates and the attorneys I am sure will tell you that that is the problem, that you have difficulty in getting the other party to consent. In many cases you have defendants who are not that keen to have their matter heard and if that is the case then they will be reluctant to consent to the jurisdiction of the Commercial Court."
1.10.4 " CHAIRMAN: In a nutshell what do you see as the obvious advantages of the Commercial Court?
STREICHER J: Well the advantages are and that is what the attorneys wanted, they wanted a pool of judges, they wanted to have certainty - that is the attorneys and the advocates, they wanted to have certainties that their matters would be heard by one of those judges; they wanted the advantage of one judge dealing in so far as possible with the particular case, that is right through from the time that the pleadings are closed ...(intervenes)
CHAIRMAN: Shepherding it through ?
STREICHER J: Yes. I may add to this, the rules have been changed and it is correct that unless the parties approach the judge to whom the matter has been allocated for directions, the ordinary rules of court will apply. But there is provision in the Practice Direction for the parties to apply for directions and by that provision, flexibility is built into the whole procedure and that is an advantage to the parties."
1.10.5 " CHAIRMAN: And in your experience is the hearing substantially expedited?
STREICHER J: I think the hearing is expedited by the fact that the judge was involved right from the start, he becomes involved at a very early stage. He certainly, unlike other civil trials where you get the file on the morning of the trial, you will have the file long before the time, the parties can be called in, you can make suggestions to them as to how to curtail the duration of the trial and that is certainly an advantage.
CHAIRMAN: Judge Flemming rather suggested that the requirement of the device of exchanging witness statements, that it be discarded.
STREICHER J: Yes that is so, at one stage the Practice Direction made provision for the exchange of witnesses statements and it provided that the designated judge could order the parties to exchange witnesses statements. The advocates and the attorneys objected and they thought that that was a reason for parties being reluctant to come to the Commercial Court and from then onwards the rules were changed and they now provide that where the parties object, the judge will not order them to exchange witnesses statements."
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 ] :
1.11.1 " Mr Chairman may I begin by dealing with the Commercial Court of which I am a member and just to say this that when the attorneys and advocates requested the Judge President to consider the creation of a Commercial Court, one of the reasons that we supported that was that we saw arbitration as a real threat to the Supreme Court unless the Judge President agreed and you are aware possibly that there is now an arbitration facility being established in Sandton.
At that stage that was merely a threat, it has now come into operation and the fact is that this is one answer to arbitration, to be able to say to practitioners and their clients that there is this specialist court consisting of judges acceptable to the practitioners to deal with commercial matters."
1.11.2 " CHAIRMAN: Before you leave the topic of the Commercial Court, as you see it what are the merits and demerits of an exchange of witness statements? I know that in England there has been a lot of criticism because this has developed into a mammoth industry, producing very elaborate statements and there is a feeling in some quarters that perhaps summaries would suffice. What are your own feelings on the subject?
MYBURGH J: Can I just tell you first of all about the development in England? Their Commercial Court is about 100 years old and it arose not because of any dissatisfaction with procedure, but with the quality of the bench. That was the beginning of it, it was believed that many of the judges were unable to do justice to the cause."
1.11.3 " A great advantage of the witness statement is that it allows the parties to get to grips with the true dispute between them prior to doing so in court and the emphasis in the London Commercial Court is to arrive at the truth as soon as possible. In other words after 100 years of experience they said we are not concerned with defences or points, we are concerned with what will put an end to the litigation in the interests of justice and that is how the witness statement tradition grew in England.
In South Africa there has been resistance to that where we still have this idea of an adversarial system where you are entitled to hold your cards to the chest until the witness goes into the witness box and then starts putting his points and quoting cases to him.
I think one of the difficulties is this industry of making witness statements and the reason for that industry is that the lawyers have to be very, very careful of what goes into the witness statements because their clients are going to be cross-examined on the content of those statements. So the element of surprise goes and of course another experience they have had in England is that the witness gets cross-examined on the minutiae of the statement, so it is undoubtedly that that is a danger."
1.11.4 " CHAIRMAN: And I suppose that the production of these witness statements can involve a tremendous escalation in costs, I think that has been the English experience as well?
MYBURGH J: I must immediately say that we always accepted that there would be an escalation in cost in the preparation of a Commercial Court case but there should be a saving in the trial costs and ultimately the English experience has been that there has been a saving.
We were also told that foreign litigants are using the London Commercial Court to the extent that 60% of their cases involves litigation between parties, neither of whom is an English resident and I include, obviously, corporations. In other words foreigners come to London, to their Commercial Court and consent to the jurisdiction. That system has been so successful."
1.11.5 " Our experience in our Commercial Court has been this and each judge has had his own way of dealing with it but it has saved evidence-in-chief. The way I have run the Commercial Court when I have sat, is that the witness merely confirms his written statement. His counsel asks him if he wants to add anything to it and he does and then the cross-examination starts and, of course, the cross-examination in the hands of an experienced advocate is very pointed because he knows exactly what points he wants to make, he makes the points and he gets on with it. So the trial, not only are more disputes able to be settled if the case as a whole is not settled, but the trial goes much quicker than it would in the normal course.
CHAIRMAN: There has been some criticism of using the witness statement to stand as testimony-in-chief on the basis that it may do the witness a disservice. It may be unfair to him because he is, as it were, thrown in at the deep end before he has had an opportunity of acclimatising, becoming accustomed to the unfriendly atmosphere of the courtroom. What is your experience in that regard?
MYBURGH J: What I have done there is to let the witness read his statement and by the time he has read his statement onto record, he is relaxed and he feels more at home. That deals with the problem so that he does not suddenly start with cross-examination."
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 ] :
1.12.1 " MR BERTELSMANN: In our submission we have recommended that civil circuit courts be introduced. We believe that such a system should be as flexible as possible. Frankly, personally I doubt whether the administrative problems which might arise would be so very serious. If there is a need for a Civil Circuit Court sitting in Standerton, to issue process from Standerton or from the nearest other centre where such process could or should be issued, should not present us with insurmountable problems. Obviously to ensure that the necessary infrastructure is there some administrative steps would have to be taken but that should be easy and we would be in favour of the institution of Civil Circuit Courts wherever there is a proven need for such a circuit court to sit and that need should be established in close co-operation with and under the continued control of the Judge President."
1.12.2 " We are a little concerned about forcing litigants into the Commercial Court who would prefer to go somewhere else but if Johannesburg and the practitioners who are active in that court are satisfied with that submission, well we would not be directly affected necessarily but we would prefer a Commercial Court on a voluntary basis as we have it at the moment rather than with a statutory and forced basis. But in principle we are in favour of the existence of a Commercial Court and we would hope that the voluntary participation therein and the use thereof would provide a sufficient basis and justification for its existence."
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 ] :
1.13.1 " As far as the Commercial Court is concerned the argument will simply be that there is a need for it and that the practical way to go about it is the statutory creation of a Commercial Court jurisdiction for the Supreme Court as is, for example, the case with Admiralty Court jurisdiction.
The Supreme Court, when it sits as a court of Admiralty, sits in the exercise of its jurisdiction confirmed by that Act and it is a practical way, it retains the Commercial Court as an integral part of the Supreme Court. That such a statute ought also to make provision for the power of a Judge President in the division in which the court will sit to make rules that govern the proceedings of the Commercial Court."
1.13.2 " I have made the submission that from a practical point of view the approach ought to be to by statute create a Commercial Court jurisdiction for the Supreme Court of South Africa or the High Court of South Africa.
That Act ought to provide that the Judge President of the particular division will have authority and power to make the rules necessary for the conduct of cases in the Supreme Court, sitting in the exercise of its Commercial Court jurisdiction.
The jurisdictional provisions must provide, we submit for the following: firstly for a consent to jurisdiction without attachment, there would have to be something said about attachment and that you could come to that court without having to attach to found or confirm jurisdiction; secondly that one would have to make provision for concurrent jurisdiction with the High Court or the Supreme Court in commercial matters so that the plaintiff decides whether he wants to go to the one or the other and thirdly one would have to make provision for the Judge President of that particular division to define the category of cases that would be described as commercial matters or commercial cases."
1.13.3 " We know that there were problems with the pilot project but we submit the following: firstly the creation of a Commercial Court will not involve great cost,
the structures are in place; secondly if it flops it is a nice to have; thirdly if it succeeds you will have a court in which complex commercial disputes will be heard instead of in arbitration tribunals.
It will, therefore, give the litigant a fairer choice because he will be having his case heard by one of a panel of specialist judges and he will have all the advantages of not having to pay for his room, for his recording, for his judge; he will have an appeal. More important, and it is with respect a sound principle, that the structures of the court ought to provide sufficiently also for the large commercial matters to run through courts of first instance and, ultimately, through courts of appeal. If you do not do that, if you shut the doors of the courts of the land to the complex commercial matters, inevitably the standard with respect to your adjudication at appeal court level will be affected."
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 ] :
1.14.1 " With the indulgence of the Commission I beg leave to deviate slightly in order to raise before the Commission the issues of divorce mediation...Unless mediation becomes court annexed the chances are, and again I say this from my own personal very deep personal involvement in this, the chances are that mediation as a mechanism for resolving matrimonial disputes is going to take many years before it has any meaningful impact on the general community.
That it has a positive contribution to make in matrimonial dispute resolution is beyond doubt. Not only are costs substantially reduced and time saved but it is suggested the preservation of the post-divorce parenting relationship has a far greater chance of happening in the interests of the children than is the case in the aftermath of an acrimoniously fought divorce action even if settled prior to trial. The costs are determined by the rate charged by the mediator if in private practice as well as the number of hourly sessions held."
1.14.2 " The key to propagating the use of mediation is education. This in turn requires funding without which little visible progress is possible as events over the past five years have shown. I would say that one of the big mistakes that has been made Sir is to aim the appeal at the legal profession. The legal profession
is conservative. The legal profession is traditional and of course when one legitimately asks what is in it for me there are more fees to be generated in litigation than mediation.
The greatest single factor in successful mediation is confidentiality. Usually this creates an atmosphere of trust and open communication. In the result mediators are apprised of all the issues and their nuances; and would therefore seem to be well suited to adjudicate upon those issues upon which the spouses are unable to agree."
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 ] :
1.15.1 " Mr Chairman, then if I may move on to the question of the commercial courts. You have seen the joint submissions which the Transvaal Law Society and the Johannesburg Bar have made in this regard. And the Transvaal Law Society in summary supports the view that the commercial court should be placed on an independent statutory basis and that, at least at this stage, matters which fall within the area of jurisdiction of the Johannesburg court it should compulsory - commercial matters should be compulsory for them to be dealt with in the commercial court.
CHAIRMAN: It will not depend upon the consent of the defendant?
MR PETTY: No, I think that that has been the weakness in the commercial court that the defendant who wishes to thwart the right of a plaintiff can actually do so by simply not consenting and then the whole procedure must go through the Supreme Court."
1.15.2 " It is also our view, Mr Chairman, that this court must have separate rules and that they must certainly not be the rules that are applicable to the Supreme Court. And that these rules must be flexible and they must allow the commercial court to deal with matters in a way that meet the individual needs of cases. And that that would then make the commercial court a viable proposition.
We also feel, Mr Chairman, that there should be a proviso which would allow people who wish to litigate in that court to consent to the jurisdiction of that Court...If somebody in Cape Town has a commercial matter and the parties agree that they wish to be subject to the jurisdiction of that commercial court with all of its expertise they should be allowed to consent to it irrespective of the fact that that court would normally not have jurisdiction."
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 ] :
1.16.1 " I would just like to very briefly amplify what I said in my letter to the Commission,...of 13 June 1995. In essence what I was trying to suggest was a more pro-active civil procedure in commercial matters, one in which the Commercial Court would be seized of the matter at inception, not as it is at the moment. It is a voluntary submission to the jurisdiction of the Commercial court.
I understand that in England commercial matters designated as such appear on the Commercial Court roll and it is not a matter of consent on the part of the defendant. They are automatically designated as commercial matters and then receive the attention of the Commercial Court.
That is what I was proposing here both in respect of matters which commence by way of Summons and matters which commence by way of Application. I understand the procedure at the moment is that application proceedings cannot be referred to the Commercial Court although there may have been some amendment to that, I am not quite sure but certainly that was the position until relatively recently."
1.16.2 " So in essence I am suggesting that those matters be designated as commercial matters at inception and that a Judge is assigned those matters immediately or that particular matter immediately at the close of pleadings stage and with the help of the judicial officer who would supervise pre-trial formalities, I think one would be able to curtail the proceedings quite drastically.
CHAIRMAN: You want to see case management?
MR TUGENDHAFT: Case management, absolutely. I realise that one may not be able to go as far as they have gone in certain American jurisdictions because there the Judge of course is sitting more as an umpire and he is not ultimately going to hear the case, that the case will be decided by a jury but I still think within the confines of our own system we could have much more effective case management.
For example, a number of years ago I remember being involved in a case where there were about a dozen witnesses called on really trivial issues, it took a lot of time of the court and all of that could have been curtailed I think with the intervention of a judge at the pre-trial stage where he could have clarified exactly what the issues are and effectively cut out the nonsense and that is the kind of pro-active steps that I am suggesting should be taken."
1.16.3 " It may also be an idea, and I mention it in the letter, to have a compulsory exchange of witness statements, following on the American procedure where you do have interrogatories. You have an opportunity of canvassing witness statements in such a way that you may decide that in the case of certain witnesses you do not want to contest their evidence at all. You could be quite content to accept a witness statement, be it in affidavit form or signed, without contest instead of having to call that witness, inconvenience him and inconvenience the court and, of course, the parties.
CHAIRMAN: Of course in England in certain quarters the preparation of witness statements for the purpose of exchange has burgeoned into a fair industry and has resulted in chasing up costs. Some suggestions to the Commission have been that perhaps a summary of a witness statement, the exchange of summaries rather than a statement in extenso might be better. Have you any thoughts on that?
MR TUGENDHAFT: I would tend to agree with that in the same way as we exchange at the moment expert summaries. At least one could see what the outline of that evidence is, is it going to be necessary to contest, is it going to be necessary to call that witness or can we just agree at a pre-trial conference on the evidence?"
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 ] :
1.17.1 " My derde voorstel gaan oor 'n inkorting van hofprosedure. Die voorstel wat ek daar het, het ten doel om die hofprosedure in te kort deur middel van voorverhoor-konferensies waar 'n regter voorsit. Die eerste van hierdie voorverhoor-konferensies geskied net na die sluiting van pleitstukke en dan gebruik 'n mens basies die uitbreiding van Hofreël 37 soos wat ons dit deesdae nog ken.
Maar my ondervinding die afgelope 20 jaar is dat wanneer ons in 'n hof land en die geskilpunte is basies uiteengesit, dan kom 'n regter baiekeer na die regsverteenwoordigers en sê: Gaan skenk oorweging aan skikking. Dit het nou al baie gebeur waar ek self betrokke is of waar ek teenwoordig was. Dan het die partye uitgegaan en dan kry 'n mens hierdie populêre uitdrukking van: Hierdie saak is op die trappe van die hof geskik.
My voorstel het veral ten doel waar jy die leek-litigant het want nou het hy nie presies kennis van die hofreëls nie. Nou sit hy voor 'n regter by 'n voorverhoorkonferensie; die geskilpunte word uitgestip; hy word nie geïntimideer deur sy opponent wat 'n prokureur of 'n advokaat is nie, want nou sit daar 'n onafhanklike persoon voor hom wat sê: Gaan kyk 'n bietjie na hierdie en ek dink miskien moet julle kyk om eerder hierdie saak te skik voordat die kostes te hoog word."
1.17.2 " Die voorverhoor-konferensie deel ek op in twee fases, want as daar dan nou nie geskik kan word en blootlegging en dies meer plaasvind by daardie eerste voorverhoor-konferensie nie, om oor te gaan na 'n tweede en finale wat kort voor verhoor is.
Daar word dan stukke voorgelê waarvan 'n baie goeie voorbeeld is dié van deskundige getuies. 'n Deskundige getuie word baie kere wekelank ondervra in 'n hof terwyl daar deur middel van verslae en beëdigde verklarings voor die tyd 'n mens al klaar die geskilpunte kon identifiseer en dan kan 'n mens by een van hierdie twee voorverhoor-konferensies sê: Nee, maar ons erken sekere van die punte of ons erken die hele verslag. Die gevolg is dat 'n mens nie daardie hoë koste van 'n deskundige nodig het om twee of drie weke in 'n hof te wees nie.
Dit is wat my voorstelle ten doel het, dat wanneer 'n mens kom by 'n tweede voorverhoor dat jy 'n klomp van jou erkennings klaar afgehandel het en 'n mens is in staat om 'n verhoor in enkele dae klaar te maak in plaas van weke."
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 ] :
1.18.1 " VOORSITTER: Wat dink u van die moontlikheid van 'n Rondgaandehof vir siviele sake op 'n redelik deurlopende basis? Is dit prakties uitvoerbaar, ja of nee?
MNR ROSSOUW: Nee dit is nie prakties uitvoerbaar nie om een rede en ek is jammer, ek gaan dit weer herhaal wat ek gesê het, so 'n voorstel of 'n aanbeveling is om die werklikheid daarvan te plaas in die hande van een man wat diskresionêr sal besluit ek gaan daardie howe instel, ja of nee. Daar gaan nie iets wees wat vir hom sê jy moet dit doen nie, kom ons aanvaar dit moet uit Pretoria uit gaan, hulle het nie regters nie, dit is die maklikste verskoning onder die son, ek het nie regters nie so julle moet maar hier litigeer."
1.18.2 " VOORSITTER: As daar 'n statutêre verpligting geplaas word op 'n RP wat dan?
MNR ROSSOUW: Die vraag is of dit kan gebeur, of the uitvoerende gesag so 'n statutêre verpligitng sal plaas en dan sal dit altyd nog maar wees, dit kan ek voorsien met alle respek, dat die besluit gaan aan die Regter President oorgelaat word om hierdie dinge te reël ... Praktiese oorwegings wat 'n mens daarteen instel is dat daar moet nou dokumentasie, leêrs, dit moet geskryf word, waar gaan die administratiewe funksies vervul word, gaan dit in Pretoria wees, gaan dit op Middelburg, Nelspruit, waar die hof ookal gaan sit, hoe gaan dit werk? Leêrs raak weg, dokumentasie raak weg, ek persoonlik voorsien baie probleme wat dit aanbetref en op die lang duur met alle respek, gaan dit nie goedkoper wees nie, dit gaan duurder wees want daardie regters wat kom en kom sit daar is die S en T wat aan hom betaal moet word bo en behalwe sy salaris en sy klerk, almal, dit is 'n hoër uitgawe."
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 ] :
1.19.1 " I may mention that during 1995 not more than ten of the civil trials set down for hearing in Kimberley emanated from the Gordonia district and I got this figure from an attorney, the Chairman of the Attorneys Circle in Upington. He phoned around and phoned me back and said that not more than ten trials in the whole of 1995 came to Kimberley from the Gordonia district.
Mr. Chairman, if I may now go to the first addendum to the document you have before you , paragraph (b) of that addendum: with regard to my proposal concerning the establishment of the civil circuit I should suggest that I add the following sub-rules to Rule (4) of the Rules of this Division, a copy of which is annexed, should the Commission decide against creating a local division in Upington. Then I set out draft rules which provide for a civil circuit in Upington and that the judge-president may also, at the request of the parties, designate any place in the Northern Cape for the hearing of a civil trial.
Now, having written that, I had a meeting this week with the Bar and the Side Bar and the attorney-general and as far as the second leg of that submission is concerned, that is the establishment of ad hoc circuits at the request of the parties. I have other ideas. Mr Chairman, may I hand up copies of what I wrote after my meeting with the Bar and the Side Bar and the attorney-general?
CHAIRMAN: Yes thank you."
1.19.2 " Now in this document which I have just handed up, I say this: I still hold the same views with regard to the Upington circuit, but as far as the proposed Rule 4 (14) (b) is concerned, an alternative suggestion has occurred to me. It may be preferable to provide that the judge-president may establish such other permanent or ad hoc circuits for the hearing of civil cases at such venues in the Northern Cape as may appear to him to be necessary and/or convenient.
CHAIRMAN: That puts it at its widest.
JUDGE KRIEK: Yes, then if there are three trials to be heard from Springbok, they can approach me and I will arrange a civil circuit in Springbok for the hearing of those three trials. That makes it as flexible as it possibly can be.
When the variation of the proposed Rule 4 (14) (b), which I have suggested above, is adopted, some pattern will develop over the next few years and further civil circuits can be introduced if and when they become necessary. The rule will be flexible enough to cater for the future needs of the outlying areas of this province."
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 ] :
1.20.1 " CHAIRMAN: Civil circuit courts?
MR DIPICO: Yes. Our division has been applying this system in respect of criminal matters as well as unopposed divorce matters and this has proved to be more than efficient. I have requested the judge-president ... to extend the system to all cases, including civil matters, and he has indicated his enthusiasm in this regard, also indicating that he is prepared to amend the rules of the Supreme Court in order to alleviate any inconvenience that may result from the change in territorial jurisdiction. My submission in this regard is that for the system of circuit courts, for the hearing of all matters, criminal as well as civil, the administration of justice will be brought right to the doorstep of all members of different communities in the province, whether advantaged or otherwise."
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 ] :
1.21.1 " The great drawback of the Commercial Court as it now is structured, amongst one or two other matters, is the problem that it requires the consent of the defendant. In my years of practice at the Bar I very rarely was privileged to act for a defendant who was in a hurry to get to Court. Delay was often the best form of defence unfortunately, but there are some people who want to resolve their disputes quickly and expeditiously."
1.21.2 " Most of those kind of people resort to arbitration, but in England, in the Commercial Court which we tried to base it upon in London, the consent requirement is not necessary at all. You issue a writ out in the Commercial Court and the defendant has no choice as to whether he consents or he does not consent.
I believe that if one overcomes that difficulty in the Commercial Court and deals with one or two other matters of practical moment, the Commercial Court, and certainly in Johannesburg, can be adapted to take in matters relating to bankruptcy. I would earnestly request this Commission to look very seriously at what has happened from a practical point of view in Canada."
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 ] :
1.22.1 " I think I might as well deal with even the accessibility of the courts to the people. Our view is that even the best arrangements therefor will never please everybody, and we submit that the best that can be done to ensure maximum accessibility is by way of a circuit court system, which applies in the area of jurisdiction of the Eastern Cape Division presently."
1.22.2 " And talking about the circuit system of the Eastern Cape Division I may add that this needs to be extended to more centres than it goes to presently and it could also be extended ...I speak under correction here, at present the court sits for instance at Graaff-Reinet, it sits at Aliwal North, it sits at Queenstown, it sits - I once appeared in King William's Town, so I believe that it does sit in King William's Town, and also East London. We believe that towns such as Cradock, and it may well be that it has sat in Cradock, I am not hundred percent sure here ...(intervenes)
CHAIRMAN: It has in fact sat in Cradock.
MR MPATI: Yes, Cradock, Middelburg.
CHAIRMAN: There again it has sat.
MR MPATI: Colesberg.
CHAIRMAN: I believe it has also sat there, but any way.
MR MPATI: Yes, and maybe closer to the hinterland, places like between Steynsburg, which is something like one and a quarter hour's drive from Queenstown, so in those smaller towns it could also be extended to cover the area. And we believe that the circuit court should also be extended so as to also hear civil matters in those places where criminal matters are presently heard."
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 -
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 :
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 :-
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 :-