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

VOLUME III

BOOK 1

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BOOK 2

CONTENTS

(I) MR M.J.D. WALLIS, SC, CHAIRMAN OF THE GENERAL BAR COUNCIL OF SOUTH AFRICA

In the course of his oral submissions to the Commission at Durban on 28 November 1995 some of the points made by Mr Wallis, SC, were the following :-

(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..,in the relevant areas."

(2) "I have given thought to that problem and I think there would be grave difficulties in trying to constitute regional civil registries in South Africa. Put bluntly, I think all of us here today are probably aware of the ease with which files go astray in the Registrar's office in Cape Town, Durban, Johannesburg and Pretoria. I rather suspect that going out to even reasonably large centres, going up to Empangeni or Richards Bay, or going out to Middelburg or Nelspruit or Pietersburg, I, I think the risk would be substantially enhanced of matters going astray."

(3) "Obviously in the long run, if you're going to have a regular system of Civil Circuits, one would hope to move towards the stage where the whole administration of that circuit could take place in the centre where the Circuit Court sat. That isn't feasible at present, but it would be feasible, for example, in regard to Mmabatho, which one would expect to be one of the busier centres, for such a Circuit Court, if that were the route the Commission were to adopt."

(4) "There are differing views within the different Bars around the country, on this aspect [the desirability or otherwise of Specialist Courts]. So I hesitate to express a collective view. The views in favour of specialist Courts almost invariably come from those who have tended to specialise in those fields themselves and have endured the frustration of appearing before a judicial officer who, not only doesn't know anything about it, but seems to have very little ability or inclination to acquire knowledge on it."

(5) "Firstly I am firmly of the view that the strength, the merit of the Roman Dutch law, call it South African law, system traced back over several thousand years 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 have, I think, if I may be parochial, done considerably better by saying, we are a legal system of broad principle and we develop within the framework of those broad principles. They are principles which my travels and discussions at international conferences and elsewhere indicate are ultimately the principles which underlie all developed systems of jurisprudence. It is amazing, when one discusses with foreign Lawyers and you work your way through things, and the way they get to it, 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 on 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."

(6) "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. It's a product of our history and a product of the failure to develop those resources in years past, which I think we all hope is going to be remedied. But the end result is we need to conserve and use our resources as best we can, and to put people, to take Judges away to seat them in special courts, which almost invariably end up with exactly the problems we've been discussing this morning, with outlying Courts, that they don't quite have a full Roll, they're not as busy as the ordinary Courts and without using those Judges' services in those 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 provide, 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 be 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."

(7) "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. And certainly this is an advantage I have seen in discussions for example, my colleagues or counterparts in London, they have narrow specialities, they are quite amazed that you can have a practitioner who, just taking my own practice, this year I appeared in income tax cases, I appeared in labour cases, I have appeared in civil cases, (that's rarely, I accept) in criminal cases, administrative law issues, will cases, across the whole panoply of the law. And I think that's a better, it is one of the drawbacks, frankly, in attracting some of your top practitioners to the bench, that they fear a life of boredom."

(8) "It is a problem and 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. I would much prefer, where there are special needs, to have two things: First of all I believe that Judges President with reasonable sensitivity are alive to those of the Judges who have special skills."

(9) "I think the other thing that obviously has to be addressed, and here I'm concerned particularly with the family law area. I think there's no doubt that from a worldwide point of view, there is a need to approach family disputes in a different way, to try and tone down the adversarial impact, the parties are usually hostile enough themselves without the need for an adversarial legal system in conjunction. But I think that is better done by training the Judges in a sensitivity to those matters. Something which can be done."

(10) "We have no history of judicial training, but everywhere around the world judicial training is undertaken, it undoubtedly promotes greater sensitivity, understanding and awareness and is increasingly accepted. The old days of people saying, well I was ready to go on the bench, I don't need any more help as to how to do the job. All over the world people are seeing the benefits of training, that they can be assisted to do their jobs better, even down to the art of writing judgments. Where the Canadian Supreme Court Judges were all of the older school declined to be trained in how to do that, but all the younger Judges regard that as the most valuable aspect of the judicial training on appointment."

(11) "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."

(12) "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."

(13) "Perhaps this is an appropriate stage for me to go on Mr Chairman to the Commercial Court and to those suggestions.

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.

CHAIRMAN: It's not working efficiently I'm told.

MR WALLIS SC: It's certainly not working efficiently. But that is not entirely to be laid at the door of the litigants or their legal advisers."

(14) "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, its the case I mentioned earlier, of an acting Judge to deal with an exception, the particulars were vague and embarrassing. 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'd better deal with applications for further discovery in the Ordinary Motion Court. And the problems that generates is every time you do it in a major case, a new Judge has to familiarise himself with the papers. Even if they were all of the best quality, it takes time, very difficult, you end up having reserved judgments, where things might be dealt with more summarily. We never got this Judge allocated. Eventually the case settled."

(15) "I question how many Judges can, in proper commercial court cases, would be kept fully busy, even in Johannesburg. But that it would only be a handful, at most the JP has 6 there out of 53. Now, the benefits seems to me limited and the impoverishment of the Bench overall seems to me catastrophic, particularly bearing in mind our system of elevation to Appeal Courts."

(16) "A grave danger for the Appellate Division 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's, 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."

(17) "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 re-visit the proposals which were rejected by Judge Galgut some number of years ago, because of the overwhelming opposition they met with from the members of the Bench as it was then constituted."

(18) "The members of the Commission have available to them, as I understand it, Lord Woolf's first report; 1 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 by Bars, including the Natal Bar and I think the GCB to Judge Galgut."

(19) "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 really the case management system, as it's 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 believe the Bars', we remain committed to that procedure as the best way of managing cases of getting irrelevancies out of the way."

(20) "And I'd like here to respond particularly to what Mr Maluleke said to me about the elitism. We see no particular reason why Commercial Court should be blessed with such benefits of management or commercial cases and not the ordinary cases. In one sense, and I'm not saying its a good thing, businesses are better capable of bearing delays than the person who is a quadriplegic."

(21) "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 backup which would happen and the hoary old guard of the insurance company's lawyers sets out resolutely to raise the drawbridge and hold them off."

(22) "I'm not sure that's the right approach and I believe that proper case management would stop that where it's 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 any 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's that kind of thing which can be done and which benefits the ordinary litigant."

(23) "Now, may I go 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 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."

(24) "The system, when it was instituted in the early 1980's in England, by consent, had a great advantage. The parties agreed to it and they put up fairly clear, simple statements, in fact not what we would properly regard as a witness statement, but 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 more or less, or 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."

(25) "That has had two major problems. In regard to the latter one, 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. Quite frankly it is putting witnesses in the situation of a police cell interrogation. Bang. 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 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."

(26) "That's the one side. The other side of that, and in an endeavour to meet that, is, what you have is, well, Judges are going to insist 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 as thorough as possible."

(27) "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..."

(28) "I have done cases where we have flown witnesses in from all over the world and sat flexible hours. Sat at 8 o'clock in the morning on the basis that you've got to get the 1 o'clock plane back to Geneva. That was sitting in Heathrow. It can be done provided everybody is willing to do it."

(29) "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...

CHAIRMAN: Co-operation.

MR WALLIS SC: Yes. Once that is done then, and, the important changes I see it in the managed approach is that the Judge is enable 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."

(30) "For the ordinary citizen, the cases in which they are most likely to encounter the Courts are crime and family related matters. In terms of society and its goals, crime is one of the major problems of our societies, having a massive detrimental effect on all our communities and if one was to identify one other single social problem, it is the breakdown and damage to family life, the disruptive effects in the community and the family of divorce proceedings, custody battles, financial battles. It is the plight of the divorced mother caring for children, and it's predominantly that side of the equation hence I stress it, who gets a sort of slightly inadequate maintenance settlement and then struggles on and on getting poorer and poorer while husband recovers. It is the abused child and that sort of situation."

(31) "Those problems, I would say, are the closest links with the law, and to treat those problems as well as, oh that's alright they can be dealt with a lower Court level, we in the Supreme Court are really here to deal with the more arcane principles, give me a Bill of Exchange and its crossing anytime. As Lawyers intellectually, that is so. As Judges dispensing a system of justice and we are tending to look for a broader range of skills from our Judges now, an empathy and human sympathy for people and an ability to deal with people, because our Courts have become too aloof. That is wrong. And I would put those matters at the Supreme Court."

(32) "It should be at the highest level. My concern about any kind of separate Division, merely reiterates what I have said before: Where are you going to get the Judges who will say, all I will do is family law for the rest of my life, and you lose the cross-pollination, that's important."

(33) "MR MALULEKE: One little point. The experience at least from Bophuthatswana where I partly practise, was that the role played by Black Divorce Courts. It was to keep the cost of divorces to the minimum and when people in Bophuthatswana were then made to have their divorce cases in the Supreme Court, it became increasingly unaffordable. Would you have any thoughts about what can really be done to make such Courts more accessible, presuming you have a family Court at the same level as the Supreme Court?

(34) "MR WALLIS SC: I'd proceed with diffidence...I know little of them, but I have had cause to discuss them with Mr Pincus, who is the Chairman of the Family Law Association. I know they believe that possibly there is still a role for those Courts for those who would like to choose a perhaps less expensive route. I'm unhappy about that. I'm unhappy about a two tier matrimonial system, which, I must be quite blunt, in this country would become, they would remain largely Black Divorce Courts and the Supreme Court will be a more White Court and a privileged Court, I don't like that. Because I don't believe we should be saying to the poorer members of our community, your family problems are less important than the person who lives in Houghton and who has got to fight about whether the wife gets a Mercedes Benz or a BMW or something of that sort. I exaggerate obviously there. I think that is why I suggested special procedures in matrimonial matters."

(35) "I see no reason why, if you want a divorce, there should not be a standard form which can be completed without legal assistance, which can be completed with the assistance of a Counsellor, if you have that benefit, the Family Advocate could, usefully provide...or indeed you could train the staff in the Registrar's office, it is not beyond the wit of human beings to able to write out a name, address, the other party's name, to attach a photo copy of a marriage certificate, to find out the names of the children and so on, and to set out in summary form, such simple things as, I want a divorce, my wife should have the custody of the children, or I will have the custody of the children, this that and the other."

(36) "There is indeed much to suggest that matrimonial procedures could in certain cases not even involve appearances in Court. More or less like the Registries in England where, provided the two year of five year period has elapsed, I think it is two years. I would have little difficulty with that. Bluntly, appearances in Court are nothing but routine, it is rare indeed for a Judge to pick up anything in one of those cases. I would much rather see something where you had to put up a detailed statement signed by both parties saying, this is what we are doing about the custody of our children, this is what we have agreed about the matrimonial property consequences, signed by both parties. Well, that's as good as you get before a Judge, why shouldn't the Registrar issue an Order X months after time and so on and so forth. And it does serve the purpose, which is a modern purpose and a valuable one, of lowering the heat of matrimonial conflict."

(37) "MR MALULEKE: The next point, and this may fall outside the ambit of this Commission. There is a matter which has been prepared for the Constitutional Court which is basically based on customary unions. A lot of injustice is seen to emanate from that area. Where would you place, call them disputes or divorces or whatever?"

(38) "MR WALLIS SC: I would place those within the Family Court. It is not only customary unions, but one is particularly aware of, having practised in Durban, of unregistered religious marriages. According to Hindu and Muslim rights, it's a major problem here...,those are sufficiently closely related to the conventional family concept of our law. They are families within their own communities and that must be accepted as part of the diversity of this country."

(39) "And...again that's where a wise Judge President can have a range of skills. A wise Judge President knows he's got a, he's got cases involving custody of children, that's not the case you send down to a commercial specialist. When he's told he's got Katz and Katz before him which went to the Appellate Division on how many millions Mr Katz must give Mrs Katz. Maybe a commercial Lawyer is the right person to send there. It, I'm a great believer in, and I think that's part of the developed case management notion which Lord Woolf has in mind of horses for courses in terms of judicial office."

(II) THE HON MR JUSTICE I.G. FARLAM OF THE CAPE OF GOOD HOPE PROVINCIAL DIVISION

In the course of his oral submissions to the Commission at Cape Town on 8 January 1996 some of the points made by the learned Judge were the following :-

(1) "CHAIRMAN: ...For the record may we invite you briefly to tell us the essential mechanisms involved in the Cape Rule 37 techniques which represents a modest but 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 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 that the form should be filled in by the attorney who is actually handling the case. And also it is regarded as desirable - it does not always happen in practice, but it is regarded as desirable - that that attorney should attend the conference himself or herself."

(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 or 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 then 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."

(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 question 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. But sometimes the Judge is able to, because he has a different perspective sometimes, is able to make a suggestion which both parties accept. The one that comes to mind is separation of issues."

(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."

(5) "...our impression...is that the system does encourage settlements, that more cases are being settled; more cases are being settled earlier than would otherwise be the case. One of the reasons is - some attorney friends of mine say that they like the system because it enables them to come 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 that delays are being reduced and other cases which cannot be settled are able to come up for hearing earlier."

(III) THE HON MR JUSTICE G. FRIEDMAN, JUDGE PRESIDENT OF THE CAPE OF GOOD HOPE PROVINCIAL DIVISION

In the course of his oral submissions to the Commission at Cape Town on 8 January 1996 some of the points made by the learned Judge President were the following :-

(1) "My own view is that the Family Court should be a division of the Supreme Court. I think that there are improvements that can be brought about the procedures which it follows. When I say that what I mean is that I do not believe that it is necessary for a Judge in the Family Division or a presiding officer, if it is a magistrate, to sit and hear unopposed divorce cases unless there are complications, for example, with regard to the children.

In this Division we hear approximately 250 unopposed divorce cases per week, about 1 000 per month, and it is really a matter of putting a rubber stamp on the procedure and it is totally, in my view, unnecessary for a judicial officer to preside at a hearing like that. It can be done, as it is in England, on affidavit."

(2) "Having said that I believe that there is room for a Family Division of the Supreme Court because there are a number of cases which come before this Court, and I am sure similar cases come before other Divisions in the Supreme Court, where questions of custody and property rights are heavily contested, and these cases can go on for several days. I think there is room for an expert Court dealing with family matters to deal with that type of case.

There is also - and this brings me onto something that I wanted to mention in regard to the question of litigants in person - we find in this Division that there is an increase in the number of litigants appearing in divorce cases in person. One sees advertisements in the newspaper, which the Law Society is not able to control, that people offer their services to assist people to obtain what they term a "cheap divorce". They charge these people an amount of about R600, I believe, which is somewhat less than half what they pay if they went through the normal procedures - unless they qualify for Legal Aid."

(3) "...the position with this Rule 37 procedure was roughly as follows. What happened was that it was as a result of a very democratic process of discussions which took place here in the CPD. I called a meeting initially of the Bar and the attorneys' profession, as well as all the various branches which they have in this area. The present Rule 37 procedure was thrashed out at a joint meeting of the Judges and the profession.

We had a further meeting after the initial period of two years was about to expire with the profession and the unanimous feeling was that the Rule 37 procedure should be continued because it was working successfully, but at the same time it was felt that it could be improved upon. We 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 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."

(4) "The main thrust of the question 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. When I say the running of the case, I mean the progress of the case. Because the present system in this country is such that the litigants and their legal advisers control the pace of litigation."

(5) "We have referred in our memorandum to certain articles which appeared in the Australian Law Journal in September and October 1995. These are articles written by Judge Ipp. These are not the only articles that he has written. He has done a lot of work on case flow management in Western Australia, and a number of his proposals have been implemented there. I feel that if the Commission were to embark upon a wider investigation, as I suggest, it might well be necessary for the Commission to go to Australia as one of the places where a system of case flow management is working effectively, to see exactly how it all works.

In these articles what Judge Ipp has done is to indicate the need for reforms to be made to the adversarial system such as we have in operation in this country. I know these are long articles. Perhaps I could just direct your attention to certain pages..."

(6) "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 off documents and flood his opponent with unnecessary documentation. That is why Lord Woolf has suggested that a curtailment should be placed on the question of discovery."

(7) "In England Lord Woolf has suggested that a deposition should be taken from the witness and that should stand as the evidence in chief. It not only cuts down on 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."

(8) "Then in Part II he [Mr Justice Ipp] deals on page 790 with the question of reform of the pre-trial case management and its basic models, and he refers on page 790, over to page 792 to the various permutations that you can have in a case management system. There are two basic models he points out on page 790. He says:

"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'..."

which is basically what we are trying to achieve in this Division."

(9) "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."

(10) 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 investigation that the leaders in this field are the United States, State Courts and Federal Courts. The Federal Judicial Centre 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."

(11) "On page 801 Judge Ipp deals with the question of mediation. Mediation is important. 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."

(12) "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 involving the procedures which lead up to a full-scale trial even if it is settled on the morning of the case. That's why alternative dispute resolution is so important."

(13) "A number of these Courts in United States have what they call Court annexed systems of alternative dispute resolution. In other words, the Court has available to it a list of neutrals to whom it can refer cases where the parties agree to go to mediation. 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."

(14) "To return to the article by Judge Ipp. He deals on page 805 with the trial Judge's powers to limit the length of trials. That is important I think. I would suggest that you have regard to what he says at the foot of page 805, the paragraph headed, "The Trial Judge's Powers to Limit the Length of Trials" through to page 810."

(15) "MR MALULEKE: Judge, may I just interrupt you. Is there an indication in that journal on those articles about what the costs are or what the implications would be costwise. If you have a panel of neutrals, for instance, it would normally be people in private practice who would be available to mediate, what are the costs to a litigant, implicationwise?

FRIEDMAN JP: Certainly, that is a very good question, with respect, Mr Maluleke. Of course there is a cost involved. 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 compare to the alternative, which is to go 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."

(16) "As far as establishing a Commercial Court is concerned, we do not feel that it is 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."

(17) "FRIEDMAN JP: But whether it is or is not functioning and how it is functioning, I am not prepared to comment on. All I can say is I have read the rules that apply to it and as far as we are concerned it is not practical to introduce such a system in Cape Town 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 is 10 criminal, two in the motion court, that is 12. So that half the complement of the Bench is already involved."

(18) "Then we have the Income Tax Court 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."

(19) "We feel that the system that is in operation here works sufficiently well. If a case is identified as being required 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."

(20) "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 to 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."

(21) "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 the other Divisions."

(IV) MR ATTORNEY M.T. STEYN ON BEHALF OF THE LAW SOCIETY OF THE CAPE OF GOOD HOPE

In the course of his oral submissions to the Commission at Cape Town on 9 January 1996 some of the points made by Mr Attorney Steyn were the following :-

(1) "I appear before you in my capacity as the Vice-President of the Law Society of the Cape of Good Hope, to which I shall refer, for the sake of brevity, simply as the Law Society...The Law Society was established in 1883 and is in terms of the Attorneys Act of 1979 the governing and disciplinary body of all the practising attorneys within the geographical area of what used to be the Province of the Cape of Good Hope, that is to say, the present provinces of the Western Cape, Eastern Cape and Northern Cape.

The nearly 3 000 members of the Law Society have expressed the democratic wish to remain constituted as the Law Society of the Cape of Good Hope and not to split into three separate provincial bodies. The Law Society is a fully democratic and representative body which gives due recognition to and makes provision on an affirmative basis for participation in its affairs by the non-statutory Black Lawyers' Association, the BLA, and the National Association of Democratic Lawyers, Nadel. In general, therefore, I speak for all the practising attorney in all three of the Cape Provinces."

(2) "CHAIRMAN: ...As you are no doubt aware the Association of Law Societies has confined their submission to this Commission to a single plea for the establishment of a Family Court at Supreme Court level, either as a Division of the Supreme Court or, if a separate entity, then an entity with the status equivalent to that of the Supreme Court."

(3) "MR STEYN: ....May I just add as well that I am a Council member of the Association of Law Societies. That is somewhat of a mixed signal, if I may say. Because the Association of Law Societies was the main proponent for the Family Court system for taking divorce matters to magistrates' courts, on the basis that if a magistrate can marry people why can he not divorce them. What is so important about status in that respect? I think the solution on the structural side - I agree that that is a structural one - if that will be the creation of specialist court, and perhaps we can combine both in the process - maintain a Family Court in the Supreme Court but also give jurisdiction to Family Courts in the magistrate's court to hear unopposed matters or matters where the parties agree to be heard by that court. I think a party must have the right to demand to go to the Supreme Court. But there should be a cost element connected with that. Because we have seen so often in matrimonial matters that justice is denied in the Supreme Court because of the cost of running a divorce trial here. Procedure is not tailored to deal with divorce matters."

(4) "CHAIRMAN: The Judge President yesterday advanced the argument that really unopposed divorces were a waste of time and money and he made a plea for the adoption of the English system for which there is much to be said, perhaps.

MR STEYN: Mr Chairman, I respectfully submit that he is correct. I personally support that and so does the Law Society of the Cape of Good Hope. Unopposed divorces can be done on a motion basis, with papers, with affidavits - "File for Divorce" as they say on TV."

(5) "MR STEYN: Mr Chairman, I will then commence with my address on the existing court structures.

MR MALULEKE: Mr Steyn, could I just take you back to this point. I think it might help if we dispose of it perhaps at this stage. The question of the Family Court. I think it is generally common cause that one of the problems the public has in access to courts is the cost factor. And getting divorced in the Supreme Court is a very costly affair. But we have, as a function of this Commission, to make recommendations on rationalising the courts. There is what is called the Black Divorce Courts. Two points arise. The majority of the population in this country find themselves obviously in those courts. And the cost factor is so phenomenal. The difference is almost tenfold sometimes to get divorced in a Supreme Court or in a Black Divorce Court. What would you say the view of the Law Society is in relation to rationalising those courts and the Family Court concept as is envisaged by the Law Society?"

(8) "MR STEYN: Mr Maluleke, that is why I said earlier that our view is that we should combine the desire of the Judges and the Association of Law Societies to have a Family Court system in the Supreme Court with a Family Court system in the magistrates' courts. We submit that the ....(intervention).

CHAIRMAN: Two tier.

MR STEYN: Two tier. We submit that the Black Divorce Courts should be taken up in the magisterial Family Court system. It is a system that works, the Black Divorce Court system, it works well, and that is why it survived even under the name of Black Divorce Courts because it is serving the public and serving it well. So do not throw the baby out with the bathwater but keep in there but take it up in a new system, rationalise it somewhat, but not in a manner that will increase costs. The access must be there, the low cost system must be maintained, but there should be a rationalisation. In other words, all people should be treated equally. Black people should not have their own divorce court and white people other divorce courts. That makes no sense under our new dispensation. But I believe that white people and coloured people and Indian people should have access to the same simple facility that black people have under the Black Divorce Court system."

(9) "MR MALULEKE: ...One last aspect. There is unclarity insofar as where do you dissolve customary marriages. The Black Divorce Court as it stands seems to have no jurisdiction about that and no court indeed seems to have jurisdiction. Do you know if the Association of Law Societies is going to be heard on this point or maybe Nadel or BLA?

MR STEYN: Mr Maluleke, I do not know but I thought about this...,that is something to be addressed by Parliament. The law is not clear and an Act will have to be promulgated by Parliament to remedy that problem."

(10) "As far as the Family Court is concerned, I think...it is important to have easy access to that court, to keep the costs low, and to have the two-tier structure in the Supreme Court and the magistrate's court. Maintaining the present divorce system in the Supreme Court makes no sense. It is too costly and it denies access to justice to litigants, as can be seen from the growing number of people who appear before the court in person. They want to save costs, but more often than not they come out in the end having lost more than they gained in that they are not aware of the pitfalls along the way."

(11) "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 I am not agreeing to that because I would prefer, without saying that, to stick in the common law or normal lane because that takes much longer and gives me more time to get my money together."

(12) "A problem with the specialist courts as well is, should they have specialist Judges or should they be served by the common pool of Judges? You have before you a submission by my colleague, Mr Roger Field, who also practices in the admiralty field. He calls for the establishment of a specialist panel of admiralty Judges in the Cape. I have addressed that problem to our Judge President, who has pointed out to me that the difficulty is that out of 24 Judges it is simply not possible to dedicate one or two Judges simply to that type of work. If we have the money then obviously that would be nice to have. If we do not have the money we must find some other solution and then the common pool of Judges will simply have to serve all the courts. I do not necessarily think that is a bad thing, providing that a Judge with experience in a field is employed by the Judge President to hear a case related to that field. That is normally done. So, in fact, the system works quite well in that regard."

(13) "The Judge President here has a problem in getting the consent of capable senior practitioners, counsel and attorneys, to act as Judges in the division simply because most of them do not want to leave their practices for three months on an end, do not feel comfortable in many instances in dealing with reviews, dealing with motion court work and dealing with criminal work. If, on the other hand, one should approach a senior practitioner and say Mr or Mrs X, you are divorce or Family Court practitioner, are you available to do a divorce court matter for one or two days next week or the week after that, you would find that the practitioner would willingly agree to that and that would improve access to justice."

(14) "The question then is: how does one approach that? We believe that there should be a pool of ad hoc Judges to be constituted by the Judicial Service Commission because in our view acting Judges and ad hoc Judges are Judges of the Supreme Court. They should be tested by the same measures, according to which permanent Judges are appointed and it would be a good thing to have a pool from which they could be appointed. For example, litigants could agree on the appointed or nomination of a certain Judge. If they disagree it will simply be left to the Judge President to appoint a person from that pool who is suitably qualified to do the type of work concerned."

(15) "On that basis as well, the cost of that could be borne by the litigants. If they agree to the appointment of an ad hoc Judge one could make it part of the costs in the cause, the payment of the fees of that ad hoc Judge. If they disagree, but a party feels so strongly about hearing a case quickly, that party should be saddled with the cost of appointing an ad hoc Judge."

(16) "In my view it will not be that expensive in the total context of the cost of litigation and the claims concerned to appoint an ad hoc Judge and I think that we will find that many parties would prefer to follow that route in order to get to court quicker and to have a matter sorted out, in particular in divorce matters, for example, under the present dispensation."

(17) "Then as far as sub-category (1)(d) is concerned [of the Commission's Terms of Reference] there is one aspect remaining for me to address, and that is that a citizen of the country should be entitled to institute an action in his local court wherever the defendant may be or wherever the cause of action has arisen. In other words, improve access in that manner and not force a litigant to go to a division far away from where he does his business or lives but to bring it closer to him. We do not have a problem with that recommendation and as a Law Society we are in favour of that."

(18) "CHAIRMAN: Reverting to your suggestion that the time has now come that criminal work should be removed from the provincial divisions and be given to an extended regional court. At the moment, I am not sure, I think there are probably about 140 regional court magistrates in the country. If the regional court was to be saddled with the criminal work presently done by the Supreme Court then of course what we now know as the regional court would have to be vastly extended. What do you foresee in this connection? Where would the extra workforce come from? From the attorneys and advocates?

MR STEYN: Mr Chairman, yes. The regional court would have to be restructured in my view to give it improved status, to make it the criminal court of the Republic of South Africa. There are many practitioners who are suitably skilled in criminal work and who, I believe, would welcome an appointment to such a position."

(V) ADV D. BOSMAN A FULL-TIME MEDIATOR OF STELLENBOSCH

In the course of his oral submissions to the Commission at Cape Town on 9 January 1996 some of the points made by Adv Bosman were the following :-

(1) "Ek het twee grade, een in drama en ek het 'n LLB. 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."

(2) "Eerstens wil ek net op rekord plaas wat mediasie is. My submissie is dat mediasie vind plaas wanneer 'n gemeenskaplik aanvaarde derde persoon, die mediator, die partye help om self, en dit is die sleutelwoord, om self 'n vreedsame skikking vir hulle dispuut te bewerkstellig. Dit behels dus 'n proses waartydens die partye, direk met mekaar, weer eens sleutelwoord, kommunikeer en met mekaar saamwerk om die dispuut tussen hulle vreedsaam op te los. Die mediator, synde 'n neutrale waarnemer, se funksie is bloot om die skikking tussen die partye te fasiliteer. Sy funksie is nie om 'n afdwingbare bevel uit te vaardig nie. Die partye kan egter van hom verlang om, indien hulle nie daarin sou slaag om tot 'n skikking te kom nie, 'n oplossing te beveel."

(3) "Ek glo, met respek, dat enige dispuut kan geskik word mits sinvolle kommunikasie tussen die partye herstel en gehandhaaf word. Litigasie, synde 'n proses wat direkte kommunikasie tussen die partye ontmoedig, en wat tot gevolg het dat die partye hulle in wederstrydige posisies ingrawe, maak dit, naamlik 'n direkte kommunikasie onmoontlik. Daarom is dit my submissie en propageer ek 'n stelsel in die sivielereg analoog aan die nuwe Arbeidswetgewing wat voor ons deur lê, waarin daar in elke geval van 'n dispuut eers 'n daadwerklike en 'n opregte poging tot mediasie sal plaasvind alvorens die partye hulle wend tot litigasie."

(4) "My submissie is dat indien dit vanweë die regstelsel of die regsmeganika kom dat in so 'n geval, indien dit later sou blyk dat dit was onbillik gewees van daardie ander party, of selfs hulle sou kom "and they merely paid lip service to the whole concept of mediation", hulle gaan net deur die mosies maar hulle wend geen daadwerklike poging om werklik te probeer skik nie, dat dit ook tot die kennis van die verhoorhof gebring sou word en dat in die lig daarvan dat daar 'n kostebevel...(tussenbeide).

VOORSITTER: 'n Gepaste kostebevel.

ADV BOSMAN: 'n Gepaste kostebevel. En as hulle dit sou weet dan sal hulle twee keer dink voor hulle so 'n rammetjie-uit nek is."

(5) "Ek wil verder gaan, en dit is 'n baie eenvoudige en 'n prakiese beginpunt. Die huidige Regshulpstelsel. My ervaring in die praktyk is daar word meedoënloos Regshulplitigasie gevoer sonder dat die partye ooit op 'n stadium kom wat hulle nodig het om te probeer skik want iemand anderste betaal mos hulle rekening. Weliswaar is daar die sertifikaat wat nou gegee moet word, met daardie konsep of daardie aspek kan vervang word deur 'n sertifikaat deur 'n mediator wat sal sê ek het die partye gehad vir mediasie, hulle het gekom, ons het so en so en so gemaak, dit is my voorstel, ek stel voor daar word Regshulp gegee of daar word nie Regshulp gegee nie.

Ek stel daarom voor dat die Regshulpstelsel aangepas wat ten einde daarvoor voorsiening te maak dat alle aansoeke om Regshulp allereers in mediasie deurloop en dat eers dan Regshulp gegee word as die mediator dit aanbeveel."

(6) "Wat ek wil sê hierso is, dit is belangrik om 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 skikkingsonderhandelings 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."

(7) "MR MALULEKE: Can I disturb you? Take a typical motor vehicle collision claim. You have got a completely illiterate plaintiff and a skilled claims manager of an insurance company and you bring them together to mediate an amount of damages of half a million rand and you leave out the attorneys, how would you deal with that?

ADV BOSMAN: First of all, if half a million rand is the figure, one must assume that that is the figure that the one illiterate party had in mind all along. And that's very important to realise. With mediation it is not the rights of the parties, it is the needs of the parties which is important. Often the rights and the needs are the same, but quite often they are not. If the one party has already established in his mind that he wants half a million for his damages, then the closest he gets to half a million, if he gets R100 000 less than half a million and he is happy with it then as far as he is concerned his rights and his needs coincide."

(8) "My slotgedagte is doodeenvoudig wat baie belangrik is, is dat mediasie nou sy regmatige plek in die regsstelsel sal handhaaf. My submissie is dat die plek van mediasie is heel in die begin, nie aan die einde, soos wat dit nou bestaan nie, nie op 'n stadium wanneer die partye se geld op is of wanneer die hofrolle te vol is, maar heel in die begin."

(9) "Hoekom sê ek dit? Die basis van mediasie is die herstel van kommunikasie. In die geval van 'n egskeiding, daardie twee partye was op 'n stadium lief genoeg gewees vir mekaar om met mekaar te trou. In die geval van 'n vennootskap, daardie twee persone het mekaar genoeg vertrou om saam in besigheid te gaan. Die een het gegee, die ander een het van sy kant gegee. Nou is daar struwelinge, nou breek die kommunikasie af as gevolg van die een of ander faktor. Instede van op daardie stadium elkeen na sy eie prokureur toe te hardloop wat dadelik vir hulle sal sê luister, ek het nou jou saak, jy praat nie meer met daardie man nie, of jy praat nie meer met jou vrou nie. As sy vir jou iets te sê het laat sy dit vir my sê. Dadelik word die kommunikasie tussen die partye gebreek. Hulle dryf al hoe verder van mekaar af weg, en na twee, drie jaar is hulle op die hof se trappies of voor die hof se deur en dan moet hulle skik. Dan is dit nie 'n mediasie nie, dan is dit 'n gedwonge skikking. My submissie is dat heel in die begin, wanneer die kommunikasie pas afgebreek is, dat hulle dan blootgestel word aan mediasie, en die eerste ding wat die mediator sal doen is om hulle kommunikasie te herstel, uit te vind presies wat is eintlik die rede. Wat is eintlik die rede vir hierdie dispuut tussen jou en jou vennoot of tussen jou en jou werkgewer of tussen jou en jou vrou of wat ook al en dit dan aanspreek voordat die ouens te kwaad raak vir mekaar. Dan is jou kanse baie beter om die dispuut op te los en natuurlik jy spaar al daardie jare se regskostes en prokureur en kliëntfooie."

(10) "Met ander woorde, in antwoord op die Regter-president se voorstel wat hy na verwys "Court controlled ADR" is dit my submissie dat goed, dit is beter as niks, maar ek sou verkies dat dit op 'n baie vroeër geleentheid is voordat die kommunikasie heeltemal verbreek is en voordat daar te veel regskoste alreeds aangegaan is, en daarom staan ek voor dat die professie van mediators 'n derde been sou vorm van ons hele regsmeganika."

(11) "Dan met verwysing na die Regter-president se stelling wat betref onbetwiste egskeidings op stukke afgehandel kan word. Ek stem daar volmondig saam. Des te meer as jy daaraan dink dat jy kan deur middel van mediasie, jy kan 'n uur of 'n uur en 'n half, twee-uur se mediasie kan jy deurgaan, dan het jy 'n skikkingsakte tussen die partye. 'n Dagvaarding met 'n getekende skikkingsakte voorgelê in kamers. Ek meen, wat kan verkeerd gaan? Daar is geen manier hoe dit enigsins tot enige nadeel kan wees van enige party en daarso sou dit by uitnemendheid baie koste kan spaar want jy het maar 'n uurtarief en jy kan vir onder R1 000 klaarkom met 'n egskeiding. Daar is geen rede hoekom onbetwiste egskeidings duisende rande moet kos nie."

(12) "Ek wil ook dit sê dat daar moet opgelet word dat arbitrasie alleen is nie die oplossing nie. Arbitrasie bly in wese litigasie. Die arbiter gee uitspraak en hy besluit wat die beste vir die partye is. Een van die partye sal altyd ongelukkig wees en bly steeds 'n duur proses. Trouens, partykeer is arbitrasie nog duurder as litigasie want hulle moet nog die arbiter ook betaal. Die enigste oplossing wat my betref, met respek, is mediasie, of dan wel enige van die ander modules van alternatiewe dispuutresolusie. Hierdie modelle sal die partye selfs kan aanpas om by hulle onderskeie behoeftes en persoonlikhede te pas. So word verseker dat die partye beheer behou oor hulle dispuut en gevolglik oor beheer oor die omvang van die koste daarvan. Hulle is self vir hulle oplossings verantwoordelik en natuurlik ook vir die gevolge daarvan."

(VI) MR ATTORNEY A. HUISHAMEN OF SPRINGBOK IN THE NORTHERN CAPE

In the course of his oral submissions to the Commission at Springbok on 11 March 1996 some of the points made by Mr Huishamen were the following :-

(1) "Om terug te kom na een van die vorige vrae van een van die kommissielede is die familiehof; en een van die vorige sprekers het dit wel klaar genoem. Ons dink dit is baie belangrik, en ons dink dat hoe vinniger dit Springbok toe kan kom des te beter sal dit vir die mense wees omdat jy soveel gevalle het. Wat in Springbok gebeur, gebeur in die res van die land, maar net die feit dat die familiehof ingestel is weerspieël die behoefte dat daar 'n daadwerklike behoefte is en in Springbok is daar ook 'n daadwerlike behoefte daaraan."

(2) "Verlede jaar het een van ons landdroste wat vir 'n maand lank Pretoria toe gegaan vir 'n kursus en toe hy terugkom van die kursus van familiehof, voel hulle sy kwalifikasies is vir Springbok te hoog en hulle verplaas hom onmiddellik na Kaapstad landdroshof en hy sit nou in Kaapstad landdroshof. So ja, ons het al 'n landdros wat 'n kursus gedoen het en toe hy hier kom toe moet hy Kaapstad landdroshof toe gaan."

(3) "So ons het die gevalle met dringende aansoeke, met Reël 43-aansoeke waarmee ons te doen het, dat die mense eerder bereid is om by familie te gaan geld leen dat die saak maar net so vinnig as moontlik in die hof kom. Maar ons wat hier praktiseer voel dit is verkeerd. Dit moet nie so nodig wees dat 'n mens nou nog by ander mense moet geld leen nie, veral hier waar die Regshulpraad ter sprake kom nie. Ons probleem met die Regshulpraad is dat hulle vir jou sê: Jy kan die persoon verdedig, maar dan moet jy hom in Springbok verdedig. Nou het ons die geval, my persoonlike ondervinding, ek moes verlede jaar gaan na Hof 32, die streekhof in Kaapstad, dit is die hof vir seksuele misdrywe omdat daar 'n agtjarige dogtertjie ter sprake was wat getuienis moes afgelê het op hierdie geslotebaan televisie, en ek het geen magtiging om daarnatoe te gaan nie."

(4) "Die streekhof hier sê hy hoor dit nie aan nie, hy verplaas dit oor Kaapstad toe, maar ons het al klomp getuienis aangehoor. Ek kan my nie onttrek van die saak nie maar ek mag ook nie Kaapstad toe gaan nie. So, wat 'n mens toe maar gedoen het, ons het lank met die Regshulpraad onderhandel en na verskeie vertoë en na etlike fakse en telefoongesprekke het hulle uiteindelik toestemming gegee, nadat ek vir 'n nominale bedrag bereid was om Kaapstad toe te gaan omdat ek gevoel het dit is net nodig, dit gaan nie oor geld nie, dit gaan oor die mense. Maar dit kan nie so aangaan nie. Die behoefte aan die familiehof is daadwerklik."

(5) "MR MALULEKE: One of the submissions from the counsel from Gauteng was that...the traditional Black Divorce Courts virtually have about three divisions and they sit on circuits in various areas and the family court should really be adapted to that. What you need to do, is that you take those Black Divorce Courts and you change them into family courts. Would you have any comments on that?"

(6) "MR HUISHAMEN: Well, I personally would certainly welcome that because I am of the opinion, if you can defend somebody on a murder charge or a rape charge, I think it would be fit to take them to a divorce court and if you can convert this family court to include divorces, certainly. Normally, before you reach an agreement you are busy with that case for three to five months about the ins and the outs, especially if it is a defended matter. By the time you get to court you know just about everything about this couple, and I cannot see why we cannot handle divorces in Springbok or if not the regional court, then definitely in the family court, yes. I would welcome it."

(VII) THE HON MR JUSTICE CF. ELOFF, JUDGE PRESIDENT OF THE TRANSVAAL PROVINCIAL DIVISION

In the course of his oral submissions to the Commission at Bloemfontein on 16 March 1996 some of the points made by Eloff JP were the following :-

(1) "May I just say that the Commercial Court I established myself by a practice direction, and it has got a limited application because I have not got the power to set up a court. But what I did was to issue a Practice Direction about three, four years ago to the effect that if two parties to a case agree that that case should be designated a commercial case, then that will take place, and the case is then assigned to a Judge who lives with the case and carries the case through. Certain procedures are adopted in terms of that Practice Direction. In the nature of things those are commercial cases, and complicated cases, and that is why they are dealt with in that particular way."

(2) "Experience has shown that a large number of cases should be dealt with as they are in a London court as commercial court matters but the one party finds it is convenient to drag his heels, and not to consent to the matter being identified as a commercial case and that goes on. In London, I had spent a week in London examining that court and its functions and sat on the High Court on invitation of the Senior Commercial Court Judge, and he found that with their Order 73...matters are disposed of very expeditiously and the thing is given teeth so that even the reluctant litigant can come before the commercial court."

(VIII) MR ATTORNEY O.D. HART OF VENN, NEMETH AND HART, WITH WHOSE SUBMISSION THE PIETERMARITZBURG LEGAL CIRCLE ASSOCIATED ITSELF

In the course of his oral submissions made to the Commission at Durban on 30 March 1996 some of the points made by Mr Hart were the following :-

(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 to 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. The situation where the Civil Judges are concentrated in Durban and Pietermaritzburg is that if matters are settled the Judge is then in a position to help out in other Courts and to reduce the backlog. 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."

(2) "On the question of access, I believe that there must be - or we believe that there must be improved periods of time in which a matter is brought to trial. We believe that justice delayed is justice denied and that it is wrong that the public should need to wait inordinately long periods for trial dates to be allocated and, with respect, this is simply not acceptable.

CHAIRMAN: Could you give us, perhaps, some idea of the average waiting time at the moment in Maritzburg?"

(3) "MR HART: Yes, I will. I have recently arranged to have a survey done of Pietermaritzburg and, taking matters which were set down in June and July last year on the trial roll - not when summons had been issued, actually placed on the awaiting trial roll in June and July last year, and my survey shows that those matters, on average, are taking between 9 and 10 months for trial dates to be allocated and those are matters where two to three days have been requested. If they are longer than that - five days and anything beyond five days - it could be a lot longer. I can't give you the exact times, but a lot longer than that."

(4) "MR MALULEKE: Sorry, could I disturb you, Mr Hart. When you say between 9 and 10 months, are you meaning the date when the trial date is actually allocated or the actual date of hearing? There is normally three to four months from the date...(intervention)

MR HART: No, no, from the date on which it's placed on the awaiting trial roll until the date of trial."

(5) "I don't know the position in Durban but, as I think I've said, that it's probably longer - in Durban it's probably longer. Mr Chairman, in my view delay feeds on delay and the more delay you have results in parties to litigation making no effort to have matters resolved. They know they are going to be set down a long time in the future. They don't apply their minds to the matters and they just do not get settled. If pressure is placed on litigants by knowing that matters are going to be set down shortly they all apply their minds to the matters and they have those matters resolved quicker and more efficiently, in the interests of justice."

(6) "LEON J: May I just interrupt again to ask you whether any of this is due to delaying tactics on the part of defendants?

MR HART: Most certainly."

(7) "Mr Commissioner, it seems to us that perhaps the Bench could take a more managerial control of trials.

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 Judge - 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.

As a thought, we suggest that the Judge President in the Natal Provincial Division might consider having more communication with practitioners and the Bar in the form of communications as to practice in the division. Sometimes we are told that practice has changed and we don't know about it and it leads to confusion and perhaps wasted costs..."

(8) "MR MALULEKE: Actually in other jurisdictions there are committees, which are permanent committees, which liaise between the professions in the local area and the Judge President on matters of practice like you have referred to. You would be aware of that?

MR HART: Yes, we don't have one like that in Natal, not with the Judge President, a liaison committee, but I think that idea has great merit."

(9) "Mr Commissioner, on the question of specialisation, it is our view that the Courts, like advocates and attorneys and other professions, will probably in the future tend to become more specialised and to need more specialised knowledge and that, because of the general trend towards specialisation, litigants may require more specialised knowledge in the courts, that there should be a movement towards specialised courts in this country. Again, I don't presume to suggest what courts, specialised courts, should be set up, but just to ask the Commission to consider the principle that the following might be appropriate: a Family Court, a Commercial Court similar to what is now being used in the Transvaal Provincial Division, and things like a Labour Court or a Tax Court."

(10) "LEON J: Have you any views about whether there may be merit,...having regard to these specialist Courts, in having a specialist Constitutional Court in the Provincial Divisions.

MR HART: Judge, I believe that to have great merit, as one of the specialist courts within the Provincial Division."

(11) "Mr Commissioner, finally, it seems to us...that there should be a move by the Department of Justice towards computerisation in the Supreme Courts and that the Courts should all have proper up-to-date law retrieval systems, as are being done elsewhere in the world."

(IX) ADV A. J. DICKSON, SC, ON BEHALF OF THE PIETERMARITZBURG BAR

In the course of his oral submissions to the Commission at Durban on 30 March 1996 some of the points made by Mr Dickson, SC, were the following :-

(1) "CHAIRMAN: Do the Pietermaritzburg Bar share the concern expressed by Mr Hart at the length of waiting time for civil trials in Pietermaritzburg?

MR DICKSON: Yes, we do, Mr Chairman, and I think that the frustration is this, that Mr Hart has accurately given the waiting time for two- or three-day trials and may I just say that practitioners are being asked to accurately assess the time for which trials are set down and the reason for that is that we don't have a running roll. So a time is allocated for a trial and it ought to finish within that time. If a bad estimate is given, it may result in the trial merely being adjourned and a new day having to be applied for in the future, because it would run part heard."

(2) "We're not saying that the kinds of considerations applied by the Senior Judge or the Judge President or whoever is on duty and instructing the registrar in relation to set down is wrong. What we're saying is that perhaps Mr Hart's case management would speed things up and give proper allocation to trials on the merits."

(3) "I don't have any complaint in the way in which the Judge President has constructed his roll system, but it just - it has slack periods and then it has long delays and it's very difficult - I'm just throwing the problem to the Commission - perhaps the Commission has heard representations elsewhere in the country - to get to the best answer. It may be the roll system, the running roll system.

LEON J: Well, the answer may be the case management system.

MR DICKSON: Or the case management system.

LEON J: Yes, that may be the best answer in the end.

MR DICKSON: Yes."

(4) "MR DICKSON: As far as the Commercial Court Division of the Supreme Court, 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 and, in fact, it makes good sense to create it in Durban, provided it did not become a court of exclusive commercial jurisdiction, so that one could still present commercial cases in Pietermaritzburg, but we see the advantages of specialised courts and, in particular, a Commercial Court and we feel that Durban is big enough to have such a Court."

(5) "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 and many people have suggested that it's not really an improvement unless recourse to it is obligatory.

MR DICKSON: Yes.

CHAIRMAN: Have you any views on that?

MR DICKSON: Mr Chairman, I certainly don't believe that it should be a matter of choice. If it's a commercial matter and there's a Commercial Court, I believe that the plaintiff should make a decision and if he wishes to take it to a Commercial Court, that should be the place it goes."

(6) "LEON J: Do you have any views on a point made by Mr Hart with regard to other specialist courts? And the point that I raised with him, namely whether there shouldn't be in the Provincial Divisions a Constitutional Court, or Constitutional Division I should say, having regard to the very likely increase in constitutional cases when the final Constitution is written...?

MR DICKSON: Yes, Mr Chairman, I think that it has so many obvious advantages it would be hard to argue against the specialisation of Judges within a division and certainly Judges with constitutional - special training or experience would be a great asset and if - one doesn't have to formalise it into a Constitutional Division of the Provincial Division, but it would certainly be a great advantage to litigants if they knew that the Judges they were presenting a case to had an expertise in the matter of the case..."

(X) THE HON MR JUSTICE C.F. ELOFF, JUDGE PRESIDENT OF THE TRANSVAAL PROVINCIAL DIVISION

In the course of his oral submissions to the Commission at Midrand on 9 April 1996 some of the points made by Eloff JP were the following:-

(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."

(2) "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."

(3) "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."

(4) "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."

(5) "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."

(6) "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."

(7) "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."

(8) "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 way as the London Commercial Court caters for cases of that sort in London."

(9) "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."

(10) "CHAIRMAN: The Commission has obtained statistics as to the volume of undefended divorces heard annually in the various divisions and it is a staggering figure. For example in the year 1995 there were almost 32,000 cases heard by the Supreme Court and of these approximately 30,000 were undefended. Now there have been suggestions, notably from the Judge President of the Cape of Good Hope Provincial Division, that for a judge to sit for hours every week listening to undefended divorce cases is not a productive use of judicial manpower. What is your reaction to the suggestion that the time has arrived for the adjudication of undefended divorces in a lower court, a tribunal not necessarily manned by magistrates or magistrates only, but manned by representative of the Side Bar or the Bar if they are interested?"

(11) "ELOFF JP: Well this is a matter that has been discussed at various levels and has been for many years. The strongest reason urged why divorces should be dealt with by the Superior Courts is that divorce is said to be a matter of status and consequently that should be dealt with by a Superior Court."

(12) "That point of approach is no longer held as strongly as it used to be but practical realities I think dictate that there should be a departure from the present system. You mentioned the figures, at present in Pretoria unopposed divorces are heard on Fridays, an average 150 to 180 unopposed cases on a Friday to be heard by three judges. So every judge has to go through 45/50 and sometimes 60 divorces on a single day."

(13) "I have done that myself very often. It is tiring but what worries me about that is the impression it creates on the public and on everybody. One is left to feel, you have to go through this with some rapidity otherwise you do not get through your work so perhaps three minutes per divorce and the impression that gains or might be created that it is something like a sausage machine. It is very tiring work, I would rather spend a day in a most complicated income tax dispute requiring reservation of judgment rather than sit for an hour in the divorce court. It is really tiring work."

(14) "In Johannesburg it is a little worse. In Johannesburg divorces are heard on Thursdays and Fridays, on average 200 cases per week - unopposed divorces. What adds to the problem is that increasingly parties appear in person so the judge has the load of playing counsel and putting the litigant through his or her paces. All judges complain of the work, it is really tiring work."

(15) "In Great Britain when parties divorce they do not even have to come before a court, they go to the Registrar and sign a document and they are divorced. So I think that South Africa would be keeping in pace with modern thinking if it were to jettison the idea of the Supreme Court being vested with sole jurisdiction to hear divorce cases and to assign that task to another tribunal, not a lower tribunal, it should be an excellent tribunal which has got more time and can deal with this with greater dignity and free the Superior Courts of the task of doing that, yes certainly."

(16) "You may have to make special provision for cases where children are involved because experience tells one that sometimes parties, when they settle a case it does involve horse-trading: I will pay less maintenance if you withdraw your defence and that sort of thing but special arrangements may have to be made. Even then, after you have heard 35 divorces, even the skilled and experienced and attentive judges may miss some horse-trading which comes in the 40 th case before you."

(17) "CHAIRMAN: Yes, I think the notion is that in such an eventuality the Supreme Court would retain concurrent jurisdiction and that the other tribunal would obviously have the power to refer meritorious cases for adjudication to the Supreme Court.

ELOFF JP: Yes, some cases would become complicated because of section 7 claims. There is just this danger though. I am aware that when there was talk of the family division there was created in Johannesburg an association called the Association of Divorce Lawyers under the Chairmanship of a gentleman called Gundelfinger and they set their face strongly against cases being heard in those courts. So there is going to be sales resistance by the profession against that."

(18) "The argument is why should divorces, divorce litigants, why should they have third grade treatment whilst a man who sues for a debt comes before the Superior Court so account will have to be taken of the circumstances. When the draft bill for providing for the Family Division was put up the original text provided that parties may only come to the Supreme Court for good reasons shown. This Association then went to see the then Minister of Justice and prevailed upon him to drop that clause and he did so."

(19) "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?"

(20) "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."

(21) "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."

(22) "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."

(23) "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."

(24) "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?"

(25) "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."

(26) "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."

(27) "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."

(28) "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."

(29) "MR MALULEKE: Would you still argue for the retention of the eight kilometre radius, particularly in a small province like Gauteng? It seems to me silly that an attorney in Springs must get an attorney in Johannesburg to file documents or vise versa or even Pretoria North, I am not too certain and it seems to work hardship on the litigant, it is costly and it introduces very unnecessary things. What are your views about it?"

(30) "ELOFF JP: I think that serious consideration should be given to an alteration of that because new means of communication render the old distance of eight miles which was perhaps fixed when you had to go by horseback, renders that obsolete. People communicate by fax these days and we have already, Judge Flemming can lend support to that, the extent to which communication by the Registrar goes now by - Judge Flemming can enlarge on that, with the use of the computer and all the other means it is no longer important whether a man is two kilometres from the seat of the court or 15."

(31) "The practice with the smaller divisions is that they do not have a continuous roll, I know it is the position at Kimberley and at Bloemfontein, they have very few Superior Court cases and usually those cases are given a date, this case is going to be heard from 12 to 14 April. Then the parties come and they come to court on the 12^th and the case goes on, comes 14 April the case is not finished and is postponed to another date."

(32) "The continuous roll system is a very valuable one and it has meant, you must think of the benefits for the entire litigating community, not only the few people there, it has meant that the waiting time has been reduced. In Transvaal the waiting time has been reduced, it was once 14 months and it is now down to six months and Judge Flemming tells me that in Johannesburg we may soon have a waiting time of five months only, perhaps he can deal with that. So it means that ... (pause) - Judge Flemming tells met it is already so in Johannesburg the waiting time, from the time you wait to get a date until you heard is five months."

(33) "That means that the entire litigating public has the advantage of a speedy hearing and none of the attendant disadvantages of witnesses disappearing or being dead or so on and so forth which serves a large section of the litigating community. It may be that one or two litigants will then have to wait a day for their case but that has to be offset and seen against the greater benefit to the large litigating public."

(34) "I strongly believe, and I have lived with this for many years, in the continuous roll system, provided you have adequate judicial manpower to take care of that. In Johannesburg we try to have eight judges all the time to hear civil trials, in Pretoria we deal with seven. What needs to be done is that the judicial complement should be increased so that perhaps nine to ten judges are hearing civil trials in Johannesburg."

(XI) THE HON MR JUSTICE H.C.J. FLEMMING, DEPUTY JUDGE PRESIDENT OF THE WITWATERSRAND LOCAL DIVISION

In the course of his oral submissions to the Commission at Midrand on 9 April 1996 some of the points made by Flemming DJP were the following:-

(1) "When we come to the Family Courts it is the similar situation. Your court, if we use the word court in any correct sense of the word, comes in as a decision maker. But when you come to the family you need lots of things outside decision making for which the court is not suited."

(2) "So what you need, and we started that with the Family Advocate, is the case coming to court but saying before we come to resolve it and deciding who is right and who is wrong, first explore that venue."

(3) "I think that experience is shown that when the people talk about the Family Court they use the same name and they talk about completely different things, completely different ways of doing it but the substance of it all is, I believe, that the court should not work in isolation, there must be a bridge building to more constructive methods."

(4) "The second point is this that in the interests of accessibility of justice and for the reasons which the Judge President has mentioned, it seems to me that the time has come for magistrates, each in his own district, to deal with unopposed divorces. What one attaches to that is another form of bridge building, and that is similar to a defendant in the magistrates court saying I now want to go to the Supreme Court. Allow any of the two parties to transfer the matter to the Supreme Court. Let them start there and once they are convinced that at trial they have not settled, they have not sorted things out and they need something other than the magistrate, then let them come."

(5) "MR MALULEKE: ... I thought you might want to give us your views on how the Family Court system, as you envisage it, will assist in bringing the costs down and making it more accessible to John Citizen?"

(6) "FLEMMING DJP: I think the whole issue of costs is a difficult topic on its own. I think one generality which one can make is that your way to eliminate costs is to eliminate work. You must cut down on the work which is necessary. To put the negative side of it, if work has to be done, the person who is going to do it is going to charge a fee for it so whether you have the Supreme Court or those who go for status, they want the family court with judges and with all the high trappings for their own status, if it is going to be an attorney who says I want R1 500,00 or R2 000,00 for a divorce in this court, he is going to say the same in the other court."

(7) "MR MALULEKE; Some of the complaints that we have received are why must it cost so much less to get a divorce in the Black Divorce Courts and sometimes two to three times more in the Supreme Court on unopposed divorces."

(8) "FLEMMING DJP: What I want to say about that court is that also has a sort of a circuit idea, it sits in this area at that time, sits in that area at that time, it is not good enough. You must have the local area where they file an affidavit with the magistrate and say I want a divorce, here it is and if there is a problem they can transfer it to that court or the Supreme Court. That is the only way you are going to get down fees is to minimise the work so that it is locally done, it is cheaply done, almost informally done, quickly done and within the area and if there is a problem, you go to court."

(9) "Let me deal with an other feature which is again in common with various features and that is the institutionalising of matters, of processes, of reactions, of responses. This affects mainly ADR, Family Courts, Commercial Court, this underlying principle."

(10) "The file which I happen to have here is a file which I was given at the Durban Legal Forum and the contents refers to the section where I attended, inter alia, on ADR. As much as I am in favour of ADR, as much as its advantages are, as much as I support the idea, to an equal extent there is reason not to come with legislation to say that a court can force you to ADR."

(11) "You cannot have parties come to court to say I want a resolution of the case, I want the law applied to the correct view of the facts and say I am not going to do it, you go to somebody else, he will do it in some fashion undefined, not applying the law to the facts but talking to you and then coming to some sort of decision. You cannot deprive parties of the right, that is the second reason why you cannot entitle a court to say you must go to Alternative Dispute Resolution."

(12) The third reason is this, when you go to a negotiation, talking things out, settling things, you need confidence in the man who presides, you must be able to choose that man. Once you institutionalise it and the Minister or whoever makes appointments to say the following will be ADR people, you are forcing them to somebody and you cut at the whole basis of ADR and that is confidence in a man going between me and my wife."

(13) "There is a fourth reason which I think came very much to the fore during this legal forum. There is one association of ADR people who, with their membership, tend to select, to control, look at the quality, the experience or the whatever of the appointees and it is more or less a professional section, charge fees for it and then do the work. Some time after that I spoke to one of the associations or mediators which was presented in Durban, in Vosloorus and they have a lot of youngsters which they trained for ADR in their community. They seem to be doing wonderful work but if you have a select few which do ADR you ignore or do you deny the existence of the need and the existence of ADR elsewhere? ADR is everywhere, if I have trouble with a colleague or a friend or a wife I go to somebody we trust and ADR must not be brought down to a narrow circle, it is a process which is inherent in society which must be encouraged everywhere."

(14) "Similarly that goes for the Family Court. I respect the work which social workers and other people doing constructive work do, mediators, reconciliators but that again includes clergymen, friends, headmasters of schools and the point is you need the right person for the right situation, not a short list of appointees. When you come to the Family Court there again you cannot have a situation of the court saying you have come to me for a decision, go to somebody else, he will do something else for your case. It must essentially be, the court must have a bridge to say look go to that, I will call somebody in, I will consult somebody, but forcing people is dangerous."

(15) "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."

(16) "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."

(17) "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."

(18) "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."

(19) "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"?

(20) "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 the 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."

(XII) THE HON MR JUSTICE P.E. STREICHER OF THE TRANSVAAL PROVINCIAL DIVISION

In the course of his oral submissions tot he Commission at Midrand on 9 April 1996 some of the points made by Streicher J were the following:-

(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."

(2) "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."

(3) "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."

(4) "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 matter 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 principal maybe."

(5) "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."

(6) "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."

(7) "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."

(8) "CHAIRMAN: Judge Flemming rather suggested that the requirement of the device of exchanging witness statements, that it be discarded.

STREICHER J</