South Africa's Constitution leaves no room for ambiguity: every person has the right to have any dispute that can be resolved by the application of law adjudicated in a fair and public hearing before a court, or, where appropriate, an independent tribunal or forum. This right is not merely a procedural safeguard, but a core principle enshrined in our constitutional framework. In a country where historically, the majority was systematically denied access to justice under a regime that prioritised parliamentary sovereignty to entrench racial oppression, the Constitution's commitment to access to courts stands as a pivotal corrective measure. Today, it not only guarantees access to justice but actively promotes strategic litigation as a vital tool to hold the state accountable.
So, how do we reconcile these noble ideals with this reality: if you follow the usual course to get a civil trial heard in Gauteng's High Courts, you're looking at a court date in 2027—if you're lucky— and this despite the efforts of a dedicated leadership in the division, both in Johannesburg and Pretoria. But that's not even the worst of it. After finally getting your day in court, brace yourself for the next wait. You could be left hanging for months, maybe even years, for a judgment from an overworked, under-resourced judge who's had to juggle hundreds (if not thousands) of other cases with yours. The under-resourcing of the judiciary has reached crisis proportions.
For years, all echelons of the legal fraternity have grappled with how to alleviate the strain on Gauteng's overburdened judiciary. We've heard the usual chorus: more specialised courts, championing alternative dispute resolution (ADR) and in particular mediation, adopting CaseLines or CourtOnline and appointing more judges. They all have their place, and some have made significant inroads, but the fact remains that some things only a court can do, and our judiciary is starved by chronic underfunding and limited resources.
Read an
article about ADR as a possible solution in alleviating the strain, authored by Nick Alp and Sarah McKenzie[1].
If this remains the case, even the most promising solutions can only take one so far. We believe that the answer lies in practical, cost-effective, and most importantly,
simple solutions. Any realistic approach would need to align our responsibilities as conscientious legal practitioners alongside a commitment by the judiciary at the highest level. Our recommended approach employs the capacity of courts in less burdened jurisdictions, calls for a simplified motion procedure, and requires lawyers to act with integrity.
Voluntary change of jurisdiction
The first leg to the approach entails voluntary change of jurisdiction. Parties should be given the opportunity to litigate in a different yet still competent court, where that court roll may not be as burdened as Johannesburg or Pretoria. Admittedly, this is not without its challenges. Moving a case to another High Court should require the consent of all parties—a hurdle that may seem daunting, particularly given the financial strain such a move could impose on litigants. For indigent parties, litigating in a different jurisdiction could mean travel, accommodation, and legal fees they simply cannot afford. However, for well-resourced litigants, particularly large corporates, the potential cost may be worth the trade-off. After all, waiting years for a hearing in the Johannesburg High Court could have far more severe economic consequences than footing the expenses for a quicker resolution in another jurisdiction. As an immediate measure, both individuals and corporates could consider the addition of terms in new agreements, alternatively amending terms in existing agreements, that could accommodate for consent to jurisdiction of any High Court. There is a problem in that consent alone is not enough to establish jurisdiction[2]. Therefore, legislative change is needed to confer jurisdiction on all High Courts over all causes and defendants within the country. This should facilitate litigation before a Court that can accommodate the dispute within the shortest timeframe, with travel and accommodation costs to be borne by the unsuccessful party.
While critics may argue that this solution benefits only the wealthiest litigants—those who can afford to shift their lawyers around the country—its true aim is to alleviate pressure on the Johannesburg and Pretoria High Courts. Diverting cases away from the Johannesburg and Pretoria High Courts would indirectly benefit all litigants, especially those who cannot afford to shift their cases and must endure long waiting periods. If parties can voluntarily move their cases do so, the court's dockets could be cleared faster, allowing indigent and average-income litigants to access justice more swiftly. Though on its face, this approach seems to serve only a select group, its broader purpose is to improve access for all by redistributing caseloads across jurisdictions. In essence, by encouraging well-resourced parties to take their matters elsewhere, we create room for those most in need, improving, if not ensuring that access to justice is not a privilege but a reality for all, regardless of income.
You might wonder what happens if the parties don't consent to the jurisdiction of another High Court and instead use the overburdened roll and resultant delays in their favour. Well, it may be that section 171 (which provides that our country's Courts function in terms of national legislation) and section 173 of the Constitution (which gives our country's Courts the "inherent power to protect and regulate their own process"), as read with sections 8 (which deals with judicial management of judicial functions) and 49 (which deals with regulations) of the Superior Courts Act, could be relied on to:
- establish an assignment portal (such as an adapted Court Online platform but expanded to include all High Courts) to assign a matter, regardless of the jurisdiction of a defendant, to be heard by a Court which has the requisite capacity. This would necessitate a change in legislation and/or applicable norms and rules, alternatively a direct challenge to or call for amendment of section 21 of the Superior Courts Act (which speaks to persons over whom the divisions of the Court have jurisdiction); and
- issue a directive from the Chief Justice, the Honourable Judge Mandisa Muriel Lindelwa Maya, allowing High Courts to assume jurisdiction over matters in the interests of justice and subject to all matters being assigned through the applicable portal.[3]
Commencing all matters on motion
The second leg to the approach entails changing the rules to enable all matters to commence on motion. Motions that run into disputes of fact could then be referred to evidence by the Court on specific issues on which narrow discovery should be ordered. There would ideally be a prioritisation of simply drafted shorter motions. That is not to say that our system should ignore or punish complexity. It would be hard to dispute that our courts are now confronted with constitutional matters, sophisticated commercial disputes, and social justice issues that require detailed, comprehensive legal reasoning. We should embrace a system that prioritises and rewards concise, focused papers. By starting all matters on motion, litigants will be incentivised to front-load their matters, get their witnesses deposed early on, procure the necessary evidence before launching and eliminate 'tactical denials' so commonly seen in action proceedings, encourage litigants thereby to stick to the point, saving valuable court time and state resources. Shorter papers, sharper arguments, and speedier decisions—it's a win-win that will lighten the case load.
Utilising judges from other jurisdictions
A final proponent to the approach involves utilising judges from other jurisdictions for virtual hearings in Gauteng. Instead of merely expanding the rollout of CourtOnline and Caselines to other provinces, we propose a more strategic approach: allowing judges from less burdened High Courts to preside over matters in Johannesburg and Pretoria through virtual hearings. These judges could be best used for the simpler, concise matters that have started as motions and been referred to evidence on specific, narrow disputes of fact, as we refer to in the second part of the approach as a pilot project for our proposal. By conferring authority on judges from different divisions to hear cases in areas experiencing congestion, we can effectively balance the workload across the country.
In the quest to overcome the overly burdened court roll in Gauteng, we have to recognise that the existing system requires urgent, realistic and lawfully possible reform and systemic change. Our approach is but one cog of that change and should exist within a combined effort to dismantle systemic barriers that hinder the adjudication of cases before the courts. This approach should work alongside initiatives to increase access to ADR channels, such as empowering community advice offices to mediate disputes that need not proceed to court and ensuring that parties take seriously their obligations under Rule 41A of the Uniform Rules of Court. The proposed solutions – voluntary jurisdiction shifts, commencing matters on motion, then distilling out the disputes of fact by Court order where necessary[4], and utilising the capacity of judges from other divisions – are not just about streamlining processes or searching for efficiency; they are about reclaiming the promise of justice for everyone.
