By Paul Hoffman

At present there is a crisis in Gauteng, the province in which half of the civil litigation in the country takes place. Backlogs of cases of all kinds continue to grow apace as the population grows and economic activity increases.

The Constitution gives everyone the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court, or, where appropriate, another independent and impartial tribunal or forum.

Accused persons are entitled to have their trial begin and conclude without unreasonable delay.

These rights can be called into question in the Gauteng high courts situated in Johannesburg and in Pretoria. The old saw “justice delayed is justice denied” is a truism that is applicable to the situation in which those sitting in long queues for hearing find themselves, as too many cases seek the attention of too few judges.

Gauteng is South Africa’s smallest province in area, but is home to more people than any other province. It is the economic heartland of South Africa and attracts many migrants because of its fabled bigger and better job opportunities.

Currently, Gauteng’s population is approaching 16 million people, well over the official figures for KwaZulu-Natal and the Western Cape (ranked second and third in population) where the census of 2022 counted 12,423,907 and 7,433,019 people respectively. The national population is about 66 million and growing.

Gauteng is served by two high courts, situated in Johannesburg and Pretoria. According to the website of the judiciary, as at 27 June 2024 there were 37 permanently appointed judges in Johannesburg, and 42 in Pretoria. These figures include the judge president and his two deputies, but exclude acting judges who serve on an ad hoc basis. Back in 1994, when democracy dawned and Gauteng was formed, there were far fewer judges based in Johannesburg and Pretoria combined.

Tall order

It is a tall order to expect 79 judges, even when aided by their temporarily appointed acting colleagues, to dispense justice to an economically hyperactive population of 16 million in a manner that complies with the rights guaranteed to all in sections 34 and 35 of the Bill of Rights. These rights stress the fairness of hearings and prescribe that trials “begin and conclude without unreasonable delay”.

Under section 165(4) of the Constitution, all organs of state “must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”.

The dignity, accessibility and effectiveness of the Gauteng high courts are deleteriously affected by the ever-growing length of the backlogs of cases, both criminal and civil, awaiting a date for hearing in Pretoria and Johannesburg. Court rolls are dominated by “usual suspect” civil litigants – the Road Accident Fund, Passenger Rail Agency of South Africa, the police and the MEC for health in various claims for damages.

Manifestly, the increase in the size and requirements of the litigating population of Gauteng has outpaced the capacity of its high court judiciary, and will continue to do so while the number of judges remains static and backlogs of cases of all kinds continue to grow apace as the population grows and economic activity increases.

Appointing more judges is the obvious solution to the problems posed by the ever-burgeoning backlogs of cases in both courts. That, however, is more easily said than done. Court infrastructure, the necessary budget and support staff are all in short supply as the fiscus recovers from State Capture and a disruptive pandemic.

Yet, it remains imperative that urgent steps be taken to address the ever-growing shape and size of the backlogs lest they swamp the system currently in place and lead to a breakdown in the administration of justice.

Divert parts of the workload

It is possible to divert parts of the workload of the high courts to the regional courts. This has been done in the past and can be resorted to as a “work-around” method of reducing the backlog in respect of criminal cases that could fall within the jurisdiction of regional courts. It is prudent to avoid resorting to this type of strategy in circumstances in which the likely outcome is simply to create new backlogs in the regional courts.

In the short to medium term, it is possible to divert some of the work of the high courts to mediation, arbitration and administrative decision-making processes. The situation in respect of default judgments against the RAF is not one that need necessarily occupy the attention of highly qualified judges whose talents are better deployed in matters that are not proceeding by default. The office of the registrar of the court or some other suitably qualified official could be capacitated to deal with default cases that proceed on an unopposed basis.

A sizable portion of the backlog is attributable to the dysfunctional aspects of the administration of institutions of the state that lead to the institution of claims against the likes of the RAF, hospitals accused of negligence, mishaps on commuter trains and the malfeasance of police officers.

Greater attention to the implementation of the values and principles that ought to inform the public administration would reduce the flow of new cases and free up judges to address the backlogs. Getting public servants to take the pledge designed to deliver constitutionally compliant service could help.

The sheer size of the current backlog of work does demand urgent measures. The greater use of acting judges as a means of addressing the backlogs is a possibility. Retired judges, senior counsel and senior attorneys as well as senior academics are all sources of the type of skills and talents required to address the backlogs. Active recruitment of suitable candidates could save the day.

Consideration could be given to making pro bono service as acting judges more palatable to those who volunteer their time to the project of eliminating the backlog. A day a week or a week a month is far less disruptive than service continuously for a term, or even a month.

Remote electronic hearings

The use of remote electronic hearings in matters that do not require viva voce evidence from witnesses and litigants also makes it easier for acting judges to perform their service without the hassles and inconvenience of getting to the court, finding parking and sharing accommodation in chambers.

Notionally, acting judges could be anywhere in the world where internet access is available. Gauteng courts already use the case lines technology that makes shuffling papers in court cases history.

First time acting judges could be teamed up with experienced retired judges in matters in which it is appropriate or required that more than one judicial officer hears the case. The energies of acting judges should be concentrated on motion cases, appeals and reviews so that the permanent judges are freed up for trial work in which the time consuming business of hearing evidence is involved.

Some research in the pool of potential acting judges as to their preferences is indicated in order to enhance the prospects of attracting the number of pro bono acting judges who could, by sheer force of numbers, bring down the backlogs as rapidly as is humanly possible.

There are many cases that ought to have been settled or mediated or arbitrated that tend to clog the rolls of the high courts. A great deal of civil and even criminal litigation is centred around greed, anger and stupidity. Civil cases are made unnecessarily protracted by these undesirable features.

Proactive approach

A proactive approach to the problems posed by running cases that should not need to be aired in court at all should be encouraged. This can be achieved when argument on liability for costs is heard.

In a system in which it is not unknown for vexatious litigants to be interdicted from abusing court processes, it is possible to resort to costs orders de bonis propriis against those so misguided as to abuse the time and talents of the courts.

It is also possible, and indeed done – too infrequently though – to disallow the costs of the victorious party or even prevent the lawyers on all sides from receiving payment for their abuse of the system that running cases that should never see the inside of a court unnecessarily entails. A court notice heralding this approach to liability for costs could have a back-straightening effect.

A careful look at the long-established practice of having four court vacations a year is indicated. While there are backlogs, it ought to be all hands to the pumps all the time, at least until the backlogs are eliminated.

Expensive court infrastructure and paid staff should not be allowed the luxury of four holidays a year while litigants queue endlessly for their turn to be heard.

On the other hand, judges should not be made to work themselves into a state of chronic fatigue. They should be afforded time to write the reserved judgments that they pick up if term times are extended in an effort to dispose of more cases. It is almost impossible to know in advance which cases are going to settle, run endlessly or involve a tricky reserved judgment.

It is often argued that court vacations enable judges to write their reserved judgments. It is surely preferable to reserve judgments for a matter of days, rather than until the next term. This can be achieved by allowing judges who pick up a reserved judgment to deal with it in the days following the hearing, rather than months later.

Organising rolls to accommodate this approach rather than the continued enjoyment of so many recesses per year could improve efficiency and effectiveness and relieve overworked judges of the misery of warming up cold porridge when they eventually get around to considering the judgment on arguments they heard months earlier.

Key to success

The harnessing of retired judges to act is key to the success of working off backlogs that have accumulated because there are not enough judges and not enough efficiencies in the existing system.

Judges get paid for life. Judges no longer in active service are a national treasure. Their skill and experience are underutilised. Their contribution to eliminating the backlogs is essential to the success of using acting judges of all kinds to address the unheard matters diligently and without further delay.

At present there is a crisis in Gauteng, the province in which half of the civil litigation in the country takes place. Seconding judges from under-worked divisions to act remotely in the type of cases in which evidence is not heard is also possible, perhaps as a last resort.

When the criminal justice administration is sufficiently reformed and repaired to be able to successfully rake back the loot of State Capture, the funds so acquired should be used to appoint more permanent judges.

Doing so is the ultimate solution to the problem posed by the current backlogs in the Pretoria and Johannesburg high courts. DM