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Mediation apostle Alan Nelson — the last white African Chief Justice candidate left standing

By Paul Hoffman Follow 02 Nov 2021 4

Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.

The mission Alan Nelson brings to his candidacy for Chief Justice is to make mediation a better and more viable option in South Africa. To do so he is able to rely on the requirements of ‘accessibility and effectiveness’ of courts as set out in the Constitution.

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There are six candidates left with their hats still, at least notionally, in the ring in the convoluted processes that lead to the appointment of the next Chief Justice of South Africa. Commentators are agreed that only four of them need to be taken seriously.

The nomination of Western Cape Judge President John Hlophe by the Black Lawyers Association cannot be taken seriously and is a blot on that association’s professed fealty to the rule of law. Hlophe is far too controversial a figure with far too much unfinished business on his plate to be considered to lead the judiciary. Unconfirmed media reports suggest that, quite rightly so, Hlophe will not make the cut.

What then of the only pale male in the race? Alan Nelson is the oldest candidate by far, he will be 70 next May. Age alone ought to disqualify him as a candidate. Somehow he has risen to the shortlist for reasons that may be obscure to many observers, especially as he has acted as a judge for a very limited period during his long career at the Cape Bar and subsequently as the initiator of Mediation in Motion, an enterprise that is devoted to mediating rather than litigating disputes.

In this world there are, in essence, two kinds of lawyers: firstly, those who learn the law and practice it with a view to making the world a better place. They all strive, according to their individual talent for an improved lot for humanity. One in which peace is secure, progress that is sustainable and prosperity that is shared are the order of the day. Many lawyers in this grouping gravitate toward a career in the clergy, the CSO sector, or they write interesting books. The best of them rise to occupy high office in the judiciary.

Then there are those who learn the law with a view to establishing the line between what is right and what is wrong with great exactitude. They do so with a view to sailing as close as they can to that line without getting on the wrong side of it. They specialise in tax avoidance (perfectly legal) which sometimes strays into tax evasion (always illegal), for example. From their ranks come those who devise Ponzi schemes, the Cum-Ex scam and other similar tricks. They often gravitate toward careers in politics or in business. This shift occurs after they work out that selling one’s time and talents by the hour to ungrateful clients who grumble as they pay, if they pay, is a mug’s game.

Obviously, all candidates for the office of Chief Justice in SA should be drawn from the former group and none should come from the latter. Judges are meant to have integrity, impartiality and independence in spades. A chief justice is supposed to lead by example with the “do as I do” motto rather than the “do as I say” substitute used by the second grouping.

Alan Nelson SC was my neighbour in chambers for more than a decade. We shared a suite in Huguenot Chambers with Milton Seligson SC, then the doyen of the Cape Bar, a former JSC member (on the candidate sifting sub-committee which sorted the wheat from the chaff) and a leader of the Bar at national level. Nelson is a good lawyer and a good person. He has, after leaving the Bar, reinvented himself as a champion of mediation as a better way of resolving the type of disputes that often lead to protracted, expensive and fruitless litigation between parties in civil society, both corporate and individual, and between the state and the citizen. Some disputes have to go to court. Those affecting status, like sequestration cases, divorces (with emphasis on the role of the courts as Upper Guardian of all minor children), winding up of companies, other matters concerning deceased estates and interpretation of trusts, in which the court takes the role of Upper Guardian of affected minors and all criminal matters have to at least begin and eventually end in court.

The role of judges in advancing mediation is one that is critical to the success of the project, but it is one that has yet to be thought through by those in authority or embraced by the legal professions or, at least, those within them who are actuated by base self-interest and are fearful of losing an income stream that comes their way from hard-fought litigation.

As the apostle of mediation, Nelson has brought the zeal of the converted to the topic of mediating disputes rather than litigating them. He incurred the ire of the leadership of the Cape Bench, and some of its members, when he elected to mediate for willing parties whose matters were allocated to him for trial when he acted as a judge in Cape Town.

Many practising lawyers see mediation as a threat to their livelihoods and they oppose or resist its introduction. They perceive, perhaps correctly, that mediation is the Kool-aid that will kill off the type of litigation from which they make a good living.

When the Wits law library was still East of the M1 motorway many years ago, it sported a framed Punch cartoon that depicted litigation as a cow. The plaintiff has the hapless animal by the horns and is tugging it in one direction, the defendant has it by the tail and is pulling hard at it in the opposite direction. The lawyers are all gathered underneath the cow and are milking it for all they are worth.

A mediation cartoon would have the parties soothing the cow into providing more milk for both of them with the lawyers relegated to an observer role.

It is easy to see why lawyers do not generally welcome mediation. The “fat sheep” that wander into their professional kraals need to be slaughtered, butchered and eaten; not dissuaded from butting heads.

The mission Alan Nelson brings to his candidacy for Chief Justice is to make mediation a better and more viable option in SA. To do so he is able to rely on the requirements of “accessibility and effectiveness” of courts as set out in section 165 of the Constitution.

If courts are clogged with parties tugging in opposite directions or butting heads when they could be working together in the same direction, then a great deal of court time is wasted on umpiring the tugging and the butt-fests. If mediation precedes litigation and is utilised to good effect, then only the most intractable of cases will get to litigation. Many, if not most, are amenable to mediation and can be solved in a manner that appeals to both parties rather than seeing one win and the other inevitably lose. Mediations are aimed at achieving “win-win” outcomes to disputes.

It is arguably in the overall interests of the administration of justice that greater use be made of mediation. The traditional African village meeting under the spreading baobab tree is in the nature of mediation at which ubuntu and batho pele are the ethos of the proceedings of parties who find themselves in conflict. The adversarial style of the courts is a remnant of the colonial era; the African way of resolving disputes aligns more with mediation than it does with litigation.

Nelson argues that the centrality of dignity in our new dispensation is undermined by opposed litigation but could be served by greater use of mediation to resolve disputes.

In order to make mediation work as well as possible, it is necessary to have properly trained mediators who develop a skill set very different to that of litigators. Mediators should be permitted to explain the process to those who have never tried it before. They should avoid giving advice and should instead use techniques designed to extract a win-win result for both parties. Mediations always end successfully with both parties agreeing to the outcome of the dispute instead of one winning and the other losing, or worse, both losing and only the lawyers benefiting from the litigation process.

A great deal of groundwork needs to be done to advance mediation as a solution in SA. The training of mediators, the setting of professional standards, the weeding out of charlatans who may pose as mediators are needed. Also, the tightening up of the rules of court that require a genuine attempt at mediating before any litigation commences, with suitable sanctions if unnecessary litigation is embarked upon, are all topics that require attention.

As the champion of mediation, Nelson SC is using his “long shot” candidacy for Chief Justice as a vehicle for drawing the attention of those with the necessary clout in the administration of justice in SA to the benefits of putting mediation onto a proper footing.

He contends that mediation is in the interests of just solutions to disputes that advance accessibility and effectiveness of courts via just outcomes to disputes that come to the courts in South Africa. By tightening up the rules of court relating to mediation and through the regulation of mediators that ought to be put in place if mediation is to be professionalised properly, it is feasible to enjoy the type of success that will see it replace litigation as the way in which to resolve disputes.

The role of judges in advancing mediation is one that is critical to the success of the project, but it is one that has yet to be thought through by those in authority or embraced by the legal professions or, at least, those within them who are actuated by base self-interest and are fearful of losing an income stream that comes their way from hard-fought litigation.

If Nelson’s candidacy has the effect of bringing mediation closer to the front of the administration of justice stove, he will not have wasted his time putting his hat in the ring as the maverick last “white” candidate for a chief justiceship in Africa. DM

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