How to fix Gauteng’s high court backlogs

While critics may argue 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 who 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 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.

It may be that the constitution (which gives our country’s courts the “inherent power to protect and regulate their own process”) 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 the Superior Courts Act (which speaks to persons over whom the divisions of the court have jurisdiction); and
• issue a directive from chief justice Mandisa 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.

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 our system should ignore or punish complexity. It would be hard to dispute our courts are confronted with constitutional matters, sophisticated commercial disputes and social justice issues that require detailed and comprehensive legal reasoning.

We should embrace a system that prioritises and rewards concise and 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.

Using judges from other jurisdictions

A final proponent to the approach involves using 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 by allowing judges from less burdened high courts to preside over matters in Johannesburg and Pretoria through virtual hearings.