Following international best practice, South African courts are now adopting case management as a valuable tool to achieve speedier dispute resolution. Case management involves court intervention in a process that up to now has been directed almost exclusively by attorneys. In August 2012, at a planning meeting attended by the country’s senior judges, a key decision taken was to immediately implement judicial case management so as to involve judges at an early stage to dictate the pace of litigation and prevent postponements and backlogs.
According to Willem Janse van Rensburg, Director in the Dispute Resolution Practice at Cliffe Dekker Hofmeyr, “There are basically two models, one of which results in case management through a committee of judges and the other, the more popular South African model, a case manager being appointed to a particular matter.”
Janse van Rensburg explains that case management has proven to be very successful in Hong Kong and Canada. The Hong Kong system incorporates a committee of judges and mandatory mediation as part of their system in dealing with the extremely high volume of cases in that jurisdiction.
“The Canadian system on the other hand, involves a master in control of their case management system who calls for case conferences on short notice and exerts pressure on the attorneys to avoid delays and tactical abuse of the legal process. His main objective is to work with the parties, using his powers to narrow and resolve issues through facilitated consensus. He has the power, among other things, to extend or abridge deadlines, to confine parties to genuine disputes, to issue interlocutory directives, and, most importantly, to strike pleadings, dismiss actions and award punitive costs, especially de bonis propriis costs (payable out of the attorneys own pocket).
“Our courts seem to be leaning towards the Canadian practice, except that judges, rather than a master, manage cases,” he notes.
Shanna Gammie, an Associate in the Dispute Resolution Practice, explains, “A matter in which our firm is involved has spanned more than a decade and is currently under case management. We have seen the Deputy Judges President in Pretoria and Johannesburg incorporating case management in many cases. In these cases, the court calls pre-trial conferences and notifies attorneys in advance that one of the points on the agenda will be possible punitive costs linked to clear abuse of the court process, especially in regard to tactical pleading.
“Chapter 6.3 of the Practice Directive of the South Gauteng High Court’s Practice Manual provides that any party who is of the opinion that a trial requires case management, may write to the registrar (for the attention of the Deputy Judge President) setting out the litigant’s reasons for requiring case management.
“The letter must be given to the other parties involved; they are entitled to make written representations in this regard. Should the Deputy Judge President agree to case management, a judge will be allocated and all interlocutory applications will be heard by that judge. Although the case-managing judge will not ultimately hear and adjudicate the matter, he or she is entitled to intervene at a party’s request and issue directions for the conduct of the trial. The judge may also direct that pre-trial and additional case conferences be held,” she explains.
Gammie says case management will be enforced regularly in dispute resolution in future as Judges President are intent on limiting frivolous disputes, and avoiding wasted costs and time. The system works on the basis that the parties are required to identify exactly what the legal issues are, so avoiding vague, formulaic and precedent-based pleadings. This practice will curb expensive and ineffectual interlocutory disputes.
Janse van Rensburg notes, however, that a potential concern is the absence of policies to ensure that qualifying matters are in fact referred for case management.
“Case management is not imposed by the court mero motu, but initiated on the request of a litigant. Matters that genuinely need case management may continue to waste the courts’ time, as both litigants may prefer to follow an obstructive or ‘trial by ambush’ approach rather than taking advantage of a means to get to the essence of the dispute.
“Another concern is overburdening our judges with a case and administrative load that is already very difficult to manage. The system is only as good as the human resources available to implement it. Also, our judges are accustomed to the adversarial system, so becoming actively involved in driving a case will be unfamiliar territory for them,” he adds.
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