Bert Samuels | Justice delayed is justice denied
The truism that justice delayed is justice denied is applicable to both criminal and civil matters. This principle is expressly codified in the Civil Procedure Rules (CPR) of 2002, where Rule 1.2(2) (d) states one of the court’s overriding objectives as being that cases are to be dealt with “expeditiously and fairly”.
In the chief justice’s court in the Supreme Court building is written the court’s mission statement: “Timely delivery of a high standard of justice for all”.
Because of the colossal delays in having matters tried, the issue of a good defence or a good claim is eclipsed by the question, “when will I be able to have my side of the story heard in court?”
We have not sat by helplessly, I hasten to concede. Night court and mediation in both civil and criminal matters have mopped up a good slice of the delay. But even with all these innovative inroads to clear the load, we still have a turnaround period, from the filing of a claim in the High Court until its trial, of seven years!
Granted, our commercial court has a much shorter waiting time. We have a heavy court workload crisis. Judges, with the best of effort, can’t carry water in baskets. The penultimate overriding objective quoted above in our CPR is followed by another objective – that the court must allot to each case “an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases“.
Reluctantly, we must now admit that the business of law, as far as litigation is concerned, is no longer viable. A civil case filed in the high court will outlive the life expectancy of any litigant in their 60s. Litigants do not plan for, and cannot be expected to plan for, their high court civil matters, from commencement to completion, consuming all of seven years!
ALTERNATIVE MEANS OF REDRESS
Businesses will have to make sure their agreements provide for arbitrators, rather than judges, to resolve disputes. Mediation is the way to go to cut time and expenses. Investors, be they local or foreign, are frightened away from doing business here when they learn about turnaround time for litigation matters. Inevitably, these delays have forced some into taking the law into their own hands, rather than joining the long court queue.
In the criminal courts, the waiting time for trials and appeals is no different. The good book of the law, the Constitution, makes it abundantly clear at Section 16 that trial litigants – be they criminal or civil must be afforded a “hearing within a reasonable time”.
Mervin Cameron was able have the Full Court in 2018 declare that his preliminary inquiry in a criminal matter, which was pending at the time, was delayed to such an extent that his right to a trial within a reasonable time was breached, and that he was entitled to damages from the State. Cameron, who was charged with murder, had his preliminary inquiry pending for over four years!
The reality is that the principles relating to delays are honoured in the breach rather than in the observances.
As we seek new ways to fix this problem, we must face the fact that delays are currently wreaking pain, anxiety, frustration, and great hardship on litigants. The delays are being exploited by defendants, who benefit from adjournments which toss trials years into the uncertain future.