The problem litigation lawyers often face is dealing with client’s expectations particularly where there are no consequences for litigants who manipulate the systems.
In recent times two of our eminent Constitutional Court Judges have expressed their concerns at the lack of consequences in relation to the conduct of Western Cape High Court Judge President John Hlophe (“Judge Hlophe”).
In the book published by Constitutional Court Justice Dikgang Moseneke called All Rise Justice Moseneke states:
“I am simply observing as a complainant, a retired justice of the Constitutional Court and a citizen, that the allegations by two judges about another judge have never seen the light of day. Whatever the reasons might be for this prolonged delay of deciding the complaint, this is unacceptable.”
The Constitutional Court Justice Johann Kriegler relayed his discontent with Judge Hlophe’s apparent immunity, calling him “a danger to the bench” and expressing that he “long since should have been removed”.
To bring an action to a hearing in the High Court, can take many years because the party causing the delay suffers no consequences, whether it be the official of the Court or the litigants’ representatives.
Never has the expression “justice delayed is justice denied” been more appropriate as the prescribed systems are failing the citizens and the consequences to complainants are sometimes catastrophic.
There is at present an alternative but regrettably it is not open to all citizens. The alternative is arbitration, the duration of which is controlled by the claimant and the arbitrator.
There is no doubt an arbitration is far more expensive and lacks the formality and gravitas of a Court or a judicial inquiry, however its outcome has a consequence in that it is only in exceptional circumstances that a Court will not enforce an arbitration award.
I recommend that agreements contain a provision for arbitration affording a complainant an alternative remedy which does have a consequence.
