It is just not feasible to litigate in court anymore!

We just received a trial date allocation in the Pretoria High Court for November 2007 in a matter we are handling.  This date is almost 20 months after the application was lodged!  The question this raises is whether it is feasible for litigate in our court system anymore?

The common system used to allocate trial dates in our courts is largely a manual process and fails to take into account matters which settle or postpone.  Basically what happens is that a litigant applies for a trial date.  The application is recorded manually in a ledger of sorts and dates are allocated on a “first come, first served” basis.  A problem occurs in that if earlier dates become available when matters postpone, settle or are otherwise removed from the trial roll, those earlier dates are usually not recycled and allocated to new applicants.  The end result is that trial rolls are very long and not very efficient and judges often find themselves without trials to adjudicate when those trials are due to commence.

This process is hopelessly inefficient and antiquated, especially given that the technology exists to streamline the trial date application process tremendously simply by making dates which open up available for new applicants.  What is needed is a system similar to the systems used for ticket bookings where the official at the court enters factors such as required number of days for trial and perhaps even type of matter and the system would present a number of available dates, taking into account dates which have become available.

Another measure which may improve the efficiency of civil trial rolls may be to categorise matters and distinguish between those matters which may be fast-tracked and those matters which must run their full course.  An example of fast-track matters are those matters which settle and which need not wait for the actual trial date if the parties wish to have their settlement agreement made an order of court.  Such matters should be capable of being shifted to a faster roll where they can be disposed of in the course of, say, a morning.

Until improvements to the trial roll system materialise, it is worthwhile for litigants to seek alternative methods of resolving disputes which arise.  Options include arbitration and mediation and although they involve certain costs which are not present in the court system, they may work out as better options overall.  It is in both parties’ interests to have disputes resolved quickly and effectively and often certainty as to the outcome has great value.  One of the best ways to provide for alternative forms of dispute resolution would be through the incorporation of an appropriate clause in your agreements.  The Arbitration Foundation of South Africa  (“AFSA”) facilitates various forms of alternative dispute resolution and has rules providing for complex matters as well as expedited rules providing for less intricate matters.  Below is a clause recommended by AFSA for incorporation into your agreements.  We have also uploaded a document from AFSA setting out other clauses.

“Should any dispute, disagreement or claim arise between the parties (called hereafter “the dispute???) concerning this agreement, the parties shall try to resolve the dispute by negotiation. This entails that the one party invites the other in writing to a meeting and to attempt to resolve the dispute within 7 (seven) days from date of the written invitation.

If the dispute has not been resolved by such negotiation, the parties shall submit the dispute to AFSA administered mediation, upon the terms set by the AFSA Secretariat.

Failing such a resolution, the dispute, if arbitrable in law, shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.???

For the clauses recommended by AFSA, click on the icon below.

Arbitration Clauses

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