Dear participants, on behalf of the Heads of Court, we bring this conference to a close. We want to thank the speakers, the chairpersons, facilitators, and rapporteurs, and of course you as participants for your excellent contribution in the plenary and breakaway sessions. And I think we can conclude from your enthusiasm that we had a very successful conference. We have a final count of 350 participants from eleven countries.
We realise that you had to work hard during the conference, not only in the plenary sessions, but also in the breakaway sessions in which you had participated. But let us keep in mind that your hard work was for a cause - to improve the accessibility and the efficiency of our justice system.
We regret that time constraints did not at times permit the kind of deliberations that we may have wished for but we do hope that at least the conference has helped to identify the key challenges facing our justice system.
The purpose of the conference was to consult with stakeholders on what are the problems affecting our justice system and to consider our options in relation to those problems. In a sense this was a consultative process. We did not consult because we did not know what the problems were. As an institution which is involved in the delivery of justice, we are aware of these problems.
But we recognise that the other participants in our justice system have a crucial role to play in ensuring that our justice system is truly accessible and works efficiently and effectively. It is therefore in the interest of the administration of justice that we must jointly work together to identify the challenges facing our justice system and in finding solutions to those challenges.
In making my closing remarks, may I pick up from where I ended in my opening remarks. I need to emphasise that this conference was not intended to solve all the problems affecting our justice system. Indeed no single conference can solve problems affecting our justice system. They are many and varied.
Our objective in calling this conference was threefold. First, to identify the problems / challenges facing our justice system; second, to stimulate future research dialogue and conferences in order to explore in detail the needs that we have identified at this conference; and third, we hoped that this conference will generate new ideas and further initiatives to promote the accessibility and efficiency and effectiveness of our courts.
I think I speak for all if I say the conference has met these objectives.
Two crucial things have emerged from this conference. First, there is an acknowledgment that our justice system suffers from certain deficiencies which undermine the delivery of accessible quality justice for all; and second, there is commitment to address these deficiencies.
As we close this conference the question is where do we go from here I know the immediate response from everyone is that we go home because it is a Sunday and there is nothing else to do, but what about Monday when we get back to the office?
The problems affecting our justice system are many and they are varied. There are those that are more pressing and there are those which will have to be attended to in due course. We must therefore determine our priorities. We should give priority to methods and machinery, to procedure and technique and to management and administration of judicial resources.
In the first place, we must determine what is an ideal justice system that will ensure that we comply with the Constitutional obligation to deliver justice that is accessible, effective and efficient.
Other branches of government have a role to play in promoting the accessibility and efficiency of our courts.
As I pointed out in my opening remarks, the justice system that the people of South Africa are entitled to expect from us is one that is just in the results that it delivers; that is fair to all litigants regardless of their station in life; that is inexpensive; that delivers results in the shortest possible time; that is understandable to the people who use it; that responds to their needs; and that is effective. To be effective, it must be adequately resourced. This of course requires adequate funding.
Happily other jurisdictions have already reflected on what are the essentials of a civil justice system that promotes access to justice. In his final report to the Lord Chancellor on the civil justice system in England and Whales of July 1996, Lord Woolf identified eight principles that a civil justice system ought to meet in order for it to ensure access to justice.
be effective: adequately resourced and organised.
This in my view summarises in succinct terms the ideal civil justice system that we should strive for in this country. These principles are compatible with the right of access to courts which is guaranteed in section 34 which requires a fair public hearing. And with necessary adaptations, these principles can also be applied to our criminal justice system.
For our justice system to be compatible with these principles it is necessary for us to consider fundamental changes to it.
As I reminded the conference on Friday morning, we have had a number of Commissions of Enquiry, including the Hoexter Commission and the Galgutt Commission whose reports demonstrate that we have been tinkering where comprehensive reform is needed and we have not sufficiently explored other mechanisms and procedures that we could implement to make our justice system both accessible and efficient.
As we consider fundamental changes to our justice system we should give consideration to the following mechanisms which were raised during the conference as crucial to enhancing the efficiency of our courts.
First, we should consider whether our civil justice system is overly adversarial and conducive to a fair trial of issues. Some have expressed the concern that lawyers are using the courts for their own ends with no consideration of the public interest. There is indeed a feeling that the legal profession and the presiding officers are perhaps overly tolerant of lawyers who exploit the inherently adversarial system to their own private advantage at public expense. Some elevate procedural manoeuvring above the search for truth. This may very well send a very wrong message to society about the purpose of the law. This appears to be the result where the pace of litigation is controlled by the parties.
As we have heard at this conference, where the pace of litigation is controlled by the judiciary, coupled with appropriate sanctions, pre-trial as well as trial delays can be minimised. This is particularly so in those jurisdictions which have implemented case flow management to address case backlogs. In Botswana, a country that has recently initiated case flow management, initial indications are that the case backlog has been reduced drastically.
May I emphasise two aspects of case flow management: the first is its purpose and the other is its relationship to the legal profession.
The primary purpose of case flow management is to improve the quality of civil justice; to help parties to civil disputes obtain a fair resolution at a cost commensurate with what is at stake.1 It does so by facilitating the just, speedy and inexpensive resolution of civil disputes. In all cases, it should be limited to what is appropriate and necessary for the case at hand.
1 Manual for Litigation Management and Cost and Delay Reduction Federal Judicial Center 1992 at page 2.
2 Id at page 3.
Case flow management does not mean taking cases away from lawyers,2 but rather means giving direction to the litigating activity of lawyers, fixing bounds, and applying means of control only as necessary. It should not be viewed as an intrusion into a lawyer's function as his or her client's legal representative. Indeed, there is no contradiction between directing lawyers' efforts towards early issue identification and the fair and efficient disposition of litigation on the one hand and the purposes of the adversary process on the other.
We must therefore implement case flow management without delay.
It is true that various courts have implemented various forms of case flow management systems and practices. But it is also true that not all courts have done so. In addition, it is also true that some initiatives have been said to be successful. Our challenge then is to consolidate all these efforts, and decide what is working well and what is not, and what we can learn from other jurisdictions in improving our own efforts at case flow management.
To this extent a Case flow Management Steering Committee must be constituted which must include representatives from the judiciary, the legal profession, the Department of Justice and civic society. Its mandate must be to consider the feasibility of the implementation of introducing case flow management in all our courts with immediate effect.
Second, we have heard from this conference about the benefits of the use of information technology in our courts, in particular, electronic filing. Advances made in the field of technology have made communication, including the transmission of documents and the accessing of filed documents, easier. While it previously took hours or days to send documents from one point to another, now this can be done within seconds via email. Likewise, if the proper systems are in place and the necessary hardware available, it is now possible for busy judges to access court documents from anywhere. In the Constitutional Court, documents must be filed both electronically and in hard copy. The result is that a judge of the Constitutional Court can access any document in a case from wherever he or she is.
We should take steps to implement the system of electronic filing, otherwise known as e-court filing, should not be extended to courts in general.
Our justice system is ill - we are its physicians. We must take it under our care until it recovers fully. In this regard I propose the establishment of a Committee on Access to Justice to pursue long term fundamental improvements in our justice system so that it is truly accessible for all regardless station in life and to review our justice system on a regular basis. This Committee must include representatives from the judiciary, the legal profession, the executive, the legislature, civic society and public interest law groups.
This Commission should have sub-committees that will focus on Case Flow Management, e-filing, alternative dispute resolution, civil justice system and criminal justice system. It should produce its report within three months from the date of its appointment.
I would like to once again emphasise the importance of the spirit and the substance of constitutional dialogue in giving effect to our Constitution. Ultimately, in order for our goal of delivering accessible quality justice for all to succeed, it will require that the three branches of government work together, and with all stakeholders, to approach the constitutional obligation that we share with mutual respect and ongoing communication.
After all the Constitution requires other organs of State to support through legislative and other measures to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.
The effective and efficient delivery of justice, though not a simple task by any means, is a constitutional requirement. The rights in our Constitution will remain meaningless unless they can be vindicated by the average persons, regardless of the resources at their disposal. We have an obligation to ensure that access to justice in South Africa is not just an ideal that is expressed on paper, or expounded in conferences, and then forgotten, but is a reality.
As we conclude this conference, may I repeat what I said in closing my opening remarks. We have many pieces in place that we need to make a real difference in enhancing access to justice in South Africa. I am encouraged by the enthusiasm and commitment that has been displayed by my colleagues on the bench, the Department of Justice, the Portfolio Committee on Justice, the legal profession and non-governmental organisation for the transformation of our justice system. Your very presence at this conference is a manifestation of that enthusiasm and commitment.
The challenge now is to keep the momentum going, to keep striving to find new and better ways to the need and to set clear goals for what we want to accomplish and for measuring whether we are getting there. This conference has helped us to chart a roadmap to an ideal justice system and it is this roadmap that will ultimately lead to the achievement of the new society contemplated by the Constitution, a society based on democratic values, social justice and fundamental human rights.
In closing our conference, I would like to express my heartfelt appreciation to everyone who joined us, and participated in the last two and a half days. This includes the heads and representatives from each branch of government, the chairpersons of each plenary session, each of our esteemed speakers, and all of you who participated at this conference. We are grateful that all of you have chosen to come together so that we may share our combined expertise, insights, successes and challenges in search of a better justice system for all.
We would also like to express our gratitude to our distinguished guests from abroad for travelling all the way to our country to share with us their personal and their nations' experiences in relation to the various topics we discussed on improving access to justice. We believe there is always something one can learn from other countries that have experienced similar challenges and successes, and we found what you shared with us inspiring.
And last, but not the least, I would like to thank the organisers of this conference, which was spearheaded by the Case Flow Management Committee of the Heads of Courts. My heartfelt gratitude goes to the organising committee under the leadership of Justice Mogoeng, and to all the staff from the Office of the Chief Justice, the Department of Justice and Constitutional Development, and the Constitutional Court, who worked tirelessly to ensure that this conference was a success. We cannot forget GIZ and the Department of Justice and Constitutional Development for their generosity in funding this conference.
Thank you all for your important contributions, and your generosity of spirit, and we wish you a safe and pleasant journey home.