Beware litigation fervour

“In today’s litigious world,” remarked the then New York City Parks Commissioner, Henry Stern, “the children come to the playground with parents and the parents come with lawyers.”

Stern made this comment in the mid-1990s as the New York metropolis began taking down seesaws, merry-go-rounds, high slides and tyre swings from city parks in response to children’s injuries which often resulted in lawsuits.

Last year, the United States Cabell County district in West Virginia removed swings in primary schools following two different lawsuits over minor injuries by two siblings in separate incidents on a school playground.

Explaining the decision, County Schools Superintendent, William Smith, said: “We’re disabling our swings to keep us out of the courtroom.”

Long before these incidents, in 1985, American historian Jerold Auerbach wrote a book, Justice without Law?, in which he decried the litigious nature of American society – he described law as the US’ “national religion” – and argued for the social desirability of nonjudicial dispute settlement methods.

Though other observers differ with Auerbach’s characterisation of the US as the world’s most legalistic and litigious country, some, and especially non-lawyers, are more than likely to be sold on the potential counterproductive implications of the over-lawyering of social processes.

It is debatable whether SA fetishises litigation in the same way that Auerbach argues the US does.

Ordinary citizens are often visited upon many an injustice from the public and private sectors.

Many often do not seek relief in the courts for a variety of reasons, including lack of awareness of their rights, inability to afford expensive legal fees and fear of all manner of (subtle) retributions.

However, litigation in the public sector – the administrative and policy space of governance in particular – continues to attract greater public attention. In the 2017/18 financial year, the police budgeted R6.509 billion for civil claims, which the annual report of the same year noted were on the increase.

The department of health has, since 2013, paid out more than R60 billion in malpractice claims. Former health minister Aaron Motsoaledi last year suggested a portion of this may have been fraudulently claimed by means of collusion between some state attorney officials, private lawyers and real or fictitious litigants.

This prompted an ongoing Special Investigating Unit (SIU) probe into alleged corruption in the office of the state attorney, the entity which provides legal services to national and provincial departments.

The allegations range from failure by officials to file court papers on time to undue, exorbitant and unauthorised out-of-court settlements even on matters that the department of justice says could have been successfully defended.

Few would argue against claims brought against a party for malpractice, especially where these adversely affect a claimant’s quality of life, health or life itself.

Noteworthy, as Motsoaledi lamented with respect to some of the claims against the department of health, is the corrupt and fraudulent portions of the claims, which not only distort the picture of litigation against the state, but cause a needless seepage on the fiscus.

On the political and policy front, it is frequently remarked, that the last 10 years have seen an unprecedented, albeit inadvertent development of our jurisprudence than any other period since democracy.

This is in reference not so much to the number as in the high profile nature of the policy related cases that served before the courts and led, on occasion, to the judiciary laying down the law to the executive and legislative branches of government.

Perhaps the most far-reaching of these were the Constitutional Court’s finding of March 2016 which held that the public protector’s findings are binding unless set aside by a court of law and the December 2017 ruling which compelled the National Assembly to make rules regulating the removal of a president in terms of section 89(1) of the constitution “without delay”.

Another judgment which passed with little public debate was the April 2018 one in the High Court in Pretoria in the matter between the Chamber of Mines of SA and the minister of mineral resources and the director-general regarding the so-called “once empowered, always empowered” principle.

The principle refers to the continued recognition of a mining company as a black empowered entity which is eligible to retain its mining rights after the exit of a black empowerment partner which held an equity stake.

This means that a mining company can avoid entering into a new empowerment transaction since it can always rely on empowerment credentials that once were rather than those that currently exist.

The most vexing, in effect a furtive attempt at a constitutional amendment by means of litigation, is the case currently before the Constitutional Court in which the Democratic Alliance (DA) sought and successfully secured a High Court in Pretoria judgment compelling then president Jacob Zuma to provide reasons for his removal of Minister Pravin Gordhan from Cabinet on April 4, 2017.

The Supreme Court of appeal determined that the appeal by Zuma’s successor, President Cyril Ramaphosa, against the high court judgment was moot since Zuma had since resigned as president.

The presidency has taken the matter to the apex court to affirm the president’s constitutional prerogative to appoint and dismiss members of cabinet.

Hardly a novel point is that the law and its resultant contestations are but contentions between differently disposed social and political classes that seek to shape society in their own image.

Nevertheless, there are some blind spots to look out for in the migration of essentially political matters into the judicial sphere as a result of their failure or imprudent handling by politicians.

Through no fault of its own, the judiciary inherits the acrimony of politics. Of no less significance is the austerity that litigious fervour potentially imposes on democratic politics and social transformation.

Is it inconceivable that the “once empowered, always empowered” decision can be replicated in sectors beyond the mining industry and with what impact to the imperative for socio-economic transformation?

– Ratshitanga is a social and political commentator

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