Tardy judges dooming dozens of cases to legal limbo

A Pietermaritzburg judge who took a staggering four years to hand down a reserved ruling, came under fire from the Supreme Court of Appeal (SCA) this week. But recent figures from the Office of the Chief Justice (OCJ) suggest dozens of cases around the country are gathering dust while they await judgment, which in some instances has been outstanding for as long as nearly eight years now.

And in the meantime, say lobbyists and experts, the parties involved are all being left in limbo.

The SCA on Monday upheld an appeal lodged by the National Union of Metal Workers South Africa (Numsa) against a 2019 order of the KwaZulu-Natal High Court in Pietermaritzburg, in terms of which the union had been found liable for riot damages on the back of a violent protest. The SCA found Judge Anthony Van Zyl, who had penned the high court’s judgment, had got it wrong and that the protest had been “in furtherance of a protected strike” which had effectively immunized the protesters from any civil action.

It also laid into Van Zyl over the “extraordinary” delay between the date of hearing, in August 2015, and that of judgment, in September last year.

Read more: Supreme Court of Appeal blasts KZN judge for tardiness

“The judgment provides no explanation for this extraordinary delay,” acting Judge Glenn Goosen, who penned the appellate court’s ruling with four judges concurring, said.

“We were informed by counsel that whereas the underlying labour dispute had long since been resolved, the consequences, in the form of civil litigation, are self-evidently not. The prejudice caused by a delay of four years is manifest,” Goosen said,

“How it can have taken the judge four years to decide this issue and to deliver his judgment defies understanding”.

Goosen went so far as to describe this as an “unconscionable dereliction of duty” and suggest it warranted the attention of the local judge president.

In terms of the judicial norms and standards, the courts are expected to try and hand down reserved judgments within three months.

Since late 2018, the OCJ has been publishing regular reports on the status of the country’s reserved judgments – and identifying cases in which judgment has been reserved for more than six months – on its website.

A total of 82 cases made the latest report published in October and Van Zyl was the presiding judge in five of those – including two in which judgment had been outstanding since 2012 and 2013.

His division also had the highest number of cases overall in the report: 18.

But lengthy delays were flagged in various judge’s courts and all around the country.

Legal expert and advocate Paul Hoffman SC said on Wednesday the problem boiled down to a “woeful under-resourcing”.

“Part of it also has to do with the amount of experience in legal practice that the people who are being appointed to the bench are bringing with them. The more experience they have, the more efficient they are. Having less experience doesn’t necessarily make someone less efficient, but it does often result in him or her having to do more homework,” Hoffman added.

He said, though, there were also experienced judges who took their time.

At the end of the day, Hoffman said, it was the litigants involved in these cases who suffered.

And Allison Tilly, from the Judges Matter campaign, agreed.

Tilly pointed out that court cases, by their nature, often dragged on for several months or years and highlighted the toll they took – emotionally and financially – on those involved.

She said cases in which judgments had been outstanding for more than a year, should be reported to the Judicial Services Commission.

“It is a breach of the norms and standards,” she said.

The OCJ had not responded to a request for comment at the time of publishing.

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