South Africa’s Constitution is clear and unambiguous. Every person has the right to resolve disputes through the application of law. A fair and public hearing must adjudicate these disputes before a court or, when appropriate, an independent tribunal or forum. This right is more than a procedural safeguard; it is a core principle enshrined in the constitutional framework.
Historically, the majority in South Africa faced systematic denial of justice. A regime that prioritised parliamentary sovereignty entrenched racial oppression. In response, the Constitution’s commitment to court access serves as a pivotal corrective measure to address Gauteng’s judicial crisis.
The under-resourcing of the judiciary
Today, the Constitution guarantees access to justice. It also actively promotes strategic litigation as a vital tool for accountability.
However, Gauteng’s judicial crisis does not reconcile these ideals with reality. A civil trial in Gauteng’s High Courts may only be heard in 2027. This delay persists despite dedicated leadership efforts in Johannesburg and Pretoria.
Even worse, after finally reaching court, another wait begins. Judges, overworked and under-resourced, must juggle hundreds or even thousands of cases.
Litigants may wait months or even years for a judgment. The judiciary’s under-resourcing has now reached crisis proportions.
Alleviating the strain on the overburdened judiciary
For years, legal professionals at all levels have struggled to ease the strain on Gauteng’s overburdened judiciary.
Many propose familiar solutions: more specialised courts, expanding Alternative Dispute Resolution (ADR), promoting mediation, adopting CaseLines or CourtOnline, and appointing more judges.
These measures have value, and some have achieved progress. However, certain matters require court intervention, which remains essential. Despite these efforts, chronic underfunding and limited resources continue to starve the judiciary, preventing meaningful relief.
Read an article about ADR as a possible solution in alleviating the strain, authored by Nick Alp and Sarah McKenzie.
If this situation persists, even the best solutions will have limited impact. Practical, cost-effective, and simple solutions offer a better path. A realistic approach must balance legal practitioners’ responsibilities with the judiciary’s commitment at the highest level. Our approach leverages courts in less burdened jurisdictions. It also calls for a simplified motion procedure and demands integrity from lawyers
Voluntary change of jurisdiction
The first leg of the approach entails voluntary change of jurisdiction. Parties should have the opportunity to litigate in a different, yet competent, court. That court’s roll may not be as burdened as Johannesburg or Pretoria, making litigation more efficient.
Admittedly, this approach presents challenges. Moving a case to another High Court should require all parties’ consent, which can be daunting. Financial strain adds another hurdle. Indigent litigants may face travel, accommodation, and legal fees they simply cannot afford. However, well-resourced litigants, particularly large corporates, may find the cost worth the trade-off. A quicker resolution could justify the expense.
Waiting years for a Johannesburg High Court hearing could have worse economic consequences than funding litigation in another jurisdiction.
As an immediate measure, individuals and corporates could add terms in new agreements or amend existing ones to accommodate jurisdiction consent.
There is a problem in that consent alone is not enough to establish jurisdiction. Therefore, legislative change must confer jurisdiction on all High Courts over all causes and defendants within the country. This change should enable litigation in courts that can resolve disputes faster. The unsuccessful party should cover travel and accommodation costs.
Critics may argue that only wealthy litigants benefit since they can afford to shift their lawyers nationwide. However, the true aim is to relieve pressure on the Johannesburg and Pretoria High Courts. Diverting cases from these courts would indirectly help all litigants, especially those unable to relocate cases and facing long delays.
Accessing justice more swiftly
If parties can voluntarily move their cases do so, the court’s dockets could be cleared faster, allowing indigent and average-income litigants to access justice more swiftly.
Though on its face, this approach seems to serve only a select group, its broader purpose is to improve access for all by redistributing caseloads across jurisdictions. In essence, by encouraging well-resourced parties to take their matters elsewhere, we create room for those most in need, improving, if not ensuring that access to justice is not a privilege but a reality for all, regardless of income.
You might wonder what happens if the parties don’t consent to the jurisdiction of another High Court and instead use the overburdened roll and resultant delays in their favour. Well, it may be that section 171 (which provides that our country’s courts function in terms of national legislation) and section 173 of the Constitution (which gives our country’s Courts the “inherent power to protect and regulate their own process”), as read with sections 8 (which deals with judicial management of judicial functions) and 49 (which deals with regulations) of the Superior Courts Act.
This could be relied on to:
- establish an assignment portal (such as an adapted Court Online platform but expanded to include all High Courts) to assign a matter, regardless of the jurisdiction of a defendant, to be heard by a Court which has the requisite capacity. This would necessitate a change in legislation and/or applicable norms and rules, alternatively a direct challenge to or call for amendment of section 21 of the Superior Courts Act (which speaks to persons over whom the divisions of the court have jurisdiction); and
- issue a directive from the Chief Justice, the Honourable Judge Mandisa Muriel Lindelwa Maya, allowing High Courts to assume jurisdiction over matters in the interests of justice and subject to all matters being assigned through the applicable portal.
Commencing all matters on motion
The second leg to the approach to address Gauteng’s judicial crisis entails changing the rules to enable all matters to commence on motion. Motions that run into disputes of fact could then be referred to evidence by the court on specific issues on which narrow discovery should be ordered.
There would ideally be a prioritisation of simply drafted shorter motions. That is not to say that our system should ignore or punish complexity. It would be hard to dispute that our courts are now confronted with constitutional matters, sophisticated commercial disputes, and social justice issues that require detailed, comprehensive legal reasoning. We should embrace a system that prioritises and rewards concise, focused papers.
By starting all matters on motion, litigants will be incentivised to front-load their matters, get their witnesses deposed early on, procure the necessary evidence before launching and eliminate ‘tactical denials’ so commonly seen in action proceedings, encourage litigants thereby to stick to the point, saving valuable court time and state resources. Shorter papers, sharper arguments, and speedier decisions – it’s a win-win that will lighten the case load.
Utilising judges from other jurisdictions
A final proponent to the approach involves utilising judges from other jurisdictions for virtual hearings in Gauteng.
Instead of merely expanding the rollout of CourtOnline and Caselines to other provinces, we propose a more strategic approach: allowing judges from less burdened High Courts to preside over matters in Johannesburg and Pretoria through virtual hearings. These judges could be best used for the simpler, concise matters that have started as motions and been referred to evidence on specific, narrow disputes of fact, as we refer to in the second part of the approach as a pilot project for our proposal.
By conferring authority on judges from different divisions to hear cases in areas experiencing congestion, we can effectively balance the workload across the country.
Reforms needed to address Gauteng’s judicial crisis
In the quest to address Gauteng’s judicial crisis by overcoming the overly burdened court roll, we have to recognise that the existing system requires urgent, realistic and lawfully possible reform and systemic change.
Our approach is but one cog of that change and should exist within a combined effort to dismantle systemic barriers that hinder the adjudication of cases before the courts. This approach should work alongside initiatives to increase access to ADR channels, such as empowering community advice offices to mediate disputes that need not proceed to court and ensuring that parties take seriously their obligations under Rule 41A of the Uniform Rules of Court.
The proposed solutions – voluntary jurisdiction shifts, commencing matters on motion, then distilling out the disputes of fact by court order where necessary, and utilising the capacity of judges from other divisions – are not just about streamlining processes or searching for efficiency; they are about saving Gauteng’s judicial system and reclaiming the promise of justice for everyone.
| Ayanda Khumalo | Partner | mail me | |  |
| Garth Duncan | Partner | mail me | |  |
| Matthew Ilsley | Associate | mail me | |  |
| Khanya Thwala | Candidate Attorney | mail me | |  |
| Katy Hindle | Consultant | mail me | |  |
| | Webber Wentzel with input from Advocate Les Morison SC | | |
