Johannesburg’s high court, the country’s busiest court, is buckling under the pressure of case backlogs. Commercial litigants are expected to wait until at least August 2025 for hearing dates.
The situation is so bad that some Road Accident Fund (RAF) cases have trial dates allocated as far ahead as April 2029.
One of the weaknesses in the system is that the sheer number of cases set down cannot be heard sooner by the number of available judges or acting judges — and litigants shunning alternative dispute resolution.
The situation is so bad that deputy judge president Roland Sutherland published a bulletin pleading with experienced lawyers to make themselves available for pro bono work.
“The general civil trial roll for RAF cases has reached a staggering four years and nine months’ lead time. For this I apologise on behalf of the court,” Sutherland said in the bulletin.
“I regret that I have no immediate concrete solution to offer. The only way forward, in the absence of intervention by the government giving genuine and concrete attention to the problem, is to appeal to the generosity of the legal profession to serve pro bono to shore up the apparatus of the legal system,” he said.
Sutherland said there was also engagement with RAF management. “Regrettably, the RAF was not able to state unequivocally that every summons served on it is now being addressed and responded to; when that is the essential condition that will signal an end to the deluge of default judgments.”
While responses to service of summons had improved, this would not be noticeable for at least another two years, given the “dynamics inherent in the process”, he said.
The bulletin shows that in commercial court cases litigants are likely to get hearing dates a year from now. Litigants suing the police will have to wait until August 2027 for trial dates.
Due to many companies, listed and unlisted, having their headquarters in Johannesburg, the court is the busiest commercial court in the country.
The bulletin says that litigants in opposed divorce cases applying for hearing dates now are most likely to be allocated dates after November 25 2024.
For any trial matter that requires more than five days, one is likely to end up with a date after October 19 2026, the bulletin says, while for full court criminal appeals one is likely to wait five to six months for the allocation of a date.
“The shortage of judges at the high court in Johannesburg impacts on the court’s ability to render an effective litigation service,” said law firm ENSafrica.
The firm said legal practitioners had a duty to assist the court reduce these lead times. Experienced practitioners should be encouraged to make themselves available to act as judges to help reduce “significant backlogs” at the Johannesburg high court.
The shortage of judges at the high court in Johannesburg impacts on the court’s ability to render an effective litigation service.
— law firm ENSafrica
Members of National Assembly voiced concern in July about the R1.5bn cuts to the budget of the department of justice & constitutional development, the political principal of SA’s courts.
The new minister, Thembi Nkadimeng, said in her budget speech that the R25.1bn budget would support critical operations across the department, including court services, state legal services and the National Prosecuting Authority (NPA).
A shortage of researchers for judges has also been highlighted as one of the weaknesses in the justice system.
Sutherland said engagements involving the bench and the legal profession in a bid to find solutions to the backlog did not yield new ideas. One concrete idea was that the volume of cases could be reduced if diverted from the state court system where appropriate.
“The utilisation of mediation is still, where it is suitable, insufficiently employed. One reason is that too many litigation attorneys are not confident in using this means to settle disputes. An earnest effort to develop a pool of credible expertise readily available is urgently needed,” said the judge. “Steps are in progress to achieve this pool of expertise and I urge the profession to embrace these developments.
“Another innovation is to expand the market for arbitrations beyond the commercial sector and for legislative action be taken to facilitate the exploitation of the private sector resources to supply what, at present, the state cannot supply.” In April the NPA released the long-awaited corporate alternative resolution directive, which is meant to guide prosecutors on what to consider when engaging companies looking to escape criminal charges.
This will enable companies implicated in corrupt activities in SA to now have the option to settle matters with law enforcement agencies via alternative dispute resolution mechanisms without facing criminal charges, in a first for the country.
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