Abstract
LL.D.
The Constitution of the Republic of South Africa 108 of 1996 provides in Section 34 that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before court, or where appropriate, another independent and impartial tribunal or forum. A fair civil trial that includes a fair judgment can only be achieved if the parties to the action receive fair treatment throughout all the stages of the proceedings. Obviously the concept "trial" cannot be given a narrow interpretation. There can hardly be mention of a "fair trial" if the processes that precede the trial since commencement of the litigation cannot also be construed as fair. In providing the procedures whereby a fair civil trial is facilitated, apart from providing effective mechanisms for the enforcement of substantive rights and obligations, the interrelated concepts of time, effectiveness and costs are pivotal.
In an attempt to secure a fair civil trial, the preparation for trial stage plays a very important role. It is, however, a reality of the South African litigation milieu that hundreds of cases are postponed on a daily basis as a result of problems that are related to specific pretrial procedures. The indications that the pre-trial procedures per se need to be revised and where necessary, be reformed, are consequently rife.
There is also no comprehensive procedural structure in place in South African law in terms of which the parties can co-operate in order to effectively facilitate pre-trial preparation. An aspect of the pre-trial procedure that often leads to delay and unnecessary escalation of costs is the excessive amount of party control (or lack thereof) during the preparation for trial stage. Pivotal to reform of the pre-trial procedures is thus the question whether it serves any purpose to leave this stage to the "mercy of the parties". It can hardly be argued that retaining the element of surprise as part of a strict adversary litigation character yields any real advantage. Legal reform is not a process that can be undertaken in vacuo and any attempts at reform in the preparation for trial stage must consequently bear the following considerations in mind: costs, delay, the degree of complexity of procedures, formulation, time limits and sanctions, the impact of the principle of fairness, the impact of party control and circumstances peculiar to a particular legal system. It is furthermore important that such reform should be undertaken in accordance with an expressly declared ethos. Where there is no clear congruence between the reform ethos and the needs of a specific legal system it will inevitably lead to reform which, although it may be new, might not necessarily address and improve existing problems. Legal reform, even if it is of limited scope, should always be a logical, purposive process. In this respect comparative study of Anglo- American systems are invaluable.
It is of great importance that individual pre-rial procedures should be reformed in order to facilitate cost and time effective preparation for trial. Various problems exist in respect of discovery and attention should urgently be given to the lack of uniformity between the High Courts and the Magistrates Court, the non-compulsory nature of the procedure, the effectiveness of time limits and sanctions, the wording of the rule and the question whether the concept "document" should be elaborated upon. Provision should also be made in the South African Law of Civil Procedure for exchange of witness statements prior to trial. Exchange of expert evidence ought also to be reformed in order to address the problematic time aspect, the obligation to give notice, the contents of the summary, the discussion between experts and the lack of sanctions prior to the trial date. Reform of the pretrial conference should also be undertaken in order to emphasize its legitimate place as a stocktaking procedure prior to trial. It is furthermore necessary to address the problems regarding the pre-trial conference that relate to the lack of uniformity in the High Court and Magistrate's Court, the attitude of the legal profession, the stage at which the conference must be held, the question regarding who should preside at the conference and the lack of effective sanctions.
Reform of the individual pre-trial procedures, whether piecemeal or as a comprehensive once-off reform, is, however, per se not sufficient to ensure a level of trial preparation that will eventually lead to a fair civil trial. The individual pre-trial procedures are separate though interrelated links that can only fulfill their purpose if the greater more holistic approach to civil procedure gives structured recognition to orderly, time and cost effective litigation. It is, therefore, essential that the individual pre-trial procedures should function within the framework of a case management system that can play a significant role in achieving the ideal of a constitutionally fair civil trial in that it establishes a coordinated and procedurally fair preparation for trial stage. The eventual success of such reform will, apart form the provision of effective individual pre-trial procedures and an effective case management model, also depend on the materialization of a sufficient budget to create an infrastructure of computers and trained personnel as well as a mentality shift on the part of lawyers in order to discard their old adversary cloak in exchange for more effective transparant litigation and eventually, a fair civil trial.