They will have us believe Judicial Case Management is the best thing that ever happened to our Rules of the High Court. If you through some judgments, you will see that some judges have been so enthralled by the system they speak about it with so much affection Shakespeare will not beat them at it. Even the Court of Appeal at some point had to come out to restrain what it saw as the “enthusiasm” by certain judges in applying the rules of Judicial Case Management.
Evidence of success? Well, those who speak like statisticians argue, that because of Judicial Case Management, the judicial process today is faster than it used to be. I think before one reaches any such conclusions, it will be fairer if spoken from empirical evidence, not to draw conclusions from raw conjectures.
And here is where the tragedy of it all lies. The arguments in favor of the system, the only side of the story we have heard, have been so cleverly modeled and crafted that the factor of litigation costs has been conveniently sidestepped. And so nobody speaks about costs, even the judges. A classic case of cherry-picking.
Now, if you do not know what Judicial Case Management is, here is a simple explanation: the reason why litigants have been going to court and meetings with the other party so many times and paying their lawyers so much money even before the case got to be argued or the trial begun is Judicial Case Management.
Now, let’s go through it in some detail so that we develop a high-definition (HD) image of this best invention operates.
After court papers have been filed, first, you attend what is called a Roll Coll. At the roll coll your case is called so that the judge can tell the lawyers when they should file other remaining court papers, when they should meet (call it the meeting of the parties) with their clients at which meeting they will produce a preparatory report for him and there, the judge also tell them when they should come back to court for the Initial Case Management Conference. Costs: So far, in addition to drafting the court papers, your lawyer will charge you for attending the Roll Coll and attending the meeting of the parties and drafting the report and attending the Initial Case Management Conference.
Then, you attend the Initial Case Management Conference; the judge will assess the report and make it into an order of the court and then tell your lawyers when they should meet with the parties and produce yet another report and when they should yet again attend court for the Final Case Management Conference. Costs: At this point, your lawyer charges you for attending the parties meeting, drafting the report and attending the Final Case Management Meeting. In the preparatory stages of the case, you have already paid through the nose. And then, it is only at the Final Case Management Meeting that you get a date for argument or trial.
So, even if it there was good proof (and so far there isn’t any) that the judicial process is faster than it used to be now that there is Judicial Case Management, the vital question is, is it worth the huge cost on the litigants? I do not believe that any system of procedure that inflates the cost of the right of access to court is a sound procedural policy. Where have we gone wrong in our reform? Has our lust for speedy justice has blinded us?
*Lekgowe is a practicing attorney
