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Litigation lust not the only way to resolve disputes

Political parties should not “politicise” the courts by bringing them cases against the government. Thus spoke then-president Jacob Zuma.

Chief Justice Mogoeng Mogoeng stated similar sentiments in a judgment, with reference to an intervention by the Democratic Alliance. (In the same judgment I disagreed on that point.) 

A retired Constitutional Court judge lamented the fact that the apex court was kept busy by mundane administrative matters, while it should write great judgments on life-changing questions.

And, asks the public, why do we have to witness endless court battles, such as the recent somewhat comical example of suspended ANC secretary general Ace Magashule versus President Cyril Ramaphosa and (at least one part of) the ANC? 

Could in-house disputes not be solved without the further enrichment of lawyers, sometimes better known for their conspicuous wealth rather than their legal and logical skills?

Half a dozen points come to mind.

First, courts exist to solve disputes with a legal basis. People litigate about agreements regarding the sale of used cars. You can take your tennis club to court if management suspends your membership in contravention of its constitution. The same applies to constitutions of political organisations.

Second, it is often stated that constitutional litigation is necessarily political. It deals with state and private power; rights like human dignity, free expression and access to housing; concepts such as democracy and separation of powers; and values like equality, freedom and accountability. 

Some would argue that this applies to virtually all law. Contract, company, banking and insolvency cases result from law based on capitalist or socialist economic policies. Family law matters rely on notions of what a family is and on gender roles. 

Even when students were still taught that all judges were equally fair and impartial, legal practitioners openly talked about judges who hated the prosecution, were hard on rapists or favoured the “small man” against the establishment. 

But constitutional cases may require more value judgments than everyday litigation where the law — good or bad — is clear and allows for little discretion.

A philosophical distinction has been drawn between “the political” and “politics”. The former is unavoidable. Of the latter, like petty skirmishes between or in parties, courts should be wary.

Third, in a democracy such as ours, where the government is unlikely to change through the ballot box, it is to be expected that opposition parties and community organisations will use the courts, media and institutions such as the Human Rights Commission, the public protector and the others created by chapter 9 of the constitution to expose corruption and mistakes, or embarrass the governing party. 

When normal political activity, protest marches and other forms of free expression were suppressed by the apartheid regime, the sanctity of funerals was used to sensitise and mobilise. 

Courts became sites of struggle, because of the openness and fairness of their established procedures. Speeches made there by Nelson Mandela and Steve Biko became iconic. Victories for protest action and against pass restrictions were won in courts by the Legal Resources Centre and others.

Point four is that courts have duties. Although a few overenthusiastic judges in the highest court sometimes take on undeserving cases because they feel the urge to rescue not only our jurisprudence, but life, the universe and everything, it is customary for courts in South Africa and countries with a similar legal tradition not to decide issues they do not have to decide. 

Yet, they may not sidestep matters with political implications, or born from suspected political agendas. By the time battling parties approach the highest court, a fortune has been paid to lawyers. A decision is expected. Taxpayers pay judges to judge.

The duty of a court is to be aware of and understand the social, economic and political history and complexities of the society it serves; to recognise and put aside their own subjective likes and dislikes; and to interpret, apply, or develop the law — as mandated by the constitution — as honestly, intelligently and fairly as humanly possible.

Fifth, millions of South Africans are too poor to exercise their constitutionally guaranteed right of access to court. The small percentage with money are very litigious. On the positive side, this may indicate confidence in the courts as just and fair adjudicators. But litigants also walk into the trap of some lawyers who, instead of listening carefully, preparing timely and advising honestly, fire up clients with war cries like “See them in court” and “We’ll teach them a lesson”. 

After much money has been spent by the client, the legal eagle then prepares at a late stage, pulls the client aside inside or on the doorstep of the court … and advises: “We got a bad judge today — I think you must settle.” Settling means losing and paying both sides’ costs, which can destroy a lifetime’s work.

This often happens in divorce and child custody cases. In court parents stick their tongues out at one another. Money that could be used for childcare is spent on litigation. A cost order in a litigant’s favour is regarded as a victory medal. Thus high court colleagues and I mostly ordered no costs against the “loser” in cases about children. 

The Constitutional Court does the same when applications against the state about the enforcement of basic rights fail. 

People — not only with “political” cases or agendas — often try to intimidate, or display their righteousness, by stating: “I am seeking legal advice from my legal team.” They keenly pay lawyers to write threatening letters — the more rude, yet formal, the better. 

They love to litigate, especially with “other people’s money” (the title of a Danny de Vito film). Indeed, some lust after litigation. They become addicted to it, like others do to gambling or pornography.

Last, impartial courts are necessary. Political and other disputes could be resolved in much worse ways than litigation. When courts neglect their duties, this happens.

But we must seek ways to solve problems outside of the courts. A few years ago alternative dispute resolution mechanisms became popular. Religious leaders and educators must teach how to manage grievances. Psychologists have a role to play. So, unfortunately, do psychiatrists.

The famous Afrikaans poet, internationally recognised writer on nature and qualified advocate, Eugene Marais, said that no one with a higher mentality than a striped mouse could practise law full time. Confucius pleaded for harmony in the cosmos and regarded recourse to law courts as crude and uncivilised. 

Although we use, appreciate and protect independent courts, we must remember other weapons in our arsenal of humanity and ubuntu.

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Johann van der Westhuizen
Johann van der Westhuizen, who assisted in drafting South Africa’s constitution, is a retired justice of the Constitutional Court, the founding director of the University of Pretoria’s Centre for Human Rights and a former inspecting judge of Correctional Services. The views expressed are his own

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