A recent Concourt judgment aptly illustrates the court’s great worth to South Africa, says J Heinrich Muller.
Johannesburg - Several high-profile criminal trials have brought forth consternation at perceived shortcomings in the South African justice system, notably some notoriously lax sentencing.
Some folk have even called for a major judicial reform, and perhaps also of the National Prosecuting Authority.
There are certainly many deficiencies but I doubt if they are as dire as pessimists contend. Such judicial glitches occur worldwide and are not unique to South Africa.
There is nothing that some earnest remedial endeavours cannot rectify.
Thank goodness we have our world class Constitutional Court overseeing all the lower courts and upholding the constitution.
Concourt has handed down many superb judgments over the years, and it gives one much confidence in the future when we have this bedrock of justice as the final arbiter.
A recent Concourt judgment aptly illustrates the court’s great worth to South Africa.
For many years people have sought financial relief in personal injury and medical negligence claims from the Road Accident Fund (RAF) and many who have not been able to afford quality legal representation have approached legal firms who offer a no-win, no-pay service to litigants.
Such firms are selective in who they agree to represent, and only take on what they consider to be certain successes, but they do service a need to many desperate, low-salaried road accident victims.
However, many of them have unfortunately fallen prey to the plethora of unscrupulous ambulance chaser lawyers who shame the legal profession by charging outrageous legal fees far in excess of the prescribed rate, which allows for a maximum of only 25 percent of the settlement granted by a court to be retained by the litigant’s legal representatives.
None of us know if we will be the next motorist or pedestrian maimed on our roads of mayhem and death, and obviously every cent of an award would be desperately needed merely to survive in a society of constantly rising costs.
Many legal vultures illegally add a raft of extra charges termed disbursements.
Juanne de la Guerre was awarded R2 million in an injury claim – of this, R1m was appropriated by her greedy lawyers.
That’s a whopping 50 percent of desperately needed money going to the fatcat legal practitioners.
Even R2m doesn’t go far considering the astronomical cost of future medical expenses, and to provide sustenance over a possible long lifetime for a paraplegic victim.
Thankfully the Constitutional Court has provided protection against improper overcharging of future accident victim litigants by upholding the maximum 25 percent proviso as prescribed in the Contingency Fees Act, and rejected a legal firm’s application to appeal judgments against them in the lower courts for overcharging.
In another recent important judgment, Concourt granted a sizable financial award against a security company which it deemed to have been negligent during a home robbery.
It is an important judgment against an industry that has generally considered itself immune from reproach.
So our justice system may not be in crisis mode, but there is certainly a need for South Africans to be eternally vigilant and insist on meaningful improvements that will provide equal justice for all.
Many accused people cannot afford quality legal representation, certainly not a costly appeal to the Supreme Court of Appeals, and definitely not access to the Constitutional Court, although the very fabric of its magnificent court buildings conveys access to the masses.
Access is only the preserve of the privileged few.
Far more effort must be made to make justice more affordable.
If the average Joe Soap and Thandi Citizen cannot afford access to our formal justice system, both criminally and civilly, maybe the tribal courts are not such a bad alternative after all, as long as the appearance before those courts is voluntary, that previous discrimination of women is eliminated, and that there is an automatic right to appeal to the formal courts if people feel aggrieved at the verdict of the tribal elders.
The legal terrain can be likened to a minefield, and it is imperative that South Africans become as knowledgeable as possible about South African jurisprudence and precedence setting court judgments, so they are fairly well prepared for any legal eventuality.
J Heinrich Mueller
* The views expressed here are not necessarily those of Independent Newspapers.