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South African needs more than a judicial review

12 March 2012 Gareth Stokes
Gareth Stokes, FAnews Online Editor

Gareth Stokes, FAnews Online Editor

On 28 February 2012 the Minister of Justice and Constitutional Development, Jeff Radebe, briefed the media on government’s discussion document titled Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African St

I’m not sure that government’s “review” is as innocent as Radebe claims. The recent Protection of State Information Bill points to a ruling party hungry for power. And control of the Constitutional Court is the Holy Grail for any party keen to press forward with unconstitutional changes. My greatest fear is that the African National Congress (ANC) has confused the “transformation” agenda with that of “toeing the party line”. They might, for example, conclude that because the Constitutional Court rules against the State on certain matters, it is anti-transformation. The review process will take place over the next 18 months and we will have to wait until then to discover whether the “operational review” proposed in the Constitution morphs into something more sinister, such as direct State interference in Constitutional Court activities.

Time to fix the judicial system

Political concerns aside, South Africa’s judicial system could do with a serious revamp. Both the millionaire fraud accused – and Joe Average, who might be seeking compensation from a dishonest home seller, for example – need the wheels of Justice to turn faster. The system needs to transform from one where legal practitioners, cash-flush corporations and fraudsters use “other people’s money” to defer justice, to one where Court cases are decided swiftly and efficiently.

If government wants a brutal assessment of current Court processes they need look no further than the ongoing Financial Services Board (FSB) versus Fidentia Asset Management, Bramber Alternative and Fidentia Holdings saga. Over the past five years the Court-appointed curators, their legal representatives, the National Prosecuting Authority (NPA) and the FSB have initiated countless Court actions, running up hundreds of millions in legal and other fees… Yet a date for the criminal trial of J Arthur Brown, the alleged mastermind of the R1 billion-plus fraud, has yet to be announced!

There is something wrong with a criminal justice system that allows wrongdoers, with assistance from highly paid legal teams, to delay or even sidestep prosecution indefinitely. The latest Fidentia Curator’s Report – filed 30 November 2011 – provides an insight into the circus of modern day judicial process. Between 31 March 2011 and 30 November 2011 the curators engaged in 23 litigious matters in the form of actions or applications. Although these court actions led to recoveries totalling R100 million they cost the affected stakeholders millions.

The curators told the Western Cape High Court that expenditures incurred, to 31 August 2011, topped R63 million. This price tag included curators’ fees (R13.185 million), forensic accounting services (R6.947 million), legal services (R41.366 million) and FSB costs (R2.507 million). Despite the curators succeeding with all but one of their applications over the review period, recoveries of taxed bills stood at a miserly R116, 423.

The biggest stumbling block to an efficient judicial system

The Fidentia matter is not the only one where curators’ and legal fees are mounting up. Those “fighting” for pension fund members in the so-called Ghavalas pension fund stripping case have helped themselves to R233.9 million (correct at 31 October 2011) already. In each of these cases the fees add up to approximately one third of the capital sums recovered. What must be done to put an end to these lengthy and costly court actions? I believe “other people’s money” is the biggest stumbling block to sensible legal conduct.

Public servants seem to have unlimited access to State resources to fight their personal battles through the country’s courts. The likes of Robert McBride (former Ekurhuleni Metro Police chief) and Jackie Selebi (disgraced ex-Commissioner of police) spring immediately to mind – but the list is endless. And elected officials think nothing of forcing the opposition or interested third parties to court to access information either. Meanwhile criminals with billions tucked away offshore think nothing of hiring expensive legal counsel and spin doctors to fight their legal battles. It is no wonder that legal and accounting firms trip over each other to “scoop” lucrative liquidations or curatorial assignments. There is nothing better than cutting a ‘commission plus legal costs’ deal to recover stolen funds – because with the full might of the law, NPA and FSB behind you – and millions in “other people’s money” to initiate court actions – collecting the cash should be a walk in the park!

South Africa’s judicial system is not in need of transformation, but rather a moral and ethical overhaul. Judicial process needs to be speeded up and the cost of court action brought within reach of the common man. And – most importantly – the greedy must be shaken out of the system. We can no longer tolerate the greed-based legal practices that result, for example, in advocates fleecing the Road Accident Fund (six of 13 advocates were struck from the role by the Pretoria Bar Council) or the “Lawyers of Shame” headline in a recent Pretoria News cover. This story told of some 4, 500 allegations of misconduct against attorneys under the jurisdiction of the Law Society of the Northern Province.

Editor’s thoughts: The reason our courts are chock full of politicians is that they have access to taxpayer-funded legal representation. It seems the fraud and corruption accused have more funds to pay legal fees – and therefore more rights – than the ordinary citizens they fleece… And rising costs mean that Joe Average has less access to the Courts to resolve disputes than ever before. Are you prepared to initiate legal action against a supplier or provider, or does the cost of such action dissuade you? Add your comment below, or send it to gareth@fanews.co.za

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