November 13, 2008: After waging a monumental battle in court spanning over 25 years, an application is brought before the Court of Appeal, which will not conclude the matter but, further add to the growing body of literature in the case.

From the time the dispute commenced the number of advocates has changed so many times that any new advocate who comes on record may not easily comprehend the case. The Judges before whom the case has been listed have been as many as the advocates themselves, compounding the confusion rather evident in the matter.
 
The litigants have also changed over time, the original people have long since passed  on and their successors have stepped up and they too have fallen victim to the vagaries of the time and natural attrition. Can it be said that justice shall at the end of the day be done to the party who deserves it?  

Are the advocates who are handling this case helping their clients take the best course of action, aimed at solving the problem at hand? Is the failure of the courts due to judicial officers who are overworked and understaffed or are the advocates so zealous in their work that several applications are mounted to complicate the matter and in the end delay the delivery of justice?

Justice delayed

Is the nation so litigious that a party will litigate and stay in court for as long as they can provided the other party does not seem to be giving up the fight?

It has often been stated that justice delayed is justice denied and justice is sweetest whilst freshest! Are these maxims relevant to our legal system at all? Sometimes, when a case commences you shudder to imagine when it will ever be completed.

Many commercial disputes have fallen victim to this delay process as the documentation to prove the claim cannot be traced. A good example is a change of systems, when a company goes digital and all the dusty documents are archived far away from the office and later on destroyed.  

If the average lifespan of a case is 5 years plus the appeal that may ensue, which will take at least 5 years to be determined. Is ten years worth the frustrating and waiting period?

Where should we as a society turn to in the case of commercial disputes where a minor hiccup needs to be solved and the business relations continue? Is the answer of  alternative dispute resolution the way forward? Will simple contracts too be subject to arbitration and how viable is that  as a solution.

Wetang’ula is an Advocate of the High Court.