SOUTH AFRICAN LAW – (PART ONE)

South African law has been evolving since 1994, for obvious reasons. Is it evolving quickly enough, and are we going in the right direction? The simple answers to these questions are no, and hell no. South Africa has the most unequal society of any nation of earth. That inequity permeates our Courts. A routine day in the High Court in South Africa costs upwards of six times the average monthly salary. The greatest frustration with the ‘new’ South African law is that nothing is ever finally resolved. Judges are forced to tip toe around a myriad of politically sensitive issues. They have often competing and unclear precedent for reference and seem unable to develop any law. 

The fundamentals of our law fail as often than they succeed. Voet purists, seek to maintain the three hundred year old traditions of the Dutch jurist and long for a return to the old ways. Younger Advocates are charged with the idea of radical transformation. Many are influenced by tribal or customary law, which is far more gracious than its Roman Dutch counterpart. These disparate positions are exacerbated by the longevity of many in positions of ‘legal’ power. Simple issues such as locus standi, the basic principle of who can sue who, have become a wasps nest of opposing legal doctrines. The Constitutional says one thing, the Constitutional Court another, the Supreme Court of Appeal another. Dependent on which High Court your case is heard, the same legal tenet can be very differently interpreted and applied. Purists apply the stricter doctrine which the higher courts have sought to broaden.

The word ‘delict’ remains to many purists a curse word. Delictual claims are seen as being beneath the vanity of South African Law. The Courts still hold that the contract is sacred, until you ask them to enforce a contract. Some Courts will enforce contracts, others say that they have no jurisdiction to enforce a contract until the parties litigate. It is uncertain what law will be applied. The Court have sought to infuse our laws with the spirit of Ubuntu and principles of good faith. The Supreme Court of Appeals has fought this paradigm shift tooth and nail.

All of this uncertainty in the applicable law results in legal costs being far beyond the pockets of 98% of the South African population. Our Commercial Court rolls are jammed with never ending cases. The 2% can litigate, often against the 98%, who are most often pushed out of litigation by exorbitant costs. There is no access for the ‘common man’ to have his day in court. The common law and many of our statutes in South Africa serve the 2%. They act as the enforcer of their privileged rights. Our law is the slayer of ordinary people who dare to challenge the status quo. It is a primary driver of the ever increasing inequality in our society. South African law has no interest in the color of your skin, or the religion that you practice. Our Courts are estimable in that regard. In South Africa the law and all who practice it have one interest. The depth of your pockets.

Arbitration in South Africa, the recourse meant to alleviate the burden of high litigation costs has long been a captured market, held in the grip of a grey haired few; but that is another story.