6 March 2018

South Africa: Political Disputes Don't Belong in Courts - Hlophe

Photo: Agenda
South African Constitution (file photo).

Political disputes do not belong in courts unless there is a serious violation of rights, Western Cape Judge President John Hlophe said during a talk on mediation at a social justice conference in Paarl on Tuesday.

"They are spoiling our jurisprudence. They shouldn't be there," said Hlophe.

"When we find for them [politicians] we are clever, when we find against them, we are fools," said Hlophe.

Hlophe told delegates that he was a strong lobbyist for mediation, which he believed could be more efficient that litigation in certain cases.

It could prevent opponents from being litigated out of pocket just to make a point, and could prevent the irreparable harm to relationships that some court cases caused.

Even the Marikana massacre of 2012 may have been avoided with proper mediation, he continued.

"If, in this country, we had an effective mediation as well developed as China, do you think we would have had the Marikana massacre?" he asked.

"I doubt it."

He said that what started off as a labour dispute, with "the usual demands", could have been contained if a team of mediators had moved in before the violence started.

The Marikana massacre on August 16, 2012, left 34 mineworkers dead, and over 100 injured when police opened fire on them during a strike for a minimum salary of R12 500 at Lonmin Platinum mine in Rustenburg.

Hlophe said mediation was such a valuable method of resolving disputes that all of the judges in the Western Cape would be going on mediation training later in March.

He was already mediating matters in chambers, and finding success in it, particularly in drawn out Road Accident Fund cases.

The Department of Health is also planning to make mediation a compulsory first step to settle medical negligence claims - the second largest number of civil cases in court after RAF cases.

Mediation faster, cheaper

Hlophe said medical malpractice cases take years, when actually, all the patient wanted was an apology, compensation for pain and suffering, or repayment of lost wages as a result of medical care.

He believes this could be settled much faster through mediation instead of court, where lawyers try and outgun each other, and the witnesses and the judge is left to settle a highly technical matter.

Mediation is where two parties engage in voluntary non-binding discussion to settle a matter with an independent neutral third party facilitating.

"I come from the school of thought where mediation is an appropriate dispute resolution mechanism. It is not just an alternative," said Hlophe.

He also cautioned against litigating out of pride, or "to teach your neighbour a lesson".

"The party who wants to litigate somebody out of pocket will take it all the way to the Constitutional Court, even where the case itself is hopeless.

During mediation, the parties are even able to define what they are fighting about.

"If mediation was compulsory, we would have a situation where the parties would be able to find each other."

Mediator Laurie Greyvenstein told delegates that junior mediators charged around R500 an hour, and more senior mediators charge around R1 200 an hour. This was much cheaper than litigation, which could run into the millions.

News24

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