Can South Africa’s Legal System Ever Work Smoothly?


By Cindy Trillo    11-Oct-2018 23:20 UTC+02:00

The South African legal system is flawed. A muddle of pre-colonial, western and common law principles has created a hybrid legal system with its own flaws. Without clearly defined boundaries through which parties can act, it was revealed early in October that Pretoria sits on over 100,000 cases in the corporate sector alone.

With the legal system juddering, fringe interests and those of disadvantaged communities are disproportionately affected. Rising Sun newspaper of Chatsworth found that just 15% of accused sexual offenders reach trial due to startling inefficiencies in the system. Tackling the chaff present in the judicial machine is absolutely crucial to maintaining public confidence in justice, enable businesses to litigate properly and ultimately to address serious crime.

Using settlement to aid the courts

Those 100,000 cases currently lying dormant in Pretoria are being attributed to the overenthusiasm of corporate bodies. It has been mooted that the problem lies in business use of higher courts where local magistrates would suffice. Furthermore, it has been noted that settlements have been underused due to perceived aggressiveness on both sides of the court aisle; though the recent $400m gold miners settlement is seen as a point in turning this tide. This can only be a positive – notable overseas cases such as the Erik H. Gordon settlement and Elon Musk’s charges have shown settlement to be an economically welcome alternative to costly litigation.

Improving accessibility

South Africa is blessed with the strong entrepreneurial spirit of its citizens. Across the country, there are 5.6m small businesses employing 28% of the population (according to Business Tech Online). The problem here is inaccessibility of these businesses to the courts; with 11 different major languages, a myriad of processes and all of this amidst unravelling corruption scandals at local level, the judicial system is not approachable in the slightest. Helping to improve this for small businesses are a wave of tech start-ups, such as Cosmic Contracts and HiiL.

Providing this level of functionality will reduce the reliance of small businesses on the court, freeing up precious time from judges and creating faster case resolution. All of this will help to provide time and expertise to everyday criminal charges, family and immigration law cases that often fall by the wayside in the face of cash.

In the face of political tumult and a rising level of cases, South Africa’s legal system is creaking. This can be challenged, however, through the application of businesses, technology, embracing settlements and improving accessibility. Proper change to the legal code may take years; today, looking at quick wins can help to make the system work for businesses and people.


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