“Open justice” and the “Open court principle” in South African law

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Lord Hewert in Rex v Sussex Justices of 1924.

The above quote was taken from an English decision by Lord Hewert in 1924. What does this quote mean to us today and more importantly does the public still see justice to be done, even today?

The issue of “Open Justice” and the “Open Court Principle” and it’s validity and importance in the South African legal sphere was revisited by the Supreme Court of Appeal in the well-publicised matter of City of Cape Town v South African National Roads Authority Limited & others (20786/14) [2015] ZASCZ 58 (30 March 2015).

Proceedings began in the Western Cape High Court when the City of Cape town launched a review application in terms of Rule 53 of the Uniform rules of court seeking to review SANRAL’s decision to award the tender to Protea Parkways Consortium as the preferred bidder and Overberg Consortium as the reserve bidder in respect of construction of the N1/N2 Winelands Paarl Highway Toll Project.

SANRAL, in terms of what was longed from them in terms of Rule 53(1)(b) provided the City with the administrative record, however they marked it in 2 parts; “non-confidential records” and “confidential records”. SANRAL’s refusal to make public certain “confidential” information until the review proceedings have been heard now formed a dispute between SANRAL and the City as to what constitutes “confidential records”.

The Western Cape High court was the approached to decide on whether the information is indeed confidential. The Western Cape High court ruled that SANRAL failed to make out a case for confidentiality. One would think that that would have been a sufficient judgment to vent the issues between the parties. SANRAL had to make available the information end of story; however the court went on to make 2 further judgments:

  1. it ruled that the administrative record which SANRAL had filed was in any event covered by the “implied undertaking” rule. The effect of this ruling was that SANRAL or the court had to consent to certain information being made public. Without their consent the records could only be made public once the main review application was heard.
  2. secondly, the court held that Rule 62(7) of the Uniform Rules of Court (rules governing the internal workings and processes of the High Court) had the effect that in any event the public cannot access the contents of a court file until the case is called in court.

This two-legged ruling had an adverse effect on the “Open Justice” and “Open Court Principle” which begged the question whether these principles were being protected enough and what effect it will have on the Media directly as well as the public, should these principles be compromised.

The matter then turned in the Supreme Court of Appeal to decide on the ruling of the Western Cape High court. Justice Ponnan authorised the unanimous decision of the appeal court. He gave a broad study of the principles of Open Justice and Open Courts. He visited the History pertaining to the development of these principles both abroad and locally. South Africans’ right to “seeing justice being done” is enshrined in the Constitution of our country, more specifically Section 34 of the Constitution. The court found that all law in this country must be grounded in the constitutional values and respect must be given to the fundamental rights set out in the Bill of Rights.

The “implied undertaking rule”, as discussed supra, does not even form part of our South African law and is an English principle. It is totally irreconcilable with the Constitution of this country and more specifically Section 34 of the Constitution. Rule 62(7) of the Uniform Court Rules, it was found by the SCA, was also misinterpreted.

The SCA found that: “court records are, by default, public documents that are open to public scrutiny at all times. While there may be situations justifying a departure from the default position – the interest of children, State Security or even commercial confidentiality – any departure is an exception and must be justified.”

The principle of open justice and the public’s rights of access to our courts and court proceedings are the very corner stone of justice. The moment courts are allowed to operate in secret the legitimacy, independence and fairness of our justice system will be drawn into question. The public should respect the legal system, no doubt, but if the public is not allowed to scrutinise the workings of our judiciary surely respect for the system will perish.

One can ponder whether this judgment by the SCA will, for example, have an impact on the so called “Secrecy Bill”, which Parliament proposed to enact into law and other similar iniquities by Parliament. Hopefully the courts will have the same sentiment when faced with the validity of such Bills or Acts. Ignorance is bliss, sure, but there can be no democracy within an ignorant society. It will be wise for the other legs of the trias politica to take note of the sentiments of our courts regarding acting under the cover of secrecy.

The SCA judgment is a big relieve not only for the media, who plays a valuable role in our society, but for society as a whole. It is refreshing to know that our courts value the importance of “open justice” and transparency. As the Supreme Court of appeal worded it: “secrecy is the very antithesis of accountability.” The court also referred to US Spreme Court Justice Brandeis’s quote pertaining to open justice: “Sunlight is said to be the best disinfectant, electric light the most effective policeman.”

By Marguerite Kirchner
marguerite@dyason.co.za

Is it justifiable for legal practitioners to charge contingency fees outside of the Contingency Fees Act?

Contingency fee agreements are generally used in MVA matters, where an attorney and client agree that upon success of the claim the attorney shall be entitled to fees equal to or, higher than his or her normal fees, set out in such agreement, for any such services rendered, according to section 2(1) of the Contingency Fee Act 66 of 1997.

Section 2(2) of the Act further states that any fees referred to in subsection(1)(b) which are higher than the normal fees of the legal practitioner concerned, shall not exceed such normal fees by more than 100%, provided that, the total of any such success fee payable by the client to the legal practitioner, shall not exceed 25% of the total amount awarded or any amount obtained by the client in consequence of the proceedings concerned, which amount shall not, for purposes of calculating such excess, include any costs.

According to research, there are quite a number of law firms that charge clients a higher contingency fee than the percentage prescribed. The question is, is this justifiable?

In the case of Bobroff and Partners Inc v JE De La Gurre; South African Association of Personal Injury Lawyers v Minister of Justice and Constitutional Development [2014] ZACC 2, Bobroff and Partners was one of the firms that charged its clients more than what the Contingency Fee Agreement Act 66 of 1997 prescribed. In this case, Bobroff and Partners charged their client Juanne Elize De La Guerre a 30% contingency fee. JE De La Guerre challenged the excess by way of an application in the High Court. Simultaneously, the South African Association of Personal Injury Lawyers, on Bobroff and Partners’ behalf, also brought an application in the High Court challenging the constitutionality of the Contingency Fee Act as a whole, alternatively section 2 and 4 of the said Act.

The High Court dismissed the South African Association of Personal Injury Lawyers’ application and found in Ms JE De La Guerre’s favour. The South African Association of Personal Injury Lawyers further applied for leave to Appeal, which was refused by the High Court and the Supreme Court of Appeal.

The South African Association of Personal Injury Lawyers approached the Constitutional Court seeking leave to appeal. The Constitutional Court agreed with the High Court and refused to grant leave because there was no reasonable prospect of success.

The Court went further to say why it refused to grant leave by drawing up a distinction between the principle of rationality and reasonableness review.

Before the distinction could be drawn, the Court made an important statement that courts should not unduly interfere with the formulation and implementation of policy and they are not in power to prescribe to the legislative arm of government on which it may make laws.

Rationality

It is an important requirement for the exercise of power in a constitutional state. But this principle does not mean that courts may take over the function of government to formulate and implement policy.

It is not grounded or based on the infringement of fundamental rights under the Constitution.

It is used to ensure that the means chosen in legislation are rationally connected to the ends sought to be achieved.

It is less stringent than the test of reasonableness.

Reasonableness

The reasonableness principle is based on the aspects of the law and its applicability in a particular matter, incorporating the constitutional rights.

The courts always to reason with the facts brought before them.

The Constitutional Court in the mentioned cased above concluded to say that the Applicant’s attack against section 2 and 4 of the Contingency Fee Act is merely based on the limitation of fundamental rights. But who’s rights? The right in question was section 34 of the Constitution which deals with the right to access to justice. The Court pointed out that section 34 is applicable to the legal practitioners’ clients, and not to the legal practitioners themselves.

The Court further pointed out that the application was not brought as a representative one under section 38 of the Constitution, but one where the Applicants acted on their own behalf. There is no evidence that the Applicants’ clients’ rights have been limited.

In this case the principle of reasonableness could not succeed on appeal. The application for leave to appeal was dismissed.

To this effect it is unjustifiable and unconstitutional for legal practitioners to charge contingency fees outside the scope of the Contingency Fee Act. In other words, legal practitioners are not allowed to charge more than 25% or their normal fees plus 100%, which is the lesser.

By Avela Makunga
avela@dyason.co.za

The dismissal of an employee for leaving the workplace early

In the matter of Jordex Agencies v Queendy Gugubele N.O. decided in the Labour Court, Johannesburg under case number JR 2971/12 on 11 March 2015 Joan Msimango worked at Jordex Agencies as a cleaner from the 1st of October 2003 until the 2nd of August 2012 when she was dismissed. She was dismissed because of leaving the workplace early without permission being granted. Msimango took the matter to the Commission for Conciliation Mediation and Arbitration (CCMA) and the Arbitration Award which was granted in Msimango’s favour was challenged by Jordex Agencies, which Review Application was opposed by Msimango.

The Award

The CCMA found Msimango’s dismissal to be unfair because the witnesses that were called to testify were not employees at Jordex Agencies and were therefore not allowed to testify on Msimango’s behalf.

The CCMA found that Msimango had a cordial working relationship with Jordex Agencies and that her working hours were from 07h30 to 16h30. When the location of Jordex Agencies changed Msimango was given permission to leave work earlier to catch the last bus home at 16h45. The change as requested by some employees in working hours was effective from the 1st of April 2011. This was to the exclusion of Msimango who was not present when the request was made. The hours were changed from 08h00 to 17h00 so that couriers arriving after 16h30 could be catered for. The CCMA found that Msimango was not a courier and had been leaving work early for four years. There was tension between Miss Van Der Walt, the manager of Jordex Agencies and Msimango due to the fact that Msimango believed that Van Der Walt didn’t take her circumstances into consideration.

Item 3 of Schedule 8 to the Labour Relations Act 66 of 1995 (LRA), and the Code of Good Practice deals with disciplinary measures which are not dismissals and the procedures for these disciplinary procedures. The CCMA found that the rule changing Msimango’s working hours, which she was used to for four years, was unreasonable and that the dismissal had been unfair. The CCMA determined that Msimango had to be reinstated and paid R2 750-00 in compensation by Jordex Agencies.

Grounds for review

Jordex Agencies felt that the CCMA erred by preventing the chairperson Msimango from calling witnesses to testify on her behalf and that the CCCMA’s decision to find the dismissal procedurally unfair was not based on evidence, as Msimango had not been prevented from calling witnesses. There was an error made because one of the witness, Harry Jordaan, was not called as a witness due to the fact that he was deceased. Jordex Agencies argued that the CCMA was unreasonable by finding that they should have counselled Msimango about the warnings and dismissal and further claimed that the CCMA had been irregular by neglecting the validity of the rule (leaving work earlier) breached by Msimango. Jordex Agencies also felt that the CCMA was unreasonable in concluding that Jordex Agencies had been unreasonable in setting a standard of working hours for its employees.

Jordex Agencies claimed that Van Der Walt was justified in ensuring that all the employees had the same working hours.

Msimango felt that her Arbitration Award was reasonable and should not be reviewed or set aside, in turn she argued that the CCMA had erred in finding that Harry and Jordaan were two different people, but found that there was nothing wrong in how the CCMA had failed to deal with the validity of the leaving-work-early rule.

The Test for Review

The matter of Fidelity Cash Management Services v CCMA & Others [2008] 3 BLLR 197 (LAC) deals with the determination of the reasonability of Arbitration Awards. The Constitutional Court stated that the decision reached by the CCMA should be “one that a reasonable decision-maker could not reach”. If this is not the case then the decision will be reviewable and can be set aside. The Court also held that to determine fairness, the task is given to the Commissioner in terms of the LRA. The factors that should be considered are the totality of the evidence, whether the Commissioner dealt with the main issue and has considered all the evidence and reached a reasonable decision as confirmed in the Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others [2014] 1 BLLR 20 (LAC) case.

The judge in the matter considered all the evidence that was before the Commissioner and all the submissions by the Jordex Agencies and Msimango. Van Der Walt said that the reason why the other witnesses could not testify was because they were not part of the company. The CCMA had erred in finding that not calling the witnesses was procedurally unfair. Jordex Agencies had been denied the chance to respond to the allegation.

The CCMA had not considered the validity of the rule. In Herholdt v Nedbank LTD [2013] 11 BLLR 1074 (SCA), the Court held that material errors of fact are insufficient to set aside an Arbitration Award. The material errors are however important when their outcome would be unreasonable. The validity of the rule was not in dispute. In terms of Section 193 of the LRA, the reinstatement of employees where they were unfairly dismissed is allowed.

Jordex Agencies alleged that the CCMA had been unreasonable in deciding that the change in working hours had not catered for Msimango’s circumstances with reference to the SAPU and Another v National Commissioner of the South African Police Service and Another [2006] 1 BLLR 42 (LC) case, where an employer was allowed to regulate working practices. However the regulation of working practices of the police is governed by the South African Police Service Employment Regulations, and more specifically Regulations 30 and 31 which stipulates the following:

“30. Working hours of the service and conditions must support effective and efficient service delivery while, as far as reasonably possible, taking into account the personal circumstances of employees including those of employees with disabilities.

  1. Working hours

The National Commissioner must determine –

  1. The work week and daily hours of work for employees; and
  2. The opening and closing times of places of work and her or his control, taking into account –
  • The needs of the public in the service delivery improvement programme of the service; and
  • The need and circumstances of employees, including family obligations and transport arrangements”

The authority used by Jordex Agencies confirms that the Commissioner’s decision was not unreasonable. The authority also stipulates that the employer’s power to regulate work practices can be limited.

The employer must consider service delivery. The employer changed its hours to cater for couriers who arrive after 14h30. The courier services don’t affect Msimango. Jordex Agencies should have taken into account the effect of the changing work hours on Msimango. Msimango had to leave work earlier because of transport reasons which arrangement was effective for four years. The changes in working hours forced Msimango to breach the timekeeping rule. The CCMA’s decision is therefore one that a reasonable decision–maker would make on the evidence before her.

The Labour Court dismissed the Review Application and as a result Msimango was reinstated and compensated as above.

By Justina Chirwa
justina@dyason.co.za