Why have The Law?

By Anton Katz SC

Anyone who has anything to do with the law — and courts in particular — knows they can be dark gloomy places.

Judges can be grumpy, irascible and unreasonable. And they are sometimes (some would say often) wrong on both the facts and the law. The attorneys and advocates representing the other side can be perceived as nasty horrid bullies. And even worse, one’s own lawyers are arrogant and perhaps perceived to be incompetent and greedy. Indeed, they may be unresponsive to requests about the case, and when they do respond they charge a fortune. 

Of course, these are broad generali-sations. Many legal practitioners are committed to fairness and earning a reasonable fee, and doing their absolute best for their clients within the bounds of the law. Similarly, many judges are hard-working and try in every case to dispense justice. But even in cases where one’s own lawyers are good people and most of the others involved are reasonable, it just takes one sad individual to cause chaos and gloom and doom for many in the litigation process. Often so unnecessary.

So you may ask, how to avoid such a nightmare? Obviously the first bit of advice is to avoid getting into disputes with others, if at all possible. I know that this may be easier said than done. But it is well worth living, loving, working and interacting with others, knowing that things can go wrong. Try to make sure that even if things don’t go as planned (say at work or in a relationship) there is as little unpleasantness as possible. 

Also, try at all times to be rational. This can be really tough at times. Remember that it takes two to tango. Any conflict you may be facing needs both the other (unreasonable in your view) person and you to fight. While I don’t suggest just rolling over and letting the nasty other party simply get what they are not entitled to, I do suggest you carefully consider what is in your best interests; and seriously consider the trauma and costs of getting involved in a court case. If it turns out to be absolutely impossible to avoid the conflict, then consider mediation. Mediation must not be confused with arbitration. 

Arbitration is a simplified or an informal court process. It is cheaper than court. And in arbitration proceedings the arbitrator (judge) is effectively chosen by the parties and not imposed upon them. The rules used in arbitration are simpler than court process. And it goes faster.

Mediation is a totally different method of resolving conflict. A mediator shuttles between the parties to the conflict, and helps them appreciate the concerns of the other side. A mediator does not represent any of the parties and importantly is not a judge or arbitrator. A mediator does not make any rulings and does not decide the case in any way at all. All the mediator does is try to get the conflicting parties to resolve the dispute themselves. In arbitration or court, the judge/arbitrator listens to and reads the evidence, listens to the advocate’s legal arguments and makes a decision as to who wins and who loses. It is black or white. The winner walks away victorious and often smug. The loser leaves the process devastated. The parties continue to hate/dislike each other. Whereas in a successful mediation there are no winners or losers. The parties usually leave their conflict behind, and try to get on with their affairs in a peaceful manner. No one feels beaten or that they have lost their war.

Not all mediations are successful. The mediator needs to be experienced, understand human psychology and have some (more is better than less) familiarity with the parameters of the law governing the issues in dispute. So a mediator in a divorce matter may need to know about trusts and children’s rights; whereas a mediation involving a decades old boundary dispute between two States best have knowledge about international law. A successful mediation can prevent wars and protect vulnerable kids from warring parents. 

A welcome recent addition to court process includes the requirement that if the parties decline the option of mediation, that they declare this decision. Of course, a mediation can only be successful if both parties want to resolve their dispute peacefully.

But ultimately the question is asked: why have The Law at all? And I suppose the answer lies in the human condition. Human beings need other humans, and contact and communication with them to survive. And that interaction means competition on a range of levels. And competition can mean conflict. And conflict needs resolution. Should Shakespeare’s line, “The first thing we do, let’s kill all the lawyers” (Henry VI, Part 2, Act IV, Scene 2) be taken seriously? 

If there were no lawyers around, who would protect the weak and vulnerable from the greed and avarice of others. Politicians? I doubt it. Politicians throughout the world and over time have proved that power corrupts and absolute power corrupts absolutely. I think the answer lies somewhere on the spectrum. The existence and use of lawyers is useful and necessary for a better and more peaceful society. But make sure that lawyers are not put on pedestals. They should always remember they are there to provide professional service and help those who require assistance. All lawyers should be reminded daily that their motto in all things they do should be: “Justice, Justice You Shall Pursue.” (Shoftim, Deuteronomy 16:18-21:9) 

Justice is not easy to achieve. But we must try. How we do so is a serious challenge. Do we run off to court and fight, fight and fight? Do we try to get the best deal we can, and then only settle if things are looking grim in court? Or do we turn to mediation
and hope for reasonable and successful paths forward? Do we try to avoid conflict by turning the other cheek? Whatever method we choose can and does have a profound impact on our lives, the lives of those around us and the greater society. But always remember justice is hard to attain. You, rather than your lawyer should be the first port of call to achieve justice.

Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.

• Published in the August 2022 Digital Edition – Click here to read it.

• To advertise in the Cape Jewish Chronicle and on this website – contact us on 021 464 6700 ext. 104 or email advertising@ctjc.co.za. For more information and advertising rate card click here.

Sign up for our newsletter and never miss another issue.

• Please support the Cape Jewish Chronicle with a voluntary Subscription for 2022. For payment info click here.

Visit our Portal to the Jewish Community to see a list of all the Jewish organisations in Cape Town with links to their websites.

Follow the Chronicle: Facebook | Instagram | Twitter | LinkedIn


Please enter your comment!
Please enter your name here