By Anton Katz SC
As 2022 became 2023 people wished each other a better and prosperous new year.
I wondered why it is only at a narrow and limited time of the year that we send these greetings. What is it about time that so regulates our lives. And that time issue led me to the topic — where does ‘time fit in the law’?
I can think of at least two dominant aspects of the law in which time features. First, and most obviously the direct reference in the laws, regulations and rules concerning dates and periods for filing and taking certain action. Secondly, the strategic and vital aspect of time affecting the case as a whole. In every single case, all the parties have a deep and sometimes decisive interest in when the case will be heard and decided.
I first discuss the time periods issue. Obviously, there must be rules for the running of cases. Can you imagine if a person could sue another person and the sued person could file their response whenever and however they liked? That would result in chaos and the law of the jungle. Thus if Mrs. A sues Mrs. Y in Cape Town, then Mrs. Y as the defendant cannot just file her answer wherever and whenever she wants. There are rules of court that compel her to file her answer in Cape Town and within a certain number of days. Generally a defendant will have something like three weeks to file their answer, and depending on the nature of the case and where the case is to be heard, the case could be set down for hearing anywhere between six months or sometime longer to be heard. The parties will have to exchange documentation, prepare for trial and those procedures can often take some time. Also, justice is expensive — there are only a limited number of judges whose work load is often super-heavy. It is not only unfair on the judges, but also on the parties for a judge to be given too much work. A judge with too much work will take a long time to hand down judgment, and the quality and competence of the judgment may be compromised.
Before turning to the actual laws and regulations, it is to be borne in mind that the rules of court are generally flexible. Time periods can often be shortened or extended if good cause is shown. So, if the rules require a party to file a document within 15 days, but they only file on the 18th day the court will almost always condone the late filing. But if the party defaults and files, say, nine months late, the late party will need a good explanation for their lateness; plus they would have to show that they have a solid case on the merits, in order to persuade the court that the nine month lateness should be condoned.
As far as the law itself (not just the rules) are concerned, time periods play an important role. For example, any court challenge to governmental action must be launched within 180 days after the action comes to the knowledge of the affected person. If the person launches outside the 180 day period, the Court can condone the lateness if it is in the interests of justice to do so. If a law requires, say, a fishing permit or a tender for building a road to be applied for by, say, 1 December; and the applicant puts in the application on 2 December, the permit or tender application will not even be considered. I have seen countless persons overstay their visas only to be become ‘illegal foreigners’, with all the difficulties that entails.
The second and more interesting ‘time’ issue in the law is that in every single case one of the parties would wish the case to be hurried up, and the other for the court case to be dragged on and slowed down.
So, if Mr. X is charged with banking fraud, it may be in his interest for the case to be delayed and put on hold forever. A famous example is that of former President Jacob Zuma and the arms deal criminal trial. The trial has been dragged out for nearly 20 years. I wonder whether the evidence and witnesses who were available 20 years ago are still available. One of the witnesses who could testify about the famous encrypted fax died of natural causes (old age) a couple of years ago. And of those who are around, a question is, ‘how good are their memories of what happened all those years ago’? I sometimes can’t remember with precision what happened last week, never mind last month or last year. And as the evidence gets watered down, the chances of a conviction become weakened. So, in that case, time is on the side of the accused (President Zuma) and against the prosecution.
But what if President Zuma had been refused bail, and had been in custody all this time? The dragging on and delaying of his trial would have been completely different! He would have been in jail all this time, and time would have been against him. He would have wanted his trial to commence and be over with as soon as possible. And this applies to ALL cases.
In eviction cases it is always the landlord who wants the case to be hurried, whereas every tenant wants the matter to be dragged out and hopefully never happen. The same applies to money cases. When Mr. A sues Mr. B for R 5 million, on any basis time is on Mr. B’s side. If the case takes many years, or never happens, Mr. B effectively wins. I can’t think of any case in which ‘time’ is a neutral factor. In divorce cases, custody and access to the children is by their nature time-sensitive. Every day the mother or father has the kids is a victory in a contested case. In shipping, the owners of an arrested ship want the ship to depart, while the claimant against the owner will know that keeping the ship in port will cost the owner millions every day.
I’ve had some cases where the judge has taken so long to give judgment (a couple of years) that one or other party has effectively won the case. For example the child expelled from school is allowed to remain while her case is pending. The case takes so long that by the time judgment is finally handed down, the child had successfully matriculated and is completing her first year at university.
What is of importance in all this is that judges and the lawyers on the other side know, or should know about these time sensitive issues. And of course the ‘time’ will factor into their conduct and how the case is run. For example, a judge who doesn’t particularly like a party, but knows that the law is on the side of that party, could try to delay giving judgment to give the other (liked) party some or other advantage.
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 February 2023 Digital Edition – Click here to read it.
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