|
Seth Abrahams
27 December 1994
I welcome and thank
you for the opportunity to make suggestions to the Committees concerned with
drawing up of a new Constitution
. When I attempted to send unsolicited comments
to the Kempton Park continuation of Codessa my registered letter was redirected
to
a totally different address and then returned to me unopened . I then sent
the letter to the Director General of Justice together
with a hand written copy
of Lincoln's Gettysburg Address . Perhaps some one there read and considered
Lincoln's Address -otherwise
you would not be inviting comments from the general
public and I would not be writing this letter to you
Committee on
Judiciary
Structure of Law Courts
According to the Sheva
Mitzvoth Bnei Noach - the Universal Laws of mankind and the Foundation of
Civilisation there is a duty on all
the Nations of the World to establish Courts
of Justice .
It goes without saying that the Law Courts should be open to
the poor as well as the rich but unfortunately this is not so : In the
present
system of Justice which involves the award of costs to the
unsuccesful party ( and not only in vexatious matters ) many people - and not
only the poor - are preclu@e from having access
to the Law Courts because an
award of Costs - even on a party to party basis could be ruinous . In fact with
legal aid the poor may
have
greater rights of access to the Courts than the
middle class
In the past the cry of champerty has precluded all but the
most dedicated ambulance chasers from financing litigation
Has not the
time come for a full review of the system of legal charges and costs awarded and
taxed more particularly a full enquiry
into legal costs in RSA and elsewhere,
with a view to restructuing the system ; a full enquiry into legal systems that
permit lawyers
to charge a per centage of the amount claimed in lieu of
fees,with a view to restructuring a full enquiry into class actions
elsewhere,with
a view to permitting this type of law suit or award
the
structure of the Judicial System not dependant on first seeing to the needs
of the citizens in regard to Legal Aid Costs Class Actions Contingent fees
and Basic Legal Education and is it not premature top embark on the
restucturing of the Courts before these needs have been addressed
.
In so far as the Committee on the structure and heirachy of the Courts
is concerned would not South Africa be better served with one
Supreme
Court one Appelate Division , Provincial and Local Divisions as before and
not a separate Constitutional Court : If the members of the
Constitutional Assembly Committee only wants Constitutional issues tried before
a panel of specially selected Judges of Appeal is not the answer to give
those Judges Letters Patent appointing them as Acting Judges and or
Permanent Judges to hear Constitutional cases rather than creating a
separate Constitutional Court-.
At present a Magistrate is
precluded from ruling on Ultra Vires . once it is recognised that " Justice
delayed is Justice denied "
would not the interests of Citizens be better served
to have cases dealt with as soon as possible ?
By giving an automatic
right of appeal to all constitutional cases would it not be safe to
allow all judicial officers ( including Magistrates ) to rule on Constitutional
matters
With kind regards and best wishes
Kindly acknowledge
receipt
Seth G Abrahams
Advocate of the Supreme Court of South
Africa
Member of the Johannesburg Bar 1962 - 1974
|
