Two heads are better than one Assessors in High Court civil cases By Henry Lerm No truer words could have been spoken in jest than those used by Middle English writer John Heywood when, in 1546, he wrote: Some heades haue taken two headis better than one: But ten heads without wit, I wene as good none. Since then, the English proverb two heads are better than one has been used in different contexts. This article will show that the proverb may find favour in the legal process as well. In this regard, the lone head of a judge is not always desirable. One does not have to look further than complex and scientifically advanced matters for instances where the additional head of an assessor endowed with the required expertise and skill may well be desirable to prevent a miscarriage of justice. Besides assisting in curbing legal costs associated with appeals, the desired practice, if used in conjunction with an efficient and effective case management system, will raise public confidence in the justice system. This article investigates and outlines the feasibility of appointing skilled assessors in civil trials, especially in the High Courts in South Africa. It also considers the circumstances in which their appointment may be best justified. Background The appointment of assessors in the formal judicial process in civil matters is not a foreign practice. Internationally, this practice has found roots in many jurisdictions. Its origin can be traced back to the 1930s and 1940s when judges in admiralty matters in England would appoint expert assessors to advise them on nautical and technical issues (see Richardson v Redpath Brown & Co Ltd [1944] 1 All ER 110). The practice was later extended to proceedings in the Equity Division and cases involving commercial and construction matters (see Justice HD Sperling Expert evidence: The problem of bias and other things, paper delivered at the Supreme Court of New South Wales Annual Conference, Terrigal, 3 to 4 September 1999 and the authorities cited therein, including the case above). The rationale for this practice was founded on advances in both technological and scientific knowledge in various disciplines. This resulted in those who, through their skills and interests, and the application thereof, became experts in their respective disciplines. Because magistrates and judges were only professionally trained, they often lacked the expertise and technical and scientific know-how to match that of the experts who were testifying in cases before them. For fear of the inability of judges to competently adjudicate complex matters, the practice of using expert assessors to assist judges developed (Sperling (op cit)). The legal position in South Africa
The practice of appointing assessors in civil cases is not an alien concept in South African jurisprudence. The legislature, as early as 1944, decided it expedient to draft and pass legislation to govern the role of assessors in both civil and criminal matters in the lower courts. Section 34 of the Magistrates Courts Act 32 of 1944 inter alia permits the appointment of assessors in civil actions in the lower courts. This section provides that a party to civil litigation may request that one or two persons with skill and expertise in the matter to which the action relates be appointed to act as an assessor in an advisory capacity. Section 93 makes provision for the use of lay assessors in criminal trials (see the South African Law Reform Commission Review of the law of evidence (hearsay and relevance) (Discussion Paper 113, Project 126) 2008 7ff). Rule 59 of the magistrates courts rules lists the requirements for the appointment of assessors, which include having regard to the ability and reputation of such persons in relation to the nature of the matter before the court. Section 34 of the Magistrates Courts Act has since been substituted by s 1 of the Magistrates Courts Amendment Act 67 of 1998. The appointment of assessors in civil matters is, however, restricted to the lower courts, as neither the Supreme Court Act 59 of 1959 nor the Uniform Rules of Court provide for the appointment of assessors in civil proceedings in the superior courts. Despite this lacuna, it seems that the High Courts in South Africa, by virtue of their inherent jurisdiction, have the power to approach assessors in civil matters (see LTC Harms Civil Procedure in the Superior Courts (Durban: LexisNexis 2011) and J Taitz The Inherent Jurisdiction of the Supreme Court (Cape Town: Juta 1985)). Section 173 of the Constitution inter alia provides that the High Courts have an inherent power to protect and regulate their own processes. I am of the view that this empowers the courts to appoint assessors in circumstances where the complexity of the dispute warrants the appointment of an expert assessor (or assessors) to assist the judge. The Constitution also requires of the High Courts to forge new tools that are appropriate to protect rights in the Bill of Rights (see Fose v Minister of Safety and Security 1997 (3) SA 786 (CC)). One of the fundamental rights enshrined in the Constitution, which in the public interest demands protection by the courts is the right to a fair trial. When judges act in their judicial capacity they are required to conduct themselves in a manner that complies with the Bill of Rights (see s 7 of the Constitution). In addition, when judges perform administrative actions, the process must be lawful, reasonable and procedurally fair in terms of s 33 of the Constitution. In light of the above, the question to be asked is: To what degree may the High Courts use their inherent power to appoint assessors in civil matters? This practice, it is opined, is more than desirable, given the fact that certain kinds of evidence are so complex that they pose severe problems to certain triers of fact, including judges (L Meintjes-Van der Walt Expert odyssey: Thoughts on the presentation and evaluation of scientific evidence (2003) SALJ 352 at 353).
Some of the areas in which judges may encounter difficulty include medical malpractice cases, commercial matters involving tax issues, patents or share structures, and engineering and construction matters. In such matters, experts, when testifying, must have scientific knowledge or experience in their respective disciplines or must rely on the knowledge or experience of acceptable experts in those disciplines (see Addleson J in Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (ECD), cited by Meintjes-Van der Walt (op cit) at 362). Unless the trier of fact is endowed with sufficient knowledge and skill to understand the complex issues in dispute, the evidence may be beyond the grasp of the reasonable, average judge. The trial judge in these circumstances can no longer rely on the traditional adjudicative method of weighing up the evidence, for example by considering credibility and demeanour, reliability of fact, common sense reasoning and intuition (Meintjes-Van der Walt (op cit) at 352). A greater scientific approach is needed (see Michael v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) at 1200 1201). In addition, legal costs have become so expensive that access to justice for the poor and the middle class is often not in reach. The creation of a case management system aided by alternative dispute resolution mechanisms, including regular case management conferences and mediation where necessary, will go a long way towards facilitating the timely disposal of cases at a cost that is affordable to the parties to the litigation (see Judge David Ipp Case management and court-annexed alternative dispute resolution May 1998, Consultus 49 (www.sabar.co.za/lawjournals/1998/may/1998-may-vol011-no1-pp49-50.pdf, accessed 31-7-2012)). The process of appointing expert assessors to assist the judge during the early stages of such conferences and pre-trial hearings will certainly assist in narrowing the issues and getting the matter trial-ready. It is for this reason that it can be argued that two people may be able to solve a problem more effectively that an individual. The Namibian position In Namibia the composition of the High Court for hearing civil matters appears to be similar to that in South Africa. The Labour Court in Namibia, as in South Africa, forms an integral part of the judicial system. However, whereas the Labour Court in South Africa is silent on the appointment of assessors, its counterpart in Namibia expressly provides for their appointment. The President of the Labour Court may himself or at the request of any party to the proceedings appoint two or more assessors to advise the court on any matter to be adjudicated on by the court (s 16(2)(a) of the Labour Act 6 of 1992. See SK Amoo The structure of the Namibian judicial system and its relevance for an independent judiciary Introduction to law: Materials and cases (Windhoek: Macmillan Education Namibia 2008) 69 at 80 (www.kas.de/upload/auslandshomepages/namibia/independence_judiciary/amoo.pdf, accessed 31-7-2012)). The English position
Despite the practice adopted in admiralty matters, as well as the Equity Division in commercial and construction matters as stated above, the practice of appointing assessors in civil matters did not initially expand in England. It was through the recommendations of Lord Woolf on the civil justice system in England and Wales that, in 2009, a proper structure for the appointment of assessors in the superior courts was put in place (Lord Woolf Access to Justice (Final report to the Lord Chancellor on the civil justice system in England and Wales (London: HMSO, 1996) (http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/ civil/final/sec3c.htm, accessed 2-8-2012)) (the Woolf report). Despite an argument about the expense of such appointments, Lord Woolf nonetheless found that the use of assessors would be beneficial and appropriate, particularly in complex matters. This recommendation was incorporated in the Civil Procedure Rules in 2009 (the rules). Rule 35.15(2) of the rules provides for the appointment of one or more persons with the necessary skill and experience in dealing with a matter for adjudication in the superior court. Besides being assigned to prepare a report for the court on an issue in the proceedings to be given to the parties involved in the litigation (r 35.15(3)(a)), the court may direct that the assessor(s) attend the whole or any part of the trial and advise the court on any such matter. The remuneration to be paid to the assessor(s) is determined by the court. The parties to the litigation may be ordered to pay the assessor(s) remuneration in a proportion decided by the court (r 35.15(6)), alternatively the court may order that payment must be made out of money provided by parliament (r 35.15(7)). The Australian and New Zealand position The appointment of assessors in civil proceedings in both Australia and New Zealand is encouraged by the superior courts in terms of their respective rules of court and practice notes. The mechanism was put in place in response to the Woolf report, as well as the investigation and recommendations made by the Australian Law Reform Commission Experts (Review of the adversarial system of litigation (Background Paper 6) 1999 (www.austlii.edu.au/au/other/alrc/publications/bp/6/experts.html, accessed 12-9-2012). The role of assessors has also been found to be contributory, especially in highly technical and complex cases (see Judge Sperling s paper (op cit) and the Australian Law Reform Commission Background Paper 6 (op cit)). The position in other jurisdictions A number of other countries have identified the need to appoint assessors to assist judges during the adjudication process. These countries include: Vietnam (see The Supreme People s Court of Vietnam: Benchbook Online, www.asianlii.org/vn/other/benchbk/4-en.html, accessed 2-8-2012). Portugal (Themis (2008) ECHR Category The right to a fair trial ) (www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper4_en.asp, accessed 2-8-2012).
The Philippines: The Code of Civil Procedure of the Philippine Islands (Act no. 190) and s 49 of the Republic Act no 409, Revised Charter of the City of Manila provide for the appointment of assessors (see the case of Cipriano P. Primicias v Felicisimo Ocampo G.R. No L-6120 30-6-1953 on the substantive right to have assessors appointed in civil trials and the duty of the court to do so (http://philippinelaw.info/statutes/act190.html, accessed 2-8-2012)). Fiji: The High Court Rules of Fiji, in Order 33 r 2, provide for civil trials to be conducted with the aid of assessors (www.paclii.org/fj/rules/ct_rules/hcr1988170.pdf, accessed 1-8-2012). See also course notes for The nature of the law of evidence, University of the South Pacific (www.vanuatu.usp.ac.fj/courses/la310_evidence/la310_week2_nature.html, accessed 2-8-2012). Proposals It is evident that not enough has been done in South Africa to investigate the introduction of a mechanism to make use of assessors in complex civil matters. Despite their inherent powers, judges have shown a reluctance to engage the services of assessors to assist them. It is for this reason that a more structured approach is recommended. This may entail legislative reform. The appointment of expert assessors should perhaps be embodied with greater clarity in the Uniform Rules of Court. I am of the view that the English approach may be desirable in South Africa. I am also of the view that the case flow management processes adopted by certain divisions of the High Court have contributed towards improved access to justice. However, more can be done, including the introduction of case management structures incorporating alternative dispute resolution practices. I suggest that the proposed rules relating to court-based mediation that were recently drafted by the Rules Board be used in conjunction with the proposed practices. The appointment of expert assessors in complex matters can blend in with these processes. The appointment of expert assessors should, however, be made subject to the following conditions: Their appointment should be limited to special cases, namely complex cases. Appointments should be made under a structured case management programme and may be done during the pre-trial stage, alternatively before or during a case management conference. Their role should be restricted to assisting the court in dealing with a specific matter only, provided they have sufficient skill and experience. The role of the assessor(s) is that of an adviser, but only in respect of the issue in dispute. The success of the proposed practice will largely be dependent on the creation of an efficient, uniform case management structure overseen by a senior judge with experience in all types of trial work. He would be required to identify complex cases and control these through a tracking system; hold frequent pre-trial conferences, alternatively case flow conferences, in an attempt to narrow the issues; identify at the earliest opportunity the unresolved issue between the parties;
call for a report from an expert assessor(s), who may or may not be on the alternative dispute resolution panel of experts; make available the report to the parties concerned; once all attempts have been made to resolve the issues between the parties, appoint the assessor(s) to assist the judge at the pre-trial hearing in respect of the outstanding issue that requires his expertise; and sit with the judge in an advisory capacity where the outstanding issue cannot be resolved by the parties, including by their respective experts. Conclusion Besides being professionally educated, judges may not always have the required expertise to analyse and measure the probative value of expert evidence. To avoid miscarriages of justice and the expense of appeals, a second head with the requisite knowledge, experience and skill of reasoning in the relevant field will serve as a potential benefit, saving litigation costs and raising public confidence in the judicial system. Henry Lerm BProc LLM (NMMU) LLD (UP) is an attorney at the Uitenhage Justice Centre. Dr Lerm would like to thank Ismail Hussain for his contribution to this article.