The Master : deus ex machina?

Abstract

The first chapter deals with the introduction by means of Act XXIV of 1995 of a pre-trial stage into the judicial process. It shall not be the purpose of this thesis to enquire into the validity or otherwise of these amendments. Rather, mention shall be made of section 202 of the COCP in view of the fact that the Master-system has (to a limited extent) and will come to operate within this framework. Reference shall also be made to the British pre-trial stage, which served as the model on which our pre-trial stage was moulded. Moreover, reference shall also be made to the manner in which evidence is tendered at pre-trial stage - primarily affidavit evidence -- with a view to discussing the legislation proposed by the Law Courts Advisory Committee to regulate this form of evidence. The second chapter focuses on the implementation of the Master-system. However, as the chapter progresses, a distinction will be drawn between the Master-system as it is currently being implemented, and the system as it is intended to operate. For the system to come into complete operation, legislation to regulate the system will have to be enacted; therefore, the proposals made to this effect by the Law Courts Advisory Committee will be discussed. The third chapter attempts to provide insight into the problems afflicting the system's current operation. In view of the fact that the system's (future) validity will be determined by the system's current successful operation, it becomes important to identify the factors which are presently hindering the system's operation. The problems identified can be categorized broadly into: • backlog; • scepticism and resistance by the public; • judicial resistance; and • lack of physical space and adequate staff. In view of the fact that our pre-trial stage has been borrowed from the British system, and the latter pre-trial process is conducted before a Master, it was necessary to enquire into the British Master-system. It would seem that the proposed Master-system shares several similar traits with its British counterpart: In fact, our system seems to be an adaptation thereof. It is for this reason, therefore, that a thorough description of the British system is made in chapter 4, because a system can come to be understood only if it is first understood within its own context. Only then can its salient features be adopted to suit and benefit our judicial process. As a consequence of recent increased interest in 'alternative dispute resolution' methods, it became opportune to deal with these processes, particularly in view of the Master's competence to exercise a conciliatory role. Indeed, the fifth chapter provides a cursory look at the various 'adr' forms, and proposals are made as to how some of these forms could be integrated into the judicial process -- and exercised by the Master - with a view to benefitting the parties, the Court and ultimately the State, by contributing towards eliminating delay and backlog. The sixth and final chapter will concentrate on proposals which can be made to ameliorate the proposed Master-system. Moreover, reference will be made to the Australian system, whereby, further proposals will be made with a view to accelerating the judicial process. Finally, conclusions will be drawn as to whether the Master-system can alleviate the problems of backlog and delay in our judicial process.