Research Articles (Law Clinic)

Permanent URI for this collection

https://scholar.sun.ac.za/handle/10019.1/97576

Browse

Browsing Research Articles (Law Clinic) by Subject "Alternative Dispute"

Now showing 1 - 2 of 2
  • Thumbnail Image
    Item
    Managerial judging and alternative dispute resolution in Australia : an example for South Africa to emulate. part 1
    (Juta Law, 2017-09-04) De Vos, Wouter Le R.; Broodryk, Theo
    The English common law heritage of the states and territories in Australia (most of which were former British colonies) ensured that these different jurisdictions all embraced the adversarial system of civil litigation. Essentially, this meant that a passive role was accorded to the judge, especially during the pre-trial phase, while the parties, through their lawyers, played an active role during both the pre-trial and trial stages. By virtue of the principle of party control the parties were in charge of preparing their cases for trial and presenting their evidence and arguments at the trial. During the pre-trial phase the judge would react only if a party sought interlocutory relief, and even during the trial the judge assumed the role of a passive arbitrator, only ensuring that the lawyers conducted themselves in a seemly manner and complied with the “rules of the game”.
  • Thumbnail Image
    Item
    Managerial judging and alternative dispute resolution in Australia : an example for South Africa to emulate. part 2
    (Juta Law, 2018-01) De Vos, Wouter Le R.; Broodryk, Theo
    The impact of judicial case management and alternative dispute resolution on the fundamental rights of the parties. Traditionally, English common law shied away from recognising the fundamental principles of civil procedural law in the form of basic rights or guarantees accorded to the parties. As Jolowicz aptly remarked, “English law tends rather to take [these guarantees] for granted than to enshrine [them] in a legislative text”. Since this statement was made close to fifty years ago there has been a dramatic change in the English approach. First and foremost, the incorporation into English domestic law of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Human Rights Act resulted in the statutory recognition of fundamental human rights for everyone in England. In the procedural field the adoption of article 6(1) of the convention, providing for a fair trial to litigants, brought about a sea change in civil procedural law.