Mothballs

We all recognise naphtalene balls as those small white pungent pellets we use to ward off insects – typically in cupboard and wardrobes.

Used as a verb, the term “mothball” refers to plans or projects that are stalled or postponed. The characteristic quality of such a deferment would be that the underlying object would remain unimpaired and fit for use.

An unconventional example of such type of project could be a court case – typically a hearing which does not take place but is pushed back to be taken at some future point in time.

There could be any number of reasons for a case to be postponed.

The most legitimate and understandable ones would range from sickness, or death of a close kin of the parties or their counsels, to any genuine unintended obstacle which renders a party’s or his counsel’s presence in Court impossible on that day.

It is of course totally in order for cases to be postponed on account of the indisposition or last-minute personal emergency on the part of the bench.

So far , so good …

Then we come to the more creative and imaginative (and sometimes more objectionable) reasons to justify a request for a case not to be taken.

Let us start with the parties themselves . The hearing and determination of a court case would clearly better suit the party seizing the court. The other party, may it be a defendant or an accused party, would be in no rush to face a judgment. That party would have all reasons to want to protract proceedings to delay its conclusion.

Then we have the lawyers. There again the reasons for seeking an adjournment of a case are plentiful and include lack of preparedness, conflicting court schedules and downright procrastination. In between, the range is as varied as the imagination can fathom.

There are also the witnesses. This category is the most vulnerable as it is likely that they would need to keep returning to court as long as the case is not taken – causing tremendous disruptions to their professional and personal lives. Witnesses who cannot attend court, cause inconvenience to all parties and not least of all to other witnesses.

All the above protagonists stand before the backdrop of the courtroom itself, where all the court officers, the transcript recorders, the ushers are ready for each trial date – and will need to keep returning after each adjournment.

This brings us to the core of the issue – the Court itself. Postponements are not granted for the mere asking. They need to be requested (or “moved”) . It is only if the Judge or Magistrate is satisfied that the reason invoked is a valid one , that an adjournment can be granted. For the Court to be satisfied, it has considerable leverage : it can query a medical certificate – and even ask the doctor who has signed it to explain in what way a “body ache” or “stomach pains ” would cause the patient to be unable to attend court. If the reason is not satisfactory, and all the parties and their counsels are in attendance, the Court can simply proceed to hear the case. If a counsel is not in attendance, and the Court is minded to hear the case anyway, it can grant a very short adjournment of an hour or so, for the counsel to make arrangements to come to court or have himself replaced. In all cases, the Court is driven by the sole overarching consideration of acting fairly and efficiently – in the best interests of justice – not the parties.

And here is the rub. All too often counsels get away with postponing cases for fairly flimsy reasons. This in itself would not be an issue if the dates to which the cases were postponed were not so far out. The courtesy granted by the Court to allow counsels to provide their dates has now reached the stage that it is now counsel who decide when they are free to appear before a court.

This is a relatively new state of affairs, which has unfortunately been degenerating in the past couple of decades. Previously, motions for postponements were made with much trepidation. If there were 2 counsels appearing for the same client, there would be no postponement – it was expected that the other counsel/s would step in for the absent one. The Court would decide how long the matter could suffer to wait – not the other way round. Based on the court’s assessment of the urgency of the hearing taking place, trial dates were fixed and all parties were expected to make alternative arrangements in case of clashing diaries. The bottom line was that the cases were disposed of much more efficiently and the extent of the backlogs we see today, did not exist.

It is therefore the Court’s role to check all forms of abuse and to assert its authority in favour of what the interests of justice (not the parties) dictate. This requires instilling a culture of discipline and rigour in case management, failing which , we shall continue happily mothballing …