PRESENTATION ON CASE FLOW MANAGEMENT SYSTEM:

AN EFFICIENT AND TRANSPARENT MEANS TO DELIVER

JUSTICE

BY GN.NTHOMIWA

SAJC/VENICE COMMISSION REGISTRARS’ WORKSHOP:

5 – 9 DECEMBER 2007, JOHANNESBURG, SOUTH AFRICA

1. INTRODUCTION

‘In an ever changing world, law and the machinery of justice must adapt
to changing circumstances if they are to fulfill their role in society.’ 1

The Judiciary of Botswana like all judiciaries of the world has been and still
is striving for efficiency. The efficiency of an organization such as this
however, one depends on the readiness of its stakeholders to support efforts
that are intended to bring about improvement. Experience, however, has
shown that change is not always easy to drive and sustain. It requires a great
deal of determination and commitment. That determination and commitment
must cut across the organisation and must even be more visible in the top
management which also drives it.

Linked to that is the preparatory work that must go into all the strategies that
are put in place to bring about change. Every change is a project that must be
managed. It has been said projects fail because of lack of planning. It has
also been proved that projects fail because the team does not take time to
ensure that they have developed a proper definition of the problem being
1
Speech given at the opening of the Legal year on the 1 st February 2002 in Botswana
solved.2 Planning therefore plays a pivotal role in every project that is being
introduced.

2. CASEFLOW FLOW MANAGEMENT

The whole notion of case flow management is of relatively recent vintage.

This is an area in which there is paucity of knowledge and experience in
most judicial systems in the developing countries. The Judiciary in
Botswana is no exception as it is grappling with case flow management
borne out of a burgeoning backlog of both civil and criminal cases in all its
subordinate and superior courts.

Case flow relates to the movement of cases from the time they are registered
to disposal. What happens in between is management of the cases. It is
critical in my view that the flow of cases through the conveyor belt of case
management must be fast with minimal blockages. Ordinarily cases get
stuck at this point thus affecting the operations of the courts as well. There
are several players at this point and these include litigants, Attorneys,
Advocates, Registrars, Registry staff and Judges. Facilities like computers,
photocopiers, faxes, dictaphones, etc are also critical at this point. For the
programme to work efficiently systems must be put in place which will
ensure that there is coordination amongst all the key players in the life of a
case or the flow of cases.

2
James P. Lewis, Fundamentals of Project Management, 3rd Edition

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One important thing that is critical to the success of every new system is
change in the mindset of all employees in the system. For change to make
sense it must be embraced by everyone in the organization.

I think we must pause and remind ourselves about the role of the courts in
society or in a Nation. There is no doubt that as an arm of Government,
Courts occupy a central place in the lives of the people and in the good
governance of a country. To that end the Judiciary must perform efficiently
and effectively for the good of all. Everybody looks up to the Judiciary to
bring permanent solution to problems brought before it. The courts must
work and deliver such solutions in a speedy way. Failing that there is a risk
that a lot of damage may happen to peoples life’s, relationships of trading
partners etc. The Chief Justice of Botswana has said this about a working
Judiciary;

The judiciary is very acutely aware of its current limitations and

desperately wants to improve so that the people of this country can be
proud of the role that it plays in their lives. The judicial processes have a
very severe impact on the lives of ordinary people and the welfare of a
State. We know that when the judicial process in our country works and
is perceived internationally as excellent, then there would be less
hesitation in our people and foreigners alike putting their money and
faith in the country. In other words, a good judicial system induces
confidence in a country enabling those who are interested to freely
interact in its affairs. That is the objective which all of us involved in the
administration of justice must seek to achieve. 3

Following this pronouncement the Judiciary started working on plans to

improve its service delivery.

3
From a speech at the Stakeholders Conference on the 26th July 2000

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In 2000 the Judiciary developed a Strategic Plan with a vision and mission
statement where it mapped out ways in which it could achieve its vision.
Every body in the organization rallied behind this plan and ever since then
we have never looked back. Our vision is “Justice for All” and our mission
is to ‘develop and maintain an effective judicial system which dispenses
justice fairly, impartially and expeditiously’. Amongst the systems we
decided to explore which appealed to us and we considered could improve
our service delivery was Alternative Dispute Resolution (ADR). We further
decided to introduce a computer programme called Court Records
Management System (CRMS). The intention of this programme was to help
us manage our case records which have since time immemorial been
managed manually. The system entailed comprehensive planning which
started with the development of a SOUR (Statement of User Requirements).
We thereafter went out to tender for a computer system which could address
the problems identified during the initial investigations. CRMS was amongst
others introduced to address the problems of lost or missing files, slow
response to public enquiries on case statistics level etc thereby modernizing
and improving the efficiency of the Judiciary in its operations. We ended up
with a programme developed by an American Company ACS which is also
widely used in American Courts to manage case records.

3. PACE OF LITIGATION

The most critical organizational problem challenging the Judiciary’s national

role is the long waiting period it takes for cases to be decided and disposed
of.

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Currently the pace of civil litigation is lawyer driven. Little happens except
in response to a filing. The vast majority of civil cases do not leave the
registry before the pleadings have been closed and until they are set down
for a hearing.

In a minority of cases, judges become involved early because of requests for

interim or other emergency relief.

Generally, members of the public and litigants in particular do not bother to

assess at which stage their case is delayed. Inevitably, courts are blamed for
delays even when the litigating parties are responsible.

The implications of delays in the disposal of cases are loss of public

confidence in the Judiciary, threat to the flow of foreign direct investment
opportunities and a burgeoning backlog.

It is abundantly clear that public interest is served by an efficient justice

system which places justice and the completion of the case above purely
technical rules and introduces the judge as early as possible to ensure that
this is so.

4. EXPERIENCES OF THE COURTS OF BOTSWANA

In January 2007 the Botswana Judiciary under the leadership of the

Honourable Chief Justice eventually made a firm commitment to do
something about court delays. A decision was taken for a shift in the

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emphasis in court management from routine operations, structures and
equipment to issues of accountability, performance, efficiency and
effectiveness, thereby making case backlog and delay a primary focus of
concern. This entailed implementing case flow management programmes,
emphasizing early court intervention in cases and active court oversight of
their progress to disposition.

In addition, we sought external consultancy on these programmes. Judge

Clifford Wallace of the United States Court of Appeals was engaged in
January 2007 as a consultant by the Botswana Judiciary to explore
mechanisms of addressing the backlog situation. After a three week tour of
the country he came up with a report in which he recommended case
management and court annexed mediation.

A High Level Consultation for stakeholders in the justice system in

Botswana was held on 26 and 27 July 2007. The consultation was held
against the background of concerns including:

(a) the rapid increase in criminal and civil litigation which results
in pressure on the courts, the Police, the Attorney General’s
chambers, the Directorate of Public Prosecutions, private
attorneys and the Prisons service, among others,

(b) delays in the disposal of cases before the courts of law

(c) leading to a backlog of cases at various stages of the judicial

process,

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 (d) Undermining of public confidence in the justice system and
adversely affecting foreign direct investment.

The Honourable Chief Justice addressed the official opening session by

sharing the measures the judiciary was putting in place to address the
aforementioned challenges in particular case flow management.

The consultation which was officially opened by the Minister of Justice,

Defence and Security supported the reforms of the Judiciary as outlined by
the Honourable Chief Justice, approved their timetable for implementation
and government pledged to expeditiously provide the necessary additional
resources. The consultation provided a useful forum for a discussion of a
wide range of issues regarding justice delivery by various stakeholders.

5. JUDICIAL CASE MANAGEMENT

Training is essential to familiarize judges, Registrars, Magistrates, Staff

members and members of the bar with the purposes and fundamental
concepts of case flow management and with the specific details and
techniques essential to effective case management and the court on a day-to-
day basis. It is precisely for this reason that the Judiciary facilitated the
training of Judges, Registrars, Attorneys and Civil registry staff on judicial
case management from 23 – 28 July 2007.

It has dawned on us that cases move faster when judicial attention is paid to
them and this system is where the court and not the litigants (or even their

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attorneys) control the pace of litigation. At the training seminar on Judicial
Case management, Judges and attorneys unanimously agreed on the
adoption by the High Court of the case management programme and an
individual calendar.

Judges and attorneys further agreed that Judicial Case Management should
start at the earliest possible time and should begin at the first appearance by
the defendant rather than at the close of pleadings which can take eighteen
(18) months.

Judges and attorneys also agreed on the amendment of the Rules to

accommodate Judicial Case Management.

In view of the magnitude of the changes to be offered, committees chaired

by Judges and reporting to the Chief Justice regularly comprising of
stakeholders were established. For instance Rules Committee, CRMS
Committee, CM Committee etc.

A consultant who was assigned the task of revising the Rules of the High
Court to accommodate judicial case management presented a draft on 19
November 2007 and the same has been circulated to all stakeholders for
their comments, views and suggestions. It is expected that the Rules will be
published by mid January 2008.

Civil registry clerks and Judges’ secretaries have been trained beyond the
accurate filing of documents and secretarial duties as they are responsible for
ensuring that each of their cases is moving towards the next procedural

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steps, jostling the lawyers when the case slows and drawing the court’s
attention to deadlines. Two (2) registrars and two (2) clerks will be attached
to the district court of Arizona, United States of America this week from 3 –
7 December 2007 for benchmarking and familiarization exercise on registry
set up and case flow management.

There are significant benefits in assignment of cases to Judges early in the

case. The benefits are:

(a) because lawyers know early the identity of their judge, they
make realistic judgments about the likely outcome and thus
pragmatically discuss settlement;

(b) allocation of interim applications is simplified as those

automatically go to the assigned judge;

(c) the work load among judges is equalized. Each gets precisely
the same number of cases by a mathematical formula;

(d) accountability for cases is improved and this becomes a

powerful motivator for a judge to handle a case and calendar
efficiently. Otherwise their backlog will grow out of proportion
to that of their fellow judges and;

(e) judges will be free to experiment and try innovative techniques

since they know with certainty the cases allocated to them and

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 are responsible for. Hard work and efficiency will be rewarded
by a diminution in their pending case load.

6. CHALLENGES

The envisaged Judicial Case Management earmarked to commence court

wide in the High Court on the 1st of February 2008 is laid upon on electronic
Court Records Management System (CRMS). The information from our
civil and criminal records is entered into the system. Currently there are
thousands of files which are yet to be entered into the system. In the end,
the target is to have an automated record for each active civil/criminal case
in the Magistrates’ courts, High Court and Court of Appeal.
 A fully automated case allocation system has its own challenges as
there is often a need for human intervention in the allocation of cases
involving specialized technical areas.
CRMS has started to facilitate the speeding of case disposal at the
pilot sites where the system has been deployed and the roll out is
ongoing. For example, the case status functionality shows the status
of cases and indicates how long they have been at the particular stage
of the proceedings including those that are ready for trial or due for
dismissal. In this way, the system can also be used as a performance
measure as it can show how many cases each judge or magistrate has
disposed of at any given time and the number of postponements the
case has suffered.

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 Consequently, causes for backlog can be analyzed easily and practical
remedies provided more realistically. A variety of reports are
generated to provide statistics for case load management purposes.
Our CRMS is fully suited and capable of supporting judicial case
management including information and reporting requirements.
However, for Judicial Case Management to work all case records
must be complete and correct, the data on CRMS for all cases up-to-
date and all documents and pleadings scanned.

 Although the Judges enthusiastically embrace Judicial Case

Management most of them are computer illiterate, hence the training
of their secretaries to effectively manage their calendars. Judges
however have been also encouraged to learn computers so that they
can access cases on their own. There is therefore a need for a change
in attitudes and work culture to make case flow management a
success.

7. CONCLUSION

In his report following the training he conducted for Judges, Registrars,

Attorneys and Court staff, Judge David Campbell of the United States
District court of Arizona made the following observation on the
implementation of case flow management in Botswana courts:

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 “The Judges and lawyers of Botswana are enthusiastic about and
committed to the implementation of modern case management
principles. This will be a major undertaking. It will require
significant effort to computerize the High Court docket, adopt
individual calendars, inventory the cases, implement the procedures
and monitor progress. It will also require a significant change of
culture.

Currently, lawyers primarily dictate the pace of case progress. Litigation

events, including trials, are often postponed and interrupted. Adopting a
system of judge controlled case management and firm dates will be difficult,
particularly given the very substantial backlog of cases existing in the High
Court. I am convinced the project can be successful, but it likely will take
several years and requires significant resources. It is worth the effort.
Significant changes are needed to address the existing backlog and delay in
the High Court’s civil docket.”

We are ready for the challenge as we realize that the implementation of case
flow management is no walk in the park and that there is no magic wand or
bullet for its success besides a change of culture, hard work and availing of
the required resources. We are convinced that the project will be a success
as we strive to benchmark and familiarize ourselves with other jurisdictions
on case flow management as we prepare for the launch on 1 February 2008.

Thank You.

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