PhD / Access to justice is an important human right that ensures adequate redress for harm, and which consequently helps deter future wrongdoing. Without access to justice citizens are precluded from the full enjoyment of their economic and social entitlements. The cost of litigation is a significant impediment to access to justice. Although the courts have attempted to increase access to justice by broadening the range of available dispute resolution options and by improving productivity through the implementation of case flow management systems, the cost of prosecuting claims remains disproportionately high and unaffordable for most small to medium sized claimholders. Legal claim assignment to parties able to aggregate claims and to apply their expertise as litigation entrepreneurs to deal with claim prosecution efficiently is one means of redressing the imbalance between the cost of claim prosecution to individual claimholders compared to the value of their claims. However, the well-entrenched doctrines of maintenance and champerty prohibit legal claim assignment. The continued resort to the doctrines of maintenance and champerty despite a strong and independent modern judiciary reflects distaste for claim commodification. However, the advent of litigation funding and its acceptance by the High Court of Australia in Campbell’s Cash and Carry v Fostif Pty Ltd (and to some extent United Kingdom and United States courts) on access to justice grounds has challenged conventional maintenance and champerty dogma. Together with other measures such as the introduction of conditional fee agreements that shift the cost of funding access to justice from the public to the private purse, the resistance to full claim alienability has been significantly weakened. The thesis argues that full claim alienability is favoured on normative and efficiency grounds and examines developments in Australia, England and the United States, which portend toward claim commodification. In addition, the thesis examines regulatory instruments required to ensure that the present partial claim market and the potential full claim market operates fairly and efficiently. It also considers how claim commodification may affect the relationship between legal practitioners and claim holders. [Please note: For any information on access to the full text please conact the author.]

PhD / Access to justice is an important human right that ensures adequate redress for harm, and which consequently helps deter future wrongdoing. Without access to justice citizens are precluded from the full enjoyment of their economic and social entitlements. The cost of litigation is a significant impediment to access to justice. Although the courts have attempted to increase access to justice by broadening the range of available dispute resolution options and by improving productivity through the implementation of case flow management systems, the cost of prosecuting claims remains disproportionately high and unaffordable for most small to medium sized claimholders. Legal claim assignment to parties able to aggregate claims and to apply their expertise as litigation entrepreneurs to deal with claim prosecution efficiently is one means of redressing the imbalance between the cost of claim prosecution to individual claimholders compared to the value of their claims. However, the well-entrenched doctrines of maintenance and champerty prohibit legal claim assignment. The continued resort to the doctrines of maintenance and champerty despite a strong and independent modern judiciary reflects distaste for claim commodification. However, the advent of litigation funding and its acceptance by the High Court of Australia in Campbell’s Cash and Carry v Fostif Pty Ltd (and to some extent United Kingdom and United States courts) on access to justice grounds has challenged conventional maintenance and champerty dogma. Together with other measures such as the introduction of conditional fee agreements that shift the cost of funding access to justice from the public to the private purse, the resistance to full claim alienability has been significantly weakened. The thesis argues that full claim alienability is favoured on normative and efficiency grounds and examines developments in Australia, England and the United States, which portend toward claim commodification. In addition, the thesis examines regulatory instruments required to ensure that the present partial claim market and the potential full claim market operates fairly and efficiently. It also considers how claim commodification may affect the relationship between legal practitioners and claim holders. [Please note: For any information on access to the full text please conact the author.]

In third-party litigation funding agreements, funders agree to finance a litigant’s litigation on condition that the funder will deduct a specified percentage from the capital awarded to the litigant in the event of success. In contingency fee agreements, such funding is provided by lawyers. Initially both these agreements were illegal in South Africa and England, but as civil courts became able to counter corruption and abuse – and with the recognition of the need to give more litigants access to justice – both were recognised as legal. Third-party litigation funding agreements by non-lawyers are unregulated in most jurisdictions. As the voluntary self-regulation in England is unsatisfactory, mandatory statutory regulation should be introduced in South Africa. The Contingency Fees Act 66 of 1997 caps the fee to 25% on the capital amount in South Africa. Since no such cap exists in Ontario (Canada), the cap of 25% in South Africa should be revised. / Eka Mintwanano yo nyika nseketelo wa mali eka nandzu wa thedi phati, vanyiki va mali va pfumela ku hakela mali ya nandzu wa mumangali hi xipimelo xa leswaku munyiki wa mali u ta susa phesenteji leyi kombisiweke ku suka eka mali leyi nyikiweke mumangali loko a humelela. Eka mintwanano ya tihakelo ta vukorhokeri, nseketelo walowo wa mali wu nyikiwa hi maloyara. Ekusunguleni mintwanano leyi hinkwayo a yi nga ri enawini eAfrika Dzonga na le England, kambe tanihi leswi tikhoto ta mfumo ti koteke ku kokela etlhelo eka timhaka ta vukungundzwana na nxaniso- na ku anakanyiwa ka xilaveko xo nyika vamangali votala mfikelelo wa vululami- hinkwayo yi anakanyiwile tanihi leyi nga enawini. Mintwanano yo nyika nseketelo wa mali eka nandzu wa thedi phati hi vanhu lava nga riki maloyara a yi lawuriwi eka vuavanyisi byotala. Tanihileswi vutilawuri byo tinyiketa eEngland byi nga riki kahle, mafambiselo ya nawu lama lavekaka ya fanele ya tivisiwa eAfrika Dzonga. Nawu wa Tihakelo ta Vukorhokeri wa 66 wa 1997 wu veka mpimo wa hakelo eka 25% eka xiphemu xa tsengo wa mali eAfrika Dzonga. Ku sukela loko ku ri hava mpimo lowu nga kona eOntario (Canada), mpimo wa 25% eAfrika Dzonga wu fanele wu langutisiwa hi vuntshwa. / Kha thendelano dza ndambedzo dza mbilo ine ya itelwa muthu, vhabadeli vho tenda u badela mbilo ya muthu o no khou itelwa mbilo tenda mubadeli a tshi ḓo ṱusa phesenthe yo tiwaho kha tshelede yo avhelwaho muthu ane a khou itelwa mbilo arali a kunda. Kha thendelano dza mbadelo dzine dza badelwa musi ramilayo o no kunda kha mulandu, mbadelo idzo dzi ṋetshedzwa nga vhoramilayo. Mathomoni thendelano idzi vhuvhili hadzo dzo vha dzi siho mulayoni Afurika Tshipembe na England, fhedzi musi khothe dza mbilo dzi tshi vho thoma u hanedzana na tshanḓanguvhoni na u tambudzwa - na u dzhiela nṱha ṱhoḓea ya u ṋea vhathu vhane vha khou itelwa mbilo u swikelela vhulamukanyi –vhuvhili hadzo dzo dzhiwa sa dzi re mulayoni. Thendelano dza ndambedzo dza mbilo ine muthu a itelwa nga vhathu vhane vha sa vhe vhoramilayo a i langulwi kha vhulamukanyi vhunzhi. Samusi u langulwa ha ndaulo nga iwe muṋe hu ha u tou funa ngei England a zwi ṱanganedzwi, ndaulo ya khombekhombe ya mulayo i fanela u ḓivhadzwa Afurika Tshipembe. Mulayo wa Mbadelo dzine dza badelwa Ramilayo musi o kunda wa nomboro 66 wa 1997 mutengo wawo u guma kha 25% mutengo wa tshelede Afurika Tshipembe. Samusi tshikalo itsho tshi sa wanali ngei Ontario (Canada), tshikalo itsho tsha 25% Afurika Tshipembe tshi fanela u sedzuluswa hafhu. / Private Law / LL. M.