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SOUTH AFRICAN JUDICIAL TRAINING INSTITUTE

JUDGMENT WRITING FOR ASPIRANT JUDGES

THE RANCH HOTEL - POLOKWANE

15 JULY 2013

JUDGE L.O. BOSIELO

SALUTATION:

JUDGMENT WRITING – An act of Communication, i.e. how do you as a judicial officer communicate your findings and reasons to the court’s audience effectively?

A.INTRODUCTION

(i) What is a judgment?

(ii) Why do judicial officers have to prepare judgments (Accountability)?

(iii) For whom do you prepare a judgment (audience)?

(iv) How should your judgment look like (structure, style and language)?

[1]One of the major responsibilities of all democratic governments is the maintenance of law and order. This is because maintenance of law and order will ensure peaceful coexistence, stability and prosperity in any country. It is therefore crucial that citizens be taught that disputes between the State and its subjects, the subjects themselves and other corporate entities or institutions be adjudicated upon in accordance with the law. Unlike in the pre-civilization era, parties can no longer be allowed to resort to self-help and take the law into their own hands as this will invariably lead to lawlessness, chaos and mayhem. This is the primary reason why democratic governments have found the need to establish courts of law as fora where citizens can enforce their rights in a civilised and orderly manner.

Two sections of the Constitution of the Republic of South Africa 108/1996 are relevant:

Section 34 provides: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” (THE RIGHT OF ACCESS TO COURTS)

Allied to this is s 165(1) to (4) which states:

“(1) The judicial authority of the Republic is vested in the courts.

(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of state may interfere with the functioning of the courts. (4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. (JUDICIAL INDEPENDENCE)

[2]Undoubtedly s 165(1) gives the courts the power to exercise judicial authority. See Chief Lesapo v North-West Agricultural Bank 2000(1) SA 409 (CC) at paras 13, 15, 16,22 and 24; De Lange v Smuts NO 1998(3) SA 785(CC) at para 74. In addition s 172(2)(a) empowers the Supreme Court of Appeal, High Courts or courts of similar status to pronounce on the constitutionality of Acts of Parliament, provincial Acts or any conduct of the President. However such declaration is subject to confirmation by the Constitutional Court. Evidently these are awesome powers which must be exercised with caution, restraint and responsibility underpinned by ACCOUNTABILITY. A question might be asked or has to be asked as to how do judicial officers account for their exercise of these awesome powers? Do judicial officers decide cases arbitrarily or whimsically or do they allow themselves in their decisions to be influenced by their own, prejudices, bias, stereotypes or predilections? How do members of the public hold judicial officers accountable? Do we haul them in Parliament like MPs to interrogate them on judgments they passed in court as judicial officers?

[3]Section 195(1)(f) and (2) of the Constitution demands that the conduct of all organs of state be transparent, accountable and responsive. Self-evidently this must also apply to judges. However, the question remains: how do we hold judges accountable? The most effective way of holding judicial officers accountable is through their judgments. In their judgments judicial officers are obliged to furnish adequate reasons to explain how and why they arrived at certain decisions. It is crucial that such reasons be furnished in public and in open court. This allows the public to use their democratic rights to comment or criticise the judgments of our courts. Such engagement will no doubt serve to engender and enhance the confidence and faith of the public in the judicial system. See Sv Mathebula 2012(1) SACR 374 (SCA), S v Mokela 2012(1) SACR 431 (SCA) at paras 11-13. This is in line with the salutary principles of open justice, openness, transparency, responsiveness and accountability. In addition, the furnishing of reasons serves another important objective of demonstrating to interested parties that a judicial officer has applied his/her mind to the issues which were put before him/her and therefore the judgment is not arbitrary. Because court proceedings are open to the public and decisions given in public, the conduct of judicial officers is open to scrutiny. This allows the public to use their democratic rights to comment or criticise the judgments of our courts.

[4]This critical role was eloquently articulated by the RT Hon Sir Harry Gibbs – the former Justice of the High Court of Australia when he stated:

‘…The courts must conduct their proceedings in public, and justice must be seen to be done, the parties and members of the community as a whole are as much entitled to know the reasons for a decision as they are to see the witnesses give evidence and to hear arguments presented in the case. Just as there are exceptions to the duty to hold all judicial proceedings in open court, so there are exceptions to the duty to hold all judicial proceedings to the rule that reasons for judgment must be given. But the general rule, that reasons for decision be stated or published in open court is of the essence of the administration of justice. The citizens of a modern democracy – at any rate in Australia – are not prepared to accept a decision simply because it has been pronounced, but rather are inclined to question and criticise any exercise of authority, judicial or otherwise. In such a society it is of particular importance that the parties to the litigation – and the public – should be convinced that justice has been done, or at least that an honest, careful and conscientious effort has been made to do justice, in any particular case and the delivery of reasons is part of the process which has that end in view. Of course the reasons serve other purposes, in particular reveal the principle on which the case has been decided and which may provide the authority or analogy by which future cases may be determined, but the fact that a decision has no value of that kind or no general interest does not mean that the parties loose the right to have explained to them, in the reasons for judgment, why the court reached the conclusion it did.’ See Botes and Another v Nedbank 1983(3) SA 27(A).

B.CATEGORIES OF JUDGMENTS

I now pause to deal with the different categories of judgments which we often have to deliver in our courts.

I take it as axiomatic that the primary aim ofevery judicial officer is to decide any dispute that has been brought before him/her as a judicial officer. The next step is to furnish reasons (i.e. justify, motivate or explain your decision). You then have to communicate your decision in the form of a reasoned judgment to the parties and/or the public. This can be either oral or in writing. Depending on the court in which you are sitting your judgment may be that of a single judge. If you sit in an Appeal or Full Bench Court, it can take the form of a main judgment, concurring or dissenting judgment. Given the circumstances, time, the complexity of the case and the importance of the legal principles involved, you may reserve your judgment (cur adv vult) to give yourself time to research the law and relevant authorities and reflect on all the issues raised. Invariably the SCA and CC always reserved their judgments for further consideration. This is because of the complexity and importance of the issues involved in the maters that come before them. Sometimes you may have to deliver an ex tempore judgment when a matter is urgent and not too complex.

(a)Single Judge

This occurs where you are sitting alone. In such a situation the responsibility of a careful and accurate analysis and evaluation of the evidence rests with you alone. The ultimate choice of the facts relevant and material for the resolution of the dispute and the applicable law is your sole prerogative. Even the style and the language to be employed is your choice. It is your voice which will be heard. In essence, the judgment is your intellectual product. This fact places an onerous duty on you as you have no “internal appeal or review” by a colleague who may have to countersign your judgment unlike where you sit in a panel.

(b)Collegial Court

The Oxford Dictionary defines collegial as relating to or involving shared responsibility. This happens when the Court comprises of more than one judge. More often than not the Court is unanimous of the outcome and the reasons for the judgment. A unanimous judgment is the ideal for which all judicial officers should strive as this leads to certainty and consistency in the law.The main advantage is that the public is not confused by different opinions. However, this does not mean that judicial officers should feel obliged to agree at all times with their colleagues.After all judgesare not automatons. Where, for cogent and substantial reasons, a judicial officer differs with his/her colleagues he/she has an ethical duty to dissent and to furnish his/her reasons. There is a golden saying that a dissenting judgment speaks to the future. Our law reports are replete with instances where dissenting judgments have, with the passage of time and changing circumstances been subsequently adopted as the correct law.

(c)Concurring Judgment

This often happens when one sits with colleagues over a matter in court. It may happen that you agree with the ultimate decision but have different reasons. It may also happen that you feel that the majority judgment has not dealt fully, properly or accurately with the facts. It is also possible that you may feel that the reasons for the majority judgment are not adequate and you wish to proffer additional reasons. However, as a general rule, one should exercise appropriate judicial restraint not to write a concurring judgment unless it is unavoidable. The more prudent course is to discuss your problem with the author of the majority judgment and try to persuade him/her to adopt your reasons or add whatever you think is necessary. Collegiality,consistency and clarity of the law require the court to speak with one voice, where it is possible. Read the following cases:

S v Makwanyane and Another 1995(3) SA 391 (CC); Rossouw and Another v FNB 2010(6) SA 439 (SCA); Chirwa v Transnet Limited and Others 2008(4) SA 367 (CC).

(d)Dissenting Judgment

Judicial officers are not automatons. Although they all read the same law, their understanding and interpretations of the law often differ or even conflict because unlike mathematics, the law is not an exact science. However every judicial officer is duty bound to give reasons for his/her decision. Where a judicial officer differs on a matter of principles of the law or on the facts, such a judicial officer is free, in fact has an obligation to articulate his/her reasons in a separate dissenting judgment. A dissenting judgment should identify and deal with the flaws or deficiencies in the main judgments. Read Sebola and Another v Standard Bank of South Africa (CCT) 98/11) [2012] ZACC 11 (7 June 2012). This will give the author(s) of the main judgment the opportunity to reflect on their judgment to determine if the flaws or deficiencies identified in the dissenting judgment do in fact exist and whether they have any adverse impact on the main judgment. It is always prudent and advisable to read the main judgment first before writing a dissenting judgment as you may have to comment on specifics of the main judgment with which you disagree. Once again it should be remembered and emphasised that the ideal is to write one judgment. This is crucial for clarity, consistency and precedent.Rossouwand Another v FNB 2010(6) SA 439 (SCA)

(e)Ex Tempore Judgment

There is a golden saying that “Judgment delayed is judgment denied”. It is perfectly understandable that litigants should expect to know of the outcome of their cases as soon as practically possible. Depending on a number of factors, including time, constraints, the nature of the evidence led and the complexity of the matter, both in terms of facts or the applicable law and the importance and urgency of the case, one is expected to deliver a judgment soon after the case is finalised. This of course requires some skills to be able to express oneself clearly,coherently and correctly, the ability to marshal your thoughts and facts logically and rationally. One must also be articulate. Crucially, one must be acquainted with the law and the applicable legal principles to be able to apply them accurately and appropriately to the facts of the case.

(i)Although it might appear to be a daunting task, it is however not impossible. There are some techniques which one can use to make it easy to deliver a lucid, coherent and well-reasoned ex tempore judgment. M. M. Corbett, the former Chief Justice discusses some of these techniques in his article, Writing a Judgment (1998) 115 SALJ 116. These are some of the most important techniques:

  • Take copious notes during the hearing.
  • At the end of the day’s hearing, review your notes;
  • Familiarise yourself with the case on an on-going basis as it is presented;
  • Study the documents involved in the case;
  • Think about the issues involved and, whilst keeping an open mind, start formulating your provisional views on these issues;
  • Make notes of your thinking about the case as the trial progresses, including your impressions of the witnesses;
  • If there are law points involved, devote as much time as you can to studying the law so that when the time for arguments comes, you are able to engage counsel meaningfully and assess their submissions; and
  • Formulate in your mind, the legal principles applicable to the case, citing relevant authority. This formulation, modified from time to time as the evidence unfolds and in the light of submissions made by counsel can serve as a useful basis for an ex tempore judgment.

However, the golden rule is as Corbett CJ said ‘do not switch off at the end of the day’s hearing and switch on again at the commencement of the next day’s hearing’.

(ii)Of course, this might not be possible in all instances, eg in the motion proceedings where there may not be time for reflection. This is normally the case in the urgent court. However, depending on the urgency and complexity of the case, you may have to adjourn the court for some few minutes or overnight to reflect on the evidence and the legal submissions advanced by counsel, consult few authorities, clarify your thoughts and decide on the style, content, structure and your ultimate decision and reasons.

(f)Order Now and Reasons Later

Quite often judicial officers find themselves in very difficult and invidious positions where they are forced, by circumstances of the case to give an immediate order without any accompanying reasons. This normally happens where the decision is so urgent that any delay is likely to have disastrous consequences e.g. custody issues, arrest suspectus de fuga; urgent medical operations; evacuations from hazardous buildings etc. In such instances, the court may issue an order which will have immediate effect with an undertaking to furnish reasons at a later stage. It needsto be emphasised that such reasons (in writing) will have to be furnished as soon as possible. Practical experience has shown that this is a step fraught with serious problems. It often happens that subsequent to the making of the order, the presiding officer becomes so immersed in other matters that he/she literally forgets to prepare his reasons.NDPP v Naidoo and Others 2011(1) SACR 336 (SCA). Invariably this result in inordinate delays and worse may result in the judicial officer not being able to recall the reasons which prompted him/her to make the order that he/she made. What an embarrassing situation! Where due to pressure of work a delay is unavoidable, such a judicial officer has an obligation to approach his/her head with a request that he/she be granted some time to finalise the judgment because as they say: “Justice delayed is justice denied”.

(g)Reserved Judgments

Many times judicial officers have to hear cases involving many witnesses and which may be heard over many days if not months. Some cases involve very complicated legal principles and require extensive research. In such instances it may be neither practical nor prudent to deliver an ex tempore judgment. The need for time to reflect and research the law is self-evident. However, it remains a salutary principle that such judgments must not be reserved and delayed for an unreasonably long period. The ideal is that all judgments must be delivered at the end of the term. This is the practise at of the SCA. Where due to some unforeseen circumstances a delay is inevitable the presiding officer is obliged to report this to his/her head and request time to prepare and finalise the judgment. This is crucial if we are to engender and retain the confidence of the public in the judicial system.