What is Judgment and how to write it: Judge L.O Bosielo (SA)

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 S v 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 of every 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 judges are 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. Rossouw and 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 needs to 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.

C. AUDIENCE

Now that we have dealt with the various types of judgments, the next pertinent question is who do we prepare judgment for (i.e. AUDIENCE).

The length, content, style and language used in your judgment will invariably be influenced by your targeted audience. If your audience comprises of the litigants alone, only minimal facts and a shortened analysis of the applicable law might be necessary to explain your decision. This is primarily because the litigants were participants in the trial, thus immersed in the trial to an extent that one expect them to be au fait with the evidence. However if your audience is the broader community (like in the Eugene Terreblanche murder trial or The Spear case) where the case has engendered widespread public interest and attention, your judgment will have to be comprehensive, accurate, logical, coherent, lucid, cogent and persuasive. This is precisely because of the diversity of interested parties. Equally where you are convinced that the matter might end up in the Appeal Court, your judgment must deal with all the relevant and material facts, your analysis and evaluation must be clinical, your reasoning must be logical, rational, cogent and convincing.

Quite often one finds cases which, apart from the immediate parties and the relatives, have an impact on the broader society. The practical example is (The Spear). Although the portrait allegedly portrayed the genitalia of the State President, the case went far beyond his personal dignity. The case before court referred to the President’s dignity as a person, the dignity of the office of the President of the Republic and the dignity of the President as the President of the ANC, the ruling party. But at an intellectual level, this case raised very intricate constitutional issues relating to the conflict between the right to dignity (s 10) and the right to freedom of expression (s 16) in a constitutional democracy. Both these rights are enshrined in the Constitution.

I do not doubt that the country at large, a very wide audience comprising of lawyers, law students, Professors of law, media practitioners, people in the arts and the international community had an interest to know how the court was going to resolve the conflict between these two fundamental rights. The High Court would have written its judgment cognisant of the fact that irrespective of the outcome, the matter would go on appeal to the SCA and then the CC.

CATEGORIES OF AUDIENCES

Essentially we have two categories of audiences that are relevant for purposes of judgment writing ie the primary audience, being the court which is responsible for the judgment and secondary audience which includes the litigants, the legal profession, other judges and the general public.

PRIMARY AUDIENCES

C1. THE COURT

Primarily this audience comprises of the judicial officer who writes or prepares the judgment. In a collegial court (ie where more than one judicial officer is sitting) this includes any participating judicial officer. Crucially, this is the audience which decides if the judgment is adopted and in what form will it be adopted. It is therefore imperative that this audience be satisfied that the decision and its reasoning are legally sound and correct and consistent with current precedent. When you are sitting as a single judicial officer, it is imperative that you be satisfied with your finished product. It is important to read and reflect on your judgment to rid it of any flaws. It is my usual practice at the SCA (hopefully the same applies to my colleagues elsewhere) that before I make my final draft judgment available for perusal to the panel which sat with me, I shall have written, read, corrected, and edited possibly not less than five (5) previous drafts which I may have had to discard to make sure that the judgment meets the standard.

It is different when you sit as a member of a panel in the appeal or review court. For your judgment to be approved by your colleagues, they have to be satisfied that it can stand scrutiny i.e. the summary, analysis and evaluation of evidence is correct, the legal issues have been correctly identified, the law and legal principles have been correctly identified and applied and finally that your judgment is well reasoned, logical, coherent, cogent, persuasive and sound in law. This is so because no colleague with his/her salt will sign a judgment which is wrong either on the law or the facts. Your failure to get them on board with you will inevitably result in either a separate concurring or dissenting judgment.

C2. SECONDARY AUDIENCES

This category comprises of the litigants, Legal Profession, other courts and the Public in general.

(i) The Litigants

Self-evidently, the litigants have direct and substantial interest in your judgment. They brought their dispute to Court – Naturally they would like to know what your decision is and importantly why you arrived at that decision. In particular the losing party would like to understand why he/she lost.

The primary goal or objective of every judgment is to explain to all interested parties how the judgment was arrived at, ie make them walk along with you on the path you travelled from your Introduction to your Order. For you to achieve this laudable objective, you have to ensure that the parties understand your judgment. This requires you use to simple, clear and unconvoluted language. You must try at all costs to resist the temptation to use highfalutin English or Afrikaans, unnecessary legalese or arcane/obscured Latin expressions like nullum crimen sine lege, pater est quem nuptiae demonstrant; cadit questio; sine qua non; ad idem. All these phrases are well known to lawyers and popular amongst lawyers. Although they may make you appear to be learned and erudite they are likely to defeat the very purpose why you write a judgment, particularly in a country like South Africa with high levels of illiteracy. Unfortunately, your efforts may be a diligent exercise in futility.

Sometimes you may have to decide whether to read out the judgment in court or simply to hand it down. In a minor criminal case or civil case with limited public interest, where the parties are represented you can instead of reading, hand the judgment down. The responsibility lies with their legal representatives to explain the judgment and its import to their clients. However, in a matter where third parties are involved or where it is of national interest, like the Eugene Terreblanche or “The Spear” case, it is patently important that such a judgment be read out in court. In criminal matters, depending on the composition of your audience it may be necessary to have the judgment interpreted to both the accused and the audience. Whilst facilitating and enhancing understanding of the judgment, the reading of the judgment will serve another important constitutional imperative of promoting access to justice by educating the public about the law.

Another important purpose served by preparing a good judgment is to afford the parties the opportunity to investigate and assess the merits of an appeal. In any event, as a general rule the loser is entitled to be informed candidly and frankly of the reasons why she/he lost the case. This will help them to understand the impact of the court’s decision and its implications on them. Furthermore, this will assure the losing party that he/she had a proper hearing before an impartial court; that an independent judicial officer has considered the evidence and the legal submissions presented objectively and that the ultimate decision is therefore rational and not arbitrary.

(ii) The Legal Profession

It is a truism that the legal profession in general, viz law teachers, professors, law students, attorneys and advocates have an interest in the judgment of our courts. They read our judgments for learning about the law, advising their clients and for the precedents which we create.

(iii) Other Judges or Judicial Officers

In addition to deciding disputes before them, judicial officers interpret the law and in many cases create precedents. Judicial officers in the lower court e.g. magistrates look up to judgments of the higher courts for guidance in the form of precedents. Judges on the same level may also have an interest in a particular judgment as it may clarify the law or resolve a common legal problem eg in the recent past, various high courts had serious problems regarding the interpretation and application of the phrase “substantial and compelling circumstances” in s 53(3) of the Criminal Law Amendment Act 105 of 1997, until the judgment of the Supreme Court of Appeal in S v Malgas [2001] 3 All SA 220(a).

Recently there was a huge outcry with concomitant confusion following a decision of the Western Cape High Court where the Full Bench declared the Sexual Offences Act as unconstitutional for its failure to provide penalties for a number of offences created by the Act. Frighteningly, this judgment was in conflict with 3 other judgments i.e. S v Booi (14/2010) [2010] ZARS HC (12 Aug 2010) Free State; S v Mchunu (168/2011) 15 Sep 2011 (KZN) and S v Rikhotso (SS105/11) [2012] ZAGPJHC 106 (South Gauteng). This caused serious uncertainty and disquiet within the justice system.

This serves to illustrate how important it is for judicial officers to approach judgment writing with an appreciation that their judgments may be reported or for that matter may create a new precedent, which may be binding on other courts until it is set aside by the Appeal Court. This is amply demonstrated by the serious confusion and uncertainty caused by this decision (Full Bench decision) until it was set aside by the SCA, in DPP, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA). Self-evidently, judicial officers have an obligation to perform their adjudicative functions honestly, conscientiously and to the best of their abilities without any undue influence, fear, prejudice or bias with the full appreciation of the impact which their judgments have on society in general.

(iv) The General Public

Courts are established to serve the public. It follows ineluctably that the public will want to know what happens in our courts, in other words, how matters are decided. From time to time there are many cases that evoke huge and widespread public interest. The most recent cases are that of the murder of Eugene Terreblanche, the late leader of the AWB, the e-tolling case and “The Spear”, the case which involved a portrait showing the genitalia of President Zuma which was exhibited in a public gallery in Johannesburg. These cases attracted throngs of people from different racial, socio-economic, political, religious and cultural background.

One thing the diverse audience all shared in common was the desire to know what decisions two courts would arrive at in these controversial matters. Some people came from interest groups, who whilst they have no direct connection to the matter, nonetheless have a special interest in the matter as it may affect their business interests, occupations or lives in general. In many instances such judgments may help them in lobbying for new legislation e.g. the TAC; gay and lesbians; marriages of same-sex couples; the principle of male primogeniture in African customary law. Manifestly, this is a diverse audience, comprising of laypersons, intellectuals, even lawyers.

Manifestly this is a diverse audience, comprising of laypersons, intellectuals, even lawyers. Some of these people, like in (The Spear) case may be interested or curious to know how the court will decide the issue. For instance in (The Spear) case, I have no doubt that there were people who wished to know how the court would resolve the glaring conflict between the right to freedom of speech as against the right to dignity. How the court would weigh and balance these competing rights. It is therefore important that the court must have this special group in mind whilst preparing its judgment. The challenge remains: how to communicate your judgment to such a diverse group. The answer to this polemic is that your judgment must be clear, lucid and coherent.

D. ANATOMY OF A JUDGMENT

This then leads me to the most effective structure and style of your judgment. You will have to ask yourself: what should your judgment contain? (i.e. relevant and material fact) and how it should read like (structure, style and language). Generally every judgment amounts to story telling. Every story has an introduction, the body and conclusion. Invariably your judgment must have (a) Introduction (b) the facts (c) the issues (d) the law which governs the issues (e) how you apply the law to the facts (f) the remedy and (g) the order. The useful acronym for this structure is IFILARO. I now proceed to discuss these stages individually.

(a) Introduction

It is imperative that you tell the reader or listener right at the beginning what the case is all about; who the parties are; how the case came before you and what you are required to decide. It is important for you to explain if it is an appeal, interlocutory application or an opposed or unopposed motion. This must be simple, crisp and succinct but sufficiently inform the reader/listener what the case is all about.

(b) Facts

Traditionally facts constitute the most important part of the trial. More often than not, cases are decided on the facts. In the trial action, the facts are gleaned from the pleadings, exhibits and oral evidence by witnesses; in motion proceedings facts are gleaned from affidavits (founding, answering and replying) and supporting documents. The facts may either be common cause or disputed. Where the facts are disputed, you can determine them whilst discussing the facts or you may leave them for later stage when you deal with the issues.

(i) Facts that are not in dispute –the so-called common cause facts or admitted facts; s 220 admissions in criminal trials; admissions contained in Rule 37 Pre-Trial Minutes.

Facts constitute the foundation on which findings and legal conclusion are based. It is therefore critical that facts be set out accurately without any distortions or misstatement. Only facts that are material and relevant to the resolution of the dispute needs to be recorded. In setting out the evidence it is not necessary to state the evidence verbatim or even quote the evidence. Evidence, including expert’s evidence should be summarised in the author’s own words. Direct quotations should be reserved for critical passages in the evidence. In S v Bhengu 1998 (2) SACR 231 (N) at 234h-j, BROOME JP stated the following:

‘What is required of a judicial officer is to set out in his judgment the material portions of the evidence. He must ascertain and select what is material. This involves effort and understanding. From what I have said, this did not happen in this case. I stress that it is not a mechanical regurgitation of the evidence as it unfolded in court, it is a process which requires an intelligent analysis of the evidence and an extraction of the material points. Thus if a witness states that something happened in a certain manner and then later on corrects it, it is unnecessary to dwell firstly on what the original evidence was, and then secondly, on what the correction was unless this is a matter which bears on the credibility of the witness. If it is, it must then be mentioned in the latter portion of the judgment which deals with the judicial officer’s reasons. What I am saying is this, what is appreciated by appeal courts is quality not quantity’.

(ii) Facts which are in dispute

It often happens that facts are hotly disputed. In such an instance, it is the task of the judicial officer to make findings of fact. This requires that a judicial officer must exercise his/her judgment to determine where the truth lies. Without doubt this is one of the most difficult tasks which every judicial officer has to execute. However, a trial judge has the distinct advantage of being steeped in the atmosphere of the trial. This affords him/her the opportunity to hear and observe the witnesses as they testify before him/her. Furthermore it enables him/her to form certain impressions from the demeanour of witnesses in the witness-box. However, judicial officers are warned not to attach undue importance to demeanour. As the saying goes “Demeanour is an unruly horse to ride”. It may be deceptive and unreliable. The following dictum by Harms JA in Body Corporate of Dumbarton Oaks v Faiga 1999 (1) SA 975 (SCA) of p979B-H is both instructive an illuminating:

“The Court below accepted Mrs Shiloane’s evidence on the basis of demeanour only (at 658B-C). No reference was made to the probabilities of her evidence in the light of the other evidence. It seems that the Judge below failed to distinguish between demeanour and credibility. To decide a case on demeanour where the evidence is interpreted from one language to another, requires a brave adjudicator. In S v Kelly 1980 (3) SA 301 (A) Diemont JA dealt with demeanour in these words (at 308B-E):

There can be little profit in comparing the demeanour only of one witness with that of another in seeking the truth. In any event, as counsel conceded in a homely metaphor, demeanour is, at best, a tricky horse to ride. There is no doubt that demeanour – “that vague and indefinable factor in estimating a witness’s credibility” (per Horwitz AJ in R v Lekaota 1947 (4) SA 258 (O) at 263) – can be most misleading. The hallmark of a truthful witness is not always a confident and courteous manner or an appearance of frankness and candour. As was stated by Wessels JA in Estate Kaluza v Braeuer 1926 AD at 266 more than half a century ago in this Court;

“A crafty witness may simulate an honest demeanour and the Judge has often but little before him to enable him to penetrate the armour of a witness who tells a plausible story;
On the other hand an honest witness may be shy or nervous by nature, and in the witness-box show such hesitation and discomfort as to lead the Court into concluding, wrongly, that he is not a truthful person”;

Nevertheless, while demeanour can never serve a substitute for evidence, it can, and often does, ‘reflect on and enhance the credibility of oral testimony’;

And in Germani v Herf Another 1975 (4) SA 887 (A) at 903C-E Trollip JA, dealing with a similar problem, said;

Those observations were based almost wholly on the demeanour of the witnesses. They are, of course, deserving of great weight on this aspect of the appeal, especially in a case of this kind, and the resulting conclusion based on them will ordinarily not be lightly disturbed. But the learned Judge, in coming to that conclusion, should also have considered the probabilities relating to certain important, disputed incidents, and especially their effect upon the parties’ respective credibility (cf Arter v Burt 1922 AD 303 at 306). Some of those incidents have already been mentioned where the probabilities appear to support the appellant’s version. Others will be dealt with presently. Those probabilities seem to have been overlooked by the learned Judge; hence the advantages which he enjoyed of observing the witnesses testifying should not be overemphasised in this case (cf Protea Assurance Co Ltd v Casey 1970 (2) SA 643 (AD) at 648E)”

It is accepted that a witness’s demeanour may be affected by various factors e.g. it may be the witness’s first appearance in court and he/she may be intimidated by the atmosphere; the witness may be timid by nature; the witness may be nervous or overawed. What this means is that there may be a number of innocent explanations for the witnesses’ performance in court which do not necessarily render him/her less credible or reliable. This is particularly so in a country like South Africa which is multi-racial, multi-cultural, multi-faith, multi-linguistic compounded by a high level of illiteracy.

Issues of credibility, reliability and probabilities or improbabilities of the case become relevant in the evaluation of the evidence. The Honourable Corbett, the former Chief Justice enunciates the following as some of the factors relevant to an assessment of credibility:
• The probability or improbability of the testimony seen against the background of the case as a whole;
• The inherent contradictions in the evidence of the witness for which there is no discernible explanation, especially when the explanations relate directly to the issues in the case;
• The contradiction of the evidence by other credible witnesses or by objectively indisputable facts such facts as are common cause, or notorious or are demonstrated by contemporary documentation;
• Contradiction of the witness by his or her own extra-curial statements or previous conducts; and
• Well-founded attacks upon the general character and credibility of the witness where this is permissible.

Civil Cases

In a civil case, the court decides the case on a balance of probabilities. The court need not be completely convinced of the correctness of the findings it makes. It is sufficient that the court is satisfied on a balance of probabilities that the party which bore the onus of proof that he/she told the truth and that his/her version is acceptable, in other words that it accords with the probabilities. National Employers’ General Insurance v Jagers 1984 (4) SA 437 (ECD) at p 440D-I. To the contrary, in criminal trials the guilt of the accused must be proved beyond reasonable doubt. Where there is some doubt, reasonable and not speculative, such doubt must be for the benefit of the accused.

It often happens that in civil matters a Court is confronted by two irreconcilable versions. In such a case the proper approach is the one adumbrated in SFW Group Ltd and Another v Martel & Cie SA and Others 2003(1) SA 11 (SCA) at para 5 where Nienaber JA enunciated the test to be:

“On the central issue, as to what the parties actually decided, there are two irreconcilable version. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness condour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his evidence, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b) a witness reliability will depend apart deom the factors mentioned under (a)(ii), (iv) and (v) above on (i) the opportunities he had to experience or observe the event in question and (ii) the quality integrity and independence of his recall thereof. As to (c) this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a) (b) and (c) the court will then as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.

Resolving Disputed Facts in Motion Proceedings

Different considerations apply, to the resolution of disputed facts in motion proceedings. This is so because the Court has not had the benefit of observing and listening to witnesses. The Court has to decide on the papers before court i.e. affidavits. Firstly, it is important to emphasise that it is not prudent for an applicant to approach the court by way of motion for a final relief where there is a likelihood of a serious and genuine dispute of facts arising. In such an instance, it is preferable for the applicant to go by way of action. When confronted with a dispute of fact, the court may dismiss the application, or it may refer the matter for trial or make an order for oral evidence to be led.

However, where the court is inclined to adopt a robust approach and resolve the matter on the papers even though there is a dispute of fact, the court is obliged to apply the principle enunciated in Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623(A) 634E-635D. Where the court is required to consider whether on the facts averred by the applicant which the respondent has admitted, together with the facts averred by the respondent, the applicant is entitled to the relief that he claims. Incidentally, this was amply demonstrated by the lively debate which Claassen J had with Adv Malindi SC during the infamous case of a painting showing President’s Zuma’s genitalia, dubbed The Spear, in the South Gauteng High Court, when the lawfulness of the painting was placed in issue. Read the judgment by Harms JA in NDPP v Zuma 2009 (1) 361 (SCA) paras 8, 13, 15 and 26.

Read Stellenbosch Farmers Winery Ltd v StellenVale Winery (Pty) Ltd 1957 (4) SA 234 (C); Wightman t/a J W Construction v Head Four (Pty) and Another 2008(3) SA 371 at para 12 (Heher JA); and Fakie NO v CCII Systems (Pty) Ltd 2006 (4) 326 (SCA) at para 56 – where CAMERON JA said:

“…a respondent’s version can be rejected in motion proceedings only if it is “fictitious” or so far-fetched and clearly untenable that it can confidently be said, on the papers alone, that it can confidently be said, on the papers alone, that it is demonstrably and clearly unworthy of credence”.

(c) The Identification of the Issues
The issues to be identified may relate to (i) facts only (ii) law only (iii) facts and the law or (iv) the application of the law to the facts. Ordinarily such issues are determined when findings on the facts are made.

(d) The Applicable Law

Once the issues have been delineated and identified, one has to identify the law and legal principles that are applicable. It is unavoidable that in the course of your research you may have to read many cases and relevant material. However, it is not necessary to quote all the cases or material that you researched. Only those cases which are relevant and which support your decision needs to be quoted and analysed. Remember that you are not writing a thesis or displaying your erudition. You are merely supporting your decision. The next step is how to apply the law to the facts.

(e) Application of the Law to the Facts

In referring to case law guard against the common practice where some judicial officers look at footnotes and throw cases into a judgment without reading them. Read the case and make sure that it is on point. Demonstrate to the reader/listener how the case supports your conclusion.

In many cases, once the facts and the applicable law have been decided, the answer becomes self-evident. However, in other instances, a judicial officer is required to decide the matter at hand not strictly in accordance with the law but on considerations of what is fair, reasonable and proper. This is particularly true of the Constitutional Court where, in the absence of a remedy the Court is bound to find a remedy where there has been an infraction of a right in the Bill of Rights. This is in line with the maxim “ubi jus, ibi referendum”.

(f) Relief/Conclusion

The relief to be granted is largely determined by the findings of law and fact. It can at times prove to be the most difficult aspect of the case. (‘The Spear’) case once again is a classical example. The applicants sought a final interdict from the court to interdict Goodman Gallery from displaying the portrait. In the interim and before the application was heard in court, the portrait had been seriously defaced. Claassen J asked Malindi SC for the applicant if he still persisted with the original prayer as it appeared that the horse had already bolted. It is important that we bear in mind that courts are there to issue effective judgments ie judgments that address practical as opposed hypothetical or academic issues – See s 22(a) of the Supreme Court Act. Our courts’ stance is to deliver judgments which will have practical effect. Hence our courts are loathe to deal with cases which are moot.

(g) The Order

This part records the end result of the case. In a civil case it takes the form of an award of a specified relief e.g. an order for the payment of money or delivery of a particular item of property. In a criminal case it is the verdict (guilty or not guilty and what offence and the sentence). Care must be taken to ensure that the order is accurately and correctly worded. This is so because this is the part of the judgment on which either a Sheriff or Deputy Sheriff or officials of Correctional Centres will act. Therefore the order must be clear and easy to understand. In instances where you set aside the order of another court, you must ensure that you replace it with an appropriate order, clearly and correctly worded.

GENERAL OBSERVATION

• STYLE

The choice of style is very personal. It would be wrong for anybody, no matter how erudite or celebrated he/she might be to prescribe to you as a scribe how your judgment should read. Even senior judges cannot prescribe to you how you should write your judgment. People, particularly lawyers express themselves in different ways. The main consideration remains who your targeted audience is. Some judicial officers are factual, short and to the point. Others are long-winded. Others are poetic whilst others like to use metaphors.

To illustrate the point you can go and read judgments of old judges like Holmes JA who wrote in a colourful and rather flamboyant manner, and the current generations of the likes of the late Mohammed CJ, with his colourful and mesmerising expressions, the former Chief Justice Chaskalson, always restrained and balanced, Justice Albie Sachs, always philosophical, Langa CJ (retired), hard-hitting but in a subtle manner, Moseneke DCJ, colourful, elegant but lucid. A comparison of the judgments of the Constitutional Court and the Supreme Court of Appeal will reveal the contrasting styles between the two courts.

The judgments of the CC are long whilst the SCA’s are shorter. One plausible explanation might be that the SCA focuses on a search for the correct law to apply, confirm, clarify and develop precedent, thus promoting consistency in the law.

On the other hand the Constitutional Court is often confronted with novel and complex constitutional issues where they have no precedent to rely on. Many times they have to do extensive research both locally and internationally to interpret our Constitution and breathe life into it. Hence they deliver long judgments. What a Herculean task!!

However, the former Chief Justice Ngcobo in his address to Aspirant Judges in July 2003 cautioned that “brevity, simplicity and clarity are the watchdogs for effective judicial writing”. I can only hope that you will have this in mind as you continue to prepare judgments in the future.

THANK YOU AND GOD BLESS