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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
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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
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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
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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).
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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
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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
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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
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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;
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
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
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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
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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 the 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
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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 have no 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.
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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.
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(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,
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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
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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). Selfevidently, 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
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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
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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
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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
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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
21
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)”
22
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.
23
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
24
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
25
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
26
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
27
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
28
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