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Lamenting long judgments

Lamenting long judgments

Lamenting long judgments

Chief Justice Mogoeng occasionally laments the long, and what I understand as exhausting to peruse, judgments prepared by our Courts. I would like to suggest a focus on the length of judgments rather than their substance would be to risk a poorer justice being delivered to litigants and society as a whole.

Of course, you may ask what danger lies in affording students of law short and sweet judgments or even summaries to study? Am I missing the point that the Chief Justice is making?

The call to shorten judgments as a rule, to convenience perusal for students or practitioners, could become a short-cut to laziness.

My experience of my fellow aspirant lawyers avoiding long judgments has been alarming. It was 2015 and near the end of the first academic block of my first year at the illustrious Oliver Schreiner School of Law, University of the Witwatersrand. I was new to law as a proud humanities graduate and eager law student. As it is almost the end of block one of the teaching cycle tests are not too far away on the horizon.

As a consequence, we as students are anxiously gearing ourselves in preparation for tests and other forms of mandatory assessments. During this anticipatory academic hoo-hah there is bound to be a sharing of notes and suggestions of expeditious and convenient study methods. Many will exchange study tools like mind maps of pertinent principles of case law. I observed very early on that where case law is concerned across the subjects, it is the rule for students that only the principle of each case is wheat and all else a judge has to say is dismissed as chaff.

All the while I was accustoming myself to reading entire 30, 50, or 90 plus pages of case law and here was a consensus that only the principles gleaned from case law are important!

I was, of course, dismayed. Had I wasted precious time reading not only the textbook, in tandem with long and short judgments, in addition to consulting seminar notes I had made? But my instinct suspected most of my colleagues of folly in not reading full judgments and only feeding on their thin summaries. There was it seemed only one other colleague who agreed that surely we would be missing an entire exciting legal excursion by resolving to read only a one-liner principle in lieu of a whole case. That colleague was one Dr Zanele Mngadi. We questioned this notion that you “never read a case but place all reliance on its summary,” and worse build your whole legal castle of understanding and scrutiny on these summaries. Here the Chief Justice would have found a ready audience to agree with his lamentations on long judgment writing.

The trend to exclusively attend to legal principles at Law School is rife. It feels as though hardly anyone burdens themselves with the tedium of “these long judgments”.

Fortunately, not many lecturers encouraged this way of thinking about judgments. What long judgments often offer is an even richer exposition of complex issues than those contained in most textbooks.

Let me not be misinterpreted; a long judgment is not as a rule indicative of being better or more erudite than a shorter deliberation. A recently read and short, yet, incredible judgment is that by Acting Judge Rogers sitting on the SCA mulling an intellectual property dispute concerning trade marks in PepsiCo Inc. v Atlantic Industries. It is short but covers vast areas of legal principles, re-imagining their pragmatic implications as the facts before him demand. His brevity of judgment ought not merely be credited or discredited for its concise fifteen pages. Besides, there are scores of such similarly satisfying short conclusions by the court but they are not succinct at the sacrifice of sagacity! A long legal consideration is never intended to just annoy overwhelmed students who have twenty other cases to read from five other courses each consecutive week. The facts or the gravity of that case may necessitate a longer version. To cut down tall trees because they are taller than the undergrowth doesn’t make sense – as it also doesn’t make sense to cut down long judgments just because they are not short.

Lacking in-depth justification or substantiation, judgments can leave litigants dissatisfied. Let us not rob current and future legal students of the profundity and fecundity of legal teaching that is thorough, thought-provoking and sensitive to the responsibility we have entrusted and invested in our fair, active and vibrant judiciary. The exemplary reports of our courts at all levels and the energy they put into the judgments must never be taken for granted. We as students can never afford to prioritize watered-down educational experience.

Some students or scholars will disagree with me and may have fair points on the score of rote learning case law due to the practical pressures of university. But if we are to make “Drop-box” lawyers the rule in reading for law then it looks bleak for those consulting such lawyers, and worse their ilk making their way up into the upper echelons of the profession.

I had pondered other points to fortify my riposte to Chief Justice Mogoeng’s lamentation but seeing that the shorter path is hailed as the gold-standard I will leave any further rebuttal here.

What are your thoughts on the Chief Justice’s comments regarding the length of judgments? Let us know in the comments below.

Vaughan Bonakele is a Wits International Relations graduate, former intern at public interest law organization Freedom Under Law and final year law student at Oliver Schreiner School of Law hoping to join the Bar after reading for law.

Comments (4)

  1. Avatar
    May 30, 2018

    I’m a final year law student who always prefers reading full cases unlike most of my fellow students who only resort to the media summary. The battle should not even be about the length of the cases; it ought rightly be about their substance.

    The onerous task of writing a judgements for judges, I gather, should not be taken for granted. There is always a reason why some judgements are longer and why others are shorter. The longer ones, to state the axiomatic, would be dealing with complex issues – for example dealing with many issues of law at once. To water them down because they are “long” is a compromise to justice. And this comprise, I can have no doubt, will not reflect well with the litigants (especially the “losing” ones). To avoid a plethora of unnecessary appeals as well, it’s important that judgements be as satisfactory as possible not just to the students of law, practitioners or academics of law, but to litigants as well. The people whose problems the judgements seek to untangle.

    I have personally found so much excitement in reading full cases unlike most people I know. A long judgment gives a more clearer exposition of the law in play vis-a-vis the issues of determination. I understand so much better after having read a full judgement. And oh, who doesn’t giggle when reading a judge’s sumptuous use of language? I wouldn’t compromise this hint of humour, too.

    • Avatar
      Khoza Morrison
      May 31, 2018

      In Criminal cases it is very important that the judgement covers everything in such a way that the Appeal or Reviewing Judge does not have to go back to the original Court record. It is also to be noted that a judgement can be long because it contains many principles which are relevant to the case.

  2. Avatar
    May 30, 2018

    For brevity and erudition read judgments by Holmes and particularly Denning. That’s how it should be done. Copy and paste has ruined clear judicial reasoning and results in the stringing together of endless quotes in an attempt to come across as learned. Rogers, AJA could do that as he has mastered the principles and can thus cut to the chase. I sometimes take a red pen to SCA judgments and I can often remove more than half the words in each sentence without changing the meaning or content. And that is before removing unnecessary lengthy quotes.

  3. Avatar
    N. Peer
    May 30, 2018

    Excellent article Mr Bonakele. Pleasure to read.

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