Response to ‘a bridge too far’

Last week Judges Matter wrote an article, a bridge too far, which discussed the ideals for transformation on the bench. In response to our article Leon Dicker, a retired advocate and member of the Pretoria Bar, arbitrator, former magistrate, lecturer and trainer of magistrates at Justice College, wrote this comment;

A well written article on the appointment of judges – particularly those who represent any group that, at least on the Judicial Bench, is in the minority. By that I mean that the number of existing members of the judiciary from a particular segment of society are much lower, by ratio, than their number in society (“a target group”). There has been a significant group of influential decision makers that, in the matter of the appointment of black women and women in general, has come dangerously close to the view that an application for appointment by a member of a target group is tantamount to a guaranteed appointment.

As the article demonstrates, the pendulum appears to be shifting to a considerably more reasonable and considered approach. Granted, the applicant who is the subject of this article is an example of egregious opportunism. Had she been appointed, she would have merely taken the really bad habits she had already formed on the magistrates’ courts bench, with her to the high court. In my respectful view, the article deserves further comment about the weaknesses that emerged during the applicant’s interview with the Judicial Service Commission (JSC).

There were two main weaknesses in the magistrate’s application. The fact that she took acting appointments in the High Court while having several part heard cases awaiting finalisation, is dealt with in detail in the article. Suffice it to say that if one has part heard cases where the accused are in custody, it is a breach of the Constitution’s Bill of Rights: the accused has a right to a speedy trial and is also, pending judgment, to be presumed innocent. It is not difficult to imagine cases of genuinely innocent people being incarcerated pending an eventual trial by a magistrate who has, in flagrant disregard of those being so very much more than being merely inconvenienced, only to be acquitted when the magistrate eventually returns and deigns to hear the case. The law reports contain many judgments involving people kept in custody for even years at a time, only to be acquitted. It is difficult to avoid a sneaking suspicion that taking an acting stint in the circumstances of the magistrate described in the Judges Matter article, was an attempt at “CV padding” with a view to an application for appointment to the High Court.

There was also proof of judgments being outstanding for two years. The applicant ventured an excuse, it seems, that a reason for this appalling misconduct was the “loss” of judgments. It is to that excuse that I now turn. I deal first with criminal cases and end with the judgment writing process in civil cases and the resulting unlikely event of losing a judgment.

The judgments of magistrates in the criminal court are, in many cases, subject to review by the High Court. An aggrieved accused person may also, with the necessary leave, appeal a conviction, sentence, or both. The Criminal Procedure Act lays down strict time limits within which the record subject to review or appeal (and in the latter case, also the magistrate’s written reasons for judgment – “the reasons”) must be submitted to the High Court.

(I interrupt myself here to say that we speak loosely of judgments. What we refer to as judgments actually contain several parts, as will become evident below. In the strict sense, it is only the final decision that is the judgment. Everything in the document, leading to the final decision, is more correctly referred to as the reasons.)

Transcriptions of recorded court proceedings are made by outside contractors. The reasons are exclusively the magistrate’s responsibility. Those might be contained in “ex tempore” (“at the time”) reasons, given at the time of judgment and sentencing. Sometimes the latter may be supplemented. In either case, the reasons will form part of the transcript or be recorded in a computer when it is typed. It is well-nigh inconceivable that such judgments or reasons could be lost. The scepticism evident from the questions from experienced senior judges is therefore both understandable and justified. The same would apply to civil cases, as will become evident below.

In dealing with civil cases, I shall mention both what is required and generally happens, and my personal experience of writing judgments and arbitral awards, to attempt to demonstrate both how unlikely it would be to “lose” judgments and the risibility of the excuse.

Civil cases are also recorded and the parties will be equally anxious to hear/read the outcome of the trial. In the vast majority of civil cases, judgment will be reserved. The magistrate (judge in the High Court) will take a reasonable period to consider the evidence, the law applicable to the proved facts, apply the law and come to a conclusion. Different people conduct this process in different ways. My experience of judging led me to conclude that the method that worked best for me was merely to start writing and to undertake the judging process in the writing. This often led me to surprising results, as I will explain below.

It is difficult, if not almost impossible, to come to what lawyers would call a “prima facie” (on the face of it or preliminary) view of a case by the time all the evidence has been presented and arguments by legal representatives have been made on behalf of their respective clients. It is very easy, but, in my view, intellectually dishonest, to make that preliminary view the judgment and then, in retrospect, to write a set of reasons to fit that conclusion. It is also extremely difficult, taking that approach, not to include factors that really did not form part of one’s initial reasoning. The latter process may well occur at a subconscious level so that the decision maker will often not be aware that it has occurred. It will, nevertheless, not be a true reflection of the original reasoning. This also applies to delays. In addition, the longer the delay in writing a judgment, the greater the difficulty in recalling impressions of witnesses.

By contrast, conducting the final decision-making process and concluding with a judgment in writing, goes a long way towards avoiding what I have described in the previous paragraph.

As I said above, that there are different methods for arriving at a conclusion. However, in every matter, criminal or civil, it is necessary to provide a summary of the factual evidence, decide what evidence must be accepted and rejected and why, discuss the applicable legal principles and then apply those to the proved facts. This description of the process is, in the nature of things, very rudimentary. There may be legal issues to deal with along the way as well; there may also have to be diversions explaining, for example, why certain evidence was included or excluded and why particular objections were dealt with in a particular manner.

The written judgment must also deal with the arguments of the lawyers on behalf of the parties. In the latter regard, it may be said that the closer one comes to the end of the judgment writing process, the closer one will generally also be to a conclusion. The arguments for the parties are an essential, crucial part of the judging process. It is necessary to consider each argument, research it and check the law it cites in support of the argument.

My method, as I said earlier, was to start the decision making merely by writing the judgment. In the writing, I kept the principles mentioned above in mind. (In civil matters, that meant coming to the decision in the process of writing it all in the generally accepted method of what ought to be included in a judgment: introducing the parties, a summary of the pleadings, the issues in dispute, a summary of the facts, analysing the latter and accepting or rejecting evidence in a reasoned manner, finding and applying the correct legal principles to the proved facts, dealing with legal argument on behalf of the parties and coming to a decision.) It also enabled and freed me to keep an open mind during the trial. This included challenging the arguments presented by both/all sides during the trial, wherever my preliminary view or inclination might lie.

My practice was to keep what I shall call private working notes, from the outset of the trial. These grew as the trial progressed and with the writing of the judgment. It was often, in wrestling with the legal arguments, as they were said to apply to the case, that I would arrive at a conclusion. That “mental wrestling process”, while often forming part of my working notes, only ever featured in my judgments in a limited fashion. Most often, I would deal with the arguments presented on behalf of the losing party in detail in the judgment and although the other side’s arguments would also have been given due consideration in the working notes, it would be unnecessary to include them in much, if any, detail, or even at all in the judgment. My main reason for this approach was something a well-known (in legal circles), wise and eloquent judge, Justice Holmes, said in a different context many years ago. He said that the winner most often only wanted to know that he/she had won, while the loser was, inevitably, anxious to know the reasons for losing (and by implication, whether to appeal).

The surprising results I mentioned earlier? As stated above, one often formed a preliminary view of the case. In fact, it was not at all unusual for that view to change in the course of the trial. However, attempting as best as possible to keep an open mind, the decision-by-writing method occasionally led to a different result. And then, there I would sit, quietly embarrassed in the privacy of my chambers or, more often, my study at home in the evening, wondering just how my preliminary view could have been so badly off the mark. And, of course, it generally led me to re-examine everything to make certain that I had come to the correct conclusion.

To return to the Judges Matter report of the magistrate applicant’s interview. If you have persevered this far, it will be very clear to you that a lot of work goes into writing a judgment. That is as it should be. The magistrate or judge will have many notes and the judgment itself will ultimately have been typed. In the 21st century, that means using a computer. My computer included my notes and my judgments. I also never disposed of my hand-written notes away for anything up to five years or longer. By then, the chances of having to revisit the case were infinitesimal. As to notes and judgments written on a computer, if one uses cloud storage (free or paid) or other methods to back one’s work up, just how does one contrive to lose a judgment? By deleting it?

There is another, entirely human, factor that militates against the excuse. When the product of one’s daily work is words, it is the most natural thing in the world to want to keep at least a copy of that work – those words. It means not having to research the same thing twice. When the law develops or changes, it is easy to add a notation to that effect for future reference.

Then there is the factor that was not mentioned in the article. When applying for a promotion post, or a judgeship, judgments that were reviewed and appealed, reported, and overturned or confirmed on appeal, are all matters of importance. So at the level of the magistracy, at any rate, any sensible magistrate with an eye to the future would keep a “brag book”, of which the most important component is his/her written judgments and transcripts of ex tempore judgments. The culture surrounding the position just does not allow the throwing away, or losing, of judgments. I cannot say it does not happen. But the likelihood of it happening is as vanishingly small as that of basic human nature changing. There are several much more likely reasons for “missing” judgments. As you, dear reader, are probably human, I’ll leave you to come up with those reasons.

Read our original article, a bridge too far, here.

What are your thoughts on this topic? Let us know in the comments section below.