THE name of the case whetted my appetite: ‘Tasty Treats’. And judgment in this matter had been given by a relatively new judge of the Swaziland Supreme Court, Esther Ota.
A good chance of finding some delicious morsel of jurisprudence I hoped, something that offered a sample of what Judge Ota was all about. I was not disappointed.
Judge Ota, who started out in Nigeria, was initially a magistrate before being appointed a justice of the court of appeal in the Gambia and eventually the president of that court. A year ago she was officially sworn in as a member of the Supreme Court in Swaziland, after being seconded there by the Commonwealth.
Welcoming her to the Swazi judiciary last November the controversial chief justice of that country, Michael Ramodibedi, paid tribute to her outstanding qualities. These included ‘lucid and well researched judgments, delivered with admirable speed’.
The scene set, I started reading. Strangely however the decision started off sounding rather like some company’s annual general report.
‘As we stand on the threshold of yet another legal year,’ she began, ‘the machinery of justice continues to be dogged by old constraints and challenges to which solutions have yet to be found and implemented. New constraints and challenges have surfaced of recent. All of these combine to pose serious obstacles to the accomplishment of our mission statement to ensure a proper administration of justice.’
Then it developed along more juicy lines, with a judicial klap on the head of the legal profession. Challenges and constraints were ‘many and various’, she opined, ‘however, it is no hyperbole to say that the progressive decline in professional ethics by some members of the legal profession, which is evinced by the persistent and unprecedented lackadaisical attitude towards compliance with the Rules of the Court, is a delimiting factor.’
Since the legal profession in Swaziland recently undertook an unprecedented protest against Chief Justice Ramodibedi, boycotting the courts in which he sat, you’ll understand why I thought for a moment that she was getting at these protesters.
But no, it was something else that irked her.
Society was ‘looking up to the legal profession for salvation’, and the profession ‘must answer to this clarion call’. It was ‘thus of paramountcy’ that the highest court regulated its proceedings to ensure the proper administration of justice. To do so it had to insist on strict compliance with its rules.
It was only ‘the outright denunciation of any non-compliance or disregard of the rules that will annihilate this problem,’ she said.
The case in Tasty Treats had ‘fallen into the quagmire commanding such condemnation.’
And now at last, in the ninth paragraph of the decision, we reached an explanation of what the case was about, and what had incited her to such heights of judicial passion.
Those involved in the appeal had failed to observe the time-frames set by the court rules. It was an affront which could not be condoned. The only saving grace was that the unhappy counsel for ‘Tasty Treats’ had shown ‘sterling professionalism and enviable advocacy,’ and had ‘gallantly conceded’ that the rules had been breached several times.
For this the fellow was well rewarded: instead of having punitive damages awarded against himself and his client, he was amply congratulated by Judge Ota for his ‘unique and rare steps’ in conceding all the breaches of the rule. Moreover he had apologised profusely, ‘evidently from the bottom of his heart’, and didn’t waste time ‘attempting to flog a dead horse’. That, said the judge, ‘was commendable advocacy which accounts to his favour’.
The official headnotes of the case record the judge’s fulsome sense of gratitude. Costs were not awarded on a punitive scale, says the summary, ‘in appreciation of the reasonable and gallant conduct’ of counsel in making concessions about breaches of the court’s rules.
Here’s a final taste of the judge’s style, drawn from the closing moments of her peroration: the ‘indefensible dilatoriness in the pursuit of this appeal, coupled with its subsequent calculated and disingenuous stratagem predicated on the perfidious application for condonation, is conduct deserving of this Court’s censure.’
The appellant tried to ‘reap the fruits of its own dilatoriness in the very glare of the Court. This type of artifice, as disapproved by jurisprudence, ought to be eschewed by the imposition of punitive costs.’
By the end of this amazing judgment you may safely reach one conclusion at least: the courts in Swaziland have not yet been touched by the plain language movement.