… with other judges
A NUMBER of judicial officers were klapped by the Supreme Court of Appeal in decisions delivered late last term: over just five days at least eight sharp criticisms were handed down to other judges, magistrates – and a retired judge.
Of course an appeal court considers whether the presiding officer in the previous court was right or wrong – that’s the whole point. But usually a higher court will say something bland like, ‘We disagree,’ or ‘This is not the only conclusion that can be reached’.
There are times, however, notable exceptions, when the court strongly criticises the original decision or the way in which this judgment was reached.
So what pushes appeal judges to klap the presiding officer in a lower court?
Let’s start with something easy: how the accused person is addressed. In Thwala v the State the judges criticised the magistrate for not using the name of the accused, but instead simply addressing him as ‘Accused’. This was disrespectful, said the appeal court. It was also essentially unconstitutional because the Bill of Rights guaranteed everyone’s dignity.
Then, even if you are a retired judge, don’t delay filing court papers without good reason. In a case involving the conservative Beweging vir Christelik-Volkseie Onderwys, its legal advisor, retired judge IWB de Villiers, filed a key set of papers more than 18 months late. Essentially, said the court, his excuse was that ‘his capacity for work had diminished with age’.
‘If De Villiers was not able to do the work promptly because of his age,’ commented the judges, ‘he should have declined the responsibility.’
‘As a retired judge he ought to understand the importance of complying with the rules of court,’ and he should have told his clients that other arrangements would have to be made. The court regarded the non-observance of the rules in this case as ‘so flagrant and gross’ that there were ‘simply no factors’ it could find to condone the delay.
In a criminal case involving a woman charged with fraud, the magistrate’s decision and sentence were upheld by two high court judges, and all three presiding officers were criticised for ‘misdirecting’ themselves. The appeal judges reduced her sentence from five years to four months saying they had only agreed to a prison sentence since the woman had already spent four months in jail anyway, otherwise a non-custodial punishment would have been appropriate.
She had pleaded guilty to fraud, having caused her company to lose the grand total of R2 900 paid to her as an incentive bonus for meeting a target. Actually she had cooked the books to make it look like she had done so.
The appeal court also found the magistrate’s judgment in her case‘disturbing’, making assumptions without ‘a shred of evidence’ to back them up. It was therefore ‘quite extraordinary’ that the high court found the magistrate’s decision ‘well motivated’.
An acting judge also drew the court’s displeasure. “Unfortunately something needs to be said about the judgment of the court below,’ noted the court. Of the judgment’s 37 pages all except two paragraphs were simply summaries of the evidence, without any evaluation and reasoning to explain the outcome. In addition, the judge delivered the decision two years and five months after the matter was argued, a ‘simply unacceptable’ delay, particularly given the highlighted ‘deficiencies’ of the judgment.
Presiding officers who want to stay out of trouble should also read the law reports. The judges criticised a magistrate who bungled a case involving an offence for which there could be a statutory minimum sentence. The ‘perfunctory approach’ to this issue by some lower courts ‘was not to be countenanced’, they said. In addition, this case showed a ‘material misdirection’ by the magistrate who reached conclusions about the accused without any basis.
In another case involving minimum sentencing the magistrate ‘misdirected himself completely’ and ignored crucial evidence in deciding on sentence. The magistrate appeared to have been unaware of binding decisions on the question made over the last few years. The high court, which later considered the outcome, appeared to have made similar mistakes, reaching conclusions without any evidence to back them up, and being as ignorant and confused about minimum sentencing as the magistrate.
Judges should also avoid getting involved in argument and ‘descending into the arena’. If records, such as those in the City ofJohannesburgv Ngobeni, show the judge effectively acting as another advocate, or potentially compromising the independence of the prosecution, expect trouble.