Cutting and pasting judicial decisions

In a speech delivered in 2008, Supreme Court of Appeal Judge Carole Lewis implicitly questioned the appointment of some black and female judges to the various courts in South Africa since 1994. She argued in a speech  that the JSC has become dominated by politicians after the adoption of the final Constitution in 1996 and that “there is a perception now that political fealty is a more assured path to appointment as a judge than ability”, then continues:

I am advised that the work of dealing with the motion rolls in the large courts falls on the shoulders of the few with the experience to manage it – and that the consequences of that are not only unpleasant for those too heavily burdened but detrimental to litigants…. Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty.

She also argued that in order to safeguard the independence of the judiciary “appointments to the bench must be made by having regard primarily to merit – skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC” and that “politicians should take lessons in constitutionalism and realize that they are not above the law”. The implicit link between a lack of  “skill” and the race or gender of a judge was (rightly, in my view) condemned at the time. 

A remarkable judgment handed down yesterday by the Constitutional Court in Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd and Others suggests that Lewis might have had a point. However, in this case the perceived problems had nothing to do with either race or gender – at least not in the manner in which Lewis used those terms in her speech. 

The Appellants (Stuttafords and Others) in this case approached the Constitutional Court to challenge the decision by (now retired) judge Dion Basson to recuse himself from any matter dealing with the parties involved after he handed down judgment in favour of the Salt. The recusal application was based on the contention that the main judgment by Basson “exhibited little or no sign of any original or independent application and reasoning, that it essentially copied the written heads of argument of Salt’s counsel and, consequently, created a perception of bias in favour of Salt”. 

For various reasons that are not relevant here, the Constitutional Court decided that it was not in the interest of justice to hear the appeal. It carefully pointed out that it was not making any finding on whether there would be grounds to ask for the recusal of a judge where he or she basically copied the written heads of argument of one of the parties and presented it as his or her judgment. The Court nevertheless felt that it was necessary to comment on the remarkable case and implicitly – in its ever polite and indirect way – rebuked the now retired judge for his conduct.

As the Constitutional Court noted, the original judgment was remarkable for various reasons. The judgment by Basson J consists of approximately 1890 lines of typing of which, apart from a summary of the relief sought and the terms of the order, only approximately 32 lines are the judge’s original writing.

The rest consists of words taken exactly from Salt’s counsel’s heads of argument, sometimes even without taking out phrases like “it is submitted” and emotive comments on The Gap and Stuttaford’s contentions and actions. There is no direct independent reference in the main judgment to The Gap and Stuttaford’s heads of argument, except for references carried over from Salt’s heads of argument.

If this had not been a judgment by a court of law but an academic article or a newspaper column someone might have suggested – rather less kindly than the Constitutional Court – that this was a case of plagiarism. The Constitutional Court was more circumspect, but did comment on this remarkable turn of events (to say the least) in the following manner:

While some reliance on and invocation of counsel’s heads of argument may not be improper, it would have been better if the judgment had been in the judge’s own word. 

“The true test of a correct decision is when one is able to formulate convincing reasons (and reasons which convince oneself) justifying it. And there is no better discipline for a judge than writing (or giving orally) such reasons. It is only when one does so that it becomes clear whether all the necessary links in a chain of reasoning are present; whether inferences drawn . . . are properly drawn; whether the relevant principles of law are what you thought them to be; whether or not counsel’s argument is as well founded as it appeared to be at the hearing (or the converse); and so on.

“. . . The very act of having to summarize in one’s own words what a witness has said, or what is stated in an affidavit or what a document says or provides, is in itself a very good discipline and is conducive to a better and more accurate understanding of the case.”These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation.” 

These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation.  We have deliberately refrained from dealing with case law on the issue whether the extensive use of counsel’s heads could lead to a perception of bias, because it is not a question we need to decide here. Suffice to state, however, that if these wise words are heeded by judges the necessity of deciding the issue in the future should not arise.

To my knowledge this is the first time the Constitutional Court comments in such an negative manner on a judgment handed down by a High Court judge. This suggests that the case in issue is an exception and that the vast majority of judges do indeed write their judgements in their own words (even if many of them also do borrow from the written heads of argument of one or the other side).

I hesitate to note that judge Basson is white, but sadly we live in South Africa where race permeates every aspect of our lives and this fact will be noted by many – even if some people will not comment on it it public. I note the race of the judge not because I believe it is important or that it demonstrates that all white judges are somehow unworthy of serving on the bench, but because I wonder what would have happened if the judge in question was black? How would the majority of white members of the legal profession have responded (at least in private – around braaivleis fires and in tea rooms in law firms and drinks events of colleagues at the Bar)? Would they have seen this as confirmation of the alleged “problems” with transformation highlighted by Lewis JA?

I venture to suggests that quite a few (but thank goodness far from all) lawyers would have seen the case in those terms, as it would have confirmed their worst suspicions about the alleged inferiority and unsuitability of black appointees to the bench, suspicions that are at least some times based not on facts but on racial prejudice.

Or would they – as most of them will surely now correctly do – have seen this as an isolated case related to a specific judge whose race had absolutely nothing to do with the fact that for some bizarre reason or another (or because of personal reasons that we do not know about) he had decided to cut and paste the heads of arguments of one of the parties and serve it up as his own judgment?

Just wondering.

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