The Constitutional Court has delivered what amounts to a highly unusual reprimand to a High Court judge. In a judgement handed down on Thursday, Constitutional Court judges called for “a note of disquiet and caution” with regards to the writing of judgements.
The matter concerned a ruling made in 2007 by Dion Basson, a judge in the North Gauteng High Court. Basson presided over a case in which Salt of the Earth Creations (Salt) attempted to prevent Stuttafords and The Gap from selling GAP merchandise, following a dispute over the GAP trademark.
Stuttafords and The Gap asked Basson to recuse himself after it was discovered that the judge had copied most of his judgement verbatim from Salt’s heads of argument.
Basson had earlier requested that the parties provide him with electronic versions of their heads of argument. Salt provided it’s heads of argument in editable format while Stuttafords and The Gap provided them in non-editable format.
In an affidavit, Stuttafords and The Gap showed that the judgement consisted of approximately 1 890 lines of text. “Leaving aside the order made by Judge Basson and the synopsis — one finds approximately 32 lines which may be said to be the learned judge’s original writing,” they said.
In addition, there was “not a single reference to the arguments advanced by Stuttafords and The Gap’s counsel in their heads of argument, which comprised some 122 pages”.
Stuttafords and The Gap claimed that the judgement created a perception of bias and showed Basson had not adequately applied his mind to the matter.
Basson however refused to recuse himself.
Disapproval, but no bias
The parties then appealed to the full court of the North Gauteng High Court, which said that though it disapproved of Basson’s actions, it did not believe his judgement showed any bias. They then took the matter to the Constitutional Court. In the judgement handed down on Thursday, the Constitutional Court upheld the High Court’s decision.
It however used the opportunity to reprimand Basson, saying: “While some reliance on and invocation of counsel’s heads of argument may not be improper, it would have been better if the judgement had been in the judge’s own words.”
The court went to lengths to point out that providing reasons in a judgement “curbs arbitrary judicial decisions” and that summarising arguments would help a judge form a better understanding of the case at hand.
Jonathan Klaaren, professor of law at Wits University, said the Constitutional Court did not often make such statements. “When it does, it is aware that its cautionary statement will be read and taken as a signal within the rest of the judiciary,” he said.
Fresh look at the law
Klaaren said that it is not unusual for a judge to use the words, reasoning, evidence, or even the structure of one party’s argument in his or her judgement. “They may even agree entirely with one party’s argument,” he said.
But, he added, it is one thing to agree with an argument and quite another to use the very same words that an advocate or attorney has used to persuade the court in a judgement.
Klaaren said the point of formulating a judgement in one’s own words is “to make sure that a fresh look at the law and the issues has been taken and to make sure it’s the judge himself that’s looking at it, rather than the advocate or attorney”.
Basson has not been an active judge for almost a year, having taken a leave of absence due to illness. He chose not to comment on the issue.