Part of my law library referencing some of South Africa's brightest legal minds
that is pre 1994
Agreements should be honoured – or should it? May a court of law [in South
Africa that is] interfere? My word is my bond? Gentleman’s agreement? Trust? Ethics?
Morality?
Justice for all? Justice and Justitia – Oh my word!! What a ride I had
on the internet searching for appropriate images of the goddess of justice: click on Justitia.
It is a joy ride so to speak. One common thread that I see in my search for
images is that it is a young lady that is extremely well built who is blindfolded
holding scales in her hand. That is more or less where the comparisons end and
the interpretations start. This reminds me of two Constitutional judgments in
South Africa emanating from some of our brightest legal minds – but I hasten to
state clearly and unequivocally that it is our brightest legal minds post-apartheid
[read here: after 1994 when democracy descended from on High].
The bright legal minds of pre-apartheid days are almost gone and forgotten. Yet Justitia reigns “supreme” in her blindfolded state as it were. David Pannick in his book JUDGES wrote about this judge who argued with his hormones when a well-endowed lady advocate walked into his court room. His stated loud and clearly: “Wow! What a pair of boobs!” His was promptly censured for his remark in open court - David does not say whether that Judge’s remark was to the point so to speak or not. That remark fits all of the sculptures of the queen of justice: well endowed: you can read a short resume of that book by clicking on this link,
Why do I refer to lady Justitia? Well, she is blindfolded, is she not?
Maybe the two judgements of our ConCourt reminds me of that blindfolded lady –
please note carefully she is blindfolded and not blind [you should really trust
me on this one for a moment]. But, for this blog post, I want to steer away
from her blindfold, and try and enter her mindset; in this blogpost “her mindset”
is the mindset of the judges who their judgments under discussion. To enter their
mindset, I have to read what they wrote and then draw my own inferences. Sad to
say, I think that these judges were a bit confused – that is what I think of the
ConCourt’s two judgments that are taking up hundreds of pages to clarify the
position. I am referring to the following judgments:
Botha: click here to download the entire judgment.
Beadica: click here to download the entire judgment.
Please read on.
“Public policy requires that parties should in general
comply with contractual obligations that have been freely and voluntarily undertaken.” Judge Nkabinde of the Constitutional Court was clear about this – but she
didn’t stop there. She continues: “There can be no doubt that the
matter raises constitutional issues.” And with that
sentence, she opened the floodgates of uncertainty and subjective issues. She
spoke these words during her judgment penned in 2014 in the judgment of the matter
that is now known as BOTHA and another v RICH and others in the ConCourt.
The moment a court of law is of the view that constitutional issues are
at stake, you know for sure that something odd is going to happen that would
change the legal horizons for some time.
The ConCourt was busy working on these constitutional issues floating
around the well-established approach of pacta sunt servanda – a man should
honor his word. And it happened in the Botha matter and it was further “clarified”
in the Beadica matter. In paragraphs 86 & 87 of the Beadica-matter, the
court distinguished between the time prior to 1994 and after 1994 in our
beautiful country. Oh boy, and the moment April 1994 sticks its ugly head out
of the woodwork, the sparks are going to fly high and low and everywhere.
This [Beadica-matter] is a massive judgment to work/read through: Three judges
filed their judgments: the first judgment [the majority] contains 104 pages;
the second judgment [dissenting] almost 100 pages and the last dissenting
judgment almost 30 pages. In total 232 pages of judgment. You must bear in mind
that the legal teams of the parties also filed their contributions and I don’t
know how many pages and how many hours they spent on writing and re-writing and
re-thinking and once again re-writing their heads of argument. The Botha
judgement is not that lengthy: a mere 35 pages.
And yet, after 267 pages of legal writing, it is not clear what was said
– legal minds suffer and battle to understand this and to explain it to their
clients. To explain it to my blog readers is also a battle of gigantic
proportions – no I am not going to even try to explain it to you lest I should
lose you for ever and that I am not going to do. A bright young advocate at the
Johannesburg Bar forwarded me a piece of his legal mind to explain and even he
battles. What shall we do? The judges have spoken – and they are not going to
explain it further [I think even they can’t explain it further that is why the majority
judgment is 104 pages long and the first dissenting judgment was almost 100
pages long].
What is my story to you? I once read an apt remark, or shall I say a
timely warning, by one of South Africa’s top legal minds who was sitting as an
eminent judge in the then Appeal Court of South Africa, he is reported to have
said something to this order: “Litigation is somewhat of a gamble.”
Dare I say more? I shall refrain from taking up the cudgels with him.
Yes – it is a very dicey affair because some you win, and some you lose.
Please write me a letter at neelscoertse@wirelessza.co.za
Thank you for reading my write-ups.
