Oh no!! Not a judge?
Can you believe that a judge
in the South Gauteng High Court found that an attorney committed fraud – that is
without a proper trial in open court and without hearing the attorney’s version?
I wonder whether the attorney and the other people that were at the receiving
end of her findings have an action in law for damages against her. It seems as
if she stepped outside “… the
parameters prescribed by law.” [see paragraph 59 of the judgment]. It
would be interesting to follow.
Judge Kathy Satchwell did
exactly that in the matter of MUSEJIE VENNON MOTSWAI versus THE ROAD ACCIDENT
FUND (766/13) [2014] ZASCA 104 (29 August 2014).
Five
appeal court judges took her to task and set out the proper way of how a judge
should conduct - herself/himself especially when an adverse finding against a
person is on the cards.
The
unanimous judgement of these five appeal court judges can be summarised as
follows [you will find it at paragraphs 57 – 59 of the SCA’s judgment]:
“[57] For all these reasons I conclude
that a grave injustice was done to
Mr Krynauw by the finding of fraud against him. The judge’s criticism of Mr
Krynauw’s colleagues, including Mr Pottinger who dealt with this claim, was
also unwarranted. There is thus no proper basis to deprive the plaintiff’s
attorneys of their costs.
[58] The critical remarks directed at
the Fund’s attorneys and counsel in the first judgment – though partially
ameliorated in the second – were also not warranted, nor was the censure of the
orthopaedic surgeons, occupational therapists and industrial psychologists who
were engaged by the parties. The purpose
of this judgment is to correct this injustice to Mr Krynauw and to provide
succour to the other persons who were prejudiced by the findings of the high
court.
[59] Through the
authority vested in the courts by s 165(1) of the Constitution, judges wield
tremendous power. Their findings often have serious repercussions for the
persons affected by them. They may vindicate those who have been wronged but
they may condemn others. Their judgments may destroy the livelihoods and
reputations of those against whom they are directed. It is therefore a power
that must be exercised judicially and within the parameters prescribed by law.
In this case it required the judge to hold a public hearing so that the
interested parties were given an opportunity to deal with the issues fully,
including allowing them to make all the relevant facts available to the court
before the impugned findings were made against them. The judge failed to do so and in the process, did serious harm to
several parties.” [My emphasis].
