The Way Judges Write Judgments

At Spartan Caselaw we summarize 14 recent cases a day (and read a whole lot more per day for selection). Preneshan Pillay , Soyeon Podbielski and I have put together the below observations on a few things that Judges could do to make reading judgments a bit easier for us all.

SECOND APPLICANT AND THIRD RESPONDENT

Referring to the parties throughout the judgment as “third respondent” and “second applicant” and so on, is really unhelpful. We have to keep going back up to the first page and to check to see which party you are talking about. Why do this? We want to understand what happened in the case. We don’t want to solve the riddle of the Da Vinca Code. It is so easy instead to refer to the actors in the story as Mr Smith, Ms Masindi, Eskom, Nedbank, the estate agent, the police officer, Discovery Health, the RAF, etc. Doing so makes the judgment so much easier to understand.

WRITING FOR THE COUNSEL WHO APPEARED

Some Judges appear to have in mind, and write for, the counsel who appeared for the parties. But the general public and other practitioners were not there in court the whole time and we did not research the case and prepare the heads of argument. So these judgments are really hard to engage with and to grasp. Judges, please write and explain the case for all of us who seek guidance from your judgment and keep in mind that when we start reading we don’t know the facts and the issues.

START WITH THE FACTS

Everything starts with the facts. We need to know the facts and who the parties are before we can understand the issues, the litigation and the law. In some judgments the facts are buried several paragraphs into the writing. Please put the facts and who the parties are at the start, or very near the start of the judgment.

THE WRITING MUST BE LINEAR

There are some thriller movies that start at the end or the middle of events and then tell the story in flashbacks and jump around in time. This is all well in fiction, to keep the viewer guessing and in suspense. But this is really confusing to do in judgments, especially with complex facts and when the parties approached court several times. Please write in a linear fashion in both how the facts evolved and in the law that is applied. Jumping around with the law and going off on legal tangents and then coming back to the main issues makes it perplexing for the reader.

REPEATING THE SAME POINT IN DIFFERENT WAYS

Sometimes the same basic point is repeated in different sentences but using different language, perhaps for emphasis. Or the same finding is expressed in different parts of the judgment. When writing a summary we then can’t decide which to use, because the meaning can be slightly different. So it would be good if that idea or finding could be stated just once and very clearly. Some Judges also water down their statements with “In my view” or statements like "The authorities appear to support the proposition that”. Please just make the statement boldly and clearly and let us use it as your dictum.

YOUR JUDGMENT AS PRECEDENT

It is the duty of the Judge not to merely settle the dispute and provide a judgment for the parties. Your judgment forms part of the law and can provide useful guidance for practitioners and the general public. The law must be accessible to everyone and so too must judgments be written so the law and the reasoning are accessible. A lot of South Africans have English as a second language and most of us are tired, time-constrained and under pressure when we read your judgment. So please make your judgment clear, concise and easy to understand. Long sentences with fancy vocabulary and clever grammatical constructions are not what we need. We need to understand what happened, your reasoning, and to get the legal “take-aways” we need for our own cases.

SOUTH AFRICAN CASE LAW

We have brilliant minds and writers at the various courts in South Africa who have to grapple with high case loads and with issues rarely seen in other countries. Have a look at the excellent way Judge Rogers opens the case of NUMSA v Trenstar and gives such a neat snapshot of the case and sets the stage for further reading. Read that here https://www.saflii.org/za/cases/ZACC/2023/11.html

And see the powerful way Judge Mossop introduces this criminal sentencing case. See the first three paragraphs in particular. S v Gumbi and three others - judgment on sentence - Mossop J.pdf - Google Drive

At the Labour Court, Ford AJ delivers a very strong message in his first paragraph about misrepresenting qualifications to secure a job. Read that here Lesedi Municipality v Mpele [2023] JR1546-20 (LC).pdf - Google Drive

We summarize, package and deliver 14 recent cases a day for our subscribers. Lately its been really hard to choose cases because of the amount of interesting issues and new law coming our way each day. Our adapted FIRAC summaries take the pain and the time out of reading the cases. So you can quickly and easily grasp the Facts, Issues, Rules, Application and Conclusion of 14 cases with your morning coffee each day. See what we do here https://www.louiscaselaw.com/