Why are judgments marked Reportable or Not reportable?

Judges mark their judgments “Reportable” or “Not reportable” and “Of Interest to other Judges”. How do they decide this and what is the purpose?

This is a tradition that has carried over from the age of print law reports and it needs to be revised in this digital age. The Judges indicate to the law reports editors at the publishers that the judgment should be “reported” in their law reports series. Once a case is reported in the “official” print law reports then it becomes a “reported case” and gets a law reports citation which pleases the Judge and the counsel who appeared, who can then list their “reported” cases.

There are two main problems with this system in modern and electronic times:

1.?????THE EDITORS DON’T ALWAYS FOLLOW THE RECOMMENDATION

Acting Judges who are keen to be appointed to permanent positions tend to mark their judgments “Reportable” because they want to add reported cases to their resume when they later apply. But when the editors read this “Reportable” judgment, there is no new law, only the extensive quoting and application of existing case law. A case has to make new law or settle a contentious point of law or usefully interpret a piece of legislation for it to be reportable. It has to add something to the body of existing case law. Setting out Natal Joint Municipal Pension Fund v Endumeni (or other classics) yet again, no matter how eloquently, does not make your judgment reportable.

And there are some cases marked “Not reportable” which actually have very useful guidance in them and some which actually do make new points and take the law further. These need to be reported. It is sometimes perplexing why Judges and Acting Judges mark these cases “Not reportable.”

And some "reportable" cases, even from the Supreme Court of Appeal, are on some unusual point, e g on tax law, that does indeed take the law forward (on that sub-paragraph of a section buried in a tax Act). But that will be of interest only to tax practitioners who have very wealthy clients with holding companies overseas. So very few general practitioners will find it useful and even tax lawyers will rarely have a client get into the same situation. So why report that case and let it take up space in the law reports? That lengthy case will push out very useful High Court cases on eviction or on the Uniform Rules and execution against a primary residence.

2.?????THERE ARE TOO MANY INTERESTING CASES

The official law reports are limited as to how many cases they can publish each month, due to printing and editorial staff costs and capacity. That means they have to carefully select how many cases they report in their series, so the bulk of the cases are left unreported. Around 4,500 judgments are distributed by the courts each year.

The precedential significant of a case is not dependent on it being chosen for reporting by the publishers. And these days all the cases are accessible for free on SAFLII. To address this in our case law service we summarize, package and deliver FOURTEEN recent cases EVERY DAY to our subscribers. See what we offer here https://www.louiscaselaw.com/

THE SOLUTION

Reportable/Not Reportable is too blunt an instrument and does not take into account the topic of the case. We suggest that the Judges indicate the topic of the case and rank their case 0 to 5 in reportability on that topic.

Zero being completely of no interest and 5 being of very high importance and bringing an important change to the law. E g Tax (5) and Labour (3).

A business rescue case, no matter how “reportable” won’t be interesting to a medical negligence specialist. A lot of practitioners now specialise in areas such as labour or family law and the “reportability” of the case to them depends on what topic it is on.

Your thoughts and suggestions??