Rude Judges – another reason, but no excuse December 2017

By Ian Jacobsberg, Published in Letters to the Editor

Dear Editor

Carmel Rickard's article in your November edition struck a note with me and brought back a memory. After reading the article, I believe that there is a different reason that the article does not highlight, as to why judges should be mindful of their courtroom demeanour, which is perhaps even more important than the issues that Ms Rickard has raised, and which I would like to present for your and your readers' consideration."

The case concerned took place in the early 1990's. The subject matter, as I recall, was the validity of an agreement for the sale of immovable property, but that is not really of importance. The judge was one of the rising stars of the judiciary; indeed, he rose to become a prominent member of the Supreme Court of Appeal and to chair a much publicised commission of enquiry. At the time however, he was an ordinary judge of what was then known as a local division of the Supreme Court.

We were representing the respondent in a motion court hearing. Our case, it must be admitted, had its flaws, and both we and our Counsel were at pains to point this out to our client. What we were not prepared for, though, was the reception we got in court. The judge informed the applicant's Counsel that he did not have to hear argument from him, and immediately turned to our Counsel, abruptly and irritably demanding that he justify a particular point in his heads. The first sentence was not yet out of his mouth when the judge promptly let him know how unfounded he thought the argument was. This process was repeated with several further points in our Counsel's heads, until it was obvious which way the case was going. Throughout, the judge's choice of words was eminently judicial and judicious, but he made it completely clear that he had no intention of letting his time be wasted with what he felt were spurious arguments in support of a flimsy case.

One has to have sympathy with Counsel who are the direct targets of judicial abuse. Rudeness from anyone is hard to take, but much more so when it is coming from someone who, literally, has the power to press criminal charges if you reciprocate in kind. But, except in cases of the most serious personal attacks, sarcasm and a certain level of disrespect from judges must go with the territory and, like power failures and IT system crashes, with experience, amount to no more than a bad day at the office.

In our case, my concern was for our client and the perception the judge's "performance" must have created of the justice system as a whole. It was not that the wrong conclusion was reached. The judge, as I have said, was a leading light of the bench and it was precisely because of how quickly he grasped the issues that he had no patience for what he thought were spurious arguments. On one level, having to deal with overcrowded court rolls, you could understand his attitude. But that is not something that is easy to explain to a litigant who is financially and emotionally invested in the matter, and who is not regularly in court to see that this is not typical of how all cases are dealt with. He cannot fail to be left with the feeling that his case has been dismissed without being properly considered. This in turn must impact on the reputation of the administration of justice as a whole.

Judges who see the courtroom as their personal domains, in which they are at liberty to vent their frustrations and display their eloquence and erudition as they please, should ask themselves the question as to whether they are really serving the administration of justice. No matter how correct in the outcome of a matter may be in law, is justice being seen to be done and, therefore, is the reputation of the justice system really being served if one of the parties leaves the courtroom feeling that he never really had a fair chance to present his case?

Regards

Ian Jacobsberg, Hogan Lovells (South Africa).