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Essential Judicial Reasoning

Essential Judicial Reasoning is a compilation of judicial pronouncements dealing with practice and procedure and the assessment of evidence.

Publication Language: English
Print
R341.14
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In Stock
Published:
ISBN/ISSN: 9780409122831

Product details

Essential Judicial Reasoning is a compilation of judicial pronouncements dealing with practice and procedure and the assessment of evidence.

A judicial officer is, on a daily basis, required to decide on issues of practice and procedure and assess evidence.

In deciding these issues and assessing the evidence, the judicial officer is required to know the reasoning process relevant to the situation, as established by the case law.

Essential Judicial Reasoning provides a quick reference to useful judicial pronouncements giving the reader direct access to 20 years' experience on the bench.

It is a guide to difficult problems that can often arise unexpectedly in court and is essential for judicial officers, advocates and attorneys.

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Table of contents

ARRANGEMENT OF SECTIONS

INTRODUCTION

CONSTITUTIONAL ISSUES

Challenge to constitutionality of provision in statute after judgment of court of first instance not permissible.

Accuracy of pleadings necessary when constitutional issue raised

PERENNIAL PROBLEMS

Assessment of the evidence of a witness, which is not contradicted.

The nature of expert evidence and how it is to be assessed.

Assessment of a child's evidence.

Impartial judge: the test for recusal.

Management of trial by judicial officer.

Rectification of final order by court.

Extended meaning of vexatious proceedings: effect on costs.

Contempt of court by non-compliance with court order.

Citation of trustees.

OPPOSED APPLICATIONS FOR FINAL RELIEF

When not appropriate

When appropriate

Determination of relevant facts when affidavits contain factual disputes

Spurious disputes of fact: ‘robust approach' necessary.

Careful perusal of affidavits necessary to determine whether dispute can be decided on the affidavits

Affidavits must be carefully scrutinised to see whether there are real, genuine or bona fide disputes of fact

Affidavits must identify the issues: they contain both the pleadings and the evidence and must identify relevant passages in documents

Court will decide legal issues not raised in affidavits only if all relevant facts canvassed in affidavits

Generally, only three sets of affidavits

OPPOSED APPLICATIONS FOR INTERIM RELIEF

Determination of applicant's prima facie right

Applicant's prima facie right only one of the factors to be taken into account

In ex parte application for interim relief full disclosure of all material facts necessary: consequences of failure

URGENT APPLICATIONS

Rule 6(12) of the Uniform Rules: meaning and effect

Proper approach to enrolment and hearing of urgent applications

Strike from roll when not urgent

TRIALS

Pleadings: identify and define the issues

Parties usually restricted to cases alleged in pleadings

Keeping to issues defined in pleadings unless other issues fully canvassed in the evidence

Agreed amendment of issues

Formal objection to pleadings: no valid cause of action or defence

Test for absolution from the instance

Assessment of evidence of witness not contradicted

Credible evidence necessary to discharge onus and for favourable resolution of mutually destructive versions

Method for resolving two irreconcilable (mutually destructive) versions

How the evidence of a witness must be challenged during cross-examination

The drawing of an inference requires properly established objective facts

Effect of failure to reply to letter in which material allegations made

Requisites for a bona fide defence in summary judgment proceedings

APPEALS

When reasons for granting/refusing leave to appeal necessary

Principles applicable to appeals on fact

CRIMINAL TRIALS: THE MERITS

Meaning of ‘the right to a fair trial

The role of the presiding officer when the accused is not defended

Duty of judicial officer to receive only admissible evidence

Determining when trial is unfair

Putting accused's version in cross-examination

Assessment of evidence by criminal court

Effect of improbabilities in the accused's version

Assessment of child's evidence

Conviction on the evidence of a single witness

Court's conclusion must be reasoned

Correct approach to contradictions in evidence of witnesses

Conviction based on circumstantial evidence

When inference of guilt justifiable

Doctrine of recent possession

Alibi defence: no onus on the accused

Evidence of identity: careful consideration of evidence necessary

Effect of exercise of right to remain silent

CRIMINAL TRIALS: SENTENCE

THE MINIMUM-SENTENCE REGIME

Approach to imposing sentence in terms of the Criminal Procedure Amendment Act 105 of 1997

ORDINARY SENTENCING

The aim is to impose a balanced sentence

Sentence is a matter for the discretion of the trial court

Sentencing of juveniles: why special care is necessary

Pre-sentencing report and evidence about the juvenile's personality and personal circumstances are necessary when juvenile may be sentenced to imprisonment

Court must adopt a dynamic approach when imposing sentence particularly when imposing sentence on juveniles

Exemplary sentence to be avoided

CRIMINAL APPEALS

Convicted person must obtain leave to appeal: the test to be applied

How appeals on fact must be approached

Effect of a defective and/or incomplete appeal record

CRIMINAL APPEALS AGAINST SENTENCE

Function of Court of Appeal

Sentence excessive or disturbingly inappropriate

Life imprisonment intended to be the heaviest sentence that can be imposed: excessively long sentences are inappropriate

Object of sentencing to serve the public interest: duty of court to impose fearlessly an appropriate and fair sentence even if it does not satisfy the public

Cumulative effect of a sentence may be disturbingly inappropriate

AUTOMATIC REVIEW IN TERMS OF SECTION 304 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977

Must be speedily concluded to prevent injustice

Duty of review court to ensure that substantial justice is done