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