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A plea to our judges: Cut the jaw-jaw and give us simple law-law

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Judges must stop using confusing and complex language in vanity judgments that even some legal eagles cannot comprehend.

According to Chief Justice Mogoeng Mogoeng, “very little is going to be changed if our people are ignorant of their rights under the Constitution. You cannot fight for something you don’t know you have a right to. The greatest facilitator of sustained injustice is keeping people ignorant of what they are entitled to; knowledge is power”.

The Chief Justice said this at the Nelson Mandela Foundation’s 17th Annual Lecture in his address titled “Constitutionalism as an instrument for transformation”, delivered at the University of Johannesburg’s Soweto campus on Saturday 23 November 2019.

Our eloquent Chief Justice, with his Solomonic wisdom, addressed an array of issues including colonial denialism, land ownership, race and race relations, and language and rights.

I would like to confine myself to the layperson’s knowledge of the law and appreciation of their rights and freedoms. But before I do that, I consider it important to locate myself within the address of the Chief Justice by declaring that constitutionalism as an instrument for transformation is further supported by the fact that the South African constitutional and human rights dispensation, or rather jurisprudence, is consequentialist and results-orientated or outcomes-based.

The rulings in Government of the RSA & Others v Grootboom & Others [Government of the RSA & Others v Grootboom & Others 2000 (11) BCLR 1169 (CC)] and Minister of Health & Others v Treatment Action Campaign & Others [Minister of Health & Others v Treatment Action Campaign & Others (No 2) 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC)], for example, were demonstrative that our justice must be transformative and tangibly result-orientated.

It for this reason that every time the Constitutional Court takes a social transformation approach in decision-making — as it did in Nokotyana & Others v Ekurhuleni Metropolitan Municipality & Others [Nokotyana & Others v Ekurhuleni Metropolitan Municipality & Others (CCT 31/09) [2009] ZACC 33] — it must be commended. This is in line with the preferred transformative decision-making approach of the late Chief Justice Pius Langa, which he clearly expounded in his 2006 writing, Transformative Constitutionalism [Langa 2006 Stellenbosch L. Rev 354].

It is interesting that Chief Justice Mogoeng highlighted, among other things, that “the greatest facilitator of sustained injustice is keeping people ignorant of what they are entitled to; knowledge is power”. His concern over language diversity had me thinking deeply and pondering if our judiciary itself is not complicit in facilitating the sustained injustice against the people of South Africa and keeping them ignorant of their rights, thus rendering them powerless to seek, defend, promote and exercise those rights.

Ignorance of rights in this regard must be construed in the context of the understanding of the rights regime itself. I am also curious to know if the Chief Justice is of the view that the Constitutional Court and other courts in their judgments contribute positively to the diversity and learning of the languages other than English and Afrikaans? Also, if he is of the view that they are making it possible for ordinary persons to understand their judgments?

I am indebted to Justice John Hlope, Judge President of the Western Cape High Court, who wrote in the 2004 issue of The Advocate:

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity… Ideally, all court officials should be able to speak all official languages. The reality, however, is that presently, and for some time to come, this will not be possible… it is clear that, at present in the courts, two languages continue to dominate”.

As noted by Chief Justice Mogoeng Mogoeng, there are 11 languages in South Africa, namely Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. But, English and Afrikaans continue to dominate even in the corridors of institutions that should dispense and make justice accessible to non-English and non-Afrikaans speaking persons.

Judge Hlophe bravely declared that “there does not seem to be any legitimate reason for our courts to be exempted from embracing this new spirit of multilingualism”.

Scottburgh Magistrate Themba Ndlovu in 2008 made headlines by conducting his proceeding in isiZulu. This is the kind of progressive realisation of rights in the Bill of Rights that members of the judiciary and the legal profession must champion.

Some people may argue that it is not practical that judgments be handed down in the different languages. To this viewpoint, Judge Hlope would counter-argue that “the issue of practical considerations cannot be used as an excuse to evade the obligations of section 6 of the Constitution. Judging is an inherently difficult task in any normal society. In an abnormal one such as South Africa’s, the judiciary must take the lead in giving real meaning to the Constitution.”

Justice is not only a question of pronouncement of legal jargon and following the black letter of the law. It is also about how the people access justice through the understanding of the pronouncements of the courts in the language they understand.

Regarding the Chief Justice’s pronouncement that “knowledge is power”, I would like to take issue with the general lack of simplicity in the manner our courts phrase their judgments, expecting ordinary people to understand their import. In my 21 years as a law academic and legal scholar, I have always wondered how society and the legal profession would receive judgments that are written in plain and simple language — particularly those dealing with issues of far-reaching consequences on ordinary members of society.

Here I am thinking of judgments that are couched in clear and simple terms that laypersons would understand without having to approach legal eagles for assistance. These, in my view, would include judgments such as that of the abolition of corporal punishment judgment [Freedom of Religion South Africa v Minister of Justice & Constitutional Development2019 ZACC 34]; and the marijuana judgment [Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30].

So much debate was generated by these judgments and much misunderstanding followed them. This in part has to do with how the judgments were crafted and the impact of the terminology used by the court with regard to, for example, imparting knowledge to parents and children.

Another Judge Mogoeng quote:

Law is about logic; it is like reading a newspaper. It has got to make sense to you. If you read a judgment and it doesn’t make sense to you, there is something wrong. It’s all about logic, so read the judgments (high court, majority and minority judgment), you will appreciate what the different judgments say and which one you agree with.”

He made this statement in a minority judgment in the Constitutional Court case that upheld a Gauteng North High Court decision that Public Protector Busisiwe Mkhwebane must personally pay 15% of the South African Reserve Bank’s legal fees in connection with her Bankcorp report. Court judgments must make sense even to the ordinary member of the public or the layperson, otherwise convoluted and complicated judgments nullify the right of access to justice guaranteed in section 34 of the South African Constitution of 1996.

Chief Justice Mogoeng Mogoeng has never been shy to speak his mind and articulate his position in and outside court. His Nelson Mandela Address was no exception.

My preoccupation this time is that if the Chief Justice is dead serious about addressing the injustice occasioned by the ignorance of our people of their rights and the limited knowledge they have, the Constitutional Court must take the lead. Imagine a day when the proceedings of the Constitutional Court are conducted entirely in Setswana or Xitsonga.

Section 39(5) of the Constitution allows considering comparative lessons from other jurisdictions in the same way they are also learning from us. The issue of language and simplicity of court judgments has been addressed in other jurisdictions. Consider, for example, the 2017 judgment of the Indian High Court in the State of Himachal Pradesh dealing with tenant-landlord issues. The judge was so verbose that it was even asked by the BBC whether the judge in question wrote the judgment using a thesaurus to construct his report. With a chuckle I regurgitate the following extract from the judgment that even the judges of the Indian Supreme Court could hardly understand, and had to remit to the High Court for clarity:

However, the learned counsel… cannot derive the fullest succour from the aforesaid acquiescence… given its sinew suffering partial dissipation from an imminent display occurring in the impugned pronouncement hereat where within unravelments are held qua the rendition recorded by the learned Rent Controller.”

The language above was preposterously verbose and was a show of verbal dexterity by a judge lacking simple sense. We do have such judgments in South Africa. I pity our current crop of law students across the law faculties should they be required to use Indian judgments for comparative study purposes. The poor souls will be lost amid a Thomas Aquinas, Shakespeare or King James Bible language jungle. It is such semantic expressions of judgments that could make or break the essence of justice which the court was approached to dispense and keep people ignorant of what they are entitled to know.

Interestingly, in the British family court case of Lancashire County Council v M & Ors [(Rev 1) [2016] EWFC 9 (04 February 2016)], Justice Peter Jackson issued a simply worded ruling so that the children affected by the case could themselves understand it.

Children in South Africa are affected by the Freedom of Religion South Africa v Minister of Justice & Constitutional Development2019 ZACC 34 case, but can we say that the ruling was published in a simple-to-understand form? If not, is the Constitutional Court itself not perpetuating the ignorance of the children not to be subjected to corporal punishment at home? In Lancashire County Council v M & Ors, the ruling itself was made in legal language, as the judge himself indicated. But the narrative by Justice Peter Jackson was in the simplest language you can expect from the Bench. The preoccupation of the judge was that the judgment must be short and simple so that the children and their mother could follow it. The judge even used the smiley face symbol to ensure the children understood it.

It is hoped that with this take on Chief Justice Mogoeng Mogoeng’s implicit directive that we must all ensure that people are not ignorant of their rights and are knowledgeable, the judiciary and the legal profession will honour Nelson Mandela by desisting from using impenetrable language. In particular, judges must stop using vanity judgments that at worst are confusing and complex to the degree that even some legal eagles cannot comprehend them.

Mogoeng Mogoeng himself in Freedom of Religion South Africa v Minister of Justice & Constitutional Development2019 ZACC 34 took note of the need for simplicity in judgment and acknowledged the “approach that recognises that prolixity must be avoided where that can be achieved without watering down the quality of reasoning or the soundness of a judgment…”

He further said that little purpose is served “by the long-windedness that takes the form of [trawling] down all the rights, principles or issues implicated or raised in order to arrive at the same conclusion” [at 30].

The corporal punishment ruling, for instance, can be explained in one sentence and one emoji for purpose of easy understanding by parents, caregivers and children: Children must be loved and not assaulted under the pretext of corporal punishment. DM

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