Who is the judge?

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By Anton Katz

The importance of the identity of the judge in every matter should never be underestimated. Indeed, there is well known adage that a good lawyer knows the law, but a brilliant lawyer knows everything about the judge.

In every case, whether it is about the best interests of a child, monetary issues, social justice or shipping matters, international, constitutional and administrative law, housing, sports, divorce or criminal law every person will have a view what the correct solution is. And judges are not machines, but are all men and women with their own individual personal family and professional history, prejudices, likes and dislikes. They are not like slot machines, where you put the tokens (the facts of the case) into a slot, and the machine processes the law and out pops a result.

But how can that be fair? Surely every person appearing before a court has the right to a fair trial, whether it be civil or criminal case. If the judge has prejudices, one way or the other, surely that cannot be regarded as fair? Yes, and no. There can be no doubt that if a Judge, who ought not, because he is biased, to preside at a trial, nevertheless does so he commits an irregularity in the proceedings every minute he remains on the bench during the trial.

So, if a litigant feels that the judge hearing her matter is biased she can ask the judge to recuse herself. The recusal right is derived from one of a number of rules of natural justice designed to ensure that a person appearing before a court of law should and indeed must have a fair trial. The Constitution protects this notion. It requires courts to apply the law “impartially and without fear, favour or prejudice” and the oath of office of judges requires each judge to swear that he or she “will uphold and protect the Constitution… and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.” So a judge who sits in a case in which she or he is disqualified from sitting because, seen objectively, there exists a reasonable apprehension that such judge might be biased, acts in a manner that is inconsistent with the Constitution.

A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before the courts and other tribunals. This applies to both criminal and civil cases as well as to quasi-judicial and administrative proceedings. Nothing is more likely to impair confidence in proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes.

In applying the test for recusal, the Constitutional Court has recognised a presumption that judicial officers are impartial in adjudicating disputes. It stated that legal training and experience prepare judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence.

But the Constitutional Court also appreciated that absolute neutrality on the part of a judicial officer can hardly if ever be achieved.

This consideration was elegantly described as follows by Cardozo J:
“There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them — inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs… In this mental background every problem finds it[s] setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.

Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether [she or he] be litigant or judge.”
It is appropriate for judges to bring their own life experience to the adjudication process. As it was put by the Supreme Court of Canada: “It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. The sound belief behind the encouragement of greater diversity in judicial appointments was that women and visible minorities would bring an important perspective to the difficult task of judging.”

How far does this principle go? I think the answer is well captured by Hlophe J:
“Equally, the apparent prejudice argument must not be taken too far; it must relate directly to the issue at hand in such a manner that it could prevent the decision-maker from reaching a fair decision… Professor Baxter gives a commonly cited example, namely, the mere fact that a decision-maker is a member of the SPCA does not necessarily disqualify him from adjudicating upon a matter involving alleged cruelty to animals. By the same token, the mere fact that the presiding officer is white does not necessarily disqualify him from adjudicating upon a matter involving a non-white accused. The converse is equally true. Otherwise no black magistrate or Judge could ever administer justice fairly and even-handedly in a matter involving white accused.

For the reasons set out above, the argument that the white magistrate erred in refusing to recuse himself upon being asked to do so at the appellant’s trial is both unfortunate and untenable. The fact that he is a white person, does not disqualify him from presiding in a case involving an accused belonging to a different race.”

Nevertheless, In South Africa in particular, bearing in mind the diverse nature of the population, it is crucial that judges come from a range of different backgrounds, cultures, religions and languages. The best judges need to have a deep sense of justice and obviously integrity. It is desirable that they are learned in law. But I suppose ultimately a clever judge who knows the law very well but has little sense of justice is far from ideal. If given the choice I prefer to appear before a judge with common sense and a deep desire for justice rather than one who knows every nook and cranny of the law, but who applies the law in a mechanical and functional manner.

Not that I advocate for judges who simply ignore or are ignorant of the law. But rather judges who search for that part of the law which best promotes justice.

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