S v Mkhize

• Jurisdiction: South Africa
• Judge: Vahed J and Van Zyl J
• Judgment Date: 13 May 2014
• Docket Number: AR 182/2013
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 20 February 2014
• Citation: 2014 JDR 1042 (KZP)

Vahed J:

[1]

The Bangalore Principles of Judicial Conduct, 2002 ("The Bangalore Principles"), developed by the Judicial Integrity Group, with the active participation of Justice Langa (then Deputy Chief Justice) represents the lodestar of values for the conduct of judicial officers. Although its individual clauses make reference to "a Judge" that term is defined to mean "…any person exercising judicial power, however designated". The Bangalore Principles divides the different areas of application and operation into sections described as Values. Value 6 deals with Competence and Diligence and the defining principle provides that "[c]ompetence and diligence are prerequisites to the due performance of judicial office".

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Vahed J

[2]

The Bangalore Principles define the application of that principle to, inter alia, include:

'6.6 A judge shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity. The judge shall require similar conduct of legal representatives, court staff and others subject to the judge's influence, direction or control.'

[3]

In March 2006 the Judicial Integrity Group, this time under the Co-chairmanship of Chief Justice Langa approved a commentary on The Bangalore Principles for publication and dissemination "…in the hope that it would contribute to a better understanding of the Bangalore Principles of Judicial Conduct". In the commentary on Value 6 read with application 6.6 they said:

'The role of the judge

211. The role of the judge has been summed up by [Lord Denning in Jones v National Coal Board [1957] 2 QB 55 @ 64] in the following terms:

The judge's part . . . is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure, to see that the advocates behave themselves seemly and keep to the rules laid down by law, to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. . . Such are our standards.

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Vahed J

Duty to maintain order and decorum in court

212. 'Order' refers to the level of regularity and civility required to guarantee that the business of the court will be accomplished in conformity with the rules governing the proceeding. 'Decorum' refers to the atmosphere of attentiveness and earnest endeavour which communicates, both to the participants and to the public, that the matter before the court is receiving serious and fair consideration. Individual judges may have differing ideas and standards concerning the appropriateness of particular behaviour, language and dress for the lawyers and litigants appearing before them. What one judge may perceive to be an obvious departure from propriety, another judge may deem a harmless eccentricity, an irrelevancy or no departure at all. Also, some proceedings call for more formality than others. Thus, at any given time, courtrooms across a country will inevitably manifest a broad range of 'order' and 'decorum'. It is undesirable, and in any case impossible, to suggest a uniform standard of what constitutes 'order' and 'decorum'. Instead, what is required is that a judge should take reasonable steps to achieve and maintain that level of order and decorum in court necessary to accomplish the business of the court in a manner that is both regular and manifestly fair, while at the same time giving lawyers, litigants and the public assurance of that regularity and fairness.

Conduct towards litigants

213. A judge's demeanour is crucial to maintaining his or her impartiality, because it is what others see. Improper demeanour can undermine the judicial process by conveying an impression of bias or indifference. Disrespectful behaviour towards a litigant infringes on the litigant's right to be heard, and compromises the dignity and decorum of the courtroom. Lack of courtesy also affects a litigant's satisfaction with the handling of the case. It creates a negative impression of courts in general.

Conduct towards lawyers

214. A judge must channel anger appropriately. No matter what the provocation, the judicial response must be a judicious one. Even if provoked by a lawyer's rude conduct, the judge must take appropriate steps to control the courtroom without retaliating. If a reprimand is warranted, it will sometimes be appropriate that it take place separately from the disposition of the hearing of the matter before the court. It is never appropriate for a judge repeatedly to interrupt a lawyer without justification,

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Vahed J

or be abusive or ridiculing of the lawyer's conduct or argument. On the other hand, no judge is required to listen without interruption to abuse of the court's process or arguments manifestly without legal merit or abuse directed at the judge or other advocates, parties or witnesses.

Patience, dignity and courtesy are essential attributes

215. In court and in chambers, a judge should always act courteously and respect the dignity of all who have business there. A judge should also require similar courtesy from those who appear before him or her, and from court staff and others subject to the judge's direction or 'control. A judge should be above personal animosities, and must not have favourites amongst advocates appearing before the court. Unjusti?ed reprimands of counsel,' offensive remarks about litigants or witnesses, cruel jokes, sarcasm, and intemperate behaviour by a...