UNIT 9.

10 - JUDGMENT

PART 1:

9.10.1. OBJECTIVE: The purpose of this lesson is to introduce you to the purpose

and nature (both formal and substantive) of a judgment as well as to its structure. This is preparatory to
a discussion in a later lesson on ‘appeal’ where we will see that appeals are directed against an order a
court makes in its decision and not its reasons.

9.10.2 INTRODUCTION:

A judgment is the raison d’être for all litigation. People litigate so that their legal disputes may be
resolved through decisions handed down by the court. That is why when judgments are: delayed, given
without supporting reasons, shabbily written or written in intemperate language, or delivered under
circumstances that are lacking in transparency; all these tend to dampen confidence and to bring the
administration of justice into disrepute.

9.10.3 DEFINITION: A judgment is defined in general as well as a technical

senses. In Administrator, Cape and Another v Ntshwaqela and Others 1990 (1) SA 705 AD at 714-715,
Nicholas AJA defined the two senses of a judgment as follows:

In a general sense [judgment] is the English equivalent of the American

opinion, which is the statement by a judge or court of the decision reached in regard to a cause tried or
argued before them, expounding the law as applied to a case, and detailing the reasons upon which
judgment is based.

9.10.4 In a technical sense judgment refers to the decision of the court upon

some relief.

9.10.5 TYPES OF JUDGMENTS: Judgments may be divided into two broad types

namely, interlocutory and final judgments. An interlocutory judgment is one that only determines a
preliminary point but does not settle the main dispute between the parties. The latter will be settled by
a final judgment of the court in due course. An example could be a decision to temporarily interdict
one spouse from dissipating the property belonging to the joint estate pending the determination of an
action for divorce.
9.10.6 PURPOSE OF A REASONED DECISION: While it may be the case that an

average successful litigant may not necessarily care about how the court arrived at the decision giving
the relief they sought, the unsuccessful party would most definitely want to know how they lost a case
they thought “was in the bag.” The administration of justice is certainly better served by the timely
delivery of reasoned decisions. The Lesotho Court of Appeal has in a series of cases underscored the
critical importance of courts giving reasons for their decisions. In Attorney General v Makesi and Others
the court said,

A litigant has every right to know why a case has been won or lost. And a lower court is also obliged to
furnish reasons so that a court of appeal will properly be informed as to what prompted the court a quo
to arrive at its decision.

It has also been said that a reasoned judgment serves to enable the writer to reflect on the soundness of
the decision and to account to the parties, the public and the appellate court:

There are four purposes for any judgment that is written: (1) to clarify own thoughts; (2) to explain [the]
decision to the parties; (3) to communicate the reasons for the decision to the public; and (4) to provide
reasons for an appeal court to consider.

9.10.7 SELF-LEARNING ON STRUCTURE OF A JUDGMENT:

A. Read the following articles and extract from them the recommended parts of a judgment,
indicating what each part deals with:

1. Justice Michael Kirby, The Australian Law Journal on the Writing of Judgments, Brochure on
Skills of Judgment Writing, pp 29-70, [Link]>publication_broch.

2. M.M. Corbett, “Writing a Judgment”, South African Law Journal 115 (1998) 116.

3. Justice Devendra Kumar Upadhyaya, “Skills of Judgment Writing” in Brochure on Skills of

4. Justice H. Zhou, Judgment Writing, a paper presented at the Magistrates Training Workshop
Held at the Crown Plaza, Harare from 5 to 6 and 20 July 2019.

B. Compare the structure of a judgment as proposed in the above works to the structure of a
closing address.

9.10.8 STRUCTURE AND STYLE OF A JUDGMENT:

a) Before considering the actual structure of a written judgment, it is important to bring to the
fore two important points that stand out from the readings. Those two points are:

i) Writing styles will differ from judge to judge but it is important that whatever the writing style of
a judge might be, his or her judgment must follow some basic structural form.

ii) It is important to observe what is termed “judicial trinity” of brevity, simplicity and clarity (BSC)
in judgment writing.
b) SOME POINTERS ON JUDGMENT WRITING:

Justice Kirby writing from the Australian experience underscores the importance of identifying the issue
at the beginning of the judgment noting that “the writer who loses the opportunity to state clearly at
the outset the issue in hand (as he or she sees it) has lost a vital chance to communicate effectively with
the potential audience and grasp its interest and favour."

The same advice applies to legal practitioners in the preparation of heads of argument.

Justice Kirby commends the use of headings and sub-headings in writing judgments as “useful means to
unlocking the meaning and reasoning of the author.” He also notes the importance of adopting gender
neutral language, using schedules and footnotes and diminishing the use of Latin.

9.10.9 BASIC STRUCTURE OF JUDGMENT:

a) The former Chief Justice of South Africa, Justice M.M. Corbett recommends the following structure in
judgment writing which he says is illustrated by a judgment authored by him in Standard Chartered
Bank of Canada v Nedperm Bank Ltd:

i) An introduction

This is said to set the stage for the rest of the judgment by briefly stating how the matter came before
the court (by action, on notice of motion or by way of appeal), who the parties are, a brief statement of
their activities and a broad outline of what the case is about.

ii) The setting out of facts

Justice Corbett says this is the most important part of the judgment. It sets out facts as gleaned from the
pleadings in so far as they are common cause and from the evidence placed before the court (in action
proceedings) or from the affidavits (in motion proceedings).He cautions that in so far as disputed facts
are concerned, it may be prudent to defer making findings of fact until after the issues have been
identified, and in the course of identifying each issue.

Most important is for the court to pronounce itself on what it has found as proven facts in action
proceedings, and to follow the Plascon-Evans Paints case approach in motion proceedings.

Irrelevant facts have to be left out, the account of the facts should be logical, chronological (in so far as
that is possible) and readable, summarise the evidence instead of making long quotations; and in
relation to disputed issues of fact, findings of fact should be made guided by: probability or
improbability of the testimony viewed against the background of the case as a whole, inherent
contradictions in the evidence, contradiction of the evidence by other credible witnesses or by other
indisputable facts so on and so forth.

Corbett notes that findings of fact sometimes depend not on who was called to testify, but by who was
not called, as failure to call an important witness may be held against a party failing to call such a
witness.

iii) The law and the issues

The identification of the law and the issues depends on a variety of factors to what the parties agree on
and disagree on: The dispute may turn on the law where the parties agree on the facts; it may also turn
on the facts where the parties are agreed on the law; where there is disagreement on both the facts and
the law, those will be in issue and the court has to make a determination on both; yet again, there may
be no disagreement on both the facts and the law as the disagreement is on the application of the law
to the facts.

iv) Applying the law to the proven facts

This settles the decision of the court in the case depending on what is disputed. Sometimes once the
position of the law and the facts are determined that is the end of the matter; but sometimes the court
has to decide the case according to what is fair and reasonable in the circumstances of a particular case
– matter of value judgment.

v) Determining the relief (including an order for costs)

This relates to a determination of what relief to grant depending on the findings of fact and law already
made. For example, a party, though successful, may not be entitled to the order they sought in its
entirety. The same considerations will apply to the award of costs; it may sometimes be necessary to
depart from the rule that costs follow the event, in that a party may deprived of costs even though
judgment had been granted in their favour.

vi) The order of court.

Corbett warns that this must be carefully drafted on the basis of the findings the court would have made
to ensure that there is congruence between those findings and the order ultimately made by the court.

b) Justice Kirby on the other hand says a judgment bears the following format:

i) Introduction/ Opening words

Justice Kirby says traditionally, this part of the judgment would be a statement of what the action,
application or appeal is about. As stated at 9.10. above, Justice Kirby says this is where the judgment
should reflect the key issues.

ii) The Facts

This part of the judgment sets out the parties’ case, common cause facts and evidence.

iii) Points for determination/ Issues

This is where the points for determination are formulated and stated.

iv) Reasons for decision on points for determination

This sets out reasons for the decision on each of the points for determination identified.

v) Conclusions

This provides conclusions on the points that arose for determination

vi) Order

This part sets out the operative part of the decision of the court. For example: “1. Judgment is granted
to the plaintiff in the sum of M5
 Million.

2. The defendant is ordered to pay the plaintiff’s costs, such costs to include costs occasioned by the
employment of two counsel.”