17 November 2022
On 12 December 2012, Judge Anton Van Zyl reserved judgment in a matter at the Pietermaritzburg High Court, KwaZulu-Natal division. Ten years later, the judgment has still not been delivered.
The matter concerns an application brought by financial company Allan Gray about its interest in a gambling licensee. In its last annual report, for 2020-21, the KwaZulu-Natal Gambling and Betting Board said:
“The Board is opposing the matter, the parties are awaiting an interlocutory ruling. However, the matter is now moot and we are seeking a settlement on the matter. The anticipated costs for counsel is R50,000.”
According to the last available Reserved Judgment Report for the Chief Justice, this matter is the longest outstanding judgment in the country.
GroundUp previously reported that the Supreme Court of Appeal sharply rebuked Judge Van Zyl over a delayed judgment. He took four years to rule in favour of a company for damages after a strike.
We also previously reported that judges Anton Van Zyl, Siraj Desai, and Jacqueline Henriques had been reported to the Judicial Service Commission because of high numbers of outstanding reserved judgments.
The Office of the Chief Justice (OCJ) told GroundUp that the judgment is still outstanding. Judge Van Zyl retired in August 2021.
“[T]he Office of the Acting Judge President has continued, unsuccessfully, to engage the retired Judge with the view to finalising this matter, as well as seven others that are outstanding by the Judge.
“The Office of the Acting Judge President has referred the matter of all late judgments by the judge to the Judicial Conduct Committee for their intervention,” the OCJ said. The JSC oversees both the Judicial Conduct Committee and the Judicial Complaints Committee.
However, Advocate Sesi Baloyi SC, spokesperson for the Judicial Service Commission (JSC) told GroundUp that no complaint had been lodged.
“No complaint has been lodged against retired Judge Van Zyl relating to outstanding judgments. As a result, there is no complaint being considered by the Judicial Complaints Committee (JCC) at this stage. Any information to you from the OCJ that any complaint has been referred to the JCC is mistaken.”
Advocate Baloyi said the JCC only considers matters when complaints have been lodged.
“The JSC has and continues in efforts to get information from retired Judge Van Zyl about outstanding judgments, including when they will be delivered. To date, the JSC has not been successful in obtaining information from retired Judge Van Zyl,” Baloyi told GroundUp.
Mbekezeli Benjamin, researcher at Judges Matter — an organisation that monitors the appointment of judges and the governance of the judiciary — said that on retirement, resignation or even suspension, “a judge has a duty to finalise all cases they have already heard, including handing down all outstanding judgments”.
“It constitutes judicial misconduct to not deliver outstanding judgments upon retirement,” he said.
GroundUp previously reported on the JSC finding Judges Ntsikelelo Poswa, Ferdi Preller and Moses Mavundla guilty of judicial misconduct for failing to deliver judgments even after they had retired. They were ordered to apologise to litigants.
Asked whether the same procedure is followed for retired acting judges, Benjamin said:
“Acting Judges are often practising lawyers and the JSC would not have jurisdiction over them after they leave the bench and return to their legal practice. It, therefore, falls on the practitioners themselves to deliver outstanding judgments out of a sense of duty.”
He said although there are some legal professional ethical rules governing the issue of outstanding judgments, the Code of Conduct for Legal Practitioners of the Legal Practice Council (LPC) has no specific provision on outstanding judgments.
He said the LPC should “urgently” update its Code of Conduct and take action against attorneys and advocates who fail to deliver judgments after having acted as judges.
“A failure to deliver judgment within a reasonable time is unfair on people who bring their cases to court, and undoubtedly diminishes their confidence in the judiciary,” Benjamin said.
Benjamin said the way an outstanding judgment was dealt with after the death of a judge depended on the nature of the case.
If a matter has already started trial, and a judge dies after hearing testimony and other evidence, the “default rule” is that the case will start afresh (de novo) before a replacement judge, he said.
“The rationale is that the deceased judge would’ve been steeped in the trial and would have heard witnesses and assessed the credibility of their testimony. It would therefore not be possible to continue the trial before another judge.
“This comes at considerable cost and other prejudice to the litigants, as it means they have to incur additional expenses to bring the case to the hearing. We saw this in the case of Mondi Shanduka v Murphy where KwaZulu-Natal Judge King Ndlovu died before the conclusion of the trial and the case had to be heard before another judge,” said Benjamin.
He said matters are “a little easier” where the case “is based on the court papers filed and legal argument in court, without witness testimony”.
In such cases, the Judge President (head of court), may reallocate the case to another judge to finalise, said Benjamin.
In cases where a matter is heard by more than one judge, and one of these judges is no longer able to adjudicate the case, the remaining judges constitute a majority and their decision will be a decision of the court.