Court orders handed down long after the conclusion of a hearing – up to two years’ later in some cases – or delivered without the judge providing reasons for the decision, are contrary to the rule of law, prolong uncertainty and delay the delivery of justice. 

The matter of Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) [2005] ZACC 14 and more recently Phillipa Susan van Zyl NO v Getz (548/19) [2020] ZASCA 84 shone the spotlight on the often unreasonable time periods that litigants wait for judgements and the problems caused when orders are made without reasons to support the judgement. 

Section 49(1)(a) of the Uniform Rules of Court allows for any litigant to request leave to appeal the order at the time that judgement is granted. If no such request is made at that time, then the appealing litigant may bring an application to the same court for leave to appeal, setting out the reasons therefor, within 15 days from the order being made. Section 49(1)(b) states that the application may also be brought within 15 days after the reasons for the order have been provided by the presiding judicial officer.

The problems highlighted in the Getz and the New Clicks matters were that the litigants had waited an extraordinary period of time, in one case two years from the conclusion of the hearing of the matter, before receiving their order. Once the order was provided, however, no reasons were given for the order made. The appeal court found it necessary to comment on this issue. 

The appeal court referred to the presiding judge’s statement in the case of Strategic Liquor Services v Mvumbi NO and Others [2009] ZACC 17:

“It is elementary that litigants are ordinarily entitled to reasons for a judicial decision following upon a hearing, and, when a judgment is appealed, written reasons are indispensable. Failure to supply them will usually be a grave lapse of duty, a breach of litigants’ rights, and an impediment to the appeal process.” 

In Botes and Another v Nedbank Ltd, Corbett JA pointed out that “a reasoned judgment may well discourage an appeal by the loser”.

“The failure to state reasons may have the opposite effect. In addition, should the matter be taken on appeal, as happened in this case, the Court of Appeal has a similar interest in knowing why the Judge who heard the matter made the order which he did.” 

The court in the Strategic Liquor case went further and held that “Judges ordinarily account for their decision by giving reasons and the rule of law requires that they should not act arbitrarily and that they be accountable. Furnishing reasons, explains to the parties, and to the public at large which has an interest in courts being open and transparent, why a case is decided as it is. It is a discipline which curbs arbitrary judicial decisions. Then, too, it is essential for the appeal process, enabling the losing party to take an informed decision as to whether or not to appeal or, where necessary, seek leave to appeal. It assists the appeal court to decide whether or not the order of the lower court is correct. And finally, it provides guidance to the public in respect of similar matters.”

There are published guidelines as to what constitutes a reasonable time period to deliver a judgment, and it is stressed by the courts that a reasonable time period is essential for the adherence to the rule of law and necessary for the delivery of justice. Any delay in the process creates a ripple effect that extends all the way to the Constitutional Court, should that be the anticipated trajectory of the litigant’s case.

This causes a delay not just for the litigant but for all related matters that may have the same issue that requires adjudication. In addition, the lack of reasons for a judgement confounds the appeal courts’ mandate. In the first instance, they would need to understand the reasoning of the lower court before interrogating the grounds of appeal before them. Without the lower court judge’s reasoned judgement, the appeal court finds itself at a loss to consider the development of the law in line with existing jurisprudence.

*This article was supervised by Candice Pillay (Director) at Lawtons Africa.