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When Is Judicial Dissent Acceptable and When Not?

Is there a judicial right to dissent? At his recent interview before the Judicial Services Commission for a permanent position at the Supreme Court of Appeal, Judge Owen Rogers was quizzed about an apparent lack of being a ‘team player’ and regularly disagreeing with more senior colleagues.

See his April 2019 interview here

Rogers J’s History of Dissenting

However, the stats tend to not bear that out. He dissented in De Klerk v Minister of Police [2018] ZASCA 45 and Botha v The State [2017] ZASCA 148. (In both cases there is a strong case to be made out that he was correct.)

So who is a ‘non-team player’? Does such a thing exists on the bench? (One would assume judicial independence implies that Judges should be entitled to disagree with their own colleagues if they truly believe they are wrong on an issue of principle?)

Dissent in the Constitutional Court

The Chief Justice must have smiled to himself about the debate about the right (or obligation) to dissent, as his own bench has very independent-minded Judge. Constitutional Court Judge Chris Jafta appears to fall foul of those who believe a Judge should not dissent.

Since being appointed as a permanent Judge, Jafta J has dissented from his colleagues 31 times. As an acting Judge in the Constitutional Court he added a further dissenting Judgement.

Even before his appointment to the Constitutional Court, Judge Jafta wrote 5 dissenting judgements in the Supreme Court of Appeal. A scan of the Law Reports will show that Supreme Court of Appeal Judges do not often write dissenting judgements. There is no doubt he believes there is a judicial right to dissent.

See Judge Jafta’s profile on the Constitutional Court website

The Right to Disagree

Judge Rogers correctly pointed out that as a senior Court, Judges in the SCA should be free to disagree when they believe the majority to err. Neither the Constitution or the Superior Courts Act preclude a Judge from writing a dissenting judgement. The rules is that the outcome is dictated by the majority of the Judges hearing the matter.

Again, as Judge Rogers stated during his interview, dissent should not be for the sake of dissenting.

If Judge Rogers is, in fact, swimming against the stream, he certainly has some ground to make up before he will come close to Jafta J’s record.