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Justified in dissenting?


In a previous article we commented on whether a Judge is justified in dissenting if she or he believes the majority is wrong or whether they are not being team players.

The reason for the article was the questions asked of Owen Rogers at the Judicial Services Commission when he applied for a position on the Supreme Court of Appeal bench.

His response was that he believed that senior Courts should be cautious and where a Judge believes the majority are erring, they should be free to disagree.

De Klerk v Minister of Safety and Security

De Klerk had been arrested, wrongfully, and taken to court, where the magistrate mechanically postponed the matter without considering bail. He was detained without bail and then released when the charges were withdrawn.

In the Supreme Court of Appeal, the majority held that the period of detention after he appeared in court could not be considered unlawful and awarded him damages for period up to when he appeared in court for the first time. Rogers AJA (with Leach JA concurring) disagreed and indicated that he would have awarded damages for the entire period of detention, regardless of the actions of the magistrate when he postponed the matter.

Constitutional Court

De Klerk then approached the Constitutional Court.

Theron J, writing for the majority (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring, with Cameron J writing his own concurring judgement), essentially agreed with Rogers AJA and Leach JA.

The majority found that the subsequent detention after the first appearance in court was causally linked to the wrongful arrest and nothing in the mechanical approach taken by the magistrate in postponing the case was reason to render the subsequent detention too remote from the initial arrest.

Interestingly Froneman J, Goliath J, Mhlantla J and Mogoeng CJ all dissented.

Dissenter becoming the team player

So, far from the criticism levelled at him at the Judicial Services Commission, it would seem that Judge Owen Rogers was justified in his disagreement and the ultimately the rest of the team (or the majority of it) agreed with him.

This case should put to rest the view that Judges are ‘team players’. They are meant to be independent and apply the law to the best of their ability, even if that means upsetting others, including fellow Judges.