Toyota SA Motors (Pty) Ltd v CCMA (CCT228/14) [2015] ZACC 40 ; [2016] 3 BLLR 217 ; (2016) ILJ 313 (15 December  2015) per Nkabinde J (majority): [1] to [53]; Zondo J (minority): [54] to [190] and Wallis AJ (concurrence): [191] to [209]

Possibly something for the Guiness Book of Records.  A judge of the Constitutional Court delivers the only dissenting judgment.  One of his cited authorities is a passage in a book, written 20 years ago, by the author who now happens to be sitting on the same bench, but in an acting capacity.  But by all ‘appearances’ the acting judge has changed his mind in the intervening period and no longer supports what he stated in his book 20 years ago.  This must be a first in South Africa!  Not only that but the acting judge, supported by two judges, pointed out that some of the other arguments in the dissenting judgment did not support the views expressed therein.  Acting justice MJD Wallis in referring to the dissenting judgment stated:

‘My colleague cites as supporting his view what I wrote twenty years ago in Labour and Employment Law, Butterworths, 1995 at 33.  Like Bramwell B in Andrews v Styrap (1872) 26 LT 704 at 706 “[t]he matter does not appear to me now as it appears to have appeared to me then”.

Reference could also have been made to what the former ViceChancellor, Sir Robert Megarry, explained in 1968 in his judgment in Cordell v Second Clanfield Properties Ltd, when disagreeing with what he had said as an author in one of his own books:

‘The process of authorship is entirely different from that of judicial decision.  The author, no doubt, has the benefit of a broad and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation, and intermittent opportunities for reconsideration.  But he .  .  .  lacks the advantage of that impact and sharpening of focus which the detailed facts of a particular case bring to the judge.  Above all, he has to form his ideas without the purifying ordeal of skilled argument on the specific facts of a contested case.  Argued law is tough law.’

Lord Neuberger, Master of the Rolls, suggested there was an old convention that ran to three rules:

  • a general prohibition on citation of the living;
  • a general requirement that to be cited when dead an author had to either have been a judge or practitioner and their work had to be hallowed by Time’s patina of authority; and
  • a living judge or eminent practitioner could, exceptionally, be cited as long as their work was accepted by the court as of authoritative stature.

Read the fascinating speech delivered by Lord Neuberger at the Max Planck Institute in Hamburg on 9 July 2012 JUDGES AND PROFESSORS – SHIPS PASSING IN THE NIGHT? concerning the citing of authority and various conventions.

See also: Resignation: Potential shades of grey