21st Century South Africa’s Lords and Ladies of the courtroom

Sitting in one of South Africa’s High Courts, one could be forgiven for wondering if one had been transported back in time and across the continents on hearing judges being addressed as “My Lord”, “My Lady”, “Your Lordship” and “Your Ladyship”. Are you in a courtroom or a castle, and is the speaker a lawyer or a squire?

These forms of address have their roots in the English institution of the aristocratic “peers of the realm” – one with no relevance whatsoever to 21st century, democratic South Africa. The High Courts’ judges have always been addressed as “My Lord” or “My Lady”, since the days of the Union of South Africa. The Magistrates of the lower courts are addressed as “Your Worship”. The writer has witnessed one layperson address a Magistrate as “Your Majesty”. While this raised a few sniggers in the courtroom, only lawyers immune from long exposure to the strangeness and grandiosity of these forms of address would have reason to laugh. Why is “Your Majesty” absurd but not “Your Worship”?

Some years ago, some of our courts began to move away from such outdated and highly deferential modes of address. The judges of the country’s highest courts, the Supreme Court of Appeal and Constitutional Court, have long preferred to be addressed as “Justice” or “the Court”.

The judges of the Labour Court have long been addressed as “Judge”, but have inexplicably indicated in their April 2013 practice manual that they now insist upon being addressed as “my Lord” or “my Lady”.  One can only assume that either they have come to feel demeaned by a less deferential form of address, or that the different forms of address in courts of the same status have led to such confusion that they have given up on their progressive intentions and resigned themselves to being addressed as if they were English aristocracy.

It goes without saying that a judge’s authority in his or her courtroom must be recognised, and that judges must enjoy respectful treatment. However holding on to outdated, colonial era forms of address seems both unnecessary and undesirable, and will no doubt one day seem as amusingly old-fashioned as the idea of wearing a powdered wig to court.

 

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Race-based charitable bequests

The Supreme Court of Appeal recently handed down judgment in a matter concerning a deceased woman’s wish to set up bursaries to be available to white students only (amongst other criteria).

The other criteria specified the universities at which the students should be studying, their field of study, and the level at which they should be studying. The bursaries would help them further their studies overseas, on condition that they returned to South Africa to put their new skills into practice.

The trustees tasked with putting the deceased’s wishes into effect, approached the universities which the deceased had identified. They all indicated that they could not accept any bursary unless it was open to students of all races. The trustees then approached first the High Court and later the Supreme Court of Appeal, asking the courts to remove the race criterion from the deceased’s bequest, on the basis that it was discriminatory and therefore against public policy.

Both courts refused to remove the race criterion.

The High Court suggested (without making a finding) that the deceased’s intention was not necessarily unfairly discriminatory, as it appeared to be directed at limiting the “brain drain” in the identified field of expertise. The court found that it could only vary the provision in the deceased’s will if it had consequences which she had not foreseen – that is, if the discriminatory nature of the bequest meant that it could not be carried out and her will thus failed to dispose of her estate. The evidence in the specific case was clear that the deceased had foreseen that her wishes might not be given effect to, and she had indicated certain charities which should in that event receive the funds that would have been used for the bursaries. There was no need to tinker with the deceased’s will as it could still be put into effect, albeit on an alternative basis. If the universities would not accept the bursaries, then the charities would benefit in their place.

In upholding the High Court’s ruling, the Supreme Court of Appeal pointed out that this case differed from another similar case decided in the intervening period, in which the racial criterion had indeed been removed by the court. In the other case, there had been no alternative to cater for the possibility that the racial bequest would not be carried out. In order to avoid a situation whereby the deceased’s wishes were completely frustrated, in the other case the racial criterion had been removed. In this case, on the other hand, the deceased had set up an alternative which she had clearly intended to follow in the event that her racial bequest failed. The court found that it was possible in this case to give effect to the deceased’s intentions without amending her will, and so this was what should be done. The deceased had, in general, the freedom to frame her will and dispose of her assets as she wished. It was not for the trustees or the court to decide that it would be preferable to amend her will to make the bursaries acceptable to the universities, instead of simply applying the alternative provision she had put in place.

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