MARAIS JA:

[1] I concur in the judgment of Cloete JA. Regrettably, it is necessary to address an issue which has nothing to do with the merits of the case but everything to do with appropriate decorum in the courts. We live in an egalitarian age and modes of speech in court proceedings which are less than refined are to be expected. But there are limits to what should be tolerated in a court of law. If public respect is to exist for institutions such as courts of law which are vital to the functioning of a free and democratic constitutional state, the use of coarse and lavatorial language in court proceedings will contribute nothing towards earning and preserving that respect.

[2] Freedom of speech is a valuable constitutional right but it does not extend to the use of obscene language in courts of law. (Obviously, I am not here referring to accounts given in court proceedings of language used extra-curially where the giving of such evidence is relevant to the proceedings. That must be tolerated because of its relevance to the issues in the case.)

[3] The rot in this case started when a witness chose to use the expression ‘Stuff you’ and it went unremarked. The expression ‘gatvol’ was also used. Yet another witness, despite his professional standing, chose to say that he wished to ‘bullshit’ the lessor into believing in a certain state of affairs. Thereafter, the word was employed again by the witness, by counsel who appeared then, but not on appeal, for the respondent, and echoed by the trial judge. None of them has the excuse of a limited vocabulary.

[4] An appellate court is instinctively loath to criticise the manner in which a trial judge allows proceedings to be conducted. Allowance has to be made for differences of personality and personal preference. And where the trial judge is as conscientious and industrious as Davis J, the temptation to turn a blind eye is great. But I would be shirking my duty if I did not say that the use of this kind of language should not have been countenanced. Permissiveness of this kind reflects poorly upon the image of the High Court of South Africa and the fact that the judgment of the court a quo has been reported in the law reports, replete with quotations from the evidence in which this offensive language was employed, aggravates the damage.

[5] It is, of course, not necessary when problems of this kind crop up, to fulminate and call down fire and brimstone upon the user of such language. All that is necessary is a calm reminder to the witness that he or she is in a court of law, that the solemnity of judicial proceedings is not consistent with the use of language of that kind, and that it should not be repeated. If the witness is so inarticulate that he or she cannot readily find a less obnoxious substitute for the expression or word used, the court should assist in providing one. Where counsel are responsible for the introduction of objectionable language the response may of course be less measured; counsel are expected to know better.

[6] The next matter requiring comment is this: the appellant sought leave to appeal in the court a quo to the Full Bench and not to this Court. Nonetheless, leave to appeal to this court was granted. If it was not an oversight on the part of the trial judge, it is a decision to be deprecated. If it was, it is to be deprecated no less. Whatever a party or the parties may prefer, it remains the duty of the trial judge to consider what court is the more appropriate in the circumstances of the case. The issue was purely one of fact; no controversial legal principle was involved; and the sums of money involved are by today’s standards not so great as to justify the decision. The inappropriate granting of leave to appeal to this court increases the litigants’ costs and results in cases involving greater difficulty and which are truly deserving of the attention of this court having to compete for a place on the court’s roll with a case which is not.

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R M MARAIS

JUDGE OF APPEAL

CLOETE JA)

HEHER JA) CONCUR