South African Association of Professional Planners

“Intelligence is quickness to apprehend as distinct from ability, which is capacity to act wisely on the thing apprehended.”

– Alfred North Whitehead (1861 - 1947)

Judge van Oosten in the Johannesburg High Court made some interesting remarks in a case which came before him. Normally the issues in dispute appear clear from the pleadings or from the pre-trial meetings between the parties or by agreement between the parties. However that does not tie the hands of the judge in appropriate cases. The judge stated:

“I cannot accept the notion of the judge merely acting as an umpire in the adjudication of disputes between parties. It is also the judge’s duty to ensure that justice is done. If during the consideration of a matter a fundamental issue arises, which the parties have overlooked or have failed to recognise, and it is in the opinion of the judge in the interests of justice necessary and convenient to determine that issue, I can see no reason why this cannot be achieved through a process of fairness to all the parties concerned. Fairness …would embrace… that proper notice of the issue and its proposed determination be given to all the parties and further that the principles of audi alteram partem (hear both sides) be observed. The possibility of prejudice always remains an important consideration. In the absence of prejudice the court, in my view, should not hesitate to adopt such a course in order to arrive at a just decision of the case.”

If the parties overlook a question of law arising from the facts agreed upon, the court could hardly be bound to ignore the fundamental problem and only decide the secondary and dependent issues actually mentioned by the parties. This would be a fruitless exercise, divorced from reality and may lead to a wrong decision. This does not mean that a court will always be free to enlarge the issues. Difficult as it may sometimes be to find the right balance between undue judicial passivism and undue judicial intervention, judicial officers must strive to do so.