Lawyer Sangwa happy with final judgment in Stanbic v Savenda

Lawyer Sangwa happy with final judgment in Stanbic v Savenda

Prominent lawyer John Sangwa has welcomed the quashing of the Judgement that awarded Savenda Management Services $20million. Savenda is owned by Lusaka based businessman Clever Mpoha in the photo below.

In his letter to the Chief Justice dated 12th April 3018, Sangwa has used the opportunity to commend on the high quality of Judgement delivered by Judges of the Supreme Court on the matter.

In this matter Lusaka High Court Judge Justin Chashi, had awarded $20million damages against Stanbic Zambia for allegedly loss of business and profits.

Judge Chashi accused Stanbic Bank of practicing “predatory lending”!

This followed the decision by Stanbic to refer Savenda Management Services to the Credit Bureau when the firm failed to pay its overdraft and loans.

Savenda claimed that the company lost business due to this action by the Bank to refer them to the Credit Bureau.

But the full bench of the Supreme Court Judges have overturned the high court judgement.

Sangwa said the new Judgement had redeemed the independence, and professional standing of the Judiciary.

He has since written a brief to the Chief Justice attaching his thoughts and proposals on how to enhance judgment writing.

BRIEF TO THE CHIEF JUSTICE ON THE NEED FOR A CONVERSATION ON WRITING OF COURT JUDGMENTS AFTER THE SAVENDA MANAGEMENT SERVICES LIMITED v STANBIC BANK ZAMBIA LIMITED CASE
By JOHN SANGWA∗

In March this year, the Supreme Court delivered Judgment No. 10 of 2018, in the case of Savenda Management Services Limited v Stanbic Zambia Limited.1 It is believed to be the first Judgment by the Supreme Court since the Constitution of Zambia (Amendment) Act No. 1 of 2016, came into force on 5th January 2016. Through this amendment, the Supreme Court assumed a new jurisdiction to hear appeals from the Court of Appeal,2 as opposed to appeals from the High Court, which has been the position long before Independence in 1964.

The Law Association of Zambia (LAZ) has been gracious enough to send the electronic version of the Judgment to all the legal practitioners.
This Brief to the Chief Justice has been inspired by this Judgment. The depth dedicated to the treatment of the issues in contention in the appeal is intellectually stimulating and refreshing.3 Some of the observations and pronouncements in the Judgment are timely. The three Judges who heard the appeal took time to address a very important issue, which is at the heart of every judicial process. An issue, which has never received serious treatment in any judgment of the Supreme Court: the Judge’s responsibility in writing a judgment.

It is this kind of Judgment that would earn the Judiciary respect nationally and internationally. The Judgment illuminates the independence, integrity and professional standing of the Supreme Court. The existence of a Judiciary, which is respected both within and outside Zambia for its independence, integrity, professionalism and commitment to the rule of law, is indispensable for the growth and stability of any country. The need for such a Judiciary is even more pressing in Zambia, a country which is trying very hard to improve the quality of life of its people and consolidate its democratic gains, in the face of global regression in commitment to democratic principles and the rule of law.
The thesis in this Brief is that all the Judges, including those in the Supreme Court who did not hear the appeal, must embrace and own the soul of the Judgment in the Savenda case. If they do so, it will lead to the enrichment of the
∗ The writer is a partner in the firm of Simeza, Sangwa & Associates and the views expressed in this Brief are his own and do not represent those of the firm.
1 Appeal No. 37 of 2017 (Selected Judgment No. 10 of 2018)
2 See Article 125 of the Constitution.

3 Especially from paragraphs 196 to 213 of the Judgment, which addressed the award of judgment in the sum of K192,000,000.

independence, integrity and intellectual standing of the Judiciary as an institution and in turn enhance its standing both locally and internationally.
The inadequacies highlighted by the Supreme Court in the Judgment of the trial Court, which awarded the Plaintiff the sum of K192,500,000 (or the Kwacha equivalent of US$20,263,157.89, at today’s exchange rate) based on questionable pleadings, a cause of action and claims not sound at law and most shockingly in the absence of any credible evidence to support such an award is not unusual. Judgments, which are based on unsound law and shaky evidence, often open the Judiciary to undeserved allegations of incompetence and at times corruption.

The Judgment of the High Court in the Savenda case attracted both local and international interest. It undermined the independence, integrity and intellectual standing of the entire Judiciary and raised the possibility of judicial corruption. The judgment was an embarrassment to the entire Judiciary. Fortunately, the situation has been redeemed by the Supreme Court in its Judgment, the subject of this Brief.

It is, therefore, crucial for Judges and legal practitioners to embrace and build on the Judgment not only because it is a Judgment of the final Court, therefore binding on all lower courts, but because it is instructive in many respects. It has created the opportunity to have a conversation on the quality of judgments being written by Judges.

PART I: THE SOUL OF THE SAVENDA JUDGMENT
The Supreme Court Judgment in the Savenda case is a long one by Zambian standards. However, the most important pronouncements which guided the three Justices in the writing of the Judgment and which illuminate the entire Judgment are found in paragraphs 209 of the Judgment, where the Justices quoted from a book by Dr Dato Syed Ahmed Idid: Writing of Judgments: a Practical Guide for Courts and Tribunals. The relevant part of the book quoted by the Justices reads:

The decision must show the parties that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or his own reason and logic —. The — opinions of the parties in a case should not be copied verbatim and adapted to the judgment of the court. It is not just acceptable for a judge to mention in his judgment that he agrees with the submissions of a party and he has nothing to add. A judge should tower above the parties and counsel by applying some level of judicial reasoning logic in evaluation a case —. (Emphasis mine)
Inspired by these words the Judges, in the same paragraph, said:
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What is clear from the judgment of the Learned High Court Judge is that he did not analyse the documents he relied upon to justify the award of K192,500,000 and the other damages but merely accepted them as [a] given. This is against the principles of judgment writing as revealed by —.
In paragraph 210 of the Judgment, they concluded:
The assessment by the Learned High Court Judge of the damages, which we have set out above, is nothing but an acceptance of the submission (in the form of pleadings and documentary evidence) by the Appellant. He does not sieve the evidence or attempt to analyze, assess or apply judicial reasoning logic to it, vis-à-vis the K192,500,000 claimed. (Emphasis mine)
By referring to the book the Justices acknowledged that the writing of judgments is not a matter of personal preferences by Judges. Judges do not have the right to write the judgments in any manner that they like. There are rules and principles, which must be followed. The writing of judgments has been a subject of debate and intellectual interrogation, which have yielded some principles and rules over the centuries, which must be observed by those charged with the responsibility to write judgments.
Just like there are rules on practice and procedure in moving and prosecuting matters before courts, both civil and criminal, there are rules, which must be followed in the writing of judgments. The rules are necessary to provide transparency and fair determination of disputes before Court.
The rules on writing judgments are necessary to secure well-reasoned and structured judgments. They protect and enhance the independence, integrity and professionalism of the Judiciary. Unfortunately, there has never been a conversation on the quality of judgments being delivered by Judges in Zambia.
Since 1991, the conversations on the Judiciary have invariably focussed on the remuneration, appointments and independence of the Judges and more often than not on the delays in the delivery of judgments. There has never been a discussion on, perhaps the most important task in the quest for justice or the entire judicial process, how the judgments delivered by the Courts are written.
It has been dangerously assumed that all Judges know how to write judgments. The Judgment by the three Justices has demonstrated that this is not the case. That the Judges took time to address this issue in the Judgment is recognition of the existence of challenges in the manner in which Judges write judgments.
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They have also demonstrated that failure to follow the rules and principles on writing judgments may itself be a source of injustice. Judges who are supposed to dispense justice may also be the architects of injustice. As demonstrated by the Supreme Court, the award of the sum of K192,500,000 was based on a report, whose content was preceded by a disclaimer as to its completeness and accuracy.4 Despite the disclaimer the High Court Judge accepted the content of the report as proven. The High Court Judge accepted as a fact that the Appellant had suffered a loss of K192,500,000, without more from the Plaintiff. Having analysed the evidence relied upon by the High Court Judge in allowing the claims; the Supreme Court demonstrated that allowing such a judgment to stand would have occasioned serious injustice to the Defendant.
That Dr Dato Syed Ahmed Idid found it necessary to write a book on this subject suggests that the writing of judgments is a subject, which merits intellectual treatment. The book covers topics such as:
(a) Legal reasoning and judicial writing;
(b) Composition of a judgment;
(c) A standard judgment and grounds of decision;
(d) The British style of writing judgments and the civil law position; (e) Decision writing by Philippine judges;
(f) Style, rules of grammar and punctuation in a judgment;
(g) Personal perspective in judgment writing; and
(h) Delivery of court judgment.
The set of 26 Volumes of the Laws of Zambia and the Rules of the Supreme Court 1965, are some of the reference manuals that every legal practitioners must have in her office. However, for one that has ascended to the office of Judge of a Superior Court, the book by Dr Dato Syed Ahmed Idid and others on writing judgments must be mandatory additions to her collection.
In their Judgment, the three Justices fully embraced the rules and principles governing the writing of judgments. The Judgment shows that they actively interrogated the arguments advanced by the parties to the appeal. Thereafter, they made an intellectually and sound decision based on their own reasoning. The arguments and opinions of the parties to the appeal were neither ignored, which is the practice of some Judges, nor reproduced and adopted in the Judgment of the Supreme Court. They were interrogated and those that were sound were considered in the Judgment. Those that were rejected reasons were given.
4 See paragraph 207 of the Judgment.
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They did not just rely on decided cases cited by the parties but did their own research and found cases at variance with the propositions advanced by the parties to the appeal. Where there were conflicting decisions these were analysed and distinguished.
Where portions of previous Judgments of the Supreme Court, delivered while it exercised appellate jurisdiction over the decisions of the High Court, were mischaracterized, the Court rose to the challenge and clarified the position of the law and what their previous pronouncements meant.5
The Judges intellectually rose above the advocates of the parties to the appeal by applying a higher level of judicial reasoning in evaluating the issues in contention in the appeal.
In the end, the Appellant knew and understood why they had lost and the Respondent understood why they were successful in opposing the appeal. In the process, the Supreme Court has delivered a landmark Judgment, which speaks to very large and varied audiences. The Judgment has enriched the independence, integrity and professional standing of the Supreme Court and ultimately of the entire Judiciary both locally and internationally.
The Judgment shows that when Judges follow the rules and principles in writing the judgment, the judicial process runs smoothly. The participation in the judicial process is painless and enjoyable. There is less suspicion of improper conduct by the Judges and the outcomes are predicable, although the law is not the subject of mathematical precision.
PART II: THE CONSEQUENCES OF LACK OF CONVERSATION ON THE WRITING OF JUDGMENTS
That in nearly 54 years since independence, there has been no conversation on the writing of or quality of judgments has had profound effect on the Judiciary. Its independence, integrity and professional standing have been constantly in doubt or in question.
In his
5 See paragraphs 204-5 of the Judgment.
foreword to the book on writing judgments referred to above, The Right
Honourable the Chief Justice Chan Sek Keong, Chief Justice of Singapore, said:
This book provides a useful discussion on the techniques of judgment writing. It provides helpful suggestions on how to structure a judgment for clarity of exposition which should be particularly useful to new judges. Without a basic structure, a
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judgment may, for one, look disorganised and untidy and, as a result, give the appearance of it having been rushed for whatever reason. Amongst other things, this book also carefully expounds on the rationale for ensuring that judgments are well-crafted, and, in addition, provides useful comparative commentary. Through works like this book, judges may be inspired to improve or enhance a daily chore, which, in truth, is one of the most important judicial tasks
that they have to discharge. (Emphasis mine)
Some of the allegations of judicial corruption, incompetence and bias, although unfounded, have been made in certain cases largely because the Judge was sloppy in writing the judgment. The outcome is invariably a judgment lacking in structure and judicial reasoning.
Some judgments are so poorly written that one does not require a law degree to identify the flaws. According to the analysis of Supreme Court in the Judgment, the High Court Judgment in the Savenda case is one such case.
A well-structured and reasoned judgment is likely to be accepted even by the losing the party. The losing party, although unhappy with the judgment, should not be in a position to identify failings in the judgment. There must be no basis or ground to fault the court. Every proposition of law must be substantiated. Every finding of fact must be supported by the evidence. The marriage between the law and the facts of the case must be seamless. A well-written judgment must have internal logic and consistency. It should be easy to read and understand. It should give anyone wishing to appeal difficulties in formulating sound grounds of appeal.
On the other hand, a judgment that is poorly written, and although the conclusion may be sound and inevitable, based on the facts of the case and the law, it will invariably be the subject of appeal and will needlessly undermine the standing of the Judiciary. There are a number of cases, which have gone on appeal, which should not have, if the judgments had been properly written by the trial Court.
To any Judge, conducting trial or hearing the parties is the easiest part in the exercise of her judicial authority. The most important and taxing task in the entire judicial process, which has been ignored, is the writing of judgments. Consequently, judgments are not given the respect and attention they deserve.
Over the years judicial decisions have become increasingly unpredictable. Lawyers spend more time studying the judges as opposed to the law and the facts of the case. At times lawyers tailor their cases, not exclusively according to the law and facts of the case, but bearing in mind the intellectual capacity of the
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Judge allocated the case. In other instances, lawyers simply discontinue cases, which have been allocated to certain judges, whose competence is questionable. Most Lawyers rarely apply themselves when they are appearing before weak Judges.
It is also not uncommon to find situations where both the losing and winning party do not understand the decision of the Court and have to move the trial court to interpret its own judgment. It is equally not rare to find judgments in which the Court’s findings of fact are incongruent to the conclusions reached by the Court. Similarly, and not surprising there are judgments, which are not supported by the evidence presented before Court.
Based on the observations of the Supreme Court, judicial decisions must be informed by the law and the evidence presented by the parties before the Court. The evidence ought be thoroughly examined and tested. Often this is not the case. In certain cases, Judges start with the conclusions and work backwards by selecting evidence and quotations from decided cases to support the desired end. Where existing case law does not support the preferred conclusion, judgments are written without any authorities being cited. In other instances, they simply sidestep the difficult issues. All these shortcomings are present in some judgments delivered by Judges of the Superior Courts.
In writing judgments, special attention must be directed to findings of fact. The findings must be based on cogent evidence, in view of the reluctance by the Supreme Court to disturb such findings on appeal.
The law and the evidence should dictate or inform the judgment or conclusions of the Court. They (the law and the facts of the case) are the currents that should guide the Judge to the inevitable but just decision in the case.
In most extreme situations, which can be described as bordering on criminality, some Judges have been known to manipulate the records of proceedings to support their desired outcome. This is done in view of the somewhat rigid position taken by the Supreme Court that it rarely disturbs findings of fact made by trial courts. The notion is that the trial Judge had the opportunity to see the witness being subjected to both examination in chief and cross examination, therefore better placed to determine the truth based on the demeanor of the witnesses. This position can only be fairly enforced where the judgment in issue is well structured and reasoned.
The effects of this longstanding tradition of poorly written, unreasoned and unstructured judgments are many and have affected the entire Judiciary in its standing and operations.
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That judgments are poorly written is evident from the Zambia Law Reports. Notwithstanding the increase in litigation, for years reported cases have been published in a single volume of the Zambia Law Report, which invariable does not cover more than 300 pages. More often than not, the reported cases were those decided by the Supreme Court. Again, these were reported not because they were well reasoned, well structured or groundbreaking, but because they were judgments of the highest Court therefore binding on all lower Courts. The editors of the Zambia Law Reports found most of the decisions of the High Court to be of poor quality therefore not worth publishing. In recent years, even fewer cases from Zambia are published as part of the Law Reports of the Commonwealth.
Because some Judges are casual and unserious in the writing of their judgment, the same lackluster attitude has permeated the legal profession. If legal practitioners knew that their cases would be subjected to very rigorous judicial scrutiny, they would be slow to take certain cases to Court. However, since the converse is true, they choose “to try their luck.” The pursuit for justice should not be based on luck but the law and the facts of the case in issue. In any case, had it not been partly for the Supreme Court and ultimately the Supreme Court, the Plaintiff in the Savenda case would have succeeded, notwithstanding the flaws in the judgment.
Some lawyers have been known to commence legal proceedings just to buy time for their clients, especially where a debt is involved. This is made possible by lack of serious examination of the pleadings during the status conference by the Judges. The status conference is never utilized for the intended purposes.
The Judgment of the Supreme Court clearly shows that the Savenda case should not have gone to Court in the first place. Since it did, it should have ended in the High Court and not proceed on appeal to the Court of Appeal at the instance of the Defendant. Although the case touched on the concept of credit referencing, which the Judges described as “fairly alien to the Zambian banking and financial sector” this was a simple case of alleged negligence.
The claims in the Savenda case are themselves odd. If the law had been properly followed, one could not rationally claim for:
(a) the sum of K192,500,000 as damages for loss of business;
(b) damages for loss of profit;
(c) damages for negligence;
(d) damages for injury to business reputation; and
(e) any other relief the Court may deem fit.
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It is difficult to comprehend how one can claim for the sum of K192,500,000 as damages for loss of business and at the same time claim for loss of profit. Equally difficult to comprehend and distinguish is the claim for damages for negligence and damages for injury to business reputation.
At the status conference, the flaws in the statement of claim ought to have been identified and addressed, if possible or have the entire case dismissed. As demonstrated in the Judgment, the Supreme Court was forced to go to the basics and address the distinction between liquidated and unliquidated damages as well as special and general damages.
That the claim succeeded at the High Court level and partially survived before the Court of Appeal is a serious indictment on the integrity and intellectual capacity of the trial Court and the Court of Appeal.
The Supreme Court has, however, demonstrated that there is hope. While one may succeed in her claims before the High Court and moderately triumph in the Court of Appeal, the same is not true before the Supreme Court. The issues will be scrutinized in the minutest of detail.
Nevertheless, it should not be the role of the Supreme Court to remind the legal practitioners the law laid down in the case of Donogue v Stevenson. The Supreme Court should be dealing with cases that seek to push the boundaries of the law. It should be dealing with cases, which implore the Court to reverse previous decisions and for the Court to do so where necessary and to refuse to change the law in other instances and not to repeat what is largely a settled position of the law.
PART III: MISCONCEPTION OF JUDICIAL INDEPENDENCE
One of the reasons why there has never been a conversation on the quality of judgments written by Judges has been the misapprehension of the notion of judicial independence.
Both the bar and the bench have misunderstood the provisions of Article 122 of the Constitution, which provides that “in the exercise of the judicial authority, the Judiciary shall be subject only to this Constitution and the law and not be subject to the control or direction of a person or an authority.”
Interrogating the quality of judgments delivered by Judges and insisting on certain rules and principles being followed by Judges, in writing judgments, does not undermine the independence of the Judiciary guaranteed by the Constitution. Such efforts are in fact in aid of the independence of the Judiciary. The Judiciary,
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like any other institution, is subject to the law and the Constitution. There must be efforts and measures to ensure that Judges are indeed subject to the law and the Constitution. Probing the quality of their judgments and having a discussion on the same are some of the ways and means of ensuring that they comply with the provisions of Article 122 of the Constitution.
Article 122 of the Constitution is not at variance with the pronouncements by the Supreme Court referred to above. Judicial independence does not mean lack of accountability on the part of the Judges. The said Article is not at all inconsistent with requiring a Judges to critically analyse the claims and arguments presented to her by the parties and make “a scholarly decision based on her own reason — .” Insisting that the Judges do so, is a way of enforcing the provisions of Article 122 of the Constitution.
The protection stipulated in Article 122 of the Constitution has to be reconciled with the provisions of Article 18 of the Constitution, which guarantees the right to a fair hearing in both criminal and civil proceedings to people who have set in motion or against whom the judicial process has been actuated. The right to a fair hearing includes the right for the parties to the proceedings to receive a reasoned decision or judgment from the Judges.
The sentiments by the Supreme Court are therefore in accord with Article 18 of the Constitution. It cannot seriously be said that the parties to the proceedings have received a fair hearing when the Judge has not explained to the losing party why she has lost and to the winning party why she has been successful.
Judges must be independent but they must at the same time remain accountable through the judgments they write, which must be well structured and reasoned. Independence of the Judiciary does not mean that a Judge has the right to use the judgment to punish the party to the proceedings for the perceived sins of his lawyer.
Judges must follow the settled rules and principles in writing judgments. By writing judgments like the one delivered by the High Court in the Savenda case, Judges are violating both the provisions of Articles 122 and 18 of the Constitution. In the process, they have impaired the independence, integrity and professional standing of the Judiciary.
PART IV:

WHY JUDGMENTS MUST BE INTELLECTUALLY SOUND AND WELL- STRUCTURED
A judgment of the Court provides a window into the soul of the Judiciary of any country. Therefore, the writing of a judgment is an exercise, which must be undertaken with a great deal of care and responsibility. It is the highest
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responsibility that anyone with legal training can ever assume. By writing judgments, a Judge assumes the power of life and death over her fellow human beings and the power to build and destroy others. A Judge assumes the power to shape the course of history of her country and there are many such decisions, which have shaped the economic, social and political direction of Zambia.
It follows that care has to be taken in the writing of any judgment irrespective of the issues in contention. Words have to be chosen carefully and sentences delicately structured so that the reader is left in no doubt as to what the Judge seeks to convey. Every sentence must be grammatically sound and every paragraph structurally sound. The accuracy of every legal proposition must be checked and verified. Most importantly, the reasoning behind it must be legally sound.
It is a responsibility, which must be assumed only by the best legal minds and the most responsible but humble people in the country. It is a responsibility, which must be assumed with humility. The assumption of the office of Judge should be seen as a sacrifice as opposed to a reward because of what is expected from Judges in the writing of judgments. A Judge must only remain loyal to the law and eschew her own choices and prejudices.
All Judges must embrace the Supreme Court’s observations on the responsibility of the Judge in writing judgments because the writing of judgment is not a private but a public undertaking. A judgment of the Court speaks to a much wider audience: (1) the litigants; (2) the legal practitioners involved in the case; (3) the legal profession; (4) the Judiciary; (5) the country; (6) the academia; and (7) the rest of the world.
Litigants: Through the judgment the Justices address the litigants who have the right to know why they lost or won the case. When someone decides to take a case to Court and pays a lawyer to represent her, it is because the issues in contention are in her judgment important enough to merit the attention of an independent arbiter in the form of a Judge. A Judges owes her a reasoned judgment or ruling, which must explain why she has won or lost the case. The same is true for the defendant or respondent. If she has to be condemned or suffer in body or property, she deserves to know why.
She must be informed why her evidence and the law relied upon by her lawyers, failed to persuade the Judge to find in her favour.
The Legal Practitioners: When a lawyer accepts instructions and a retainer from a client, it must be because she has done her research and she is convinced that she has a good case. The same is true for a lawyer who decides to defend the claims or charges against her client. In the absence of such conviction, the responsible option for the lawyers is to sit down and agree on a compromise.
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When they decide to go to Court, it must be because they are fortified by the law and the evidence in their respective positions, which positions must be resolved by the Court.
It follows that if she is to lose, the Judge owes her a duty to explain why she lost her client’s case. The Judge has the obligation to probe both the law and evidence relied upon by the lawyer and show why she was not persuaded. The lawyer is then expected to learn from her mistakes. Lawyers must come out of every case knowing that they have learnt something from the Judge, which they did not know before the proceedings.
The Legal Profession: a Judge must be aware that in her judgment, she is not just addressing the lawyers before her but the rest of the legal profession. She has to show them where their fellow lawyers went wrong so that they can avoid the same mistakes.
The Entire Judiciary: the Judiciary is not the buildings, but the men and women in whom the Constitution has vested the adjudicative authority of the Republic. The judicial tone of any country is set by its highest and final Court. An even greater responsible lies on the shoulders of the men and women who sit as Judges of the Supreme Court. They can do no wrong and their opinions collectively constitute the standard norms of what is legal in the Zambia.
The writing of a judgment is not a private quest but a public one being undertaken in the name of and on behalf of the people. In writing the judgment a Judge is not just addressing the litigants and their lawyers but also her fellow Judges. It is not enough for a Judge to say that she is bound by a decision of a superior Court. It has to be demonstrated that the decision of the Superior Court is on the point and not distinguishable from the case at hand. Where she can she has the duty to point out to the other members of the Judiciary why this is the position.
Having risen to the position of Judge of the Supreme Court, it does not mean that one possesses the sum total of all the legal knowledge in the Country. It simply means that one has greater responsibility. Judges of the trial Courts being more in numbers and closer to the people are better placed to read the mood of the people and emerging trends in the country, which require judicial attention. This they can do through their judgments.
A Judge is also writing to her fellow Judges. She has to give them reason why they should be persuaded by her reasoning should they encounter a similar case. Where there is a decision on the point by a Judge enjoying similar jurisdiction she has a duty to explain why she has to differ with the pronouncement made by a fellow Judge. The same is true even when she agrees with a decision of another
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Judge. It is not enough to say: “I agreed with the decision of my Learned Sister or Brother Judge —.” Such a pronouncement is evidence of abdication of judicial responsibility.
In every judicial process there only two possible outcomes: the plaintiff may lose or win. It means the Judge has 50% chance of finding in favour of one of the parties to the proceedings. However, what is crucial is not whether the Judge has found in favour of one party against the other, but the reasoning behind any of the two possible outcomes.
Having read the Savenda case every Judge has been fully re-educated on the difference between liquidated and unliquidated damages. Furthermore, from paragraphs 213 to 218, the Judges, both in the High Court and the Court of Appeal, have now been told by the Supreme Court that they cannot dish out orders for leave to appeal like confetti. The losing party has to apply for it and show to the Judge why she ought to grant leave. The instructions of the Supreme Court will definitely put to an end the practice where judges on their own motion say: “leave to appeal is granted.” This is ordered even where such leave is not required such as where one can appeal as a matter of right.
Academia: The legal training in Zambia is split between the law schools and the Zambia Institute of Advanced Legal Education (ZIALE). Law schools are there to teach the students the law. The law schools having instructed the students on the law, the role of ZIALE is to inform them on how to use the law in various situations, especially how to set the judicial process in motion, which will lead to a judgment. A Judge must know that every judgment or decision she makes is a contribution to the existing body of law, which will be studied by students in various law schools. Through the judgment, she is also educating the students on the law. Judgments must, therefore, be written in a manner and structure that is easy for law students to read and understand what the Court has pronounced as the law. It must also be a sound contribution to the existing body of laws.
In some instances, judgments may be groundbreaking in certain areas of the law. Greater care should be taken in writing such judgments so that even if one wants to make the judgment the subject of academic paper, the same must be well structure and reasoned so that it does not become the subject of academic derision.
From an academic perspective, the Judge must have in mind the students and the people responsible for instructing them on the law.
Entire Country: Setting in motion the judicial process remains the only civilized way of resolving disputes. However, the continued relevance of the Judiciary and its processes is largely dependent on the soundness of the decisions that are delivered by the Judges. A Judge, therefore, has the responsibility to cause the public to have confidence in the Judiciary and its processes. A badly structured, poorly reasoned and intellectually unsound judgment only serves to undermine
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people’s trust and confidence in the Judiciary. The consequence is that people will be forced to avoid the Courts and resort to alternative means of resolving disputes with all the attendant consequences.
International Community: This is the age of the Internet and globalization. A Judge must, when writing the judgment, bear in mind the fact that her judgment will be available to a global audience the moment it is released. Zambia, being a developing country, is competing with other developing countries, to attract foreign investors. Any serious investor will consider the independence, integrity and professional standing of the judiciary of the country she plans to invest in before making the decision. An investor will be keen to invest in a country, which is stable, where there is the rule of law and a free, independent and competent judiciary.
An investor needs assurance that in the event of a dispute, which is inevitable in any business arrangement, she will take the dispute to a judiciary that is independent, impartial, intellectually capable and not tainted by allegations of corruption. That the dispute will be soundly probed and a reasoned judgment delivered.
Every Judge is a spokesperson for the Judiciary. A bad or intellectually unsound judgment will taint the entire Judiciary. Through the judgments, outsiders can assess the quality of the legal training available in the country, the competence of the legal profession as well the independence, integrity and professional standing of the Judiciary.
The writing of Judgment is a serious undertaking, which must intellectually tax every Judge. There is no doubt that if Judges in Zambia acknowledged the wide readership of their judgments greater care will be taken in the writing of judgments. However, because there has never been a conversation on the subject most judgments are written like and accorded the attention similar to that given when writing short messages (SMS) or e-mails to relatives and friends. It is invariably assumed that judgments will only be read by the parties to the proceedings.
Judges are independent but accountable through their judgments. Every sentence in a judgment must be carefully crafted so that it conveys the true intent of the adjudicator. The decision must be informed by the evidence and the law. Every judgment merits serious attention and it must go through several drafts before it is finalized.
PART V: WAY FORWARD AND RECOMMENDATIONS
As part of the conversation aimed at recruiting a group of Judges and encouraging those that already are, to rise to the standard set by the Supreme
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Court, there are certain administrative changes and inexpensive measures that can be instituted to address both prospective and existing Judges.
The pronouncements of the Supreme Court in paragraphs 209 and 210 of the Judgment address both serving and potential Judges. Article 141(1) requires a candidate for appointment as judge to be a person of proven integrity and one who has been a legal practitioner. In the case of the Supreme Court, a practitioner for at least fifteen years; Constitutional Court, for at least fifteen years and has specialised training or experience in human rights or constitutional law; Court of Appeal, for at least twelve years; and High Court, for at least ten years. This is a marked departure from previous constitutional provisions on the point.
Prospective Judges: Through the Savenda Judgment the Supreme Court has set the standard that must be met by every potential candidate for appointment as Judge.
An applicant to the office of Judge must show that she has the intellectual capacity to contend with the claims and arguments presented by the parties and make reasoned and intellectually sound decisions based on her own logic. She must demonstrate the confidence and intellectual capacity to reason with counsel on both sides of the case. She must display the capacity not only to distill the evidence and law relevant to the case but also capacity to apply judicial reasoning in arriving at a decision.
The fact that someone has been a legal practitioner for the requisite number of years should not be enough to merit appointment to the office of Judge of a superior court. The quality of work done needs to be questioned in order to determine whether the candidate has measured up and will, once appointed, continue to conform to the standard norm set by the Supreme Court. This requirement, which is still within the ambit of Article 141 of the Constitution, will prevent the appointment to the office of Judge those who seek the office as part of the retirement plan having failed to make the grade in private practice or public sector. Appointment to the office of Judge should be seen as a service to the country and not be as a fall back position when everything else in one’s professional life has failed.
Possible candidate for appointment to office of Judge should be able to submit cases she has argued and where necessary she should even submit the submissions she prepared in order to assess her suitability for the office.
Emphasis on these minimum requirements will help deter opportunists whose main interest is in the emoluments and prestige attached to the office and leave room for those that are intellectually able to serve. The abilities outlined by the
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Supreme Court should be possessed by the candidate before appointment. They cannot be acquired once one has been appointed, but they can only be improved upon where they already exist.
Placing emphasis on these qualities and having a conversation on them will cause those who have genuine ambitions to be Judges to start preparing and applying themselves for such possible appointment at a very early age. Intellectual confidence and ability to probe legal issues are not skills that can be learnt over night or on the job. They should have been acquired by the time one is eligible for nomination.
Appointment to the office of Judge should not arise as an afterthought. It should be a long-term goal for any serious candidate and the commitment to that goal ought to be gleaned from the work one has done in the years preceding the application.
Magistrates and Registrars. The standards set out by the Supreme Court should be the standard norm for those that are already part of the Judiciary.
Those who are magistrates or deputy registrars and who hope to be appointed Judges of the High Court should be evaluated based on the work they have done in their respective positions. Their rulings or decisions should be analysed and the number of decisions reversed or upheld on appeal should be considered. Promotion to the High Court must be earned. That someone has clocked 10 years working within the Judiciary, in various positions, should not result in automatic appointment to the High Court.
The enforcement of the standards will force those who desire to rise to office of Judge of the superior courts at a very early stage in their careers, to pay particular attention to their work. It is the quality of their work, as opposed to their connections, which must guarantee them promotion to the office. They must be objectively assessed based on the work they have done. If there are more decisions that have been reversed on appeal than those upheld that should be reason not to elevate such a person to the office of Judge of a superior court. Their rise to the High Court should be deferred until there is marked improvement in their work.
If more decisions have been upheld on appeal that should be taken as proof of their competence and the basis of their promotion to the High Court. It is also evidence that the candidates have kept themselves informed on the development of the law and has successfully integrated themselves in the Judiciary.
High Court Judges. The same should be true for those who are already Judges of the High Court. Promotion to the Court of Appeal should be based on merit. The number of judgments that have been upheld on appeal should be a determinant
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in their promotion. The enforcement of this requirement will cause High Court Judges to pay attention to the cases they are handling and the decisions they are making. The best determinant and perhaps the most objective ground for promotion to a higher court should be the number of judgments that have been upheld on appeal. If more judgments have been upheld on appeal than those that have been reversed it means that the Judge merits appointed to the Court Appeal.
Judges of the Court of Appeal. Having been appointed or promoted to the position of Judge of the High Court, it is natural for anyone in that position to desire to rise to the position of Judge of the Supreme Court. The appointment to this final court of appeal in the land has to be earned. For those who are already Judges of the Court of Appeal, their opinions ought to be evaluated. Where most of the opinions have been reversed on appeal by the Supreme Court that should count in the determination of their suitability to ascend to the Supreme Court.
To facilitate evaluation of individual Judges of the Court of Appeal, there is need for the introduction of the system where Judges of the Court of Appeal deliver individual opinions, instead of delivering what is often described as a “judgment of the majority.”
This practice smothers intellectual creativity and growth of individual Judges. Allowing Judges to deliver their own opinions will enable those who are intellectually able to shine instead of being stifled by others. The number of opinions that have been reversed or upheld by the Supreme Court should be the basis for elevation to the Supreme Court. The Judges of the Court of Appeal may reach the same conclusions but for different reasons.
It also follows that any Judge who has had the majority of her order or opinions reversed on appeal that should be taken as evidence of incompetence and as a ground, where necessary, for removal from office.
The Role of LAZ: LAZ has a critical role to play in this conversation, which role would be best performed with the concurrence of the Judiciary. Whenever there is a nominee for appointment to any of the Superior Courts, the National Assembly religiously seeks the input of LAZ in determining the suitability of the candidate.
The decision by LAZ to support or oppose the nomination is never based on any ground that can be objectively tested. The decisions are based, largely, on what those present in the meeting know about the nominee. The position taken by LAZ has never been informed by any credible information. Candidates have been approved purely because they are perceived as good or civil human beings by those present in the meetings. Their legal careers have often been ignored.
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Given the improvement in technology, the assessment of candidates should be based on objective criteria. LAZ should develop a database for all Judges, except those that have already ascended to the Supreme Court. Legal practitioners should submit to LAZ all decisions made in their cases. Where there is an appeal this information should also be transmitted to LAZ. The outcome of the appeal should equally be communicated to LAZ. If there are further appeals, the information should also be conveyed until the matter is concluded.
This information should in turn be circulated to all the members of LAZ, since not all decisions are reported in the Zambia Law Reports, and the reporting of cases is often not current.
Such information should form the judicial record of the concerned Judge and should be the basis of LAZ’s decision to either oppose or support the promotion of the concerned Judge to a higher office.
The proposed system will provide an objective basis for either opposing or supporting appointments to superior Courts, unlike the current system, which is based purely on personal preferences of the persons present at the LAZ meetings.
PART VI: CONCLUSIONS
The Supreme Court Judgment in the Savenda case shows that a lot is expected from the Judges. The responsibilities of the office of Judge of the superior court should not be taken lightly. The writing of judgments, which is in fact a daily responsibility, is the most important task in the entire judicial process. Prospective candidates must, before applying for such offices, evaluate themselves and decide whether they have the intellectual capacity and the discipline that the office demands.
For those already in such offices, they have no choice but to familiarize themselves with works like that of Dr Dato Syed Ahmed Idid: Writing of Judgments: a Practical Guide for Courts and Tribunals, and be encouraged, bearing in mind the observations of the Supreme Court, to improve their writing of judgments.
Given what is expected from a Judge of the superior courts, the assumption of the office should be treated as a sacrifice as opposed to a reward. It should only be assumed by those prepared to make the sacrifice.
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Clever Mpoha

COMMENTS

WORDPRESS: 4
  • comment-avatar
    Martin 3 days ago

    SAVENDA is a useless company which fails to pay its workers while pocketing huge sums of money, the case of LUOMBE QUARRY employee’s. Well articulated article

  • comment-avatar
    muntungwa 6 days ago

    Clever Mpoha not so clever after all.

  • comment-avatar
    mukwa namwaka 6 days ago

    This is a very good article. I hope the Learned Chief Justice , the Judiciary and the Legal profession as a whole will take the recommendations seriously.

  • comment-avatar
    moses 7 days ago

    This is an excellent write up and in-depth analysis Senior learned counsel! am not a lawyer neither do l understand law to this level, however based on common sense, it is not only a disaster, but a serious legal lapse of an immeasurable magnitude to incorporate a document or its contents while bearing a disclaimer in a legal arbitration process. Its unreliability is loudly announced by the authors, yet the learned legal practitioner found it legally appropriate to accommodate such an anomaly to the detriment of the plaintiff. We are learning.