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[2010] ZACC 14
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Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd (CCT 59/10) [2010] ZACC 14; 2011 (1) SA 267 (CC) ; 2010 (11) BCLR 1134 (CC) (2 September 2010)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 59/10
[2010] ZACC 14
In the matter between:
STUTTAFORDS STORES (PTY)
LTD
.......................................................
First
Applicant
STUTTAFORDS INTERNATIONAL FASHION CO (PTY)
LTD
...........................................................................................................
Second
Applicant
THE GAP
INC
.............................................................................................
Third
Applicant
GAP (APPAREL)
LLC
..............................................................................
Fourth
Applicant
GAP (ITM)
INC
............................................................................................
Fifth
Applicant
and
SALT OF THE EARTH CREATIONS (PTY)
LTD
..................................
First
Respondent
KINGSGATE CLOTHING (PTY)
LTD
...............................................
Second
Respondent
PAUL VIVALDI FASHIONS (PTY)
LTD
..............................................
Third
Respondent
Decided on : 2 September 2010
JUDGMENT
THE COURT:
Introduction
[1] This is an application
for leave to appeal to this Court against an order of the Full Court
of the North Gauteng High Court,
Pretoria (Full Court). The order
was made in an appeal brought by the applicants (Stuttafords and The
Gap) against the refusal
by a High Court judge (Basson J) to recuse
himself from any further proceedings in a matter in which he had
handed down judgment
on 28 May 2007 (main judgment). The application
for leave to appeal to this Court is opposed by the respondents
(Salt).
[2] The recusal
application was based on the contention that the main judgment
exhibited little or no sign of any original or independent
application and reasoning, that it essentially copied the written
heads of argument of Salt’s counsel and, consequently,
created
a perception of bias in favour of Salt. Basson J refused to recuse
himself. The Full Court dismissed the appeal against
his refusal.
The present application seeks to have the recusal issue reconsidered
on appeal by this Court.
[3] The application must
in our view be refused because it is not in the interests of justice
for this Court to hear the matter;
but this outcome should not be
seen as an endorsement of the main judgment. We shall first set out
why we consider that it is
not in the interests of justice to grant
leave to appeal and then make some brief comments on the main
judgment.
Interests
of justice
[4] The Gap and Salt have
been locked in litigation about the use of the trade mark GAP for
more than a decade. Before 1994, The
Gap did not trade in South
Africa. Salt had registered the GAP trade mark in its name, but in
2005 the Supreme Court of Appeal
expunged Salt’s registered
trade mark on the basis of non-use.
1
The Gap then took steps to appoint a South African retailer and in
March 2007, Stuttafords commenced selling GAP merchandise in
South
Africa. Having lost trade mark protection Salt then turned to
passing-off as a weapon to continue the battle. It brought
an
interim application for an order interdicting The Gap and Stuttafords
from trading in GAP merchandise pending finalisation of
the main
application for final relief in that regard. On 28 May 2007 Basson J
granted the relief sought. It is that judgment
that is said to have
created a perception of bias.
[5] On 29 May 2007 an
application for leave to appeal against the merits of the main
judgment was lodged. This appeal has apparently
not yet been heard.
Shortly thereafter, on 11 June 2007, The Gap and Stuttafords lodged
an application for Basson J to recuse
himself from further
proceedings in the matter and from further proceedings flowing from
the main judgment. On 22 June 2007 Basson
J delivered a judgment
refusing to recuse himself. He was thereafter not available to hear
the application for leave to appeal
against his decision not to
recuse himself. The application for leave was then heard by Makgoka
AJ who granted leave. At the
same time, he refused Salt’s
application that the stay of the order granted in the main judgment,
resulting from the noting
of the appeal, be lifted.
[6] The Full Court heard
the recusal appeal in September 2008, but only delivered judgment 18
months later. It dismissed the recusal
appeal on the basis that the
matter had become academic because Basson J had since retired, and
that he would not hear any of the
subsequent applications envisaged
in the matter. While the Full Court expressed disapproval of the
practice of simply adopting
the heads of argument of one of the
parties as the judgment of the court, it held that this did not
necessarily give rise to an
indication of bias. It went on to hold
that “there was no compelling reason why [Basson J] should not
have adopted [Salt’s]
heads as his judgment, rather than to
find the time to write his own judgment
de novo
.”
2
The Full Court added that “[t]he fact that he fully agreed
with the arguments of [Salt] and adopted their heads for the
sake of
convenience when he was saying just that, is no indication of bias.”
3
This judgment refrains from expressing any view on that finding.
[7] The position at this
stage of proceedings is thus that: (1) Basson J did not hear any of
the proceedings after his judgment
of 22 June 2007; (2) because of
his retirement there is no possibility that he will do so in future;
(3) his order in the main
judgment has not been given effect to until
now; and (4) the appeal on the merits of the main judgment may still
be heard. On
the papers before us it is not clear what happened to
the principal application between the parties, in which final relief
was
sought, but it is not unreasonable to expect that the dispute
could have been brought to finalisation in the three years since the
main judgment of Basson J.
[8] Under these
circumstances, it appears to us that if this Court determined the
recusal dispute this would have no practical effect
on the material
issues between the parties. It is not in the interests of justice to
hear a matter where that is the case.
4
As noted, however, this does not endorse the Full Court’s
findings that the judgment did not give rise to bias or a perception
of bias. That is an issue that must be left for decision for another
day in an appropriate case. Nevertheless, we do think a
note of
disquiet and caution is called for.
Independent
judgment
[9] The application was
heard by Basson J over two days in March 2007 and a further day in
April 2007. On 18 May 2007 Basson J
requested the parties to provide
their heads of argument in electronic format. Salt provided its
heads in editable format; The
Gap and Stuttafords in non-editable
format. On 28 May 2007 the main judgment was delivered. On
analysis, it appears that the
judgment consists of approximately 1890
lines of typing of which, apart from a summary of the relief sought
and the terms of the
order, only approximately 32 lines are the
judge’s original writing. The rest consists of words taken
exactly from Salt’s
counsel’s heads of argument,
sometimes even without taking out phrases like “it is
submitted” and emotive comments
on The Gap and Stuttaford’s
contentions and actions. There is no direct independent reference in
the main judgment to The
Gap and Stuttaford’s heads of
argument, except for references carried over from Salt’s heads
of argument.
[10] This Court has stated
that furnishing reasons in a judgment—
“
explains to the parties,
and to the public at large which has an interest in courts being open
and transparent, why a case is decided
as it is. It is a discipline
which curbs arbitrary judicial decisions.”
5
[11] While some reliance
on and invocation of counsel’s heads of argument may not be
improper, it would have been better if
the judgment had been in the
judge’s own words—
“
The true test of a
correct decision is when one is able to formulate convincing reasons
(and reasons which convince oneself) justifying
it. And there is no
better discipline for a judge than writing (or giving orally) such
reasons. It is only when one does so that
it becomes clear whether
all the necessary links in a chain of reasoning are present; whether
inferences drawn . . . are properly
drawn; whether the relevant
principles of law are what you thought them to be; whether or not
counsel’s argument is as well
founded as it appeared to be at
the hearing (or the converse); and so on.
. . .
The very act of having to
summarize in one’s own words what a witness has said, or what
is stated in an affidavit or what
a document says or provides, is in
itself a very good discipline and is conducive to a better and more
accurate understanding of
the case.”
6
[12] These remarks were
made by a former Chief Justice, Corbett CJ, in an address at the
first orientation course for new judges
under the new constitutional
dispensation.
7
We have deliberately refrained from dealing with case law on the
issue whether the extensive use of counsel’s heads could
lead
to a perception of bias, because it is not a question we need to
decide here. Suffice to state, however, that if these wise
words are
heeded by judges the necessity of deciding the issue in the future
should not arise.
Order
[13] The application for
leave to appeal is dismissed.
Ngcobo CJ, Brand AJ, Cameron J, Froneman J,
Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and
Yacoob J.
1
A M Moolla Group Ltd and Others v The Gap Inc and Others
2005
(6) SA 568 (SCA).
2
Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth
Creations (Pty) Ltd and Others,
North Gauteng High Court,
Pretoria,
Case No A363/08, unreported, at
8.
3
Id.
4
Van Wyk v Unitas Hospital and Another (Open Democratic Advice
Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 29;
Independent Electoral
Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA
925
(CC);
2001 (9) BCLR 883
(CC) at para 9;
JT Publishing (Pty)
Ltd and Another v Minister of Safety and Security and Others
[1996]
ZACC 23
;
1997 (3) SA 514
(CC);
1996 (12) BCLR 1599
(CC) at para 17.
5
Mphahlele v First National Bank of SA Ltd
[1999] ZACC 1
;
1999
(2) SA 667
(CC);
1999 (3) BCLR 253
(CC) at para 12; quoted with
approval in
Strategic Liquor Services v Mvumbi NO and Others
[2009] ZACC 17
;
2010 (2) SA 92
(CC);
2009 (10) BCLR 1046
(CC) at
para 17.
6
M Corbett
“
Writing a Judgment”
(1998) 115
SALJ
116
at 118 and 123.
7
Id at 116.