Lecture outline: Conduct in court

1.    Introduction

• All parties in court are equal before the law and deserve to be treated with respect
• Their behaviour sets the tone for the proceedings
• They are in control of the proceedings
• Court officials and witnesses will take their cue from the tone that they set.

2.    Core concepts

2.1 Dignity

2.2 Respect and courtesy

2.3 Patience and self-control

• Magistrates cannot afford to lose their temper in court
• If they do this, they set the tone for other people in the court to behave in the same way

 2.4 Impartiality

2.5 Competence

• To earn the respect and confidence of the public through an educated assessment of the merits of each party's argument
• To maintain professional competence:
  Ongoing training in legal procedure, substantive areas of law, ethical issues, social context; keeping up with changes in the law

2.6 Diligence OHT 4

• Adhering to office hours
• Starting court on time
• Ensuring that matters proceed as quickly as possible and without undue delays: Understanding the legal issues relevant to a particular matter
• Reading the papers thoroughly
• Listening attentively to the parties in court

2.7 Allegiance to the Constitution

• Avoid and disassociate from comments or conduct by any person subject to control which are racist, sexist or otherwise manifestly in violation of the equality guaranteed by the Constitution.
• Ensure that any person in the court who conducts themselves in a manner which violates any other party's human rights is dealt with appropriately and warned against such conduct.

3.    The role of the magistrate in court OHT 5

3.1 Controlling proceedings OHT 6

• Justice can only be served if each party has an opportunity to put their argument to the court in an atmosphere that is controlled and regulated.
• Code of Conduct: duty of the magistrate to take control of the proceedings and maintain good order in court.
• Two most important aspects of taking control are ensuring that:
  1. All show due respect for the court and the law.
  2. All behave in a manner that is courteous and respectful to each other.
• A crime to "scandalise the court", in most common law countries.
• Ensuring that the right to equality before the law is upheld at all times: any person who makes comments that are sexist, racist, or in any other way, in violation of the Constitutional principle of equality must be dealt with by the magistrate.

3.2 Seeing that justice is done: adversarial v inquisitorial System OHT 7

• Issue of the magistrate descending into the arena: appropriate/ inappropriate?
• Adversarial and inquisitorial systems at the basis of this dilemma.

1. The inquisitorial system:
   • The judicial officer has a more active role.
   • Examines witnesses and makes own investigations.
2. The adversarial system: South African law
   • The judicial officer remains essentially passive.
   • Ensures that each party plays according to the rules.
   • In a better position to assess the facts objectively and remain impartial.
   Problem: when parties are not on an equal footing, justice cannot be said to be done. In this situation it may be appropriate for the magistrate to descend into the arena.

4.    Concluding remarks OHT 8

• Take control of proceedings and set the tone
• Ensure that justice is done
• May have to deviate from the strict adherence to the principles of the adversarial system.
• Magistrates are the "coal-face of justice".
• "If we require respect for the law, we must first make the law respectable."
• The public will "judge the judge" by level of professionalism
• Public perceptions are based on manner, appearance, decorum, competence