The value of dissenting judgments

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Clive Plasket,Judge of Appeal
Clive Plasket,Judge of Appeal

By Karabo Baloyi, MA student in Journalism and Media Studies


On 8 October, the Law Faculty’s Visiting Professor and Judge of Appeal in the Supreme Court of Appeal (SCA), Clive Plasket, delivered a public lecture in the Moot Room at Rhodes University.

The lecture titled, ‘Planting Seeds for the Future: Dissenting Judgments and the Bridge from the Past to the Present’, focused on five judgments that were handed down before 1994.

The cases concerned racial discrimination, the control of public power, the review of administrative action for unreasonableness, prisoners’ rights and the control of emergency powers and ouster clauses. 

Judge of Appeal Plasket was first elevated to the Bench in 2003, before recently being appointed at the Supreme Court of Appeal in June 2019. He was an activist lawyer during apartheid, acting on behalf of trade unions, community organisations and community advice centres. He obtained his LLM from the then University of Natal in Pietermaritzburg in 1986, and obtained his PhD from Rhodes University in 2003. He is presently also a member of the editorial board of the journal Southern African Public Law.

Judge Plasket explained that most dissenting judgments, which are judgments that are written by one or more judges that disagree with the majority judgement of the court in a particular case, are not seriously considered by other judges or academics. Their importance cannot be denied, however, because more often than not, they plant the seeds for future change in law.

Judge Plasket referred to the 1934 case of Minister of Posts and Telegraphs v Rasool as one of his examples. In this case, Rasool challenged the order to create separate service counters for black and white people, on the basis on unreasonableness. “The dissenting judge raised the need to look at decisions made by the court through the legislation that empowers these decisions. He said, in the eyes of the law, all men are equal and that has to be the starting point, and that right to equality has to be looked at in a historical context which showed that racial classification was unreasonable,” Judge Plasket explained.

He also stated that the dissenting judge expressed that classifying people arbitrarily on colour lines promoted the humiliating treatment of black people which, in 1934, was still a radical idea.

Judge Plasket’s lecture showed the importance of continuously developing the law in order to be in line with the values of equality and dignity, which form a core part of our South African Constitution.

Another case Judge Plasket referred to was the 1958 case of Mustapha and Another v Receiver of Revenue matter. It concerned matters of public administration. According to the Natives Land Act of 1913 and the Natives Trust and Land Act of 1936, which formed the pillars of Grand Apartheid, Mustapha and his business partner needed permission from the Minister of Native Affairs to trade in the district of Lichtenburg. The Minister cancelled this permission on the basis of their race. While the majority found this reasonable, the dissenting judge, Schreiner JA said the Minister received his power from the statute alone and was limited by its constraints. Therefore, the Minister could not act as arbitrarily as he wished and could not use the appellants’ race to cancel the permission. As a result, the judge would have found the Minister’s actions unreasonable. Plasket JA noted that the values that the dissenting judge raised then, now form part of section 9 of the Constitution which, among others, prohibits discrimination on the basis of race.

In closing his lecture, Judge Plasket raised the importance of diversity within the South African legal system. “One thing that it points to is the dangers of all judges in a court being the same, which may explain the way they came at the problem,” he said.