Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd and Others

The Gap and Salt had been in litigation over the use of the GAP trade mark for over a decade. In 2005, the Supreme Court of Appeal expunged Salt's registered GAP trade mark on the basis of non-use. In March 2007, Stuttafords commenced selling GAP merchandise in South Africa. Salt then brought an interim application based on passing-off to interdict The Gap and Stuttafords from trading in GAP merchandise. On 28 May 2007, Basson J granted the interim interdict. The Gap and Stuttafords then applied for Basson J to recuse himself on the basis that his judgment consisted almost entirely (approximately 1890 lines with only 32 lines of original writing) of text copied directly from Salt's counsel's heads of argument, creating a perception of bias. Basson J refused to recuse himself on 22 June 2007. The Full Court dismissed the appeal against the refusal to recuse, partly on the basis that Basson J had since retired and would not hear further proceedings. The applicants then sought leave to appeal to the Constitutional Court.

• Whether it is in the interests of justice for the Constitutional Court to grant leave to appeal on a recusal issue where the judge has retired and will not hear further proceedings
• Whether a judge's extensive adoption of one party's heads of argument as the judgment creates a perception of bias requiring recusal
• Whether reasons must be independently formulated by a judge rather than copied from counsel's submissions

The application for leave to appeal was dismissed.

It is not in the interests of justice for the Constitutional Court to grant leave to appeal where the determination of the appeal would have no practical effect on the material issues between the parties. Where a judge who is the subject of a recusal application has retired and will not hear any further proceedings in the matter, and the substantive order has not been given effect and remains subject to appeal on the merits, the recusal issue becomes academic and should not be heard by the Constitutional Court.

The Court made important obiter observations on judicial practice: (1) Furnishing reasons in a judgment explains to parties and the public why a case is decided as it is, and is a discipline which curbs arbitrary judicial decisions. (2) While some reliance on counsel's heads of argument may not be improper, it would be better if judgments were in the judge's own words. (3) The Court cited with approval former Chief Justice Corbett's statement that writing reasons in one's own words is a discipline that ensures all necessary links in reasoning are present, inferences are properly drawn, and legal principles are correctly applied. (4) The act of summarizing evidence, affidavits and documents in one's own words is conducive to better and more accurate understanding of a case. (5) If these principles are heeded by judges, the necessity of deciding whether extensive use of counsel's heads creates bias should not arise in future. (6) The Court deliberately refrained from expressing any view on whether the judgment gave rise to bias or a perception of bias, leaving that issue for decision in an appropriate case in the future.

This case is significant for: (1) affirming that the Constitutional Court will not hear matters where there is no practical effect on the material issues between parties, even where important principles of judicial conduct are raised; (2) expressing strong judicial disapproval (obiter) of the practice of judges extensively copying counsel's heads of argument as judgments; (3) emphasizing the importance of independent judicial reasoning and the furnishing of reasons in judgments as essential to transparency, accountability and the discipline against arbitrary decisions; (4) citing authoritative guidance on judicial writing and the importance of judges formulating their own reasons. While the Court did not establish a binding rule on when adoption of heads of argument creates bias, the judgment serves as an important cautionary statement on judicial practice and ethics.