“I am constrained to say the following. Whilst [Judge Fisher’s] industry cannot be faulted; it regrettably has to be said that not a single finding that she made had been open for her to make. Moreover, these findings were made without any admissible evidence.”
These are not the words that a judge would like to have said of them, the more so when it is said by five judges of our Supreme Court of Appeal (SCA) after affected parties appealed her judgment in a Road Accident Find (RAF) claim.
What the SCA had to say in May of this year concerning Johannesburg High Court judge, Denise Fisher, should raise red flags. She has on two previous occasions been gently castigated by her more senior colleagues, the judges of the SCA, and appears to have taken none of it to heart.
Judge Fisher, known for her strident attitude, had decided that personal injury attorneys and their expert witnesses are to be treated with derision.
De Broglio Attorneys prosecuted two claims against the RAF for compensation and for a certificate that would entitle these claimants to ongoing medical treatment at its expense. The trouble started when the judge noticed that the settlement memoranda reflected an amount in excess of what the claims were ultimately settled. She failed to appreciate that it is the function of the attorneys and counsel to recover as much damages as they are able to prove and it is the function of the RAF to pay only what it regards as reasonable compensation. It is inherent in every damages claim that the plaintiff argues for a higher amount than that which the defendant argues for. Somewhere in between is a settlement with which neither side is happy. This is the hallmark of a good settlement. Judge Fisher, despite her many years on the bench, seemed oblivious to this fundamental commercial truth that is ever present in all litigation and in RAF litigation in particular. Counsel for one of the claimants tried to explain this to her Ladyship. She was having none of it. Advocates Michael van den Barselaar and Naseem Motala were on brief for the two plaintiffs and two officials from the RAF were also present: litigation officer Mr Ngoaka Nkgapela and Mr Lance Johnstone. The latter is an attorney and senior claims manager, with nineteen years’ experience. He assured the judge that there was nothing amiss. By the next hearing, Judge Fisher had appointed an amicus curiae (friend of the court), in the form of advocates Adila Hassim and Mfundo Salukazana and then, begrudgingly, admitted as a further amicus the Personal Injury Plaintiff Lawyers Association. Hassim and Salukazana were chosen by her on account of their alignment with her views and dutifully sang to the Fisher tune, thus entrenching her preconceived bias and enabling an intemperate judicial pronouncement. A judgment ensued. She blasted de Broglio’s “sleight of hand”, de Swart and van den Barselaar’s “machinations” in “[extracting] an offer from the RAF”, calling it “a deliberate misrepresentation of the claim and the evidence available to prove it.” She also castigated physician, Kevin Scheepers, actuary Ivan Kramer, and Naseem Motala.
All of the parties asked Fisher for permission to appeal her judgment to the SCA. At the same time, the implicated lawyers and experts also sought permission to intervene in the appeal. She heard their arguments and sent them packing. They all sought, and obtained, permission directly from the SCA to appeal her judgment. They were successful as we now know.
Judge Fisher also – wrongly, as we also now know from the SCA – stated that in the two de Broglio matters, and in other cases that she has heard, that, “a modus operandi emerges”.
Laying into the RAF, she pronounced that it was, ”in relation to its dealing with de Broglio, “conducting its business in [a] reckless manner.” All of which we know now from the SCA is untrue.
It was not lost on the SCA, or anyone else involved in this matter, that the RAF had no need to be rescued by her as it had properly applied its mind in the first place in these two particular cases. She was so keen to judicially flog the lawyers and experts that she had absolutely no regard for the two motor vehicle accident victims.
Judgments are published on the internet for the world to read. Judge Fisher, in this instance, marked her judgment as being, “of interest to other judges” thereby spreading her defamation liberally and recklessly, bringing the judiciary into disrepute.
What chance have Judge Fisher’s victims – Ivan Kramer, Kevin Scheepers, Naseem Motala, Michael de Broglio, Michael van den Barselaar, Ngoaka Nkgapela and Zandelee de Swart – got of recovering their reputations and dealing with their post-traumatic stress disorder, let alone recovering the millions of Rands that it took to bring the matter before the SCA? What about a defamation claim? There are difficulties in suing a sitting judge. Permission has to be obtained from the Judge President to do so.
The Trumpian zeal with which she appointed herself as guardian of the RAF and its operations was not only injudicial, but it was in conflict with the doctrine of the separation of powers.
Judges are important people in any society. They wield enormous power. The power of life and death over one’s bank account and, sometimes, over one’s reputation. We are entitled to expect them to carry out judicial functions diligently. Society also expects a just outcome. Judicial salaries are a matter of public record. Hers is a few Rand south of R2 million per annum. A judge is a judge for life and has a salary for life and not a pension. When a judge passes on, a sizable portion of the salary is then paid to the surviving spouse for their life. There are also the trappings of high public office. Constitutionally, a judge cannot be dislodged on a whim. Nearly thirty years into this burgeoning democracy we have yet to see a judge impeached.
It is a sad day for justice when the rights of others are sacrificed on the altar of judicial hubris.
The SCA has, in muted terms, slated a judgment so zealously diabolical in its inaccuracy that its author might be thought of as a modern-day judicial berserker.
Read the SCA judgment:
Read the Fisher judgment: