‘I beg to differ’: Are our courts too agreeable?

Author: Owen Rogers

ISSN: 1996-2177
Affiliations: Judge of the High Court of South Africa, Western Cape Division; Judge of the Competition Appeal Court of South Africa
Source: South African Law Journal, Volume 139 Issue 2, p. 300-339


If dissenting judgments perform a valuable function in the administration of justice,  too little dissent may indicate that the administration of justice is not reaping the  benefits of dissent. South Africa belongs to the common-law tradition, which has  always allowed dissenting judgments. The civil-law system traditionally did not,  and this is still the position in many countries. In the modern era, considerations of  transparency and accountability favour the disclosure and publication of dissenting  judgments. Although they can play a role in the development of the law, their most  valuable function is to improve the quality of judicial output by requiring majority  judgments to confront the dissenting judgments’ reasoning. Factors which may affect  the extent of dissent in appellate courts include case complexity and control over  rolls; panel sizes; judicial diversity, personality and turnover; court leadership;  research resources; modes of judicial interaction; and protocols on the timeliness of  judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court  of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia,  Canada and the United States, suggest that there is less dissent in our intermediate  appellate courts than might be expected. Changes in work procedures could yield a  healthier pattern.