Reliable sources say the judge is going to be biased in my matter

Gaone Monau | Tuesday June 14, 2022 06:00

Dear Anonymous

As an attorney, I am not in a position to guarantee you loss or triumph in your case. I am also disinclined to confirm nor deny the rumours you heard about the judge.

Nonetheless, there are always measurable indicators that gauge the strength of a case and its prospects of success before any court of law. In this instance I will enunciate on some of the factors that lessen or heighten the probability of victory in a dismissal matter before courts of law. For purposes of this article I will generalise the law. For specific legal advice, it would be judicious to consult an attorney.

1. The dismissal must be substantively fair - there must be a valid reason for dismissal. If the employer dismisses the employee without any lawful justification for dismissal, the dismissal would be substantively unfair. For example, just because the company is upset with a staff member does not warrant dismissal. If the employer can however prove that the employee; stole from the organisation, was absent from work without lawful authority or grossly negligent in execution of their duties etc. the dismissal may be held to substantively fair.

2. The dismissal must be procedurally fair - Dismissal of an employee may be substantively fair and procedurally unfair on the other hand. Procedural fairness speaks to the procedure adopted in dismissing the employee. Some elements of procedural fairness include but are not limited to - informing the employee of a disciplinary hearing within a reasonable time after being charged with an offence, detailing the offence committed by an employee in light of relevant sections of the law, appointing an unbiased chairperson at the disciplinary hearing, giving the worker a chance to be heard before dismissal e.tc. Case in points of procedural unfairness include - having a chairperson of the disciplinary hearing acting as a witness in the same disciplinary hearing, denying the employee a chance to be heard etc.

3. Where dismissal is proven to be both substantively and procedurally unfair the employee will most likely be awarded six months’ worth of the salaries that the employee earned prior to dismissal or reinstatement. Whether the aggrieved will be reinstated depends on the length of time they have been dismissed from work pending judgement and the availability of a vacancy they can fill. If the dismissal is procedurally fair yet overflowing with substantive unfairness, the employee stands a chance of being conferred with less than six months’ worth of salaries that he earned before dismissal. Same would most probably suffice for a substantively fair yet procedurally unfair dismissal. Where the dismissal is held to be both procedurally and substantively fair the applicant may exercise their right to appeal the decision of the court. In rare cases, the court of appeal may bestow the applicant more than six months of the salaries earned at the time of dismissal.

4. Procedural irregularities - Sometimes an applicant whose dismissal was procedurally and substantively fair may lose their case if there are procedural irregularities in the statement of case e.g. filing the statement of case out of time, citing the wrong parties as respondents in their case, tendering evidence that is so hopeless and contradictory in their papers or during trial etc.

5. Theories of law - According to jurisprudence law, different theories of law may influence the judge’s/magistrate’s decisions at times. For purposes of this article I will cite a handful of these theories.

a. Naturalism - Proponents of this theory aver that the laws of nature ought to govern statutory laws. For example murder is universally considered abominable. In relation to naturalism, naturalists believe that the statutory laws condemning murder and acknowledging the right to life are a proliferation of the natural law that human life is sacred. A judge who embraces the naturalist model in his/her judgement may possibly be influenced by his/her appreciation of natural law and not just the solitary merits of the case.

b. Positivism- Positivists advocate that statutory laws exist independently from nature. Moreover, that statutory laws are appropriate whether or not they contradict nature. A judge who engages the positivist pattern of judgement will most likely analyse the law as it is in relation to the parties in the matter. His/her analysis of the law will in all probability be persuaded by the distinctions of the case only.

C. Realism- Realists believe that judges make law. They believe that the kind of judgement a judge grants hinges on the type of breakfast he/she has had in the morning. Moreover that external factors such as the judge's subconscious mind, experiences, biases, prejudices, public pressure, political climate, felt necessities of time, etc. may influence the judge's interpretation of the law. A judge with a realist approach in his/her style of judgment will probably be swayed by any or some of the aforesaid variances in his/her judgments.

Some scholars propound that it is nigh impossible for a judge to engage only one fashion of legal reasoning forever and a day. Nonetheless that, it is possible for one particular theory of jurisprudence to be predominantly evident in the judgments rendered by a judge/magistrate. In my humble view, fractions of truth and falsity are almost palpable in the aforesaid two statements, I just cannot ascertain the exact measurement of truth or falsity in each.

Conclusively, it would be imprudent to proffer that the judge will misdirect himself/herself in your case without appreciating the wholeness of your case, the law thereof and any undercurrents that may finalise the outcome of the case. Furthermore, it is incumbent upon you to position yourself on a standpoint that multiplies the probability of victory in your matter and afterwards resign to the fate of the judge’s determination.

*Gaone Monau is an attorney and motivational speaker on the areas of confidence building, stress management, relationships, self-discovery, gender-based violence and other specific areas of the law. For bookings, motivational talks, questions or comments on the aforesaid areas contact +26774542732 or laboutit22@gmail.com. Her Facebook page is Be Motivated with Gaone.