The Supreme Court of Appeal in Bloemfontein has slammed Cape High Court Dennis Davis for repeating "coarse" and "lavatorial" language in a reported judgment which ended up in the law reports.
In the civil judgment, Judge Davis repeated the expressions "stuff you", "gatvol" and "bullshit" after he allowed two witnesses to use the language during the trial.
The Appeal Court was alerted to the use of the language and handed down a judgment on May 30 in which Justice Davis was harshly criticised.
"Regrettably, it is necessary to address an issue which has nothing to do with the merits of the case but everything to do with appropriate decorum in the courts. We live in an egalitarian age and modes of speech in court proceedings which are less than refined are to be expected. But there are limits to what should be tolerated in a court of law.
"If public respect is to exist for institutions such as courts of law, which are vital to the functioning of a free and democratic constitutional state, the use of coarse and lavatorial language in court proceedings will contribute nothing towards earning and preserving that respect," said the judges of appeal.
They said freedom of speech was a valuable constitutional right but did not extend to the use of "obscene language" in courts.
The appeal judges added that an appellate court was instinctively loath to criticise the manner in which a trial judge allowed proceedings to be conducted, saying that allowance had to be made for differences of personality and personal preference.
"And where the trial judge is as conscientious and industrious as (Judge Davis is), the temptation to turn a blind eye is great," they said.
But they would be shirking in their duty were they not to say that the use of that kind of language should not have been countenanced.
"Permissiveness of this kind reflects poorly upon the image of the High Court of South Africa and the fact that the judgment of the court has been reported in the law reports, replete with quotations from the evidence in which this offensive language was employed, aggravates the damage," they said.
It was not necessary to call down "fire and brimstone" upon the user of such language, but to just calmly remind the witness that he or she is in a court of law, they said.