The puisne judge, the chaos theory and the common law

Abstract

Puisne judges (judges of first instance) justifiably feel that they are at the bottom of the food chain - to be devoured when least expected by what they perceive to be the sharks in appeal courts. Their lot is exacerbated by the fact that courts of appeal are prepared to decide cases on issues that were never canvassed at first instance; that appeal tribunals do not defer to their factual findings; and that they have a duty to develop the common law even if not called upon to do so by the parties. In spite of lip service to a contrary position, the Constitutional Court assumes that all that puisne judges have to do is to think laterally while forgetting that they work without the privilege of clergy or clerks.