Defending the right to counsel

OPINION & ANALYSIS
12
THURSDAY JULY 10 2014
The Star
Future of top Swazi judge hangs in balance
THURSDAY JULY 10 2014
Established 1887
47 Sauer Street, Johannesburg
No place for
vain leaders
NE OF the shortest political careers in
South African history has ended in
ignominy, with Mamphela Ramphele
stepping down from formal politics as
the leader of the party she founded
– almost two months to the day South Africa’s
voters showed exactly what they felt about her
ambitions.
Ramphele formed AgangSA (Let’s Build South
Africa) on the back of a wave of media hype, hot air
and broad promises, but very little in terms of
either policy or identity beyond her own,
admittedly oversized, personality.
There’s no doubt that she will always enjoy a
very real place in the history for the liberation of
South Africa from apartheid. There’s no doubt
either that she brought with her a very impressive
post-apartheid CV. Politics, though, is an
unforgiving mistress – and no place for vanity,
without a real support base and true leadership.
Ramphele could not keep her party together,
many joined her only to have their beliefs dashed
and their careers rudely interrupted, some perhaps
fatally. As for the people she thought would flock to
her banner, rich and poor, tired with the status quo
of the ruling ANC and opposition DA, they showed
her exactly what they thought on May 7.
Their decision could well have been spurred by
her disastrous flirtation with the DA, which
managed the rare double of deeply offending both
parties and showing potential voters a side to her
personality that her party officials had long began
to suspect was the true face of the new selfproclaimed “mother of the nation”.
Now she has chosen to step down to leave party
politics and “return to working alongside my fellow
citizens in civil society to pursue the dream of
transforming ours into a more just and prosperous
society”.
Perhaps the more prosaic reason is that her tiny
little party kicked her out for, in the words of
Agang deputy leader Andries Tlouamma, treating
it like a personal ATM machine.
Ironically, in the end, she appears to have been a
victim of the very democracy she appeared to so
publicly espouse.
Our neighbour finds
certain situations
normal, but for the
rest of the world it is
unacceptable
O
CARMEL RICKARD
HERE’S something strangely familiar about the way the Law Society of
Swaziland operates. Faced with situations that most of the rest of the world
regards as completely unacceptable, the
society uses similar strategies we saw in
South Africa during certain periods of
apartheid. In a nutshell, the strategy was to
go to court with cases illustrating injustices
resulting from the prevailing system – in
this case the absolute monarchy of King
Mswati III.
With free speech curbed, the courts
become an arena in which to speak.
The latest of these cases is a telling challenge to the appointment of a high court
judge. He is Mpendulo Simelane, appointed
to the high court on February 14. No doubt
the judge is somebody’s Valentine, but he
wasn’t the law society’s. Judge Simelane is
presiding over one of Swaziland’s most controversial cases and perhaps he’s already
come to regard his appointment as something of a poisoned chalice.
The case concerns two popular and
internationally respected figures, journalist Bheki Makhubu, editor of Nation magazine, and human rights lawyer Thulani
Maseko, charged with contempt of court.
T
After legal argument last week, they are
now waiting for Judge Simelane’s verdict.
Denied bail, they have been in prison for
well over 100 days.
The alleged contempt concerns comment on the actions of, among others, the
Swazi chief justice, Michael Ramodibedi –
a man at least as controversial as the trial.
Whether the decision to challenge the
Simelane appointment would have
happened anyway or whether it is fundamentally a reaction to the trial, isn’t clear,
though a member of the society said this
week that establishing the validity of the
appointment “is a serious matter of
principle”. Briefly, the society says that the
appointment was invalid because the
judge didn’t meet the minimal requirements and that the appointment process
was unconstitutional.
Before you can be appointed a judge in
Swaziland you have to have had a minimum
of 10 years in legal practice. Simelane was
admitted as a lawyer in February 2004. He
practised as a prosecutor until 2009 after
which he was appointed registrar in the
high court and he continued in this position
until his elevation to the judiciary. The law
society says that the work of a high court
More cartoons online at www.iol.co.za/cartoon
Defending the right to counsel
That the needy
should be
represented in court
is a vital part of our
and any democracy
D
ROBYN LESLIE
Telephone 011-633-9111
Box 1014, Johannesburg 2000
Kevin Ritchie
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GEOFF HUGHES
W
Good detective work
Acting Editor
WATCHWORD
HAT is a celebrity?
About 50 years ago,
an American academic defined the unfamiliar
term with caustic irony as “a
person who is known for his
well-knownness”.
He perceived celebrity as
“a new kind of eminence” steadily overshadowing
previous notions of heroism, sainthood and martyrdom. Nowadays the definition would, of course,
include the feminine and the varieties of LGBT (lesbian, gay, bisexual and transgender).
Today, the growth of the celebrity market is
achieved through a fairly obvious alliance between
the media and the entertainment industry, thus the
movements of film stars and singers are often contrived “pseudo-events”, but still oust the tragedies of
real people from the headlines.
But there are interesting anomalies such as Pope
Francis becoming a celebrity, as has Archbishop
Emeritus Desmond Tutu, whereas the archbishop of
Canterbury has not. Furthermore, the special status
accorded celebrities has often ignored morality and
has been carried to extremes. In the 1930s, even the
gangster Al Capone became a celebrity.
The shocking disclosures in the UK of Jimmy
Saville and Rolf Harris as sexual predators and
paedophiles seem to indicate that many people in
authority turned a blind eye to their criminal activities for decades.
● Geoff Hughes is professor emeritus, Wits University
J
ONALD Sebolai is behind bars and, if he is
as guilty as everyone thinks he is, he won’t
be free for quite some time to come. He had
been on the run for a week after allegedly stabbing
his girlfriend, Rachel “Dolly” Tshabalala, to death
when police officers arrested him on Tuesday.
Nkele Marawa, Dolly’s mom, is not happy about
the arrest. Nothing will bring her daughter back.
She’s right. The arrest, though, shows that there
is no substitute for good, old-fashioned police work.
Justice must be done, the good news is that the first
step in that direction has just been taken.
the king. As such, he adds, the challenge is
unconstitutional and thus “legally
incompetent”.
He also claims that the work of a high
court registrar must be regarded as the
work of a legal practitioner.
This is so because a registrar “performs
several quasi-judicial functions” including
taxing bills of costs, which “require a registrar to interpret and apply all the different
and diverse spheres of the law”.
He says that it is not mandatory for
vacancies to be advertised and denies that
there is any requirement for “open and
transparent interview”.
The dispute is due for hearing on
August 1, but so volatile is the Swazi situation that who knows whether the chief justice will still be in office then.
He recently resigned as president of the
appeal court in Lesotho, where he had been
holding office at the same time, after it
became clear that he faced impeachment
inquiries. Now he faces criminal charges
related to alleged insurance fraud in
Lesotho. Is his star still ascendant in Swaziland? Even seers among the kingdom’s
legal community are hedging their bets.
www.tradingplaces2night.co.za
The claim
to fame of
celebrity
Criminal intent
OBURG residents are regularly the victims
of power outages, not because utility Eskom
can’t handle the demand but because the
infrastructure keeps getting stolen, to be
sold to unscrupulous scrap metal dealers.
The scourge of metal theft is such that several
people died in the lee of Orlando Towers last
month, when the disused power station building
collapsed on top of them as they tried to remove the
girders that actually held up what remained of the
building.
That was unprecedented, but nothing compared
to yesterday’s report, which we follow up in today’s
edition with the news that an entire section of rail
has been stolen – five whole kilometres in a week.
The line runs from the main line to the Union
Carriage and Wagon depot which repairs Metrorail
carriages, potentially affecting the efficiency of the
Passenger Rail Agency of South Africa, although
this was vehemently denied. Its operations, though,
were affected yesterday across Ekurhuleni due to
cable theft, among others.
The question that has to be asked is where does
this all end? How brazen must our metal thieves
become before the government declares a crisis?
This is not a victimless crime because it affects
everyone of us. It’s not faceless either.
The police have to act.
registrar is very different from that of a
legal practitioner.
It involves administration of the day-today functioning of the high court and a registrar does not appear in court in that
capacity nor does a registrar carry out any
of the functions of a legal practitioner. In
fact, claims the law society, a registrar is
effectively a public servant employed by the
government.
On the question of the appointment
process, the society says that all appointments to judicial office should be carried
out in a “competitive, transparent and open
manner”. But in this case, no vacancy had
been declared or advertised, as was
required by regulation.
There had been no public interviews
either. One of the most interesting features
of the case is likely to be the first issue
taken up by Judge Simelane in response to
the application for his appointment to be set
aside.
He says he was appointed by the king in
terms of royal powers granted by the constitution that immunise the king from any
legal action whatsoever.
It is clear, says the judge, that the application effectively challenges an action of
Robyn Leslie is a researcher with
the Wits Justice Project, which
investigates miscarriages of
justice, including cases of
wrongfully convicted and
awaiting-trial prisoners.
N A WARM summer’s morning
in June 1961, a penniless odd-jobber by the name of Gideon
Clarence was discovered in a
seedy bar in Panama City, a town in the
state of Florida, the US.
When the police tracked him down, he
was described as drinking on the morning
shift, his trousers “hanging low, weighted
by exactly $25.28 in coins”. Clarence, with a
history of theft, drifting and destitution,
was arrested under suspicion of breaking
and entering a pool hall the evening before,
supposedly walking off with a few bottles of
liquor and the change from the juke-box
machine. The evidence? A few convenient
witnesses, his history of criminal activity –
and, of course, the change sagging in his
trouser pocket, which he claimed was the
lucky outcome of a poker game.
During his trial, Clarence strongly
protested his innocence and demanded the
state provide him with legal representation
as he had no way of paying for a lawyer.
This request was denied, the provision of
legal assistance for the destitute being then
reserved for defendants in cases where
they might be liable for the death penalty.
Within a month of his arrest, he received a
guilty verdict and the maximum sentence of
five years in prison, which is the first part
of Clarence’s remarkable story.
The fate of this indigent man would
change the course of American legal history, and his case brings the right to a fair
trial starkly into relief.
What does this right – guaranteed by
South Africa’s constitution – actually
mean? As armchair spectators, the public
sees two sides: the defence lawyer attempting to convince of a client’s innocence and
the prosecution advocating for as many
nails to be hammered into the accused’s coffin as the court will allow. A judge sits,
impassive and attentive, absorbing all arguments and weighing the balance of each.
But the truth is far more interesting. The
premise underpinning rule of law – the set
of guidelines and codes that govern our
country and thus our way of life – is that
correct procedure must be followed. Guilt
or innocence is not for either defence or
prosecution to decide. If we look at criminal
justice through this lens, instead of a predatory defence lawyer “protecting” a vicious
criminal, we can see criminal defence as a
guardian of due process.
For example, imagine a criminal defence
lawyer demanding, during a trial for narcotics dealing, a demonstrable link between
O
A FIRM CONVICTION: Judge Dunstan Mlambo has called the state provision
of lawyers for the poor a human right.
PICTURE: GABRIEL ELLISON-SCOWCROFT
drugs produced as evidence and the person
accused of dealing. If the prosecution cannot produce such a link, then the case falls
apart. Due procedure has not been followed
as the custody of the important evidence
chain has not been well managed.
In a scenario like this, the rule of law
premise implies contestation by the defence
will improve systems in the future. The custody of evidence for the next drugs arrest
will hopefully be watertight, resulting in
accurate and compelling evidence being
produced at the trial. Thus, criminal defence
processes ultimately improve the functioning of the justice machine as a whole.
In the case of the indigent or destitute,
accessing the correct and fair criminal procedure is impossible without sponsored
legal representation. In his speech, given
last week at the opening of the International Conference on Access to Legal Aid in
Criminal Justice Systems, Judge President
of Gauteng (and chairman of Legal Aid
South Africa) Dunstan Mlambo called
access to legal aid a “foundational human
right” – a right that has been internationalised through the UN Principles and
Guidelines on Access to Legal Aid in Criminal Justice Systems and domesticated in
our constitution.
But in order to guarantee this right and
due process, both defence and prosecution
need to know what they’re doing.
This was Clarence’s argument, and in
1962, after obtaining a pencil and some
prison-letter-headed stationery, he wrote a
five-page plea to the Supreme Court (America’s highest), stating that a fair trial was
impossible without a lawyer. As he had represented himself at this trial, he argued
that coming up against an experienced
prosecutor had been farcical.
In his handwritten appeal, he urged the
Supreme Court to reconsider his case and
assign him legal representation. In a twist
of fate almost as unbelievable as the eventual outcome, the Supreme Court not only
received this mailed missive, they singled it
out of many other petitions as one to act on.
Granting his request, the ensuing retrial – where Clarence was represented by
a court-appointed lawyer – resulted in his
acquittal on all charges. He had spent two
years in prison for a crime he did not commit, but his judgment had the immense
implication that all indigent accused in
America should be provided with a lawyer
if they couldn’t afford to hire one.
In South Africa, the provision of free
legal assistance for those who need it is
rightly regarded as one of our proudest
public services. Legal Aid South Africa han-
dles the bulk of South Africa’s criminal
cases, taking on thousands of clients who
meet their means test – a test you don’t have
to undergo if you are receiving social
grants of any description.
This translated into about 380 000 criminal cases handled by this state-funded body
in the last year, despite being under financial constraints, as their budget assigned
from Parliament was not robust last year:
Legal Aid South Africa’s operations were
funded by R1.25 billion, whereas the
National Prosecuting Authority’s 2012/2013
Annual Report pegs its spend at R2.83bn.
As the institution that handles so much
of our criminal case work, the crucial role
Legal Aid South Africa plays, as guardians
of due process and thus guardians of the
rule of law, should not be overlooked.
What should also not be overlooked is
the importance of the quality of services
they provide. As Clarence’s case attests,
without good representation, a trial is not
fair – and the outcome can be, at worst, a
gross violation.
The Wits Justice Project’s time is spent
on cases like Clarence’s, where a chequered
past or being in the wrong place at the
wrong time can land you in prison. South
Africa’s criminally accused – some of them
career criminals, but many of them caught
in a fraught cycle of poverty and violence –
are guaranteed a fair process by our constitution and Legal Aid South Africa lawyers
are usually the ones providing for it.
As with all organisations, providing
services to a big population, Legal Aid
South Africa’s work is not always above
reproach. The Wits Justice Project has written about the desperate cases of Thuba Sithole and David Mkhwanazi, who were both
wrongfully arrested in tragic cases of mistaken identity and poor police work – and
had their disastrous situations exacerbated
by poor state legal aid. But while we work
to hold these individual lawyers accountable, it should not deter us from recognising
the importance of our state-funded legal
assistance programme, which guarantees
the right to a fair trial for everyone –
regardless of wealth or social status.
From Clarence’s 1960s prison cell to
global recognition at the UN, state-funded
legal assistance is rightly here to stay. The
importance of using criminal defence work
to push our justice systems into improvement and robust function is now an international norm and South Africans should
recognise the value this spend from taxpayer coffers adds to our democracy.