[DEBATE] : Xenophobes in judiciary need transforming, Carmel Rickard, Weekender

[Dominic Tweedie]

Xenophobes in judiciary need transforming


Carmel Rickard, Business Day Weekender, 23 February 2008

What is it with South African magistrates and Zimbabweans? Why do
presiding officers in the lower courts forget their manners, let alone
their constitutional duties, when the accused is from a neighbouring
country?

These are questions I couldn't help asking this week as I read reports
of two different cases, in both of which a magistrate demonstrated
utter contempt for people from across the border.

The first starts with that infamous midnight raid of the Central
Methodist Church in Johannesburg, when hundreds of people were carted
off to jail in scenes straight from the shameful '70s or '80s. As if
this apartheid-style police action wasn't enough, the magistrate
involved also displayed contemptuous behaviour for people apparently
considered politically or morally inferior.

The magistrate who presided over the bail application by some of those
detained brought the whole of SA's judiciary into disrepute. This was
a Friday afternoon, she reminded lawyers for the detainees, and she
wanted to go home to spend time with her family. Initially she
declined permission for the lawyers of the accused to consult with
their clients, and eventually sent all the detainees back to the cells
for the weekend after mocking their speech and language and then
refusing them bail.

When the Legal Resources Centre took the matter to the high court on
urgent review, the judge who heard the matter had no hesitation in
referring the magistrate's conduct to the magistrate's commission for
investigation.

But it's not only this magistrate who seems to have a problem with
people from over the border.

Judge Claassen of the Johannesburg High Court has just decided a
criminal appeal involving three Zimbabweans accused of robbery with
aggravating circumstances. Their trial was originally heard in the
regional court, where all three were convicted and sentenced to 13
years.

Claassen said he was unhappy with a number of aspects of the case. Not
only was the performance of their defence attorney so poor as to have
amounted to no defence at all, but the behaviour of the magistrate was
equally appalling. Individually and together, this amounted to a
fundamental failure of justice, he ruled, and set aside the
convictions.

The attorney did not take the most fundamental step of putting his
clients' alibi defence to the state witnesses. So when the accused
gave evidence and explained their version, the magistrate refused to
believe that they had told their lawyer of it beforehand and said they
were making it up as they went along.

The magistrate cross-examined the accused at length in a way that
Claassen said was "intimidating, hostile, repetitive and engineered to
entrap".

Here's a sample of the behaviour the judge said amounted to "judicial
harassment":

"You are blaming the lawyers now, but unfortunately for you we know
this lawyer a long way. It is an experienced lawyer. You only come
from Zimbabwe, you do not know this lawyer. I see now there goes one
of the retired regional court magistrates just taking his briefcase
going out, Mr Van der Merwe. He will tell you that Mr Omarjee is an
experienced attorney. Now you come from Zimbabwe and you tell us that
this attorney Mr Omarjee is making such grievous mistakes. Answer,
answer. I am waiting for an answer." Claassen found that the
magistrate's conduct in mentioning that the accused came from Zimbabwe
"was totally uncalled for and out of place".

"It can only lead to a perception in the mind of the appellants that
the magistrate was prejudiced in a xenophobic manner towards them as
foreigners."

As for the reference to his former colleague leaving the courtroom
with a brief case, it was, said the judge "at best, a form of clowning
which is in breach of his duty to maintain the proper dignity and
decorum of a court".

There we have it — prejudiced, xenophobic clowns masquerading as
magistrates. With so much angry political energy currently focused on
"judicial transformation", Zimbabweans are surely not the only ones
who hope for transformation of magistrates as well.

From: http://www.businessday.co.za/weekender/article.aspx?ID=BD4A712490

681 words

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