Xenophobes+in+judiciary+need+transforming,+Carmel+Rickard,+Weekender



=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