Status+quo+versus+human+being,+Jeremy+Gordin,+Sunday+Independent

Sunday Independent, Johannesburg, August 06, 2006 //Edition 1//
=The status quo vs the human being=

//A strange thing happened in the Pietermaritzburg high court,// **writes Jeremy Gordin**//. The person, not the process, was acknowledged

// Johannesburg-based advocate Wim Trengove, SC is close to legendary in South African legal circles, and beyond. He is considered, on the basis of his court successes, to be one of the country's top 10 advocates - some would say one of the top three.

Trengove's delivery is terse, clear and to the point. His arguments are clinically logical. He eschews verbal pyrotechnics of any kind. He is one of the few lawyers to whom one may see a full bench of the supreme court of appeal (SCA) paying respectful attention.

But on Monday, in the Pietermaritzburg high court, Judge Herbert Qed'usizi Msimang klapped him.

Here's how it happened.

Trengove stood up in front of Msimang at the start of the trial of Jacob Zuma, the former deputy president, and Thint, a French arms manufacturer, on charges of corruption and, in Zuma's case, on fraud as well.

Trengove is not to be the prosecutor in the trial. The prosecutor will be Billy Downer, SC who last year successfully prosecuted Schabir Shaik, Zuma's erstwhile financial adviser - a prosecution that resulted in Zuma being charged with corruption and fraud.

However, two weeks ago the state informed Zuma and Thint that it intended to apply for an adjournment of the trial from July 31 until some time in 2007. Zuma and Thint had responded - but on Monday only - that they would oppose this application and also apply for the case to be struck off the roll, essentially on the basis that justice delayed is justice denied. The state, they would argue, had simply taken too long - at great political, but also financial, cost to Zuma.

In short, Trengove was there to represent the National Prosecuting Authority in its response to the response of Zuma and Thint to the state's application for an adjournment - to deal with the postponement about a postponement and also to argue that the state be given sufficient time to prepare argument against the striking off the roll of the case.

It is not officially known why Trengove was called in by the state to argue this issue. But there are a number of possibilities. After the state lost two cases contesting the validity of search warrants used in search and seizure raids on the premises of Zuma and his former and present attorneys, Trengove successfully represented the state in the third.

In addition, the state, which has not only had to argue the search warrant cases, prepare for Shaik's appeal in the SCA on August 21, and deal with the Zuma/Thint matter, has admitted that it is struggling with its work load.

Most importantly, Trengove's skill is legendary and - faced with the counter-applications by Zuma and Thint, which the state knew might contain some "explosive" material, and which did - it seems that the decision was taken to call in one of the heaviest hitters of all.

Trengove suggested to Msimang that roughly two months would be about the right amount of time for the state to prepare arguments against striking the case against Zuma and Thint off the roll. Kemp J Kemp, SC, representing Zuma, suggested that roughly a month would be more fitting. Kessie Naidu, SC, representing Thint, said he wanted to get on with the matter two days later.

It was then Trengove's chance to reply. In his mild-mannered way, he remarked that Kemp's suggested date - which would allow the state a month only before argument would be resumed - might be "unnecessarily tight".

"Mr Trengove," asked Msimang, "how long does it take you to read an affidavit?"

This was tantamount to the writer of this article asking Albert Einstein how long it took him to figure out a simple sum - and Trengove seemed momentarily at a loss for words. But, being Trengove, he responded with a straight face: "Well, m'lud, it's not so much reading an affidavit as it is preparing arguments to deal with it."

There was then some discussion about the date of September 5. Trengove said he would not be available.

Now it is not the law, but it is certainly established high court practice that if a senior counsel tells a judge that he is not available on a specific date, then that is that. Judges do not cross-examine senior counsel about their whereabouts. It is simply not done.

Yet Msimang asked Trengove why he would not be available. Trengove replied that this was because he was set down for another matter.

"Get another advocate to handle it," was Msimang's peremptory response.

It then appeared that Downer would also not be available for September 5, the date on which it was now clear Msimang wished to resume the postponement argument.

"Why, where will he be?" asked Msimang, again clearly flouting the usual high court etiquette.

Again Trengove appeared momentarily nonplussed but he explained that Downer was due at a conference overseas.

Msimang's reaction was not kind. He noted that it was completely unacceptable that Downer would not be available for one of the most important trials in the country's history because he was due at a conference.

And Msimang set September 5 as the resumption date for the trial - the day on which the state's application for an adjournment, and the counter-application of Zuma and Thint requesting a striking off of the charges from the roll, will be discussed.

What was happening in the Pietermaritzburg high court on Monday? Why would Msimang have dealt with the state and its talismanic representative in a manner that came perilously close to insolent?

Because he is a judge and he can (up to a point)? Because he is simply an impatient individual? Because he was annoyed that the matter over which he had been set down to preside for four months from July 31, and for which he had been preparing himself for weeks, was going up in smoke? Because he wanted to stamp his authority indelibly on the trial right from the start? Because there are some people, many of them judges, who believe that sarcasm is amusing?

The answer to all five questions is probably yes. And some lawyers, those who had been in court, and those who read about the proceedings in the newspapers, added that it was known among the legal fraternity that 54-year-old Msimang came to the bench from the side bar, not the bar - he had practised as an attorney, not an advocate.

"You know," said one attorney, "it's well-known that we attorneys sometimes get treated like shit by counsel and especially by senior counsel, who like to think they know all there is to know about the law. So maybe Msimang was merely making a point - that he wasn't going to be pushed around in this trial by any fancy-pants senior counsel. It wasn't a racial thing. He snapped at Naidu as well, didn't he?"

This explanation also probably holds water. But another clue to Msimang's approach might also lie in his response when the state complained that Zuma and Thint had waited until Monday morning to file their papers.

"The accused [Zuma] was completely within his rights to file then," replied Msimang, going on to say that the trial was profoundly significant for Zuma, a point that seemed to have escaped the state's attention.

Let's now stop here for a second and go back to February in the Johannesburg high court when Bernard Ngoepe, the judge president of the Transvaal, recused himself from Zuma's rape trial.

Kemp, also Zuma's counsel in this trial, had told Ngoepe that Zuma felt that Ngoepe might be biased against him because he, Ngoepe, had ratified warrants that had been used in search and seizure raids by the Scorpions on the premises of Zuma and his attorneys.

Ngoepe said that, although he did not think he was biased against Zuma, he could understand that Zuma might think he was. For this reason - because he did not wish the spectre of anything untoward to hover over Zuma's trial - Ngoepe said he would recuse himself.

Ngoepe also said that he had to make this decision not only because Zuma was innocent until proven guilty but he was the former deputy president of the country and the deputy president of the ruling political party. Zuma's trial was of major importance therefore, said Ngoepe, and Zuma was himself worthy of the deepest respect.

This sentiment had not been heard about Zuma until Ngoepe made his recusal statement, and had not been heard again until Msimang took the bench on Monday morning.

For what Msimang seemed clearly to be indicating was that he was not much interested in the old boys' "rules" and ways of dealing with issues that characterise much of high court proceedings.

Even more than this, Msimang appeared in his own way to be echoing Ngoepe: that a fair trial is not only about certain procedures and rules - but also about the recognition of the human being in the middle of the process.


 * From: http://www.sundayindependent.co.za/index.php?fArticleId=3377481**

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