Experiencing the court system first-hand – the heavy caseloads, the endless postponements, the need to rush through cases – highlights the injustices faced every day by those who don’t have the financial means to afford top legal representation.
It was Tuesday, 11 November and I was to face my day in court, not as an accused person but as a victim, a complainant and a witness. In June 2012 I was robbed of few of my belongings at my own house. This was the second time I was subpoenaed to appear at the Newlands Magistrate’s court; the first was in March 2013. The first appearance was quick – the accused spent less than three minutes in the dock, the prosecutor asked for a postponement as the police were still doing some investigation. During the 2013 appearance I did not know what to expect: this was before the Nel-Roux televised battle in the Oscar Pistorius trial.
For the second appearance, I sensed something would happen. The investigating officer visited my place twice to say that I had to be in court as the case was going to trial. He also called to tell me he had delivered the subpoena letters for myself and my wife. The night before, I cancelled evening drinks with a very good friend and an advisor of mine. During the telephone call to my friend I told him there was no justice in magistrate courts for us poor people. This was said as some sort of prophecy. It was 18 hours before the trial was set down to start and I still did not know who the prosecutor for my case was; I had not gone through my statement I made in 2012. Monday was a long day for me – I had spent 13 hours doing interviews; I was genuinely exhausted. My friend advised me to sleep early as the following day would be long.
As I got to bed the images of Gerrie Nel and Barry Roux visited my thoughts. I followed the Pistorius trial religiously. I wondered if I would come face to face with the ‘Barry Roux’ of the Newlands Magistrate’s Court the following day. I was a state witness, so I was not worried about the ‘Gerrie Nel’. The thought of being cross-examined on the statement I had not seen since 2012 worried me greatly. My worries shifted to my wife: she was traumatised by the robbery, and she had to seek counselling. What if the defence attorney was harsh on her? Would she hold up under intense cross-examination? At this moment, I resolved that I had to be strong for both of us and for justice to be served.
On the morning of the 11th we drove to the court at around 8h20am (the subpoena letter stated that we have to be in court by 9am). It was a rainy day in Johannesburg. As has become the norm in Johannesburg, some traffic lights were not functioning. We Joburgers have come to accept that a rainy day means some robots will not be working; it is part of life. We arrived at the court 10 minutes before the session was due to start. The first thing I did after the security scan was to see the prosecutor for my case; I was still worried about the ‘Barry Roux’ of Newlands. I was told that they were still in a meeting and was shown the waiting room. I duly went to the waiting room, and was hoping that someone would come to ask which case we came for, but no one came. At exactly 9am, we saw people starting to move towards the court. We then went to the first office marked ‘Regional Prosecutor’ to ask who the prosecutor for our case was. We were told we should go to court; we would find him there.
When we got to court, luckily the court had not started; I asked to see the prosecutor. The policeman showed me the prosecutor. After brief introductions, I told him which case I came for. He told me he would call me for a chat before the case commenced. The courtroom was full – people from different backgrounds were in attendance. Some came to support their families, others were the accused who had been granted bail.
After about five minutes the magistrate walked in and we were requested to rise, as it was done in the Pistorius trial. In court there was one prosecutor and I could spot three defence lawyers and an interpreter. I was expecting some fireworks between the prosecutor and the defence lawyers for the cases that were called before mine. What is particularly interesting about the Newlands court is that the sound system does not work. I was soon to be disappointed: case after case, the state asked for a new date and the defence agreed. I counted around 12 cases that were dealt with in approximately 40 minutes, all being led by the same prosecutor. There was no application for bail by the “defence” lawyers.
At this moment my wife commented that what was happening was kids’ play. She asked if this was how justice prevailed at magistrate’s courts – she too was expecting the ‘Oscar’ kind of court. After the first round of appearances, we adjourned briefly as the prosecutor indicated that the next case was ready for trial. Some 15 minutes later the magistrate entered the court. The prosecutor called the next case, but it was not the case I came for. After few exchanges between the magistrate, the prosecutor and the defence lawyer, the case was postponed. We were then back to the postponements of cases.
Suddenly, the magistrate called for an adjournment. This was to allow the prisoners who were brought from Johannesburg Correctional Centre, better known as Sun City, to be transferred to the holding cells. The four men were chained, and were led by correctional service officials. It looked like there might be some action emanating from the appearances of the chained men who had just walked past us. When the prosecutor started calling the cases of the men who were brought in from Sun City, again there were requests for postponements for three of the accused. They were all facing different charges. Two of the men had legal representation.
The fourth one provided some drama, as he had no legal representation. The interaction was between him and the magistrate. His car was used as a getaway car during an armed robbery and he had claimed that his car was parked elsewhere. After about five minutes of interaction between the magistrate and the man, the case was postponed to December. After the Sun City men had appeared, the court adjourned again. It was now well after 11:00. The prosecutor called me and my wife to go through the statements we made in 2012, as the case would soon be coming before court. My statement was as I was remembering the events of June 2012. I now felt confident. My wife also went through her statement; she too was happy. The prosecutor did not indicate whether our case would be the first one when court resumed. He only told me that the accused claimed that he once worked at my house, hence his finger prints were found on some of my appliances.
A few moments after we had gone through our statements, the magistrate walked in to court. The first case was called; it was not our case. The prosecutor asked for a new date. The same was true for the next two cases. The fourth case was one for Nollen Masango and Others – it was the case I came for, the case I waited for over two years for to come before court. My moment was arriving. I prayed that the case would not be postponed. As Nollen walked to the dock I looked at him; he looked at us. I saw disappointment written all over his face. The prosecutor asked us – my wife and me – to go outside, and and said we would be called back as witnesses. As were waited outside, I got little nervous and felt I needed some water. The image of Barry Roux grilling state witnesses came to mind.
After about 10 minutes of waiting, I was called in as the first witness. My moment had arrived, my day in court. I walked slowly towards the witness box, showing a strong face. Truth be told, I was little scared. The interpreter asked me which language I would use, and I said English. The defence lawyer was the same one I had seen acting on behalf of many accused that morning. I thought he was probably from Legal Aid.
The magistrate asked me if I was Stanford Makashule Gana, and whether I had a problem with taking an oath. I responded that I did not have a problem. I did not want to add titles after my responses to the magistrate, as I did not know how male magistrates were addressed. He continued to swear me in, and I raised my right hand. It was now up to the prosecutor to lead me through my statement.
He first asked me to go through the events of 27 June 2012. As I started telling what happened on that evening, I gained composure. The interpreter was explaining my statement to the accused in Zulu. I went through my recollection of events without any glitch. I was feeling strong. The prosecutor asked me if I knew the accused; I said I did not. He asked whether during that period I had had people working in the house. I responded by saying that I had had an electrician come to the house, but this was the electrician I had given jobs to before, and it was definitely not the accused. He had no further questions. It was now the turn of the defence to cross-examine me. The defence lawyer asked for an adjournment to consult with his client. At this time I was told that I must remain in the witness box so that I could not talk to my wife. After 10 minutes court resumed, the defence lawyer told the court that Nollen had admitted that he was one of the men who robbed me in 2012, and that there would be no cross-examination. I was asked to leave the witness box.
Within few minutes, the magistrate delivered the verdict: Nollen was guilty of armed robbery. The magistrate called on the prosecutor and defence to present arguments in aggravation or mitigation of the sentence. The state wanted a heavy sentence and the defence pleaded for leniency. The prosecutor asked me to call my wife – she was still outside – to come and listen to the sentence. The magistrate delivered the sentence in around seven minutes: Nollen was sentenced to seven years in prison. In his sentencing procedure, the magistrate mentioned that armed robbers take little in terms of physical possessions but cause serious trauma to the victims. As he was ushered to the holding cells, Nollen looked at me; I felt little sorry for him. The entire trial, judgement and sentencing took less than an hour.
Part of me was happy that he was going to prison. After the case I even tweeted that justice had been served. After few hours, however, I started to wonder if justice was indeed served. Here was a man who had no real/dedicated legal representation, effectively sentenced to seven years. I had heard stories of ‘defence’ lawyers asking accused people to plead guilty for lighter sentences. Could it be that that was what transpired in the 10 minutes after I gave my testimony? The Oscar Pistorius case came to mind – what if he had had expensive lawyers? Would the case have lasted for an hour? Would I have left the witness box without being cross-examined? I don’t have definite answers to these questions, but deep down I don’t think if Nollen had had dedicated legal representation, the case would have taken so little time. As I was flying out, I wondered how many Nollens were still out there. Are they adequately served by our justice system at magistrate court level? Having witnessed what happened on Tuesday the 11th, I think we should do more to make justice work for the less financially fortunate. The prosecutor handled almost all the cases that came before the court that morning. I counted approximately 20 cases that he presented to the magistrate. Surely under these circumstances we cannot be doing our best. DM
Makashule Gana is the current Shadow Minister of Human Settlements for the Democratic Alliance.
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Makashule Gana is the current Shadow Minister of Human Settlements for the Democratic Alliance. He also served as the Deputy Federal Chairperson of the Democratic Alliance until 2014. Formerly leader of the DA Youth and currently a DA councillor in the City of Johannesburg, Gana holds a BSc degree and is currently registered for a Postgraduate Diploma in Management at the Wits Business School. Read his full profile here.
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