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COURT HUMOUR   laugh

 

Courtrooms are solemn places but they are also places where human beings congregate. Even in the most serious of situations, events  unfold into humorous situations that often break the tension in the courtroom. I share some of the experiences that occurred at different places over many years. Many of the accounts are extracts from Born a Travelling Man.

 

 


GROSS NEGLIGENCE

 

There was also the incident where a young woman wearing stiletto heels had driven her car and caused an accident. The extended heels had prevented her from applying the brakes properly. The shoe had in fact become jammed in between the pedals.

 She was charged with reckless driving and was tried by a relief Magistrate (a Magistrate returning to temporary service after retirement). The Magistrate was intent on making an example of her and found that her actions had amounted to what he described as “gross negligence.” It was clear that the Magistrate was of the opinion that stiletto heels had very few redeeming features. The ability to drive a vehicle properly whilst wearing them was not one of them. He sentenced her to a stiff fine.

 As fate would have it and after the court adjourned, the Magistrate upon leaving the Bench slipped and broke a leg. As he was being carried out on a stretcher to the ambulance, the accused standing outside the court building looked down at him in his sad state and exclaimed, “Gross negligence! Gross negligence!”

At that moment, the Magistrate had nothing to add and we silently accepted that the red colouring of his face was due to pain and nothing else.

 

 


  A SHAKY FOUNDATION

(This incident took place at Welkom a mining city in the Free State)

 

Another characteristic of the city, which is common in places subjected to intensive underground mining activities, was the continuous threat of seismic activity, which manifested itself in frequent tremors and sometimes earthquakes.

One such incident actually caused a large building in the city to collapse and it was totally destroyed. Occupants were injured and killed in the incident.

The residents of the city were accustomed to the occasional earth tremor but were also wary of the fact that it had the potential to cause buildings to collapse and was life threatening. It also had a devastating effect on mining activities as it often caused rock falls resulting in fatalities or serious injury. Dangerous rescue operations by proto-teams from the mines were often required in order to rescue trapped miners. When a tremor occurred, attention was immediately focused on the intensity and the effect it had on the buildings being occupied at the time. The tremors fortunately only caused large cracks or minor structural damage most of the time. These were a nightmare to most homeowners, including myself. I had to fill numerous cracks in my home caused by tremors.

 Our stately and very competent Civil Magistrate at the time was acutely aware of the threat of the earth tremors and quakes. In fact, he had a constant fear of the Magistrate’s Office crumbling and collapsing during a quake. He explained to me on more than one occasion that the pillars on which the structure rested, which were built in order to provide some flexibility during a quake were themselves cracking badly as a result of frequent incidents. He was not wrong. Being young and reckless, I accepted the risk as part of the risks that one takes on a daily basis on life’s journeys. I did not give it much thought but he clearly did not share my death wish and took it much more seriously.

As fate would have it, and whilst he was presiding over a criminal matter, as he did from time to time, a reasonably intense tremor shook the Magistrate’s Office rather violently. I was the prosecutor in his court at the time. He did not intend to wait around to determine the intensity of the activity and decided to leave the courtroom in the quickest possible manner.

The Bench in the courtroom, as is the case in all courtrooms around the country, was substantially higher than the surrounding area or arena as it is sometimes called. In order to climb onto the Bench and to leave it, a series of stairs must be negotiated.

After swiftly standing up from his chair, the Civil Magistrate left the Bench in a flying motion without negotiating the stairs. His actions could best be described as a manoeuvre more aptly associated with the “Dark Knight Batman.” He remained in the air for what seemed to be a considerable time with his magistrate’s gown trailing behind him like a pair of large black wings before he landed on the ground and hastily left the building.

The accused and the public in the gallery found this reaction by the presiding Magistrate to be terribly amusing, which it was. Shrieks of laughter from that courtroom resounded through the whole building causing other occupants to gather at the scene to establish what had caused the laughter. This in turn caused more laughter and excitement after the curious bystanders were informed of what had taken place.

Observing from a distance that his actions had caused a fuss and reflecting after the event upon his solitary and rather abrupt departure, he was noticeably embarrassed by what others considered an overreaction to a common occurrence. At the time he was most probably disappointed that the building had not collapsed as he had clearly anticipated.

Our Civil Magistrate, as only he could was however determined to maintain the decorum of the court to which he reluctantly had to return and to save face under the circumstances.

When he entered the courtroom and climbed onto the Bench via the route and in the manner, which the presiding officers would normally take, there were still uncontrollable snickers evident from the accused and the gallery.

Taking his seat in a very dignified manner and with an obvious air of authority, he glared down at all below and exclaimed, “It’s because of the lies that are being told in my court that God has sent this warning.”

There was complete silence...

 

 


  NO SMOKING

 

It is a serious offence to smoke underground in a mine. This offence was a common one heard in the courts in Welkom, as the mine management was very strict with compliance and prosecution. Methane gas often builds up in the mineshafts. A spark of any form or open flame can cause a devastating explosion resulting in damage, injury or even loss of life. Not only is smoking prohibited but also the possession of cigarettes and related articles underground.

One Friday, an accused appeared on a charge of possessing a cigarette underground. He pleaded not guilty. His defence was that he had found the cigarette on the ground in a shaft and was on his way to report the incident when he was stopped and searched. Random searches were a routine practice on the mines.

His defence was a feasible one as long as there was no evidence indicating that he acted in a manner, which contradicted his intention. Fortunately, for the accused, there was no evidence, which indicated an alternative reason for possession of the cigarette, and his immediate explanation at the search was consistent with his defence. This much was established during the cross-examination of the witnesses who arrested the accused.

 It was however necessary for him to explain his possession under oath. He was quite willing to do so and his attorney called him to the witness stand with a measure of confidence. This would be the final nail in the coffin of the State’s case, he must have thought as the accused cleared his throat and took the prescribed oath. What should have been a downhill Friday afternoon run quickly turned into an uphill battle for the accused.

The accused started his testimony and everything went smoothly as he confirmed the circumstances in which he was arrested. This was the situation until he reached the stage where he was required to explain what he was doing immediately before finding the cigarette. By their very nature, mines operate using machinery and power tools. The accused was an ordinary miner who physically drilled for gold ore.

 His testimony in this regard was as follows, “I was holding the ja, ja, ja, ja, ja, ja, the ja, ja, ja, ja, ja, ja, ja...(it was now clear to all that he had a speech impediment), ja, ja, ja, ja, ja, ja, ja, the ja, ja, ja, ja, ja, ja, ja, ja...” 

When I looked up, the attorney looked me straight in the eye and the prosecutor had already disappeared out of sight. The accused had his eyes closed in concentration and he opened his mouth widely in an attempt to utter the full word with which he was having such difficulty.

At that moment with the accused still attempting to progress past the first few letters of the word, we could take it no longer and I noticed the attorney disappear under the table. Not wishing to disturb the decorum in what was clearly a serious matter, I was obliged to follow suit.

Straining to control ourselves all three of us appeared from under the furniture almost simultaneously. We then heard the accused say “...ja, ja, ja, ja, ja, ja, ja, ja, ja, ja, ja, ja, ja, (he took a deep breath), “I will get the word now your Worship, ja, ja, ja, ja, ja, ja, ja, ja, the ja, ja, ja, ja, ja, ja, ja, ja, ja... jack-hammer!”

He opened his eyes and the look of ultimate success and achievement on the accused’s face had us all diving for cover again.

During the course of what must have been a gruelling experience for the accused in which he repeatedly followed the ritual described above when dealing with difficult words, the Court was adjourned several times for reasons we liked to believe were not obvious at the time. Under these circumstances, it took much longer to complete the matter than we anticipated, despite the fact that the accused was directed away from difficult words for obvious reasons. 

 


IDENTITY CRISIS

 

Cases involving the identity of criminals are often difficult to decide because during the commission of crimes witnesses do not necessarily focus on identifying the criminal. Human observation is also very fallible and influenced by a host of factors. The courts approach these issues with caution and often, identifying characteristics or features play a decisive role. Accused persons and defence lawyers often raise identity as a defence because it is difficult to prove. I recall a number of cases involving identification, which I heard in Welkom that stand out in my memory.

The first matter was one involving a robbery. The incident took place in a public toilet. Only the complainant and the perpetrator were present at the time. The complainant was able to describe various features of the accused including all aspects of his clothing in detail. The clothing that the complainant in fact described matched the clothing that the accused was wearing at the time of the trial.

During the testimony, the accused glared constantly at the complainant and was not amused by the fact that the complainant to his detriment could so vividly recall the incident and describe his clothing so thoroughly.

 When he was given the opportunity to cross-examine the complainant, the accused denied committing the robbery and attacked all aspects of identity mentioned by the complainant. The complainant however stuck to his version that the accused was in fact the perpetrator of the crime and confirmed his ability to identify him.

 The court adjourned for lunch.

The trial continued with the presentation of the defence case. The accused elected to testify and upon leaving the dock, I noticed that the accused had changed his clothing during the lunch break. The clothing he now wore was strange to say the least.

The accused was a big man but the shirt he had on was so small that he was unable to fasten all the buttons on the shirt and his bared chest and abdomen was revealed. The trousers he was wearing was so tight fitting that he walked to the witness stand with great difficulty and was about to tear them when he fortunately reached his destination. The shoes on his feet were clearly a number of sizes too small and the greater part of his feet were exposed.

The accused denied being involved in the robbery and claimed that the complainant was mistaken in identifying him. He blatantly referred to the mistakes made by the complainant regarding his clothing. When questioned on his change of clothing by the prosecutor he denied that this was the case stating that he had been in custody the whole time and did not have another set of clothing. The prosecutor disputed his version but he stuck to it relentlessly and even arrogantly at times.

After the accused had completed his evidence, I decided to dispatch the court orderly to the holding cells to establish if there were any other occupants. The court orderly reported that there was only one other occupant of the holding cells. I decided to call the person in question as a witness.

 The shuffling of feet could be heard as the witness made his way up the steep flight of stairs from the cells to the courtroom above. The shuffling continued for some time as the witness struggled to make his way up the stairs.

As soon as he made his appearance and looked around in the courtroom, he shouted, “He robbed me! He robbed me!” as he pointed to the accused.

 This small and thin-framed man was wearing a shirt ten sizes too large. His short arms could not be seen anywhere in the sleeves of the shirt and he appeared to have no hands. Below the shirt and barely visible was a pair of short pants which he was obliged to hold on to for fear that he would lose them on the way as he climbed the stairs. His shoes were so large that he was walking inside them before he ultimately managed to propel himself forward and slide them along.

If we did not know better, we would have concluded that these clothes were identical to those worn by the accused before the lunch break. Courts however only make conclusions after there is evidence. There was evidence that came from a little man dressed in large clothing who was clearly aggrieved by the current state of affairs.

 


 

 

WOLF IN SHEEP'S CLOTHING

 

Some of the most interesting cases are those involving escapes from a prison or police cells mainly because the perpetrators often use ingenious ways based on the flaws in the system to escape from custody. It is opportunity that creates the situation for a successful escape plan.

The accused in a matter involving an escape from custody was clearly a hardened criminal. Not only did he have the hardened look of a seasoned soldier of crime, but he also displayed a thorough knowledge of the criminal justice system with an arrogance often displayed only by bad legal representatives.

He had appeared in court for a postponement and after the postponement was escorted along with the numerous other prisoners who had made an appearance on the particular day, to the Welkom police station.

At the police station, the prisoners were lined up and one by one admitted after the necessary administration had been completed. The administration was generally an uneventful process and the police officials were not expecting any escape attempts. They were perhaps a little too relaxed in their supervision of the prisoners.

 The accused quickly realised that he was not being guarded with the intensity normally required for a person of his criminal stature. He immediately saw an opportunity to escape. When the police officials were looking the other way he calmly left the line on its way through administration and walked away.

 There were no sirens, no dogs, no "hot pursuit," in fact no action at all. When the police realised that he had left the line a search ensued and he was subsequently arrested and taken into custody at a later stage.

At his trial, his defence was clear. He was attacking and blaming the system for his escape. What he did not however foresee was that the Sergeant who was in charge of the prisoners was even more of a "war on crime” veteran than he was. This was clearly reflected in the following interaction during cross-examination between the accused and the police sergeant:

Accused: “You are an old Sergeant with many years of experience in the Police, aren’t you?”

Sergeant: “Yes”

Accused: “Sergeant, you know how the system works and also what to do when escorting prisoners?”

Sergeant: “Yes”

Accused: “A shepherd is responsible for the sheep he looks after, not so?”

Sergeant: “Yes”

Accused: (A smile on his face as he goes in for the kill) “And if one of his sheep jumps over the fence when the shepherd is not looking and runs away, whose fault is it?”

Sergeant: (straight-faced and without any doubt or hesitation) “It is the sheep’s fault because he jumped over the fence without permission”

Needless to say, that following the conviction, the accused appealed my decision but the appeal did not succeed. The Appeal court upheld the principle that all “sheep need the shepherd’s permission before they jump over the fence.”

 


A QUESTION OF AGE

 

Although the crime of rape is a very serious matter, there are occasions that exhibit a lighter side. In our law before it was revised by legislation, a very young child could not be charged and convicted of rape. This was because the law presumed that such a child was incapable of sexual penetration, a legacy brought to South Africa by Jan van Riebeeck. Reality in many instances proved the law wrong. In instances where young children were involved (and there were quite a few of these cases), the charge was generally one of indecent assault.

 In a case, I heard involving two very young children; an incident had taken place between a very young boy and girl in a church during a Sunday service. The case was postponed numerous times mainly because the prosecutor was still deciding what to do with the matter and because certain reports were still outstanding.

 A very senior attorney was appointed to conduct the defence. The attorney patiently attended postponement after postponement without any objection, but made it very clear to everyone that he had inspected the boy and because of his age and stature, the boy was in his opinion incapable of committing the deeds the State alleged he had committed.

 After some time had expired, the prosecutor once again requested a postponement and the very patient attorney decided that it was time to object as several months had gone by.

 “I object to this postponement” he remarked. “I am now aware of the underhand tactics that the State is utilising in this case.” Then he added, “The prosecutor is deliberately postponing the case until the accused is old enough to commit rape.”

 


  DAVID AND GOLIATH

 

I tried a rape matter in Paarl in which the complainant was a very large and heavy person. The accused by contrast was short and had a very small build.

The facts were that the accused had given the complainant a lift from Wellington to Franschoek in his motor vehicle. The complainant alleged that on the return trip he had raped her on the backseat of the vehicle. Because of her large frame, she was wedged between the seats and had no way to escape.

The defence attorney tried his best to establish a line of defence, as the complainant was a very credible witness. He eventually made much of the fact that the accused was too small to overpower the complainant and that the rape could not have taken place in the manner described by the complainant. He took this point very strongly in his argument.

I dealt extensively in my judgment with the size of the accused in comparison to the complainant, but concluded that the evidence revealed that the accused despite his size was very strong and had overpowered the complainant in the manner described by her. I referred to the biblical scene in which David  as small in stature as he was, slew the mighty Philistine warrior, Goliath.

After convicting and sentencing the accused, the defence attorney visited my chambers to inform me that he was instructed to apply for leave to appeal. He informed me quite candidly that he found no fault with my judgment except my reference to David and Goliath. I was surprised as I thought that the reference was appropriate in the circumstances and enquired why he thought differently. Smiling he explained, “David was never accused of raping Goliath.”

He was quite right on that point.

 


SPLIT DECISION

 

My first two assessors from Sebokeng were very elderly and much respected members of the community. They sat with me in numerous matters and were particularly of assistance when it came to understanding matters involving aspects peculiar to the community at Sebokeng. At times, they showed a sense of strictness in their approach to lawlessness that clearly surpassed my sentiments.

 I fear that when we became deeply engrossed in a matter I sometimes forgot their age. This took place in a murder trial involving a number of homeless persons who lived near a derelict building. The State alleged and proved that there had been an argument between the accused and the deceased, both male, concerning a relationship with a female companion who lived in the same environment and in the same unfortunate circumstances. Such is the nature of men.

There had been heavy drinking and the argument between the accused and the deceased reached its climax at the communal fire that evening. The State alleged and proved that the accused then went and picked up a section of broken wall and smashed the deceased’s skull with it causing his instantaneous death.

The “star” witness for the State had been part of the group standing near the fire when the incident took place. He was clearly a man of the world not unaccustomed to the harshness of life often encountered in informal living conditions and the salvation and temporary fortitude often tragically found at the bottom of a bottle of liquid relief.

The legal representative of the accused in attempting to offer his client the best possible defence heartlessly attempted to capitalise on this aspect of the witnesses’ vulnerability by questioning him extensively on his drinking habits before the incident and at the time of the incident. The witness was however open and honest in his answers and admitted that he had developed a passion for liquor and had indulged in some drinking on the evening in question but not to the extent that he became intoxicated.

Having clearly described the incident in a manner, which would be accepted by all but the most critical, the legal representative eventually directed his attention to the drinking habits of the witness immediately before the trial. When the witness explained that he understood the seriousness and importance of his testimony and refrained from drinking anything remotely intoxicating for many days before the trial, the legal representative turned his attention to the present situation by asking the witness whether he felt like having a drink at that moment. This was when I questioned the relevance of the line of questioning and it ended before it could get started.

A new direction followed with the legal representative attacking the testimony based on the speculation that the section of wall that had been used as a weapon was incapable of handling by one person because of its size and weight and therefore could not have been used to kill the deceased.

After some exchanges which did not take the matter any further and true to my approach in matters, which can be decided swiftly based on available real evidence, I enquired whether the section of wall was available as an exhibit. It was, and not long after the request was made the investigating officer brought the exhibit to court. A number of police officials carried it into court.

 After viewing the exhibit, which was nothing more than five or six exposed and decaying bricks held together by cracked mortar, I decided in my wisdom to test the weight and record this on record with the agreement of the parties.

 I requested the court orderly to hand the object to me whilst I sat on the bench flanked by my two elderly lay assessors.

 I received the exhibit in one hand and balanced it precariously over the edge of the bench trying to make a point especially to the defence attorney. I moved my hand up and down testing the weight and at the same time described as best I could for the record what was taking place. The obvious conclusion was that the object was quite capable of being handled even with one hand. I then officially marked the exhibit for the record as “Exhibit one.”

 Without even thinking about the consequences, I quite naturally handed the exhibit to the eldest assessor sitting to my right to allow him to experience of the weight of the object. He was 86 years of age.

 Not wanting to amend the process by which the demonstration took place, the assessor stuck out one hand and received the object from me. For a few moments, he was quite capable of balancing the exhibit over the edge of the bench in the same fashion that I did and he appeared to be quite proud of this feat.

 He then realised that it was much heavier than he had anticipated and that he was not strong enough to hold the exhibit in that position for any length of time. Before any counteractive measures could be taken, “Exhibit one” went crashing to the floor of the courtroom and with a thunderous cracking noise exploded into a number of pieces scattered over the courtroom floor.

There was silence for what seemed like a lifetime with all eyes on me awaiting my reaction. The assessor was openly annoyed with his folly, but I quickly assured him that the folly was all mine.

 I momentarily reflected on the dilemma and uttered, “Let’s make that Exhibits one, two, three, and four...”

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