Reference in a judgment delivered by Judge Jeremy Pickering this week sent me to the Rhodes law library to read up about what must surely be one of the most sensational stories in South African legal history.
It’s the 1884 case of Williams v Shaw, in which “the Very Rev Frederick Henry Williams, DD, clerk in Holy Orders and the colonial chaplain, rector and dean of St George’s, Grahamstown”, brought a defamation action against William Bunting Shaw, an “enrolled agent of the Grahamstown magistrate’s court”.
If you want a desk job, don’t become an attorney. That’s the message from a high court judge, who says lawyers must be willing to do essential fieldwork when it’s in the interests of a client.
Judge Neo Rampai of Bloemfontein has found that a client was treated negligently by an attorney who sat at her desk and wrote letters, rather than going out to get the documentation she thought was needed.
The chaos revealed by the court’s ruling is startling. A man, convicted of several serious crimes, is given leave to appeal – but the court record forming a crucial part of any appeal has vanished.
None of the relevant authorities want to concede that they are responsible for its disappearance and no one wants to pay the R32 000 it will cost for a new set of documents to be drawn up. So the man stays in jail and his sentence ticks by, along with the chances for the appeal to which he is entitled. From the court’s decision earlier this month the background emerges with only a few intriguing details.
Local elections last month were a success for our democracy but they had an unforeseen spin-off that could prove disastrous for the rule of law in the southern African region.
President Jacob Zuma and Minister of Justice Jeff Radebe, involved in election work at home, were unable to attend several SADC meetings during this time. In their absence, SADC made unprecedented decisions about the future of the judicial body set up to deal with regional litigation on human rights and other issues: SADC leaders effectively dismantled this court and sacked the judges who had served on it.
The judge said to counsel: “The evidence you have led for the whole day has not touched a damn thing about the case that is before court against your client.” A little earlier the judge had said, again to counsel for the accused: “You know that a lawyer is a mini encyclopaedia; do not play such a damn fool simply to waste time.”
Neither of these remarks is up to the crude language notoriously used by advocate Nehemiah Ballem to Judge Lee Bozalek in the Western Cape High Court earlier this year, but the comments were clearly inappropriate all the same and the Appeal Court did not hesitate to point this out.