Justice denied

2015-06-18 11:08
Ingrid Oellermann

Ingrid Oellermann (File)

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THERE is a well-known saying that “justice delayed is justice denied”.

Wikipedia describes this on its website as a “legal maxim meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all”.

In South Africa, it is commonly used with reference to an accused person’s right to a speedy trial.

But just as a delay in finalising a trial may impact an accused’s right to a fair trial, the justice system must not lose sight of the consequences it has for the victims of crime.

Wikipedia quotes former chief justice of the United States, Warren E. Burger, in 1970, who said a sense of confidence in courts is essential to maintain the “fabric of ordered liberty for a free people”.

He cited three things that could destroy that confidence and “do incalculable damage to society”.

These were that inefficiency and delay will drain “even a just judgment of its value”; when exploited people believe that courts cannot vindicate their legal rights from fraud and over-reaching; and when people believe the law cannot fulfil its primary function which is “to protect them and their families in their homes, their work and on the public streets”.

These sentiments remain relevant, in South Africa and elsewhere.

Sadly, our justice system does on occasion appear to be failing the public.

Last month, The Witness quoted ex-Pietermaritzburg resident Grant du Bois as saying that he no longer has faith in the law. His despondency was prompted by the fact that eight years after his wife, Lynette, was killed in a car crash in Pietermaritzburg (in 2007), he is no closer to a verdict being delivered on a taxi driver charged with causing her death.

The case was slow getting off the starting block, having taken five years to come to trial. Thereafter it was plagued by continual delays from 2012 onwards for various reasons, including a missing court record, and later the unexpected death of the defence attorney.

The final nail in the coffin was delivered in May this year when the matter reached the closing argument stage, only to have the magistrate, Helgaard Fobian — apparently swayed by defence arguments — decide to recuse himself.

Fobian ordered that the case had to start afresh due to the multitude of problems that had arisen, including the fact that one of the CDs on which allegedly vital evidence was recorded, was not found again.

The defence argued that the record could not be reconstructed because the current prosecutor — the third to be involved in the trial — did not have notes of the evidence, and neither did the defence attorney because his predecessor who had died, did not leave any notes behind. Only the magistrate had retained notes of the testimony, but to reconstruct the record all three parties would have to agree on the content.

A day later, Fobian again had a change of heart. This time he sent the case on special review to the high court requesting to be allowed to finalise the case.

The Witness has been told by sources at court that the case will now be going ahead.

But first summons must again be issued against the accused and dates for the resumption of the case set down.

Whether or not the driver of the taxi concerned is eventually convicted or acquitted is not as important as the fact that

Du Bois and his family need to see justice done in this case. They need finality in order to pick up the broken pieces of their lives, allow old wounds to heal, and move on.

On the other side of the coin, the delays are also prejudicial to the accused who, as his attorney pointed out, has already spent a “small fortune” on legal fees and is suffering psychological stress due the charges hanging over his head.

Clearly no one wins while justice waits.

In a separate matter, the family of 2006 Howick murder victim Monika Manilall fumed recently when a long-awaited appeal by her alleged killer (her husband Sunesh Manilall) was delayed for another year. The reason was that the defence complained the transcript of the court record was incomplete. Monika Manilall’s brother, Suren Ramjas, said the family felt it was a delaying tactic because the accused will be out on bail.

They, too, need finality in order to carry on with their lives. Many family issues hinge on the outcome.

Whether or not delays like these are reasonable or contrived, public perception is a vital component of the proper functioning of the justice system.

The law must take its course, but it must never lose sight of its responsibilities to both the accused and the victims.

• Ingrid Oellermann is the court
reporter at The Witness.

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