Gauntlett: Delays hurt justice

2010-04-13 19:24

Cape Town - Judges should be held to account if they delayed rulings for longer than a month, senior counsel Jeremy Gauntlett told the Judicial Service Commission on Tuesday.

He also called for a re-examination of an accused's right to silence, and defended himself against an African National Congress MP's suggestion that he was unpatriotic.

Gauntlett, one of four applicants for three posts in the Western Cape High Court, is a former chairperson of the General Council of the Bar who has served as an acting judge in the province and as a full member of the Lesotho appeal court.

He said in his application form that he had never taken longer than a week to hand down a reserved judgment.

Replying to questioning from Chief Justice Sandile Ngcobo, he said he was "enormously troubled" by the delays he had witnessed in delivery of reserved judgments.

Worst offenders

Acting judges drawn from the ranks of the bar and the attorneys' profession were often the worst offenders.

"Barring very complicated matters, judgments, in principle, should follow immediately or very shortly after the cessation of the hearing," he said.

"I personally believe that every judge should be accounting to his or her judge president as to why they haven't delivered a judgment within 30 days."

He said the "record" had been set by a Supreme Court judge in Namibia who at the end of last year delivered a ruling on a case he heard nine years earlier, as a high court judge.

In Harare a judgment was recently delivered three years after an application for postponement of a trial - ironically granting the application.

Commission member CP Fourie, a representative of the attorney's profession, asked Gauntlett whether repeatedly delaying judgments for years did not amount to impeachable gross misconduct or incompetence.

"I'm afraid it does," replied Gauntlett.

"Ultimately it's a betrayal of trust. You are there to give an answer."

Right to silence

Western Cape Judge President John Hlophe told Gauntlett that a problem in criminal cases was that when an accused relied on the right of silence, judges often for days or weeks had no idea what the defence was.

"This is one of the causes for delay in criminal proceedings," Hlophe said.

Judges and lawyers, Hlophe said, had argued that an accused should be obliged upfront to disclose the basis of his defence.

Gauntlett said even though he might be accused of being a neo-fascist, he supported a more inquisitorial approach.

The fundamental fairness of a criminal trial would not be destroyed by a requirement that an accused should, without elaboration, state a defence.

Dual citizenship

The right to silence should be retained, but it was not an unlimited licence.

"It's a hugely contentious issue. I believe no more than that it's something which could fruitfully be looked at," Gauntlett said.

"Whether I come out at the other end as still an enthusiast, I don't know.

"But it's certainly a matter for serious intellectual interrogation."

ANC MP Grace Boroto challenged Gauntlett over his dual British and South African citizenship.

She said she had no reason to question his abilities, "but I have a problem doubting your patriotism".

Gauntlett said the British citizenship was an accident of birth, and he had lived in South Africa and been committed to it since the age of 17 or 18.

"My understanding is that British citizenship, like dandruff, you have with you always," he said.

"That there is no legal step that you can take which would absolutely get rid of it.

"I'm a South African. Whether or not I suffer from a fatal defect together with George Bizos and Shadrack Gutto and others who have made contributions in this country, this body must decide."