I must confess that I am dreading the weeks and months ahead as the trial of the alleged killers of Eugene Terreblanche gets under way. The past few days have shown that the killing of Terreblanche has become something of a Rorschach test for South Africans. Many of us seem to have interpreted the killing of Terreblanche by projecting our own fears, prejudices, hatreds and ideological and emotional commitments onto the events of the weekend. This has exposed the serious racial fault-lines in our society for all to see.
My first reaction to a report that the entire trial of the 15 year old accused and his 28 year old co-accused would be held in camera was therefore one of relief. Maybe this will spare us from the relentless and sensationalistic coverage by the media and allow us to paper over the racial fissures in our society.
According to George Baloyi, spokesperson for the NPA, the entire trial would be held in camera, due to the age of the one accused. ”The law is very clear the trial must take place in camera,” he said. NPA head Menzi Simelane confirmed that there would only be one trial, saying thus far “from the information, they are the only ones involved in the crime”.
The problem is, despite the practical problems with conducting two separate trials and despite the trauma that a public trial might inflict on the body politic, I am not sure that having the trial of the adult accused in secret would be either wise or lawful and constitutional.
Section 16(1)(a) and (b) of the Constitution provides that everyone has the right to freedom of expression, which includes freedom of the press and other media as well as freedom to receive and impart information or ideas. Section 34 does not only protect the right of access to courts but also commands that courts deliberate in a public hearing. This guarantee of openness in judicial proceedings is again found in section 35(3)(c) which entitles every accused person to a public trial before an ordinary court.
It is clear from section 63(5) of the Child Justice Act that the 15 year old accused could (and probably should) be tried in camera. It is also clear from the jurisprudence of the Constitutional Court that this provision is constitutionally valid as it is aimed at protecting the best interest of the child concerned. However, a cursory look at the Child Justice Act and the relevant jurisprudence of the Constitutional Court reveals that the adult accused might well have to be tried in open court.
First, section 63(2) of the Child Justice Act states that “where a child and an adult are charged together in the same trial in respect of the same set of facts” the Child Justice Act will apply to the child while the Criminal Procedure Act will apply to the adult. This could suggest that both could be prosecuted in the same court where the trial would be conducted in secret, or it could mean that the secrecy provision applicable to the young accused should not apply to the adult. To solve this riddle it will be necessary to seek help in the Criminal Procedure Act.
The Criminal Procedure Act contains two relevant provisions in this regard. Section 152 states that usually criminal proceedings in any court shall take place in open court. This provision is qualified by section 153 of that Act which states that:
If it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof.
The Act also states that in a case where a trial is held in camera “the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever”. This means the whole trial could be held in secret and one would only be able to ascertain details of the case if a judgment is written and published in a bona fide law report. If one assumes that these sections are constitutionally valid – something that is far from certain, given its potentially rather broad ambit – it will have to be interpreted in such a way that it conforms to the spirit, purport and object of the provisions in the Bill of Rights quoted above.
The Constitutional Court has made several statements in this regard, emphasizing the importance for the credibility of the administration of justice of having public trials. In SABC v NDPP, Langa CJ stated the following:
Open justice is observed in the ordinary course in that the public are able to attend all hearings. The press are also entitled to be there, and are able to report as extensively as they wish and they do so. Courts should in principle welcome public exposure of their work in the courtroom, subject of course to their obligation to ensure that proceedings are fair. The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much as to other branches of government. These values underpin both the right to a fair trial and the right to a public hearing (ie the principle of open courtrooms). The public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness.
More recently in Shinga v The State Yacoob J explained the constitutional interest in open court rooms in the following terms:
The survivors of crime, those accused of it and the broader community have a right to see that justice is done in criminal matters.Seeing justice done in court enhances public confidence in the criminal-justice process and assists victims, the accused and the broader community to accept the legitimacy of that process. Open courtrooms foster judicial excellence, thus rendering courts accountable and legitimate. Were criminal appeals to be dealt with behind closed doors, faith in the criminal justice system may be lost. No democratic society can risk losing that faith. It is for this reason that the principle of open justice is an important principle in a democracy….
The requirement of fairness must also take into account that all victims and their families have an abiding interest in the outcome of the appeal and have a right to attend the proceedings so that if the appeal should succeed, they have at least been given the opportunity to witness the process that gave rise to this result. It is a fundamental tenet of the administration of justice and the rule of law that appeals, particularly criminal appeals, are not held behind closed doors.
Sadly, the forthcoming trial will take on considerable importance as many South Africans have interpreted the killing of Terreblanche in racial terms. In the absence of a public trial for the 28 year old accused, gossip and conspiracy theories are bound to emerge and distrust of the judiciary among some members of the public will be heightened. This problem will become more acute if a verdict or a sentence imposed (in the event of the accused being found guilty) fail to garner approval of a certain section of the population.
Although there are some practical problems with the splitting of the trials of the child and the adult accused, and although one does not know whether evidence led at the trial might inflame emotions, it therefore seems imperative that the trial of the adult accused be conducted in public. A failure to do so runs the risk of discrediting the trial (and to some extent the whole judiciary) in the eyes of those who do not agree with a verdict or a possible sentence.
One hopes that all involved in this trial will consider the constitutional requirement for open justice as set out above before proceeding with a secret trial for both accused in this case. They will also have to take note of the fact that it is imperative to conduct the trial in such a way that it enhances, rather than detracts, from the legitimacy of the judiciary. Excessive secrecy may well lead to misunderstandings and distrust and may well allow people to question the legitimacy of the legal process – regardless of the outcome – in a manner that could severely harm the authority and integrity of the judiciary.
Although I am slightly conflicted on this issue, on balance, given the legal framework and the jurisprudence of the Constitutional Court, the decision of the NPA to conduct both trials in camera therefore seems wrong on policy grounds. The decision also seems to be constitutionally problematic. A rethink by the NPA is thus required.
TerreBlanche was murdered the week Afrikaners resorted to the protection of the Courts twice to stop the 2 decades of racial mobilisation by the ANC which has exacted such a terrible toll on Afrikaners.
The ANC’s response was to scorn and disobey the Courts. The least ominous response was the intention to Appeal the orders. Raising the spectre of the government of the day Appealing to assert its right to continue its hate-speech against a section of its citizenry.
Sies! Shameless ANC! In which civilised nations across the world do political leaders sing songs like these?
Would it not be nice for the ANC if it could hold all the trials it is intimately involved in in secret?
What is Juju doing in Zim? A crash course on how to run a country into the ground?
Or, is the ANC sending an unambiguous message?
The parrallels with Zimbabwe are stark. Mugabe has lost every election he has contested this decade. He clings to power by force and the support of his shameless fans in the ANC (who gave him a standing ovation at Gallagher House. Cheering a person for ruining his country and helping the poor develop a taste for rats. A novel approach.). Mugabe took the betrayal of useful idiot white ZANU members like Roy Bennet rather badly, when they would not back his urge to rewrite Zimbabwe’s constitution making him dictator for life. So, he fed white Zimbabweans to the ‘landhungry masses’ when everyone rather belatedly remembered the masses were hungry for land. Including the masses. (Of course, in South Africa the ‘masses’ are hungry for land due to the bureaucratic incompetence of deployed ANC cadres.)
The process was completed when ZANU shed its labour wing, disgusted at the excesses of the warlords. They became the MDC. Last I checked, Cosatu was not so crazy about South Africa’s warlords.
It would be nice if someone could give us a recap of the ZANUfication of Zimbabwe’s judiciary and the collapse of the independence and effectiveness of Zombabwe’s courts….
Brett, the fundamental problem with the ANC is that, like ZANU and the Politbureau it is believes that is IS the state. In reality it is not incorrect either. In a system in which there is no real alternative to the governing party one ends up with a one party state and that, quite simply, is where we largely find ourselves and where we will remain for so long as there is no credible alternative for the bulk of the electorate.
I think the secrecy is to keep quiet any evidence that the two accused might say in their defense. If the 15 year old and the 28 year old will state that they were just following Malema’s “orders”, this would be very bad for the ANC. They obviously don’t know or more importantly dont have control over their different sections of their party. Therefore to protect it, they need to keep things as secret as possible and also for the World cup coming. You dont want racial hatred.
As much as I dont like the ANC and all that comes with these people. In this regard, financially and also safety aspect, a conspiracy theory, is alot easier to clean, than blood on the streets, 2 months before the biggest sporting event. This trail will go quick…
Out of sight, is out of mind….
Economics is running this trail… not ANC racism…
Brett: “..the fundamental problem with the ANC is that, like ZANU and the Politbureau it is believes that is IS the state”
Interesting that it is nearly always the ANC that responds but hardly anyone from Government, especially in this murder of ET. The distinction between party and government, that at least were there in the Mandela and Mbeki eras, is nearly completely gone.
It is amazing how many people ignore the true issues iro Zimbabwe. I wonder whether people ever asked themselves ‘why’ instead of asking ‘what’…
Then tell us why! Tell us what the real issues are.
The whole world was looking at Mugabe as a black Messiah. Then, at Mandela. Everyone was looking for hope, holding thumbs that their countries would somehow be different from the rest of Africa. Is that the flaw in the logic? The expectation that things could be different?
Are the people of South Africa doomed to live off rats and food-aid?
Tell us why the whole ‘land-hunger’ theory is not fallacious reasoning given the irreversible (if you are not the great Mwalimu) trend to move the cities.
Sorry. Make that move ‘to’ the cities.
Ahh! So now we move forward to the beginning of secret trials. Sound familiar?
Pierre, you started your previous post by stating that you can not understand why every one is up in arms about the killing of TerreBlanche and that there are far more important issues to worry about. Like how dangerous Malema and the veterans are due to their lack of respect for the rule af law and so on.
Well, connect the dots my friend. The killing of Terreblanche shows exactly how dangerous these people are. If you for one second believe that that man was killed over unpaid wages you are not as smart as I thought. They killed the “ultimate” boer (or had him killed) to show that they mean business. Look, I did not like ET (at all) but as the days turn over different pieces of the puzzle are coming together. One of the accused only started workning for ET 3 weeks ago, is this not right around the time that this debacle about the “Kill the Boer” song started. One of the accused are under age and only 2 days before the killing an act takes effect that will mean any trial will have the be held in secret (in camera). And who just hand themselves over after killing someone? Well someone who believes that he will be protected by those who gave the orders, me thinks. How is it that all these things just happen to fit toghether so nicely?
Now on the Zim topic. I hear Malema has jumped on the Mugabe bandwagen accusing the MDC and their leader of being western puppets and this after our government has been trying to broker a deal between the two ruling parties. He just has no repect what so ever for anyone, does he?
@Deloris Dolittle
You are nearly spot on — just change “our government” to “the ANC” in your last paragraph and your blog will be 100% correct!
Deloris Dolittle, I am not sure who “these people” are that you refer to. The Illuminati? The Freemasons? The CIA? Maybe its better not to get too hysterical and not to trade in conspiracy theories. Also better perhaps not to make sweeping statements that may be interpreted as racist. Fact is there is absolutely no evidence for you contentions. If you do have such evidence, please share it with the rest of us. If you do not have evidence to back up your rather alarming view, one might be well advised to ignore it.
@ Brett
I recently reminded myself and also advised Maggs that I was disappointed in him for engaging with you. I believe it would be hypocritical to engage with you in any topic of substance unless that topic is about or related to guns…
This is what I wrote the day ET was butchered and his pants pulled down.
http://mhambi.com/2010/04/eugene-terrblanches-death-leave-many-questions/
“This morning I got up early to drive from Bloemfontein to Pretoria. It was at the Engen garage that I saw the Rapport headline. ET vermoor (ET murdered).
Already then the newspaper reported that he had been killed, around 5 pm the previous day by two employees over an apprent labour dispute. Wow I thought…..
As we reached Kroonstad SAFM reported that Terrblance’s killers were 15 and 21. And later we heard that he was found alive and died soon after. Not long after it was reported that the ‘killers’ had worked for him for only 3 weeks.
And then, as we passed the Vaal the news that it was the ‘killers’ that contacted the police…
A few questions arise.
Why did the police announce so soon after the incident who had killed him and why? There was no ‘alleged’ killers or ‘presumed’ motives on the radio or in Rapport or on SAFM. It was certainty.
Perhaps to stop reprisal attacks? Perhaps because the death is deeply embarrassing in the light of the ‘Kill the Boer’ debate?
Why would two suspects assault Terreblance with a panga and knobkierrie (both weapons found on the scene) and then call the police? How often does this happen in South Africa today?
I’m not a great conspiracy theorist, but here is one possibility. At least this theory is way more plausible than that that surrounds other famous South African killings, like Chris Hani’s death.
The two ‘killers’ are not the killers at all. They found Terreblance and called the police. The police thought they were sitting on a political time bomb, and arrested the two. Better to tell the world that he had been killed in a domestic dispute than if the killers were strangers. What signal would that send out?
Lets see. If my theory is correct the truth will out. Unless the suspects die. But that would be too audacious.”
I see the minor in the case is denying culpability. This case is going to be scrutinised for years to come.
Your 5 times more likely to be killed if your a SA farmer than the average South African. Roughly a 1 in 400 chance per annum. I wish I knew what this figure is for
The SAPS
Gays
Lesbians
African foreigners
Anybody have some stats?
http://mhambi.com/2010/04/being-a-farmer-in-sa-your-250-times-likely-murdered-brit/
Ten years ago I came to South Africa. As I had a life long policy never to visit dictatorships it was only because Madiba had been freed and the country had decided on equal franchise, that I was willing to come and marry a South African, to live here, to contribute, to enjoy.
Madiba, as for many others world wide, was my hero, a man of unquestionable integrity, a man concerned with all the people, a man not willing to live under any oppression, regardless of oppression’s colour. In the election following Polokwane, I noted that Madiba was very uncomfortable in all photo sessions with Zuma, and yet it appeared to the masses he gave Zuma his blessing (to me, he was doing so reluctantly) as the new ANC leader. At the time I felt Madiba had fallen from his pedestal; he had chosen the ANC over his country.
Now, with all the turmoil which is still increasing, and as I continue my work within the coloured and black communities, what I hear is: when will Madiba speak? Also, I might add, when will Tutu speak?
His age is no excuse. My own father, though weak near the end, sat the bench until he was 90 less a week, and continued to give brilliant decisions.
Madiba is the modern father of today’s ANC. He needs to make one final statement for the sake of all of us, for the sake of SA and the Continent. Please Tata, do so!
@ Kameraad
“I’m not a great conspiracy theorist …”
This is a great relief, Kameraad. Thanks goodness you are not a great conspiracy theorist. You might have come up with some kind of conspiracy theory!
Mikhail Dworkin Fassbinder says:
April 7, 2010 at 20:51 pm
Hey Dworky,
Did you get a glimpse of the AWB Secretary, Andre Visagie, on eNews???
Eish!
for those who see conspiracies abound, maybe a reflection on Goethe’s comment may be approriate; ….misunderstandings and neglect create more confusion in this world than trickery and malice. At any rate, the last two are certainly much less frequent, or Heinlein’s Razor; Never attribute to malice that which can be adequately explained by stupidity, but don’t rule out malice.
Then, can we collectively start working on getting a better understanding of our challenges and working towards countering the neglect that creeped in?
@ Maggs
April 7, 2010 at 21:02 pm
How did Andre Visagie look?
Sine says:
April 8, 2010 at 10:39 am
“How did Andre Visagie look?”
To steal a phrase, Judge for yourself!
http://www.youtube.com/watch?v=GmMj72bQuDI
Ai Pierre, you silly thing. A small town girl like myself will never suspect the involvement of the likes of the Illuminati or the CIA (in any event is the CIA not only involved where there is oil to be drilled?). By “they” I simply meant the two sorry souls who killed ET. I can only suspect that they were sent there to do it but of course have no proof of it.
As for proof of my theory in general. Who needs proof in South Africa? The Prosecuting Authority had all the proof in the world that Jacob Zuma had a corrupt relationship and yet he is our president today. And where is the proof that there was a wage dispute. We have only the word of two people accused of murder. And here they were very clever. You see, if there was only one killer it would be his word againt the dead man’s word so it would be a littel bit more difficult to prove his story, but if there is two of them off course they can corroborate each other’s story, even if it is not true.
Please enlighten me so that I do not make the mistake again. What did I say in my blog that could be constude as rasict? You did call me a racist once before and it nearly broke my heart. If you carry on this way I might just start believing you.
Our future president?
http://mhambi.com/2010/04/malema-gets-security-to-remove-this-thing-video/
Kameraad Mhambi says:
April 8, 2010 at 17:45 pm
Has malema now reached the stage where he is a danger to himself and others?
Chris says:
April 8, 2010 at 17:49 pm
“Has malema now reached the stage where he is a danger to himself and others?”
nah.
He’s singing a new tune.
“Anything Visagie can do, Juju can do better”.
Maggs Naidu says:
April 8, 2010 at 18:02 pm
LOL Malema didn’t understand his job wat to take away attention from hi brass ANC blunders only.
Personally I am quite hapy for this trial to be conducted in camera, which is not “in secret”. I am concerned by the notion that someone could be conflicted on whether tensions should be unduly stretched. I trust the trial court to deal with the matter sensibly.
Mikhail Dworkin Fassbinder says:
April 7, 2010 at 20:51 pm
It seems that the ANC has fallen in the trap too of making assumptions on incomplete facts.
“We find it very unfortunate that some sections of the media together with some political commentators have decided to politicize a purely criminal matter with regard to the killing of Mr TerreBlanche.”
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=169728&sn=Detail
Apparently, the accused are now stating that the reason they killed ET was because he bought them alcohol in an attempt to get them drunk in order to sodomise them.
No wonder they are pushing for this trial to be held “in camera”. Not only are the ANC footing the legal bills of the two accused, but in the “secret” proceedings they can peddle any number of lies about ET without the media being able to report on it.
I’m sorry, but this whole thing is starting to smell rather unpleasant and far from the accused being in danger of having their Constitutional rights threatened, I’m afraid that the victim of this crime is the one who will not get a fair trial.
Many of us seem to have interpreted the killing of Terreblanche by projecting our own fears, prejudices, hatreds and ideological and emotional commitments onto the events of the weekend.
Madiba is a man of great integrity, a man concerned about the people, and one who will fight oppression.