RAPE OF A 6-YEAR-OLD GIRL CHILD - and the consequences in the court of appeal

Photo taken in my office - see the reflections. I have it since 1978

During October 2019 I had the privilege to act as a Judge of the High Court of South Africa – and I was sitting the High Court of South Africa Gauteng Local Division, Johannesburg. It was a life changing event for me and for my wife.

One of the duties I had to perform was to sit in appeal matters from Magistrate’s Courts in our area of jurisdiction. We, the judges of appeal received all the appeal documents well ahead of the date set down for the argument of the appeal to enable us to read and prepare for the argument. This is a bit of behind the scenes of a life of a judge, albeit as very brief moment. You receive all of the appeal papers and you have to read it very carefully because you are called upon to decide a living person’s future: is that person going to spend his life behind bars in a prison somewhere in our country? Or will he walk out of court a “free man”? Remember if a person is found “not guilty” in court, it does not mean that the court declares that that person did not commit the deed he is accused of. It only means that the State, with all its resources, could not proof his guilt. Nothing less and nothing more. Judges are called upon, inter alia to pass judgement without fear or prejudice.

It was highly interesting to read the appeal documents and the heads of argument that were filed by the appellant and the respondent; the Respondent in this rape case was obviously the State as the protagonist in the criminal matter. It differs from a civil case in which the role players are from completely differing viewpoints. In the instant matter it is a criminal matter and entirely new and different rules apply altogether.

The Appellant’s legal team argues why the Appellant is appealing and what went wrong, according to them, in the trial court. Whereas the Respondent’s legal team argues the opposite. Where does that leave you as the judge of appeal?

I experienced the most wonderful sense of waiting for the day of the argument and to listen what the legal representatives for the two parties were going to present to us sitting as a court of appeal. There was just this sense of expectation – what is going to happen in that court on that day where we had to decide the appellant’s future. There was no pre-judgment at all. And of course, you experience a lot of questions and observations.

We decided his fate/future on 25 October 2019. We dismissed his appeal on both the conviction and sentence. He is currently serving time behind bars for life.

Having read my judgment again, I am still satisfied that our decision is correct.

Some years previously I had the fortunate experience to be invited by judges to sit with them as an assessor in criminal cases. I had the same sense of expectation and this “inner stillness” to enter court with a mind that is completely calm, relaxed and non-judgmental. Wait and see what is going to happen in the court. Don’t pre-judge any issues. My advice to my clients is also to wait and see what is going to happen in open court – in the meantime we work hard to prepare for their day in court. We have done our best and now we are going to court.

I've had it since 1978

Thinking back on that experience on the bench as a Judge was really a life changer in many aspects. The day-to-day work that I had as an acting judge was deeply satisfying; the one thing that was really getting me was the enormous pedestal you were on.

As an after word: this judgement of mine, where my brother judge of appeal concurred, is reported in SAFLII at this link.

It is not easy to find write-ups about South Africa judges and their private lives except for a number of books written by retired judges. There is, however, a very useful website about the South African judiciary which is brim-full of very interesting facts and circumstances about the judiciary and aspirants for various judicial appointments. In some of these interviews the aspirant judges were telling the commission how they grew up and even what their mothers did and where they come from. You can find some of it here.

There are a lot of highly interesting and highly controversial content – please watch it and when you are done, go and have a cup of coffee [or tea if you prefer; if you prefer something stronger, go for it]; these guys and girls are ordinary human beings. Please stop elevating them to just a few steps away from angels. They are not; the fart like the rest of us.

I found an interesting website about judges in the UK click here.

How judges judge? Click here.

Please write me a letter and tell me what you think: neelscoertse@wirelessza.co.za