Fair trial rights, pre-trial civil motions in pending criminal cases and abuse of court process with reference to the Free State asbestos pre-trial motion proceedings

• Citation: (2023) 36 SACJ 24
• DOI: https://doi.org/10.47348/SACJ/v36/i1a2
• Published date: 31 July 2023
• Pages: 24-41
• Author: Swanepoel, C.F.
• Date: 31 July 2023

Fair trial rights, pre-trial civil

motions in pending criminal

cases and abuse of court process

with reference to the Free

State asbestos pre-trial motion

proceedings

CF SWANEPOEL*

ABSTRACT

South Africa ns have become accustomed to almost d aily news reports of

litigation in our cour ts that involve politically powerf ul and well-connec ted

individuals. The pe rception by the public is that in ma ny instances litigant s

approach the courts for other rea sons than achieving ju stice and are

therefore misusing our cour ts and its processes.1 Th is becomes a matter

of concern when such perceptions af fect the trust and con dence that the

public holds in respect of the judici al system and the rule of law. The recent

Free State asbestos pre-t rial motion proceedi ngs illustrate some of the se

concerns. This ar ticle rst comment s on the judgment of the Free State

high court in th is matter, and focusses on the un meritorious aspec ts of

the applications made. These asp ects included a claim t hat the applicants’

right to a fair trial were i nfringed, and t he applicants’ disregard for the

established principle agai nst prelimin ary civil motion s emanating from

crimina l proceedings. Legal prac titioners advise thei r clients and must do

so responsibly. For that reason, the second part of t he article comments on

the professional rules of conduct ag ainst the abuse of the cour t process in

relation to legal practitioners’ obligat ions to both their clients and the court.

This duty includes not to l itigate causes or raise defences that have lit tle

chance of success or where they are in itiated by litigants for purposes other

than achieving just ice. Improper purposes include delaying the proceedings

to escape crimi nal liability a nd ultimately, accountability. In order to curb

pre-trial lit igation in any court other than the crim inal trial court, the ar ticle

* BA LLB (Stellenbosch) LL M LLD (Universit y of the Free State), Research Asso ciate,

Department of P ublic Law, University of the Free St ate.

1 H Acton ‘A legal response to Stali ngrad tactics t hat avoid accountabilit y’ Mail &

Guardian, 11 August 2022 , available at https://mg.co.za/thoughtle ader/opinion/2022-

08-11-a-legal-response-to-stalingrad-tactics-that-avoid-accountability/, accessed on

9 Nov 2022; E Cameron, JJ du Toit and A Katsig inis ‘Justice postponed: What c auses

unreasonable delays i n criminal tria ls?’ (2020) (1 December) De Rebus 6, available at

https://www.derebus.org,za/justice-postponed-- what-causes-unreasonable -delays-

accessed on 9 November 2022.

https://doi.org/10.47348/SACJ/v36/i1a2

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(2023) 36 SACJ 24

© Juta and Company (Pty) Ltd

proposes an extension of the Cr iminal Pro cedure Act to clarif y when such

other court may be approached for relief. It also propo ses that a certi cate

of probable cause accompanies all pre- trial motions t hat emanate from

crimina l proceedings in a cour t other than the tr ial court.

1 Introduction

The need for access to justice and the courts is a constit utionally

guaranteed right, but remain s a right on paper only for most South

Africa ns.2 In stark contrast, litigation involving high-prole litigants,

dominate the South Af rican judicial scene.3 This highlight s the inequality

of access to justice and the courts in the country. The perception

may well be that wealthy and political powerful litigants have a far

greater opportunity to have their disputes decided by courts than t he

ordinary citizens. This litigation has unfortunately also fostered public

perceptions ‘about the lack of integrity within the legal profession’.4

This may particularly happen in cases where there seems lit tle chance

of success or they have nothing to do with the administration of justice

but are rather aimed at delaying the legal process.5 Recently, the Chief

Justice of South Africa and chai rperson of the Zondo Commi ssion,6 has

2 Constitution 1996, s 3 4.

3 Examples pert ain to litigation i nvolving former President Zum a, Judge President

of the Western Cape High Cou rt, Justice Hlophe, for mer senior members of t he

National Direct orate of Public Prosec utions, and the suspe nded Public Protector,

Advocate Mkhwebane. See, for exa mple, Secretary of the Ju dicial Commission of

Inquiry into Allegation s of State Capture, Corrup tion and Fraud in the Public Sector

including Organs of Stat e v Zuma [2021]ZACC 2, 2021 (5) BCLR 542 (CC); 2021 (5)

SA 1 (CC); Secretary of the Judicial C ommission of Inquiry into Allegations of State

Capture, Corr uption and Fraud in the Pub lic Sector including Or gans of State v

Zuma [2021] ZACC 18; Zuma v Secretary of the Judici al Commission of Inquiry into

Allegations of State Ca pture, Corrup tion and Fraud in the Public S ector Including

Organs of State [2021] ZACC 28, 2021 (11) BCLR 1263 (CC); Freedom Under the L aw

v Acting Chairperso n: Judicial Service Commis sion 2011 (3) SA 549 (SCA); Nkabinde

v Judicial Servi ce Commission 2016 (4) SA 1 (SCA); Langa CJ v Hlophe 20 09 (4) SA

382 (SCA); Hlophe v Judicial S ervice Commis sion [2009] 4 Al l SA 67 (GSJ); Acting

Chairperson : Judicial Servi ce Commission v Pre mier of the Western Ca pe 2011 (3)

SA 538 (SCA); Judge President Hlophe v Premier of the Western C ape Province, Judge

President H lophe v Freedom Under Law 2012 (6) SA 13 (CC); General Council of the

Bar of South Africa v Jiba [2019] ZACC 23, 2019 (8) BCLR 919 (CC); Public Protector

of South Africa v Th e Speaker of the Nation al Assembly [2022] 4 Al l SA 417 (WCC);

Democratic Alliance v Mkwebane 2 021 (3) SA 403 (SCA).

4 P de Vos ‘Questionable, sometime s outright dishonest conduct by hand ful of lawyers

a worrying tre nd’ Daily Maverick, 16 May 2022 , available at https://allafrica.com/

stories/202205170560.html, accessed on 22 October 2022.

5 See O Rogers ‘The eth ics of the hopeless case’ (2017) Advocate (December) 46ff.

6 The Judicial Comm ission of Inquir y into Allegat ions of State Captur e, Corruption

and Fraud in the Public Sec tor including Organ s of State, better k nown as ‘the

Zondo Commission’ or ‘ the state capture commission. Her einafter referred to as the

‘Zondo Commission’ or ‘ the Commission’.

Fair trial rights, pre-trial civil motions in pending

criminal cases and abuse of court process 25

https://doi.org/10.47348/SACJ/v36/i1a2

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