S v Gibson NO and Others

• Jurisdiction: South Africa
• Judge: Milne J
• Judgment Date: 30 April 1979
• Citation: 1979 (4) SA 115 (D)
• Court: Durban and Coast Local Division

Milne J:

This prosecution arises out of the publication of an article in the Sunday Express ("the newspaper") on 21 May 1978. The article has what is apparently called a strap headline, which reads "Accused face 15 years' jail with pro deo defence". Then follows another headline in much larger type, reading "Terror trials shock: lawyers aren't told". An inset in B prominent type with a dark background constitutes what might be called a third headline, namely "SP blamed by law men". The article reads as follows:

"Political detainees are being brought to trial without the knowledge of their families or legal representatives - and receive up to 15 years' imprisonment.

The Sunday Express was given details this week of four recent cases - and has heard of many more - in which attorneys had informed the Security C Police they were acting on behalf of particular detainees, yet neither they nor the detainees' families were advised of the trial dates.

When further inquiries were made, they were informed that the detainees had already been charged, convicted and sentenced and were serving prison terms.

The chief of the Security Police, Brigadier C F Zietsman, promised he would investigate any complaints if 'the people concerned' contacted him. D He assured me 'almost all' detainees who came to trial had legal representation.

'I can count on the fingers of one hand the ones who had no representation at all', he added.

The Sunday Express can report the following: A 19-year-old youth, detained incommunicado under the Terrorism Act for several months, was tried and sentenced in Ermelo two months ago to 12 years' jail for terrorism. His parents, who had heard the evening before on the 'grapevine' of his pending trial, were refused admission to the court. Other relatives were E allowed in. The attorney the parents had instructed on their son's behalf, and who had informed the police of this last November, was not notified. The youth, Sipho Madondo, was defended by a pro deo lawyer in a trial which lasted three hours.

Petros Molefe, 23, who was detained in February this year, was brought to trial last month without the knowledge of his family or legal representative. He was jailed for 15 years and, as far as his lawyer can ascertain, was not represented at all. The lawyer had advised the Security F Police nine days after Mr Molefe's detention that he was representing him.

A case of sabotage was brought against a detainee and the Security Police wrote to inform his attorney - a day before the accused came to court. This letter was only received by the attorney two weeks later - after his client had been convicted and sentenced.

Angry and frustrated lawyers who handle political cases told the Sunday G Express this week that they relied almost exclusively on the prison grapevine to advise them when a Terrorism Act detainee they represented was due to appear in court.

In most cases they learn afterwards that a pro deo defence lawyer appeared on his behalf. But in at least one case, said an attorney, his client had no legal representation at all. The man was given a 15-year sentence.

H Invariably, the lawyers point out, the accused does not even know his wife or parents have instructed an attorney on his behalf.

'One must remember that these people are held incommunicado; they have absolutely no access to their relatives, let alone a lawyer. And then they are taken to court and charged. They are unaware that a lawyer has been instructed to take their case and so accept the pro deo defence offered.'

Professor John Dugard of the University of the Witwatersrand's Law School said that pro deo counsel were inadequate for political trials because pro deo lawyers did not have the appropriate qualifications.

He regarded the above cases as displaying 'serious irregularities in the administration of justice' and said that, in his view, a retrial would be appropriate

Milne J

on the grounds that the accused were not properly advised that they had the right to consult a lawyer of their own choice.

A shocked Mrs Helen Suzman, Opposition spokesman on justice, condemned them as 'a complete travesty of justice' which stemmed from the Terrorism A Act - 'a statute which enables the police to circumvent the normal processes of law, including the right of a man to be defended by a lawyer of his own choice'.

Under the new Criminal Procedure Act, intended to 'speed up' such cases, the accused is questioned by a magistrate and any admissions he makes may be used as evidence against him.

An attorney told the Sunday Express: 'Without a lawyer he knows, and B without an understanding of the subtleties of court procedure, an accused often answers the questions in such a way that he convicts himself on the spot.

'We get absolutely no co-operation from the Security Police in our efforts to defend our clients. On the contrary, they seem to go out of their way to prevent us finding out when and where a detainee is to be charged.'

In the recent, marathon trial of 11 men and one woman accused of being members of the African National Congress, the attorney representing the C group first heard that they had been brought to court and charged when the wife of one of the accused took her husband fresh clothing a week later.

'She was then told that, as he was now an awaiting-trial prisoner, she could see him' the attorney said.' She learned from him of the court appearance and passed the information to me.'

Some attorneys are planning to appeal against their clients' convictions and sentences where trial and conviction took place without their knowledge.

D And Prof Dugard said:'I trust that these irregularities will be set aside by the Appellate Division.'

Attorneys also sometimes learn of pending cases involving their clients from items in newspapers - often only one paragraph - which report that a particular detainee appeared in court for remand.

'This happened in Maritzburg recently', an attorney said. 'A legal firm E there picked up a small item in the local paper and notified us that three of our clients had been remanded.

'We rushed down for the trial and found a pro deo lawyer had been appointed. He advised us to enter pleas of guilty as, he said, the three were obviously guilty. We defended the charges, which were under the Terrorism Act, and two of the three were acquitted.'"

The article is flanked on one side with a photograph of Mrs Helen Suzman F MP, subtitled "Mrs Helen Suzman... 'travesty of justice'", and on the other by a photograph of Professor John Dugard, subtitled "Professor John Dugard... 'pro deo counsel inadequate.'"

The three accused are charged with contempt of Court and criminal defamation. The second accused is the editor of the newspaper in his personal capacity. The first accused is the editor in his capacity as G representative of South African Associated Newspapers Ltd, cited in terms of s 333 (2) of Act 51 of 1977. South African Associated Newspapers Ltd is the owner and publisher of the newspaper. The third accused is a reporter employed by the newspapers.

On the contempt of Court charge it is alleged that:

"On or about 21 May, and in the Province of Natal, the accused did wrongfully, unlawfully, intentionally and falsely allege, imply and/or insinuate that:

(1)

the practising H advocates who had from time to time been appointed by the Supreme Court to act as pro deo counsel for detainees prosecuted on charges of terrorism and sabotage did not have the appropriate qualifications, and/or were inadequate, and/or incompetent and/or were not fit and proper persons to perform such duties entrusted to them by the courts, and/or did not perform such duties competently, with the result that detainees defended by pro deo counsel are exposed to the risk of being wrongly convicted and/or had in fact been wrongly convicted, and

(2)

with reference to a 'recent' case in Pietermaritzburg, to wit, the case of S v Pule and Others (hereinafter referred to as the Pule case), a case in which

Milne J

Mr Jan Harm Niehaus, a practising advocate, had been appointed by the Supreme Court as pro deo counsel for the defence, that he (the said Adv Niehaus), did not have the appropriate qualifications, and/or was inadequate and/or incompetent and/or not a fit and proper person to A perform the duties allocated to him by the Court and/or did not perform such duties competently, and that he wrongly advised that the three accused in the Pule case should plead guilty to the charges on which they were arraigned 'as the three were obviously guilty',

which said allegations, implications and insinuations were unlawfully calculated to cast suspicion upon the administration of justice in and by B the Supreme Court of South Africa and to bring the administration of justice into disrepute."

On the charge of criminal defamation the same allegations are made as those in the body of para 2 above, but the following further allegations are added:

"which said allegations, implications and insinuations were unlawfully calculated to expose the said Mr Jan Harm Niehaus to contempt and undue ridicule and to injure his reputation."

C All the accused pleaded not guilty to both charges.

Before dealing with the factual and legal issues, it is necessary to refer to the fact that, near the commencement of the trial, the ambit of the trial was considerably reduced because it became common cause that a certain aspect of the evidence, which both the State and the defence proposed to canvass, was irrelevant. The main thrust of the article D complained of is in the first three paragraphs. These paragraphs are patently a criticism of the Security Police and nobody else. Counsel for the accused, in making a statement on behalf of the accused in terms of s 115 of the Act, said that it would be the defence case that many of the "facts" alleged by the State in the "Summary of...