Friday, September 04, 2009

Where the judges at?

Suppose the cops manage to apprehend suspects, you know the odds, very small I know but shush, play along. Suppose they build a case, have the proper evidence, witnesses etc and it gets to court in short order. Hullo? No judges available...

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A Cape High Court judge has lashed out in open court at the lack of judges at the court when he was asked to postpone a murder trial for nine months because there was no one available to hear it.

It was the second time that the trial was postponed due to the unavailability of judges.

Three of the 27 High Court judges are presiding over cases in other courts, including the Supreme Court of Appeal, the Labour Appeal Court, the Land Claims Court and the Equality Court.

Judge Dennis van Reenen said the situation was "unacceptable" and questioned why the two accused had to remain in custody for an additional nine months simply because of a shortage of judges.

"Shouldn't I then release these accused so that someone, somewhere can start taking note of what is going on in these courts and take the requisite remedial action?"

The two accused before him, Nkosinathi Yengwa and Mbulelo Mwanda, are charged with the murder of a pregnant 33-year-old Gugulethu police constable, Thembisa Ntlatywa, on September 3, 2007.

Ntlatywa and two colleagues had stopped at the Chickenland take-away when the men allegedly walked up to her and shot her in the head before taking her service pistol and fleeing.

They are also charged with robbery with aggravating circumstances and the illegal possession of a firearm and ammunition.

The men, both from Philippi, were arrested on September 12, 2007 and made their first appearance in the Wynberg Magistrate's Court five days later.

On May 5, 2008 the Directorate for Public Prosecutions decided to have the men tried in the High Court and a trial date was set for November 3, 2008.

But on that day, the case could not go ahead because there were no judges available to hear the case.

It was postponed for another week but again a judge was not available to hear the case, forcing another postponement to Monday.

When the case came before Judge van Reenen on Monday, State advocate Simphiwe Vakele asked the court to postpone it until April 2010, again citing a shortage of available judges for the delay.

He informed the court that the State was ready to proceed.

The defence objected to the postponement, saying that it prejudiced the accused.

Judge Van Reenen said the delay was unacceptable and that it infringed the accused's rights.

Judge van Reenen agreed with the State's submission that enough judges should be provided to hear cases at the High Court.

Thirteen cases on Monday's roll were not allocated to a judge and at least six criminal cases were postponed.

Judge van Reenen informed counsel and the accused that he would adjourn briefly to speak to Acting Judge President Jeanette Traverso about the situation.

When he returned, he said that he had been informed that several cases on the High Court roll had taken longer than anticipated and that the judges hearing those cases were therefore not available to take on new work.

However, he added that he believed that the trial should be enrolled sooner.

The move prompted the defence to lodge a bail application on behalf of their clients.

Judge van Reenen heard the bail application immediately, saying that "justice must be seen to be done today".

At the end of the application, Judge van Reenen said that he had considered the fact that there had been "an inordinate delay" in bringing the matter to trial.

However, he said that, in view of the evidence that a key State witness had been targeted, he did not believe that it was in the interests of justice to grant the application.
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At the end of the application, Judge van Reenen refused to postpone the trial to April.

He said that he would postpone it to an earlier date "in the unlikely event that judges become available" and in the hope that it would pressure those in authority to deal with the case.

"I've released a lot of hot air here but this matter can't be disposed of after all... I am fully aware of the inroads that this inordinate delay has had on your fundamental rights and I am deeply unhappy about it.

"But there is very little I can do other than to proclaim it publicly," he told the men.

He postponed the case to February 1, 2010.

Judge van Reenen is to retire from the Cape Bench in October.

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