GCB NEWS

defrauded legal aid by submitting claim Report on London forms for work which was never ren­ Bar Scholarship dered. One of his clerks testified against him in the court a quo. In terms of our He/en Ngomane, , such a witness is called a section 204 Johannesburg Bar witness. The court heard arguments about possible bias by some of the members of the towards the Introduction appellant, but upheld both the convic­ The purpose of this article is both to tion and sentence. report back on my stay in the London I also attended Crown Courts with Bar and to highlight the different various junior members who acted for experiences I acquired, especially the He/en Ngomane the Crown Prosecution Services. What differences between the ' prac­ happens in practice is that a brief is tices in South Africa and England. Liz Webster, Anthony Alridge QC, and prepared for counsel to prosecute on During September 2002 I was chosen Peter Rook QC at their respective trials, behalf of the Crown and in such cases it by the General Council of the Bar of and their ability to persuade the jury one will be a member ofa particular chamber South Africa (GCB) in conjunction with way or other. That made me resolve to who can act as a defence counsel in other Peter Rook's at 18 Red Lion learn as much as I could in my trial matters. in England and Court. I arrived in London on 28 advocacy course. Wales can swop roles by being either September 2002 and was accomm9­ prosecutors or defence counsel. dated in Finchley, London. I com­ Trial advocacy I had the opportunity to work with menced training at chambers under the The trial advocacy course consisted of Liz Webster in a matter where she was guidance of Linda Dobbs QC. I realised various court appearances with mem­ prosecuting on a charge ofpossession of that although in some cases the South bers of 18 Red Lion Court, including drugs with the intention to supply. The African Bar shares a common tradition Queen's Counsel. I accompanied Peter Crown had video tapes from the surveil­ with its English counterpart, there are, Carter QC, the current chairman of the lance team of the metropolitan police however, some differences which cause Bar Human Rights Committee, on his which were viewed by the jury and all the two Bars to be distinctive. In this appearance in the Privy Council. The parties in the case. I had sight of the article I shall briefly discuss the features case involved an appeal by appellants prosecution papers as well as opening of the English system which contribute who were sentenced to death for murder statements which the Crown intended to to the differences, viz the jury system~ but later had their death penalty com­ use to prove their case against the trial advocacy, the Bar Human Rights muted. In their native country the defendants. The opening statement and Committee, and the system. defendants requested the record of the closing statements helped the jury to written notes from the presiding judge determine issues. The jury system but to no avail. One of the defendants 18 Red Lion Court Chambers spon­ It was quite enriching for me to observe successfully lodged an appeal with the sored a seminar for practitioners who the jury system at work. In South Africa aid ofthe legal structures in England and specialise in criminal work. The seminar it was introduced during 1827 after the both appellants were represented by was on vulnerable witnesses and the use model of the English Jury system. counsel. It is noteworthy to state that if of Special Measures Directions for child However, it was abolished by the it were not for legal aid, the appellants and adult witnesses who seek such Abolition of the Act 34 of 1969 would not have had justice in respect of measures in sexual offence cases. before I was even born. Throughout my their rights. I perused the papers and I attended the Bloody Sunday In­ training as counsel, therefore, I have held discussions about the appeal with quiry, the name given to Sunday 30 been prepared to persuade a legally Peter. I compared his matter with South January 1972, with Rosamund and Alex trained presiding officer, be it a magis­ African jurisprudence. I noted that he from 18 Red Lion Court. The inquiry trate or ajudge, who sometimes sits with had referred to the Constitution of the relates to the death of 13 people who two assessors (usually members of the Republic of South Africa in his heads of were shot during a march organised by Bar). I have thus been trained to deal argument. He compared the constitu­ the Civil Rights with an interactive Bench in contrast tions of Trinidad and Tobago with our Association (NICRA).The tribunal en­ with the stern faces of twelve lay people. Constitution. He relied on the provision joys the powers of the in I found it fascinating that English of section 35(3) of the Constitution and respect of summoning witnesses and the counsel have to convince members ofthe argued that the appellants were entitled rules ofevidence are relaxed. It is similar jury who, throughout the trial, do not to a speedy trial. Judgment was reserved. to the TRC Amnesty Committee where indicate whether they understand one's The next court appearance was at the victims of apartheid come face to face point or not. However, I soon realised Royal Court of Justice with David with members of the former notorious that the skills of advocacy are best Etherington QC. There were three security force. In both tribunals developed in the jury system. As a judges who were hearing this appeal. counsel and judges do not robe and result, I admired the performances of The appellant, who is a , proceedings are videotaped. The Bloody

August 2003 21 GCBNEWS

Sunday Inquiry grants anonymity to Court. This committee was upfront with almost all of the soldiers but in certain their views about Britain's collusion with Judge Fergus Blackie instances witnesses are 'screened' in that the Bush administration on Iraq. How­ Press release by the General Council their faces will be hidden from all except ever, it was emphasised at the meeting of the Bar ofSouth Africa counsel and the inquiry team. that they will criticise the British Govern­ On 30 June 2003 the prosecuting ment when there is a violation of human authorities in Zimbabwe withdrew rights or, alternatively, if they found that all charges against retired Judge Pupillage Britain supports the violation of human Fergus Blackie. In order to qualify as a in rights in Iraq. Since Judge Blackie was first , each student must Further, South Africa was in the arrested on 13 September 2002 complete either a qualifying law degree, spotlight and I was invited to address during a 04hOO police raid on his or a non-law degree followed by a post­ the committee on the development of home, detained without access to graduate diploma in law. Following this human rights in our new dispensation. It family and , and thereafter the students must pass the Bar Voca­ was interesting to see that most of the treated degradingly, the General tional Course (BVC). During the BVC delegates had insight into our law more Council of the Bar of South Africa each student applies for a twelve-month particularly when I mentioned the funda­ and the South African judiciary pupillage. A pupillage is divided into two mental case of S v Makwanyane 1995 (3) have spoken out publicly and force­ six month blocks. During the first six SA 391 (CC). I highlighted that there is a fully against the deplorable conduct months a pupil shadows a barrister of at Human Rights Commission and that in of the Zimbabwean police. least seven years call and does various South Africa the Constitution is the On the initiative of the South pieces of written work. During the supreme law of the land. African Bar, the Forum for Advo­ second six months of pupillage the pupil cates and Barristers (a specialist represents clients in the magistrate's grouping within the International court and at times even in the Crown Acknowledgements of the referral Bars Court. Before commencing the second My gratitude goes to the former chair­ of Australia, England and Wales, six-month period the pupil must have man of the General Council of the Bar of Ireland, Northern Ireland, Hong been called to the Bar by one of the four South Africa, Jeremy Gauntlett SC, for Kong, Zimbabwe, Scotland, Nami­ Inns ofCourt and must pass the BVC and the efforts he made for me to obtain this bia, and South Africa) mandated eat twelve meals in their Inn of Court! prestigious scholarship. It afforded me retired South African Appeal Court After completing a twelve-month pupil­ the privilege to train with leading Queen's Judge John Smalberger to attend as lage, a pupil applies for tenancy in a set of Counsel and other members of Peter an international observer Judge chambers. Once the pupil has obtained Rook Chambers, Linda Dobbs QC, Blackie's first appearance. The tenancy, he or she becomes a junior who arranged for my accommodation in Forum committed itself financially barrister. London, as well as my diary and also to support Judge Blackie's defence. In South Africa, to be admitted to the supervised my work at chambers. I also The South African Bar requested Bar a candidate must be over 21 and thank David Etherington QC for taking Johannesburg senior counsel, Mike possess an LLB degree. The pupil is time in preparing me for the Gray's Inn Hellens SC, to lead for the defence, allocated to two masters, a senior and a training with a new tenant, Hanna; which he agreed to do pro bono, as did Adrian de Bourbon SC, leader junior, who practically train the pupil for members of 18 Red Lion Court, who of the Zimbabwean Bar. They six months and prepare him or her for the volunteered to take me to court with submitted a written outline of the National Board. Upon them; Nick Parkinson, for organising my defence to the prosecuting autho­ successful conclusion of pupillage, a diary in chambers and for trips outside rities in advance of Monday's hear­ candidate may be allowed to set up London; Sir QC from ing, the scheduled commencement practice and apply those skills learnt , who is now my of the trial. during pupillage. In England, the ques­ mentor and was inspirational during my The withdrawal of all charges tion is whether one will be taken on by training; Michael Turner QC from 16 against Judge Blackie fully vindi­ that set ofchambers upon completion, in Tooks Court Chambers, and Andrew cates the stance ofthe South African contrast with the South African system Hall QC from Doughty Street Cham­ Bar. The Bar also provides lead where one will eventually be allowed to bers, for allowing me to attend consulta­ counsel in the on-going trials in practise. tions with his junior and client. Zimbabwe of Judge Paradza and Last but not least, Dara for helping me Mr Morgan Tsvangirai. with research work at the library and the The actions of the South African Bar Human Rights Committee enormous support he gave me. Bar in Zimbabwe, and their out­ This is a forum where legal practitioners In conclusion, members of 18 Red come thus far, have again under­ from all over the world share their Lion Court have boosted my confidence scored the essential role played by experiences from their respective coun­ in my practice in South Africa. I hope an independent Bar in protecting tries where violations of human rights now to apply the skills which I have learnt civil liberties and the rule of law in a still take place. Currently, the chairman at Gray's Inn and the wisdom which I free society. of the Bar Human Rights Committee is gained from the judges who sat with me Johannesburg, 1 July 2003. Peter Carter QC from 18 Red Lion during their trials. m

22 Advocate August 2003