Playing the trial-by-media defence card

t is a sad reflection on the modern legal system that in order to escape conviction one need not necessarily be innocent. Instead, absolution from wrongdoing is often a product of the correct combination of money and the best available legal resource. Thu

 In fact there are numerous legal challenges which can be initiated in the run-up to final court proceedings. Examples of this practice abound in South Africa, particularly among the current high profile 'attempted' prosecutions. Jacob Zuma's legal team is prepared to challenge the validity of every shred of evidence and question every prosecuting action in the courts. Whether these legal protests are the result of a sense of fairness or on matters of principal, one thing is certain they can and do delay the start of a trial for years...

These tactics are beyond the means of the average defendant. They remain the remit of the wealthy or of those who have found a benefactor to take care of legal costs.

The media is not doing any favours

Challenges to the legal process do not only take place in the courts. A clever defence team will rely on the public for assistance too. They employ a variety of publicity campaigns to cast their client in a better light. For such tactics to work, the defence strategist needs an accomplice. And this role is often unwittingly played by the South African media. Cunning defence strategists have turned the predictable behaviour of the press and investigative journalists into an asset.

We are not sure how much of this is planned and how much is blind luck. But there is something wrong when an affidavit is leaked to the media reported on and subsequently disputed before a trial even gets under way. A number of media reports recently focussed on the unsigned draft statement (affidavit) by Brett Kebble's ex security boss, Clinton Nassif. Those implicated in Kebble's murder would have the courts believe their actions were part of an 'assisted suicide'. The most likely reason for a 'fake' affidavit doing the rounds is that the defence team wants certain ideas to be publicly formed before the case is heard.

The alternative is of even more concern. They may wish for so much publicity and speculation to exist about a particular sequence of events that the outcome of the trial is influenced. It will be years before we know the truth and even then the truth that emerges will probably be that which the defence team creates. Whatever happens, so many of Kebble's alleged killers have made deals with the prosecuting authorities that there is no-one left to take the rap for the crime.

Doing time before doing time

The South African legal system is so slow, that one almost has to do the time before you do the time. It may sounds silly; but the statement holds true in almost every sphere of the criminal and commercial justice system in the country. Not only do many accused wait for years or months for their trials to be heard but many trials take years to conclude. Defence attorneys are only too happy to employ whatever tactics are required to delay the verdict.

These actions can take place before the trial and during the trial. And once a verdict is handed down, the legal team has an array of options to move the battle to a higher court, which in turn leads to another round of delaying tactics.

The Financial Mail recently ran an article highlighting some of the high-profile fraud and tax evasion cases before South African courts. Dave King, arrested in 2002, faces 322 charges of tax fraud and foreign exchange contraventions. Reports have it that the docket runs to more than 200, 000 pages not surprising given the total amount in question stands at more than R2.4 billion (with penalties). The trial is still dragging on in court, despite taking more than 5 years and cost in excess of R100 million already.

No end in sight

Garry Porrit's case is another example of the drawn out legal process. He was arrested in 2002 on a staggering 3, 160 charges including tax evasion and fraud. The case has now been tied up for so long that Porrit (and co-accused Sue Bennet) have been forced to apply for legal aid. We leave it to readers to decide if this application was due to real financial hardship, or is simply another delaying tactic. The net result is that an outcome in this case is still years away. Fidentia accused Brown and Maddock will similarly carry on with their lives as the courts take years to decide their fate.

It seems that until the South African judicial system receives a massive boost in resources (both financial and human) the situation will remain unchanged. Those accused of serious economic and physical crimes will simply bury their cases in paperwork through a series of legal motions and challenges.

Editor's thoughts:
The criminal justice system in South Africa is facing a number of challenges at present. Apart from the obvious lack of resources, the behaviour of a number of judges has come under scrutiny in 2007 too. And even if things were running smoothly, there is still the problem of damaging media reports surfacing during high profile cases. Why do you think a 'false' affidavit allegedly written by Clinton Nassif was leaked to the press recently? Send your comments to gareth@fanews.co.za