Security police are under an obligation to ensure that accused persons are advised when legal representation is being arranged for them, and to ensure that lawyers are informed as to the date when their prospective client is to appear in court and the general nature of the charges being brought, according to guide-lines given by a judge in the Pietermaritzburg Supreme Court in April.
Mr. Justice Milne was giving judgement in a case brought by the State against the editor of the Sunday Express newspaper, Rex Gibson, and reporter Jennifer Hyman for contempt of court and criminal defamation. The case related to an article by Ms Hyman on 21 May 1978 stating that in some political trials the accused were brought to trial without their families or others' knowledge and quoting law professor John Dugard to the effect that pro deo counsel appointed in such cases were sometimes inadequate.
Gibson and Hyman were acquitted of the contempt and defamation charges, the judge saying that criticism of the police was not the same as criticism of the courts, and that the lawyer whom the prosecution alleged had been libelled was not easily identifiable from the article.
During the case, sworn evidence was given of several instances in which lawyers had been obstructed in obtaining access to political detainees who were to appear in court.
One of these concerned three men, Stanley Pule, Ngoga Gxekwa and Isaac Mhlekwa, who were tried under the Terrorism Act in September 1977. A Pietermaritzburg attorney told the court that the Security Police would not answer his inquiries about the three men, until he read of their appearance in court in a newspaper. He discovered that advocate J. H. Niehaus had been appointed pro deo, and the three men had been advised to plead guilty. Advocate Niehaus, in evidence, denied that he had advised the three to plead guilty and said he had in fact soon withdrawn from the case when funds for a briefed lawyer became available. Pleading not guilty, Pule and Gxekwa were acquitted. Mhlekwa was called from Robben Island, where he is serving an eight-year sentence, as a witness for Gibson and Hyman, but his evidence was not reported.
In another case, advocate Hendrick Klein of Pretoria told the court, he had appeared pro deo for Sipho Aaron Madondo charged under the Terrorism Act and advised him to plead guilty. Under the new Criminal Procedure rules, he said, accused persons often appeared unrepresented at preliminary hearings and he had been appointed only after Madondo had already pleaded guilty. The trial proper lasted just three hours, and Madondo was sentenced to 12 years' imprisonment.
A third case concerned a juvenile who is now serving a five-year sentence on Robben Island. Aged 16 at the time of his detention in December 1977, he was acquitted of attempting to go for military training in June 1978 and immediately re-charged with writing letters from jail about how to get military training. He was not legally represented at the second trial as the lawyer was not informed of the state's intention to prosecute again. Nor was his family notified, until the magistrate asked the prosecutor where his parents were. The presence of parents during the trial of juveniles is obligatory in South Africa. The prosecutor claimed that efforts to trace the parents had been unsuccessful, but, giving his address, the boy told the court that his parents had not been told. His father was sent for and was present in court the next day when the youth was sentenced.
The police produced a statement which they alleged was written by the youth on the day of his second trial stating that he would plead guilty and did not want to be legally represented. This was in answer to the lawyer's request to be informed of fresh charges.
This case is a relatively unusual one of an accused in a Terrorism Act trial being wholly unrepresented. Most of the expert evidence in the Gibson and Hyman case concerned the inadequacies of pro deo defence which, Professor Dugard told the court, meant that young inexperienced lawyers appeared in difficult political trials without the benefit of instructing attorneys. The chairman of the Johannesburg Bar Council agreed with Dugard on this, commenting on the particular difficulties regarding admissible evidence in Terrorism Act cases, as did Justice Milne in his judgement, saying that the legal profession was well aware of the deficiencies of the pro deo system especially in political cases.
