An acting judge has recused himself from hearing a murder trial, saying that counsel on both sides had behaved so badly that he was unable to trust them. Acting judge James Grant, formerly one of South Africa’s leading academic experts on criminal law, said the behaviour of counsel for both the state and the defence was such that he had no confidence in either and could thus not continue to hear the matter. Criticising their ‘unethical conduct’, he said his judgment should be sent to the Legal Practice Council and to the National Directorate of Public Prosecutions. He noted that the prosecutor asked for his recusal based on a claim that the judge had ‘struck evidence from the record’. This, after the record had been reviewed and counsel on both sides had agreed the judge had done no such thing. Grant found defence counsel had not properly consulted with his client before deciding on a guilty plea. The judge was further ‘perplexed’ by defence counsel’s behaviour in court: ‘sitting while engaging with the bench, rocking in his chair, speaking to others while being addressed by the bench’ and hiding behind the lectern while he sniggered at something that amused him, during proceedings that ‘could not have been more serious’.

Read the judgment

Mothlanyi Serame is accused of killing his girlfriend by stabbing her with broken glass. But in his high court trial before Acting Judge James Grant in Johannesburg it was not just Serame’s behaviour that came under scrutiny. The behaviour of counsel on both sides of the court was also subjected to examination by the judge, with unfavourable results. Grant strongly criticised their work and court conduct, and concluded that their actions were so out of line that he no longer had the ‘required trust’ in them and would have to step down.

Problems began at the start of the case when Serame’s defence counsel said his client would plead guilty. Grant asked counsel whether he had discussed with Serame his ‘capacity’ at the time, and was told there had been no such discussion.

When the judge said he would have liked to ask the accused what had happened on the day, Serame’s counsel ‘offered’ that his client should take the stand. Invited by the judge to tell the court what had happened on the day in question, Serame spoke about heavy drinking, adding that he could remember nothing after he returned to the room where his girlfriend was waiting for him, and where the attack on her took place.

The judge said under these circumstances he could not accept a plea of guilty: there were questions about Serame’s ‘capacity, his voluntariness’ and other issues. The case was then postponed for the two sides to inquire whether he could be given expedited psychological observation. But when the matter began again, the state applied for the judge’s recusal on the grounds of an ‘irregularity’, saying he had ‘struck evidence from the record’. All parties, however, reviewed the record and agreed that this was not the case.

At the subsequent recusal hearing, the state persisted with this argument, despite its earlier agreement to the contrary. The judge said recusal on the basis of ‘irregularity’ was unknown in SA law where recusal related to allegations of bias.

In his judgment, Grant, formerly a law professor with a PhD in criminal law and whose expertise included the law of evidence, detailed the sections of the law involved in his questioning of the accused to establish whether it was appropriate for him to plead guilty. He also mentioned that counsel for the state had access to a recording of the proceedings, something the judge said was ‘problematic for a number of reasons’. Counsel treated the existence of the recording as giving ‘unique insight’ into what had happened in court, but it had also ‘permitted a false version of events to have been assumed and operated on.’ When the official court transcript was consulted, it became clear that the facts quoted by counsel for the state were false, and that the recording ‘had only served to mislead state counsel’.

Grant reminded counsel that private recordings of court proceedings were allowed only with the consent of the presiding officer. Failure to comply with this directive could lead to charges of contempt of court.

He said he could not conceive of any way in which the state’s application could have been made in good faith. Instead, the contrary seemed a better description of counsel’s conduct.

Speaking of defence counsel, a Mr Jaggan, the court expressed concern that he continued to represent the accused, even though he had been given conflicting instructions by his client. Jaggan seemed not to understand the ethical dilemma he was in, said the judge. And the question arose whether counsel was not, in fact, given inconsistent instructions by Serame, but rather whether he ‘failed utterly to properly consult with the accused before presenting his client as guilty – in reckless disregard for the interests of his client’.

Grant said he was perplexed by the way Jaggan behaved in court, ‘sitting when engaging with the Bench, rocking in his chair, speaking to others while being addressed by the Bench and hiding behind the lectern sniggering at something which amused him’, during proceedings ‘that could not have been more serious’.

‘These concerns (about counsel on both sides) have made it impossible for me to continue to preside over the matters. The trust I am required … to have in everything said by counsel is irreparably damaged.’ Grant said it was disappointing that ‘this sort of conduct is not rare’, but that it would not be proper if he failed to refer the matter to the appropriate authorities simply because ‘far too many legal representatives who appear before our courts are ethically bankrupt’.

Among the court’s orders was that a psychiatric panel inquire into the extent of the intoxication of the accused and its impact on the ‘voluntariness’ and capacity of the accused, as well as his intention at the time. He said ‘recusal for irregularity’ was unknown in SA law and he rejected that application. However, because of the conduct of both counsel ‘I recuse myself as I am unable to trust both counsels.’ He further ordered that the court’s judgment was to be sent to the Legal Practice Council and the National Directorate of Public Prosecutions.

  • ‘A matter of justice’, Legalbrief, 13 August 2019