Case his­tory

Daily Dispatch - - Weekend -

THE Grahamstown High Court has seen some ac­tion over its 150 years.

In 1861 renowned 19th cen­tury au­thor Charles Dick­ens took on the EP Her­ald in the Grahamstown High Court, al­leg­ing it had vi­o­lated copy­right law by pub­lish­ing part of one of his most popular books Great Ex­pec­ta­tions. The Cape and Natal News records that the court in­ter­dicted the pa­per from run­ning any fur­ther ex­tracts from the book.

Ad­vo­cate Izak Smuts, SC, points out that over its 150 years the court’s record was “not with­out blem­ish, but also not with­out hon­our”.

Even un­der apartheid, some judges man­aged to skirt the spirit of apartheid law and achieve jus­tice.

Smuts points to a 1985 decision re­sult­ing in the re­lease from de­ten­tion of anti-apartheid cam­paigner Gugile Nk­winti, now Ru­ral De­vel­op­ment and Land Re­form Min­is­ter in Pres­i­dent Ja­cob Zuma’s cab­i­net.

Judge Don­ald Kan­nemeyer, to the fury of the se­cu­rity po­lice, found Nk­winti’s de­ten­tion had been il­le­gal and or­dered his re­lease – de­spite the then state of emer­gency.

Since then, the court has seen many prom­i­nent peo­ple cross its thresh­old, in­clud­ing crick­eter Makhaya Ntini. The Grahamstown High Court in Oc­to­ber 1999 over­turned his rape con­vic­tion on ap­peal.

Look­ing back to some of its ear­lier crim­i­nal cases, se­nior state ad­vo­cate Nickie Turner points to the big dif­fer­ence in the na­ture of crimes from the 1800s and now.

In one such mat­ter in the 1880s, she says a pre­sid­ing judge Sir Ja­cob Dirk Barry quashed a pub­lic drunk­en­ness and disor­derly charge on the grounds that the per­son con­cerned had merely been stag­ger­ing about the streets and mak­ing a noise.

He said at the time that the law re­quired that the per­son had to be found drunk and ly­ing down

“The moral of the story is that, back in the day, un­less you were par­a­lyt­i­cally drunk and ab­so­lutely leg­less you were okay and your mis­be­haviour did not at­tract cen­sure.”

In another mat­ter a man was charged with the pos­ses­sion, with­out a li­cence, of 16 as­segais. Another man was charged with the crime of ma­li­cious in­jury to prop­erty in that he did “wrong­fully and un­law­fully break the leg of an os­trich”.

But, on a more se­ri­ous note, she said her pe­rusal of the law re­ports from the 1800s had also re­vealed “not a sin­gle re­ported cap­i­tal case, let alone a case where some­one was charged with armed rob­bery, or fraud, or cor­rup­tion, the rape of a child or se­rial of­fences of any na­ture. Times have in­deed changed.”

But per­haps the Grahamstown High Court has be­come best known for what le­gal com­men­ta­tors yes­ter­day called its pi­o­neer­ing, im­por­tant and ex­tra­or­di­nary in­no­va­tions in so­cioe­co­nomic rights lit­i­ga­tion.

In­ter­na­tion­ally renowned law pro­fes­sor San­dra Lieben­berg ear­lier this year said the Grahamstown High Court had broad­ened ac­cess to courts through pi­o­neer­ing the class ac­tion and had come up with nu­mer­ous in­no­va­tive reme­dies and strate­gies for se­cur­ing com­pli­ance with court or­ders

Oth­ers, in­clud­ing law pro­fes­sor Hugh Corder, speak of the post-1994 East­ern Cape ju­di­ciary as one that had pur­sued “the trans­for­ma­tion goals of the con­sti­tu­tion in ev­ery way”.

Turner said it was to be hoped the court would con­tinue to serve the peo­ple of this prov­ince for many years to come, both as the seat and a cen­tre of ju­di­cial and le­gal ex­cel­lence.

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