Clear that some have not done articles
A MAJOR problem at our regional courts is that prosecutors and magistrates often have not done articles or passed the attorneys’ admission exam. Hence, sometimes they do not have the confidence to argue with high-powered defence attorneys like top advocate, Dirk Uijs, SC who recently was instrumental in securing the acquittal of four men charged with extorting money from an upmarket Cape Town Waterfront restaurant.
On this point, one notes that someone practising law in the private sector usually spends five years at university obtaining a three-year undergraduate degree, as well as a two-year LLB, and works for two years as an articled clerk before writing the attorneys’ admission exam, which has an extremely high failure rate.
In contrast, a regional court prosecutor or magistrate usually does a less challenging four-year LLB degree and writes a less-challenging entrance exam before doing 12 months of additional in-house training.
However, the situation becomes even more dire/serious when the defence-attorney brings in a senior advocate (known as a silk or senior counsel). These silks must have at least 10 years’ experience and are appointed by the President of South Africa after being nominated by the Bar Council. They have the same sort of status as a high court judge – often have served as acting judges – and therefore have far more status than magistrates. Simply put, they are the superstars of the legal profession and magistrates and prosecutors will sometimes be reluctant to challenge their opinions.
Perhaps the solution lies in transferring serious matters involving wellresourced defendants and members of organised crime to the high court.
Carrying a knife to a gunfight is not the way to go.
Another factor worth mentioning is that the more challenging five-year degree frequently provides its holder with much better language skills, as one has to major in at least two subjects in an undergraduate degree (law and English being a popular choice). It is also not unheard of for a defence attorney to have done a Master’s degree in law.
THYAGARAJ MARKANDAN | Johannesburg