The Oscar Pistorius case taught ordinary South Africans the concept of dolus eventualis.
The court found that he may have not intended to kill the person on the other side of the bathroom door on Valentine's Day morning of 2013 when he killed his lawyer and model girlfriend Reeva Steenkamp, but he could have foreseen the consequence of his actions when he fired those fatal four shots.
The Jacob Zuma arms deal case left many with the phrase Stalingrad. Because the former President has been accused of delaying the trial for 19 years with various forms of litigation, all of which have failed.
The Stalingrad legal defence is a strategy usually used by a defendant to wear down the legal proceedings by appealing every ruling that is unfavourable to them and using whatever other means possible to delay proceedings.
And now the Senzo Meyiwa murder trial has brought with it de novo. This Latin term is used to describe a case starting afresh.
None of these are foreign legal concepts for those in the fraternity or those familiar with court proceedings, but now South Africans want to understand what it means.
Former Bafana Bafana and Orlando Pirates goalkeeper Senzo Meyiwa was murdered in the home of his girlfriend and baby mama, Kelly Khumalo in Vosloorus on 26 October 2014.
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In October 2020, five men were charged with the murder and after numerous court appearances, a trial date was finally set for 11 April 2022. There have been many controversies surrounding the case, including a defence attorney being struck off the roll. Now the judge who was presiding over the matter, Judge Tshifhiwa Maumela, has been suspended indefinitely.
The Judicial Services Commission (JSC) made a recommendation to President Cyril Ramaphosa for him to suspend to Judge Maumela and another judge pending the outcome of an inquiry into their alleged failure to deliver a series of reserved judgments.
A new judge has been appointed to take over the Senzo matter. Judge Ratha Mokgoatlheng, a retired judge, has been brought back to the bench. As a result, the matter has now started de novo, which means it is starting afresh.
Drum sits down with legal experts who break it all down.
Zincedile Tiya of ZM Tiya Incorporated Attorneys says President Ramaphosa had every right to act in accordance with the recommendation by the JSC.
“When a case is started afresh, the evidence can be led differently. There is a possibility that even some of the legal representatives can change when the matter restarts. Though the case is started afresh, the evidence was given under oath and should still be valid. Witnesses can then be cross examined on what they said in the first trial.”
Tiya says it is not prejudicial to the state for the matter to restart.
“The state would have already had to share or reveal their evidence and docket with the defence anyway. So the case starting afresh is not prejudicial.”
Ayanda Gwabeni of Majali Gwabeni Attorneys says he believes it is more prejudicial to the defence more than the state.
“The state is obliged to share statements and all evidence. The defence is then on the backfoot when the case starts de novo because the state already knows what aces are up their sleeve.”
Gwabeni says having a case start again can hinder the family of the victim from healing.
“People want closure and to know what happened to their loved one. Having the case start afresh is obviously a traumatic experience for the family. But the reality is that the justice system is trying to get fairness and we cannot rush justice just because we want finality.”
Senior legal practitioner Zola Majavu describes the restarting of a case as “wiping the record clean”.
“It is if the previous proceedings never happened,” he explains.
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“The most common reason for a case starting de novo is the death of a presiding officer. But in this case, the presiding officer was suspended indefinitely, and the case could not wait indefinitely for him to return. No one knows how long the suspension will be. So the solution is to get a new presiding officer. The best thing about the Senzo Meyiwa case is that the new judge has been brought from retirement, so he has the time to listen to this case without any other cases to be concerned about.”
Majavu says starting a matter afresh is prejudicial to all those involved.
“Of course its prejudicial,” he says.
“The state may struggle with witnesses who may have died, poor memory because of the lapse of time or some who may not want to relive their court experiences. It’s prejudicial for the accused because they have to pay their legal representatives again for work they have already done. If one accused person doesn’t have legal representation the case stops.
He says the parties cannot refer to the previous proceedings because they no longer exist.
“It is like the previous proceedings have been erased. Yes, all the testimony was on record and under oath, but it has all been expunged. The parties will have to find other ways to corner witness who give contradictory evidence before court.
“The longer it takes for a matter to be heard and finalised, the longer it takes for the families to find closure. The accused have also been in custody for years since the previous proceedings and may want to apply for bail afresh in the new proceedings. The other thing is that the public’s confidence in the justice system also decreases.
“When a case has started de novo and the accused are found guilty, the presiding officer can consider the long time they were in custody awaiting trial as time served. It is all at the discretion of the presiding over.”
He says while the courts have always been open for the public, social media posts or updates and traditional media streaming live from the courts have been a game changer.
“It now means the public is getting the information in real time all in the comfort of their homes. It also means the courts are somewhat more accessible. This new artificial intelligence is helping with demystifying the court process and aspects of the justice system for the public. I would like to urge the public to be patient though, and allow the process to continue as they should, and for the law to take its course.”
