In the early 1990s, as a young advocate, I was briefed to represent a client charged with a horrific murder before the Swellendam Circuit Court. He stood accused of raping a young woman in the veld and then crushing her skull with a rock.
Circuit Courts are a distinctive feature of South Africa's judicial system. They are, in effect, travelling courts that sit in different towns to hear criminal and civil matters in areas where permanent courts may be difficult to access. In those days, when the judge, prosecutor and defense counsel arrived in town, it almost felt as though the sheriff had ridden in from the Wild West. They possessed a certain theatre. Investigating officers generally ensured that their cases appeared watertight. Acquittals were rare and, before 1995, the death penalty was a commonplace reality.
I met with my client on the eve of the trial. He had already confessed before a magistrate, giving a detailed account of the crime. According to the confession, he and the State's principal witness had been drinking together in the veld one afternoon. The witness had passed out beside him when the victim walked by. He confessed that he had grabbed her, dragged her into the veld and committed the terrible acts with which he had been charged.
At first glance, it seemed a straightforward case for the gallows. I had a client who wished to plead guilty to a heinous crime. That, in itself, was unusual.
Yet something troubled me. My client was a small man, timid and withdrawn. When I later saw the State's principal witness, I began to wonder about the confession. The witness was a large, imposing figure and certainly capable of dragging a woman across the veld. What unsettled me further was that the witness’ statement dovetailed almost too neatly with the confession. It concluded that my client had walked off into the veld shortly before the witness passed out, a detail that struck me as altogether too convenient.
The confession, however, posed an enormous obstacle, as confessions so often do. I have little doubt that, during the heyday of apartheid, innocent people were sent to the gallows on the strength of false confessions.
Then my client's sister, who had accompanied him, told me something that made the hairs on the back of my neck stand up. Her brother, she said, had given her a very different account. He had passed out while drinking and could not remember exactly what had happened that day. She added that the State's principal witness was on friendly terms with the local police officers investigating the case.
The prosecutor was a man of great integrity. I decided to do something I had never attempted before. I suggested that he speak privately with my client and his sister and judge for himself who was more likely to have committed the crime.
About half an hour later, the prosecutor emerged from his office, his face a mixture of shock and disbelief. He immediately withdrew the charges against my client and instructed the police to arrest the State's principal witness instead.
It was a reminder that even in the most apparently hopeless cases, the duty of counsel is not merely to process the evidence placed before them, nor simply to secure a conviction or an acquittal, but to search relentlessly for the truth. Sometimes justice depends upon the willingness to question what everyone else has already accepted as fact.