The hammering judge

The hammering judge

I read, with profound apprehension, the article of Jan-Jan Joubert as published in The Witness of 1 August under the title, “Judge makes his presence felt”. The article concerns the goings-on in the Zuma corruption trial before Judge Herbert Msimang.


It appears that when Wim Trengrove SC, acting for the state, asked that the case be adjourned because on the day immediately preceding the day of the trial, the defence tabled four files of new documents, which includes a 100 page affidavit, Msimang asked Trengrove the following question: “How long does it take you to read 100 pages?”


Now I don’t know how Msimang got to be appointed as a judge and whether he followed the traditional route which entails practising as an advocate and thereafter becoming a senior advocate before being appointed to the bench, but if he had indeed spent some time practising as an advocate, then his question to Trengrove regarding the time required “to read 100 pages” is deeply perplexing. I say so because the learned lordship’s question clearly shows that he was under the impression, when he posed his question, that all that is required of the state’s advocates, when confronted, the day before the trial, with four files of new documents and a 100-page affidavit, is to read the copious amount of documents and thereafter to proceed with the trial. Incidentally, the state bears the heavy onus of having to prove its case beyond all reasonable doubt in the particular trial. Does Msimang’s question mean that he is unaware of the fact that the state’s legal team needs time to consider all the new documents with which they were confronted on short notice; take instructions on the documents; consult with witnesses in that regard; and formulate a reply? In that regard some of the witnesses may not even be in the country. None of what has just been mentioned equates to merely reading 100 pages.


Quite frankly, Msimang’s question is actually quite irrelevant regarding the adjournment that the state requested in the matter. What is even more baffling is that even when Trengrove explained to Msimang that the state should study the evidence, find the witnesses in question, and formulate a reply, that still did nothing to change Msimang’s mind on the issue.


As regards my apprehension mentioned in the opening words of this letter, I regard things like Msimang’s mentioned question and his hammering on the bench when Trengraove alleged that a date proposed by Zuma’s advocate was unacceptable, a very bad omen regarding the type of justice that we are going to see in this matter. After all, in the normal course of events judges preside on the bench and don’t hammer on the bench. Also in the normal course of events, dates are arranged that suit the legal representatives of both parties. There is simply no room in dignified court proceedings for a procedure for selecting dates that entails one party selecting a date and, irrespective of whether that date suits the legal representative of the other party, that is the date that the court sets pursuant to the judge hammering on the bench. That is why South African judges are not issued with gavels. Not yet! But perhaps Msimang’s conduct may introduce a new era in that regard.

Coen van Wyk


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