INDEPENDENT LEGAL REPRESENTATION

Firstly, it is crucial that children receive independent legal representation. For ethical reasons, there must at all times be a clear division relating to representation of children and adults. Adult accused are well aware of the fact that children are treated differently, particularly with regard to punishment. For example, a child convicted of robbery will in all likelihood be given a suspended sentence, whereas an adult is unlikely to be sentenced to less than one year direct imprisonment. It is therefore very common for adults to involve children in the commission of crimes. If they are caught, the child is forced by the adult to accept responsibility for the crime, and the State may accept the child's guilty plea and not proceed against the adult.

In one of my recent cases, N and two others, two of the three accused were juveniles. One of the juveniles was very streetwise. The other juvenile was very shy, scared and clearly intimidated. The third accused was a 21-year-old with a string of convictions. I was sitting in H court during their first appearance, before I was appointed as representative, and I distinctly remember the words of the shy accused, as he repeated over and over again to the court in English "I am guilty, these other two were not with me". When the court asked him, through an interpreter, if he wanted an attorney he refused point-blank, demanding to plead guilty immediately. I was then appointed to act for him. Later I went down to the cells to consult with him, but he refused to confide in me. He instructed me to draft his guilty plea straight away. I followed his instructions and drafted the guilty plea. I also requested further particulars about the charge. I then went to the prosecutor and read the further particulars - my suspicions were confirmed in that the accused's version of events and the complainant's version of events were completely different. More importantly, the complainant could not identify my accused, but she could clearly identify the other two, whom she knew. The only reason the shy accused was arrested for the crime was because he was with the other two accused two days after the crime was committed, and the complainant had informed the police that three males had robbed her. Armed with this information, I persuaded my client to plead not guilty.

By this stage, the other two accused wanted legal representation. The case was postponed three times so they could get legal aid. Eventually the other accused became tired of the delay in obtaining legal assistance and decided to represent themselves. At the trial the complainant informed the court that she had never seen my client and that he did not rob her. I successfully applied for a S174 acquittal. My client told me he was very scared because if he had been sent to Pollsmoor Prison later that day, the adult accused would certainly have assaulted him. After my client was acquitted, the trial against the other two proceeded. During the remainder of the trial, the streetwise child confessed that he, the adult and another person robbed the complainant and the adult influenced him to help force my client to take the fall for them. They knew my client was an easy target.

All the state prosecutor was interested in was one guilty plea for robbery, regardless of the facts. Had statistics been my primary motivation, I could easily have complied. My statistics would have reflected one guilty plea and two state withdrawals for that day. A month later I would have had a probation officer's report and sentencing for the shy child. Instead, I opted for a trial and lost the two state withdrawals. In the end I was happy with my decision because justice (which had almost eluded the shy accused) was eventually done.

Innovative assistance in the courts

For the first time, in 2002, students registered for the Legal Aid and Legal Practice course in final year LLB were required to assist me with a trial. The final-year students (working in pairs) and I would read the charge sheet and further particulars, and then consult with our client. Following that, we would brainstorm all possible options, conduct complete research relating to all our options, prepare examination in chief and cross-examination and a draft argument. Assistance from the final-year students was certainly welcome and as a result a more comprehensive service was provided to the accused. A good example is the case of S and two others. As an adult, S was represented by another attorney. UCT Legal Aid represented the two juvenile accused. The charge was robbery with aggravated circumstances. Our accused clients told us that they had stolen R40 000. After our consultation and research, we agreed with the accused that they were guilty of theft, but not of robbery with aggravated circumstances. They gave us instructions not to plead guilty to the charge, but to negotiate for a plea on theft. We (the two students and I) proceeded to plea-bargain with the prosecutor. We were strong on the law and had the facts at our fingertips. We made it clear to the prosecutor that on the basis of their further particulars they would not be able to prove the elements of the crime, and that we would show reasonable doubt by successfully challenging the credibility of their witness. We said that once we accomplished this, we would apply for a section 174 acquittal. Alternatively, we would plead guilty to theft. The prosecutor realised that our points were valid, and was prepared to accept a plea on housebreaking. The other attorney agreed on behalf of his client. We, however, flatly refused, and after four hours of plea-bargaining, the prosecutor accepted our plea of guilty for the crime of theft. The same deal was then offered to the other attorney.

CONCLUSION

My view of the world has certainly changed since representing children at Athlone Court. Poverty plays a role in most of the crimes committed - theft, robbery and housebreaking. Children are children, and many of them make mistakes or are reckless. Such a mistake may mean that they spend a week in Pollsmoor Prison, where they will be robbed of their innocence forever, if not eventually turned into hard-core criminals. It is for this reason that I have made it my goal to do everything possible to keep each and every one of my clients out of prison.