News and Information

Treason trial Judge stands firm against further delays
September 10, 2004


A HARD-HITTING ruling by Judge Elton Hoff brought the Caprivi high treason trial back on track in the High Court at Grootfontein on Wednesday.

Judge Hoff not only dismissed an application for a four-week postponement, but also asked the Commissioner of Prisons to immediately investigate concerns over the medical treatment and correct diets - or rather lack of them - being received by the 120 detained high treason suspects.

At the same time he used his ruling on defence counsel Percy McNally's request for a postponement on behalf of one of his clients, Barnard Mucheka, to rebuke some of the defence lawyers.

He warned them that they might face disciplinary action for unprofessional conduct as a result of the proceedings that took place before him on Monday.

McNally had instructions from Mucheka, who is recuperating in hospital in Windhoek after an operation on his coccyx (a small triangular bone at the base of the spinal column), to ask for a postponement until he was able to attend court proceedings again.

That would only be after September 30.

His application was supported by fellow defence counsel Jonathan Samukange, who told the court that it would be unfair to continue with the trial in the absence of Mucheka, who had expressed a wish to be present when the court heard further evidence.

"Sometimes expedience should not be an excuse for sacrificing justice," Samukange remarked.

It was only after other defence lawyers had indicated that their clients did not want another postponement, and after the 14 clients of defence counsel Patrick Kauta, who was not present on Monday, indicated the same, that McNally and Samukange made it clear to the court that their other clients in fact were also opposed to a further postponement.

However, they said, they had felt duty-bound as officers of the court to ask for a postponement on Mucheka's behalf.

By then Samukange had also already told the court that Kauta had indicated his agreement with the sentiments expressed by McNally and himself.

With Kauta's clients having spoken for themselves, however, a quite different picture had emerged.

It appeared on Wednesday that Judge Hoff was none too impressed with such a turn of events.

"Legal representatives have duties towards their clients to advance the interests of their clients to the best of their ability and have also certain duties towards the court as officers of the court," the Judge stated.

"Where a legal practitioner represents a group of accused persons in the same criminal trial and receives conflicting instructions from his clients then there is a conflict of interests.

"Under these circumstances it is the duty of such legal practitioner to inform the court of such conflict of interest and also to inform the court of his or her intended course of action."

He added later:"Legal practitioners as officers of court must guard against a situation where their duties towards their clients are compromised in respect of their duties towards the court.

Where this occurs such legal practitioner's conduct is regarded as unprofessional, as it prima facie appears to me to be in this case, and such conduct is open to sanctions by the disciplinary committee of the Law Society."

He was considering having a record of Monday's proceedings forwarded to the Law Society of Namibia's disciplinary committee for its attention, the Judge warned.

He also appeared to have been irked by renewed complaints from the defence lawyers and Kauta's clients about the standard of the food and medical attention being provided to the 120 accused in custody.

The court had been told that some of the 120 were sick and in urgent need of medical attention, while some were diabetics, but were not provided with the diets prescribed for them, resulting in a deterioration of their medical conditions, Judge Hoff noted.

"This is an unacceptable situation which must be remedied immediately lest this court finds itself in a quagmire of debilitating applications for postponement," he said, requesting the Commissioner of Prisons to investigate the situation and take urgent action to address it if necessary.

On Mucheka's request for a postponement, he ruled that Mucheka would not be prejudiced if the court directed that the trial should proceed in his absence and that he should be provided with transcripts of the court proceedings every day.

The case had already been pending for an inordinately long period of more than five years, and has already experienced an unfair share of delays, the Judge pointed out.


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