- Court experiences can affect lawyers deeply, even when they appear detached on the surface.
- Human moments between defence counsel and the families of deceased people can shift courtroom dynamics.
- The trial shows that criminal law involves emotional realities that no textbook can prepare practitioners for.
I was in Bloemfontein for a five-day murder trial. This trial had a few different elements compared to many trials I have done in various High Courts on criminal matters. The picture above was taken after the five-day trial. I must admit that this article will create mixed feelings for you, as it did for me.
I was representing the accused in the murder trial, whom I find to be a conflicted person in unfortunate circumstances (my personal observations are informed by privileged information that I cannot share with anyone). The accused murdered his girlfriend, whom he had dated for a while.
I am the defence counsel. I always have this challenge in all murder cases: I represent the accused, and the family of the deceased person will be present. I am representing a person who allegedly murdered their child, brother or sister. I find that to be the most difficult part of the criminal court, the side of the deceased’s family gallery.
Navigating the courtroom environment
In this trial, the family of the deceased elected to sit behind defence counsel. The court is structured in a very cosy manner; the gallery and defence stands are too close, and even the accused is practically in the gallery with the public, with just a line of boards dividing them.
In every trial, the file has photos, which serve as exhibits in court. At one point, I stood in court and requested that the court order the sister of the deceased to move slightly behind me because I would be using pictures of the deceased to cross-examine the pathologist responsible for the autopsy. She would see the pictures of her sister on my desk. That is how close the gallery and lawyers stand.
The pictures were so sensitive that a state advocate, a lady, said to me, “I want you to have these photos. I can see, counsel, that black and white is not giving you a clear view. I cannot look at them.” I said, “Thank you, get me colour photos, please.” I appreciated the gesture.
Cross-examination pressures
I must admit, I conducted the most-examination. There is no criminal trial without a heated cross-examination of all witnesses. If cross-examination is not heated, then cross-examination in criminal proceedings is compromised for both the state and the accused. I think all witnesses were subjected to the pressure of cross-examination.
At the end of the five-day trial, after the defence closed the case, after five days with the same faces in court, you get to know who is who in the family of the deceased. You get to even know their emotional composition and composure about the matter before the court.
An unexpected moment of connection
The picture shows Ntate Mokhele, the father of the deceased woman, against whom I was representing the accused. The picture was taken on the fifth day of the trial, after the defence had closed its case and the matter was scheduled for another appearance.
In the trial, each day I would go down to the court holding cells with the accused or remain in court talking about various things. I would find the deceased person’s family on the side of the court exit door I used, because there are chairs and couches there. I always greeted them, and I would talk if the situation permitted. In this case, there was not much talking, but I always greeted.
On the fifth day of trial, I did not have much to consult with the accused about. After court, I changed and put on a suit. I bid him goodbye and headed home, as it had been a long week. I hope you are well. I am glad we are finishing this part.
A father’s response to difficult questions
As I walked out of court, the father of the deceased and the family were waiting for me. I greeted them; each time I am unsure of my feelings, I smile subtly. The father of the deceased, Ntate Mokhele, said to me, “Can I please take a picture with you?” I agreed because I think it meant something positive for him to do so with the defence counsel.
I asked him, “How do you feel after the trial, after all that was said and the questions that were asked?” He said to me, “Advocate Maila, you asked tough questions; you were not easy at all. I felt like you were condoning what happened, but now I realise that your questions made me understand things I wanted to know about my daughter’s death.”
A shift in the courtroom atmosphere
At one point, when the accused was testifying in court, my last question to him was, “Is there anything you want to tell the court about this matter?” The accused apologised to the father, speaking deeply and intensely about how he regretted the situation and that it was not intended.
At that moment, I felt a heavy cloud disappear in the court. I looked behind me and, for the first time in all the days of the trial, saw the gallery behind me seeming at ease and lighter. The court’s mood changed, and the atmosphere was, in a way, relieved.
Lessons beyond the textbooks
After court, as I was talking to the family, they wished me a safe trip from Bloemfontein to Pretoria. We also laughed about this and that. A part of me realised that being a legal practitioner is not a book experience, it’s a real, lived experience.
Situations come differently compared to what you read in books; hence, you must truly be ready to learn as you go in all cases. Criminal procedure books and criminology never taught us how to handle issues beyond a file.
I asked the father for the picture since we used his phone. I then requested his permission to share this story because there is a lot in it. As I looked at him, I remembered that I am a father too. I am not just an advocate robot.
This experience came close to one I had at the Mpumalanga High Court in Middelburg. I mean, in terms of the experiences of the family of the deceased.
I concluded that the court can heal and the court can hurt… it will depend on the events as they unfold.
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