Watching briefs in the Senzo Meyiwa trial
State and defence lawyer object to the presence of Khumalo’s attorney as watching briefs in the Meyiwa trial, arguing that Khumalo was a potential witness in the case as she was in love with the deceased and therefore could later tailor her evidence in line with what was being said in court.
Steven Clowes of ENSafrica’s Pro Bono Offices writes:
The Senzo Meyiwa murder trial has attracted a lot of media attention, a large portion of which has centred on Adv. Malesela Teffo and his arrest in open court.
However, before his arrest, Teffo caused a scene by objecting to Kelly Khumalo’s lawyer, Magdalene Moonsamy, being present in court on a watching brief. Theatrics aside, what exactly is a watching brief, and did Teffo have a leg to stand on?
A watching brief is where an individual or entity that is not strictly a party to the court proceedings instructs a lawyer to ‘watch’ the proceedings to protect their rights and report back.
The lawyer instructed on a watching brief will not normally address the court or actively take part in the proceedings – he, she or they will simply observe. The lawyer’s mandate often also extends outside of court and the lawyer may assist with engaging with the media, SAPS and others to protect the client’s rights.
South African law recognises the right of an individual to legal representation, a right that is inextricably linked to the fair trial rights and the right to access to the courts enshrined in the Constitution.
Further, our courts run on the principle of open justice and, therefore, in general, the public is entitled to be present in court proceedings, subject to a few exceptions.
One very specific exception relates to witnesses who have not yet testified. Such witnesses are generally required to remain outside court until it is their turn to testify so they do not change their version to accord with other witnesses.
In the Meyiwa case, there is a possibility that Khumalo will be called as a state witness given her relationship to the deceased. If Moonsamy was allowed to remain in the court, she could report back, in some depth, to Khumalo who could tailor her version in line with other witnesses.
For this reason, Teffo did have a leg to stand on and the court ultimately agreed when the prosecutor raised the same concern. However, when Moonsamy was ultimately excused from court she in effect stated that the removal of her watching brief was of no consequence as the murder trial was being publicly broadcast.
Related article:
https://www.citizen.co.za/alex-news/75832/a-whopping-r4-million-payout-for-senzo-meyiwa-gallery/
