I read an article the other day where it seems that common sense in some way came back to the learned professors regarding the value of a LLB law degree. Let me explain that until about 15 years ago, before some long haired liberals decided to meddle with the legal profession, the LLB law degree was seen as the beginning and end of your academic legal qualifications. Anything more like a LLM of LLD and you have geek / nerd tendencies to be frowned upon by your mates and anything less made it impossible for you to choose between the attorneys or the advocate's profession since you must have a LLB degree to become an advocate.
Of course, as I frequently say in my books, unless you also pass your bar exam and practise law for a few years, you are not really up to the task even though you may be entitled to the title of "advocate" because of your LLB degree. At one stage it was rated so highly that it was a post graduate program / degree and from experience I can tell you - there was a superlative difference between a first / under graduate degree like B Iuris, B Proc or BA Law and the LLB program. Once you enter the LLB program the professors simply expected a lot more from you. Hence many of us fell on the way side - from my own class only 44 graduated out of the 443 who started 5 years earlier. Of those 44 I believe less than 5 are still in private practise so it was indeed a big deal to survive. We were justly proud of our LLB qualification for it opened the law profession. Some of us became advocates. Others became attorneys and others never passed the bar exams.
Then the wise ones changed LLB to become a first degree and I warned of the consequences in my book Tricks of Trade - Memories of a Rogue Lawyer of having a generation of new lawyers on the loose with less than adequate academic pretensions. And I get the idea of opening the profession for everyone but remember - law is a serious business and affects absolutely everything you do in life. You fill your car with petrol (gas for my American readers) and yes, a contract came into being even if not reduced to paper. You decide that your date is going so well that you may move to another level (see my book The Circle of Life) and the law is watching you all the time - even in the bedroom! Hence we can safely say, lawyers must be thoroughly tested before they are let loose on you, the innocent public.
I also said and will always say that law is not rocket science but you really really need a good academic background or you will be even more lost than usual. Strange that those politicians...the long haired liberals as I call them...have no such test except to see how much rubbish they can sell at election time? I wonder why that is. After all, almost every problem in life is attributed to their clever way of thinking...as is the subject we speak of today and almost any other problem you care to mention when you think about it.
So I am glad to read that sanity is returning and that Wits University at least is bringing back the LLB program to where it should be - a post graduate 3 year course. And I hope the rest will follow them but I must ask...why did they feel the need to gamble with the one profession that is of cardinal importance to the man on the street? Was all this necessary and what of the thousands of first degree LLB men and women who now will feel marginalised? The lesson is as old as the mountains - if something is not broken - leave it alone!
Now I admit the heading is fighting words for the South African judiciary is justly proud of being autonomous and they are indeed very defensive of that status. But is it true or just half a truth? You should know by now that law is such an imprecise science that it drives sane people nuts and only the insane ones enjoys it. Obviously I don't and I have papers to prove my sanity whilst you reading here almost certainly only have a "legal presumption" which can be overturned in court. Just saying :) Be that as it may, the answer is yes up to a point meaning that long haired liberals (all politicians regardless from which party or alignment are known to me by that name) do not interfere in the actual trial but they almost always do in the sentencing part when you are found guilty.
What happened was that minimum & mandatory sentences were introduced for a lot of crimes no matter what actually happened. Simply this means that if you are found guilty on a specific crime and the law (made by the long hair liberals in parliament) states you get x years for that crime - the Judge has to abide by that and you will then get x years no matter what the surrounding circumstances are. It is sometimes prejudicial for you also know that truth often is stranger than fiction.
This was not always so - traditionally our higher courts (first called the Supreme Court and then the High Court for political reasons) had what is known as inherent jurisdiction. They could hear whatever crime they wanted to hear and sentence as they wanted - subject to the law obviously but with wide discretion depending very much on the surrounding circumstance of the case. That ability is now largely taken away by over eager long hair liberals who just have to prescribe to everyone instead of actually doing the good work they promised during election time. Not that I blame the long haired liberals for forgetting about the election promises whilst living the high life which comes with politics - it was hogwash to begin with.
Practically this means that even if your tears did sway the Judge that you are genuinely sorry it will not help you...the minimum sentence will still be inflicted on you and you will still go to jail for x number of years decided long before you actually committed the crime. Still, you are sort of lucky to even get those years for in the olden days some crimes had the death penalty automatically invoked. Consequently many respected and honourable Judges became merchants of death with a mandatory death sentence from political crimes to rape which they had to impose.
This shows the unfairness of the whole system. The Judge is restricted to an election promise made years ago which now going to have dire consequences for you. Of course, some clever professors will no doubt tell you that such laws also bring legal certainty if you know what crime brings what penalty but I have a problem with that argument. Law & life is complex (if not exactly rocket science) and every case should be judged and sentenced according to its own merits and surrounding circumstances - not what a long haired liberal decided years ago. It just makes no sense to rubber stamp such serious issues and we should trust our Judges more to act like judges.
Many readers asked me what the effect of an Oscar nomination performance in the witness stand would be on the Judge. Frankly nothing! It plays no part in establishing guilt as only the evidence accepted by the court as evidence would lead to a verdict - not all the tears in the world. In South Africa there are no juries to impress with such performances...the process is cold and efficient which is a good thing for justice in general. Whatever you say will be tested against the evidence.
One of the main reasons why the male dominated legal community opposed female lawyers at the beginning of the last century was exactly this...women were supposed to be too emotional and unable to look at the facts (evidence) presented in a calm and professional (meaning unemotional) way. This would then have dire consequences for the accused if they get emotional. Also, you hear and see things in a criminal court which is beyond description and they wanted to protect the females from the worst elements of society. Obviously they forgot that in nature it is usually the female specie that does the actual killing. I doubt if females needed or wanted or even asked for such noble sentiments from men and so they came rushing into the legal profession determine to show they can be good lawyers also.
Historically and practically the effect was that female lawyers have always bent backwards to show how unemotional they can be in court. I say again, tears will have no effect on the outcome of the trial as the Judge must be seen to be impartial and not subject to overly emotional behaviour. That is one of the two legs of natural justice which we talk a lot of in my books. The other leg of natural justice is to hear the other side before you make a judgement. Something none of the enthusiastic commenters on the internet seems to care about and you know what Mr Eastwood said about the value of a man's opinion! It is not worth much.
Tears do play a role at sentencing though. That is only done after the guilty verdict and a long boring process in itself. If you showed remorse (tears or whatever), genuine remorse that is, for the Judge has seen all this many many times before; you may get a lesser sentence. Cynically I can tell you every single convicted man shows lots of remorse at that stage with promises of never doing it again etc. Unless seen as genuine it means as much as the oath we spoke about recently, nothing.
Further, you should also not have wasted the court's time by not pleading guilty (a controversial viewpoint which many would disagree with) for then the court may think your tears are designed to influence the court which is a big no-no. Any logical mind, and all lawyers are extremely logical people, will ask "why now?" Why did you not plead guilty and thrown yourself at the mercy of the court who would in such cases show much more mercy than what will happen now.
* Many times, no doubt, because the lawyer wanted to make more money from you though this is of course vehemently denied. Still, it happens.
In short, it is very bad strategy to start crying in court and doing so carries a terrible risk of not only being laughed at but being misunderstood even if you are one of the extremely few genuine ones. You just cannot win and should rather keep things calm and professional. The court will not be impressed and not be bothered. You run a very real risk of angering the court.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a practicing commercial law attorney for eight years. He also wrote several books on business, law, counter terrorism and security issues. He is a widower and lives in Bloemfontein, South Africa.