The Eastern Cape’s myriad problems — from socio-economic to the police treatment of minor witnesses — means Advocate Elizabeth Crouse, the senior litigator for Legal Aid South Africa, has been battle-hardened in the courts.
Some of her cases have gone all the way to the Constitutional Court, where she has appeared six times, and to the Supreme Court of Appeal (approximately 14 times). Twenty-seven of Crouse’s cases have been declared reportable.
Having worked as an advocate since 1987, one of the landmark cases argued by Crouse happened before she joined Legal Aid in 2009.
In the 1995 matter of S v Khondile, Crouse had successfully argued against the admissibility of a confession by a minor accused, as it was obtained by the police without a parent or guardian being present (a common practice by apartheid-era cops), which led to a change in police practice.
In Sarrah v Maritz NO and Another, which was heard in the Constitutional Court, Crouse successfully challenged the right of a poor person to a property paid for in full, before the seller was declared insolvent. In terms of the common law, the insolvent estate fell under the aegis of the trustee, who was empowered to deal with it as seen fit. The trustee was in the process of evicting the buyer from the property but a successful challenge staved off the eviction and changed the centuries-old law.
In a case reminiscent of the novel, Lord of The Flies, Legal Aid South Africa had brought an urgent application to remove children from a reform school where they had staged a ‘coup’ of sorts by taking over the running of the school, abused drugs, used other children as sex slaves and generally terrorised the surrounding community. While the matter is still pending, control was returned to the centre after the application in Goosen NO v MEC for Basic Education Eastern Cape and others.
Crouse first acted at the High Court in 2007 and has, since then, spent several stints at the Eastern Cape and Gauteng divisions.
She has delivered one reportable judgment in Buchell v Anglin in the Eastern Cape High Court sitting in Grahamstown.
Heard over 29 days, the case saw a dead porcupine delivered to court by an undertaker, with Crouse having to decide who had custody of it, but there were more crucial legal issues at stake. It involved a spat between a game farm and safari hunting operator in the Eastern Cape and a booking agent based in Nebraska, USA. The former claimed that defamatory remarks made by him in a letter to the latter (and similarly defamatory responses) had led to diminishing bookings, attempts to destabilise relationships with other service providers and various losses of income, for which he was claiming.
With the plaintiff arguing that South African law on defamation applied while the defendant argued that the more expansive US law applied, Crouse delved into the application of international law in South African courts, eventually finding that Nebraskan law applied subject to it passing Constitutional muster.
In Khan v Passenger Rail Agency South Africa, the applicant had argued that the state entity provide alternative accommodation following a proposed eviction, as per the Constitutional Court’s Grootboom judgment.
Crouse found against the applicant and set a deadline for eviction after consideration of the facts, including the family income, the minor children’s access to schools and the reasons for the family initially moving to the property. In her South Gauteng High Court ruling, Crouse, noting the Constitutional Court’s emphasis on the “case-specific” nature of the right to alternative accommodation, found that “there can be no unconditional duty on local authorities to provide alternative accommodation in all evictions”.
Crouse obtained a B.Juris at the University of Pretoria and an LLB from the University of Stellenbosch. She has attended two aspirant judge’s courses and her legal academic writing includes a co-authored article on DNA-testing in South African law in relation to the Constitutional right to privacy.
Questions about Advocate Elizabeth Crouse becoming too “involved emotionally” in clients’ cases as a lawyer and that she could become quite “belligerent and disrespectful” to counsel while acting on the Bench were stymied by Chief Justice Mogoeng Mogoeng as they were aired for the first time during her interview.
Mogoeng said the questions amounted to an “ambush” as Crouse had not been afforded the opportunity to peruse the complaints in preparation for her interview.
Eastern Cape premier Phumulo Masualle asked Crouse to share her views on the “critical matter” of access to justice and the impression that it was increasingly becoming the preserve of the rich.
Crouse said her research showed that while it was “not necessarily true” as there were many public interest law firms doing good work, the “Constitution means absolutely nothing” unless it became a living, accessible document for the country’s most marginalised — especially the poor and those living in rural areas — through the courts.
Justice Minister Michael Masutha’s questions delved into her adjudication of the Buchell v Anglin matter (see above) and the weighting of law from other jurisdictions in her ruling.
Crouse told the commission that when she first started at the Bar “I was the only woman there” and that while transformation was happening, it remained slow-paced.
She did “concede” that “I didn’t do much to get women and black practitioners into the Bar” but had ensured that she had appointed black and female juniors to cases that she had led and gave a third of her fee to them.
Professor Nomthandazo Ntlama asked Crouse about her qualifications to be an adjunct professor and her back catalogue of academic papers. Crouse said she had been inspired to write after appearing in the Constitutional Court where former Deputy Chief Justice Dikganag Moseneke had remarked that “every time you appear before us your work is of a high quality and we enjoy your research” — so it was a “fluke” that she explored academic writing.
Crouse and Economic Freedom Fighters leader Julius Malema engaged in a robust discussion on whether parliament would be able to change the Constitution to convert SA from a Constitutional democracy to a parliamentary democracy (as during apartheid).
Malema believed it could happen, while Crouse suggested that the old Constitution (pre-hypothetical parliamentary changes) would be used to arbitrate the matter. In a lighter moment Malema suggested that in her response Crouse was “addressing fear, not the question… I know its a scary thing when its said by me.”