The law may sometimes be an ass, but it is those entrusted with applying, safeguarding, articulating and delivering it, who make it so.
This was apparent in a matter that Advocate Brenda Neukircher SC heard at the Gauteng Division of the High Court in 2016, Rapholo v National Director of Public Prosecutions and Others.
The applicant, Edwin Rapholo, had been convicted of culpable homicide, but had his sentence reduced on appeal. The appeal court then directed Rapholo to hand himself over to Atteridgeville Prison outside Pretoria, within 48 hours of the order being handed down.
When Rapholo presented himself at prison, however, he was told by officials that they were unable to lock him up because they were not in possession of his court record. He was told to go home until the high court had sent his record to prison officials, who would then fetch him.
Six years later, the authorities, with warrant of arrest in hand, finally sought out Rapholo to start his prison sentence. His lawyer applied to the courts to stay the implementation of the warrant — and to prevent the arrest and detention of Rapholo — pending the finalisation of an application for the reconsideration of the appeal.
Neukircher was withering in her assessment of officials who, rather than contact the court to obtain the record, had sent Rapholo home. Noting that prison officials “did nothing” to remedy the situation between March 2010 and August 2016, Neukircher found their behaviour “appalling”.
“This is, to say the least, not only reprehensible, but also immensely concerning: if they have left the applicant free on the streets how many other convicted criminals are similarly turned away from the prisons because officials have not ‘received their papers’? How many of those simply take advantage of that situation and disappear never to be found to actually serve their sentences? In this matter at least the appellant remained at the address he furnished to the prison authorities in 2010 which says much about his character in my view.”
Neukircher noted that by the time authorities had sought to execute a warrant for Rapholo’s arrest and incarceration, he would have qualified for parole.
She allowed the applicant 15 days to deliver his application for reconsideration of the appeal, and ruled that pending its finalisation, the warrant of arrest be stayed. Authorities were also interdicted from arresting Rapholo.
“It is the most basic and fundamental principle of law that all orders of court must be complied with properly until they are set aside and that the most obvious reason for this would be that the integrity of the court system relies upon the upholding of and compliance with the judgments of our courts,” Neukircher wrote.
Neukircher has considerable acting experience at the Gauteng Division of the High Court, having spent several stints there since 2002.
She has heard the full gamut of cases from Road Accident Fund (RAF) claims (where she has expressed frustration in how special pleas by the RAF appeared to be cut and pasted from one matter to another) to rape cases involving educators and learners.
A 2017 matter Neukircher heard, Molefi v S, pointed to the costly difficulty ordinary citizens face when embroiled in the criminal justice system.
Kgosi Simon Molefe had been convicted and sentenced to 15 years imprisonment for strangling his wife. On appeal, he sought to introduce new evidence, a report by Professor Gert Saayman from the Department of Forensic Medicine at the University of Pretoria. The report contradicted one provided, as part of the state’s case, by another pathologist — and also questioned that pathologist’s abilities.
The new report was only admitted on appeal because Molefe could not afford Saayman’s services during its initial trial in 2012.
“Whilst it is certainly so that matters cannot be dragged out indefinitely and that there must be finality in all matters, that cannot come at the expense of justice or a fair trial. In my view this is tied up with whether the explanation given by the appellant for the lateness of this new evidence, is reasonable,” wrote Neukircher, who found the appellant’s explanation of financial incapacity did in fact hold.
Neukircher, with Judge Segopotje Mphahlele concurring, found that since Saayman’s testimony may prove vital in clearing Molefe, both the conviction and the sentence were set aside, and the matter was sent back to the trial court.
Neukircher holds a BLC (1988) and an LLB (1990) from the University of Pretoria. After completing her pupillage, she joined the Pretoria Bar in 1990. Neukircher became a senior counsel in December 2006. She has been an advocate trainer at the Pretoria Bar since 2004, a member of its Silk Committee since 2014 and, in 2018, became a member of its disciplinary and transformation committees.
She is also co-author of a book, High Court Motion Procedure: A Practical Guide.
October 2018 Interview
October 2018 Interview Synopsis
Advocate Brenda Neukircher’s interview got catty very quickly.
Thankfully it didn’t entail members of the Judicial Service Commission (JSC) scratching lumps out of the candidate. Rather, it involved a surreal interaction which allowed Neukircker to not pussy-foot around her love of cats.
She is one of the country’s premier cat breeders, apparently, a member of the World Cat Federation and a judge at cat shows around the world. Neukircher’s filmed interview may not go viral in the manner of most videos vaguely touching on feline topics, but she proved enough of a hit with the JSC to get appointed.
In response to a question about her transformation initiatives while at the Bar, Neukircher said “whenever I have an opportunity to pull in a junior, I pull in a woman”. She estimated that 90% of her juniors had been females and that 70% had been black.
She said her experiences of working as an advocate had compelled her to start “effecting a more transformative role at the Bar” by briefing female juniors.
“We need to be doing it for our sisters,” Neukircher said, before adding that she hoped this empowerment would mean a “stream” of female candidates which would grow into a “river” and then a “sea”: “And that’s where we want to be”, she said.
In responding to a question by ANC member of parliament Thoko Didiza, Neukircher described the rate of transformation of the judiciary as “moderate”.
When asked by Advocate Thandi Norman SC, who is one of four presidential appointments to the commission, what her understanding of access to justice was, Neukircher said: “Everyone has the right to access the court and to have their case heard. The problem is that indigent people then also need someone [adjudicating] who knows the case, has done the research and will hear the case without fear or favour,” said Neukircher.
On her approach to customary law in South Africa, Neukircher said, as a judge, one shouldn’t, take a “blanket approach” to applying one set of standards and culture to another since this would have an “impact on a system that has survived for hundreds of years”.
Neukircher said judges were tasked with ensuring the law — with its amalgamation of constitutional and customary values — became a “living, breathing entity”.
She said she found publishing legal articles “immensely challenging and rewarding” and that she wouldn’t have any problems dealing with the high volume of criminal appeals heard in the Gauteng Division of the High Court since she was “hardworking” and “read voraciously.”