From the Desk of the Chairman of Association of Muslim Accountants and Lawyers ( AMAL ) – Shabir Chohan
Welcome to our updated website and with this launch we are implementing a new strategic direction for the organization. Having been appointed as the Chairman of AMAL in November 2017, I must acknowledge the excellent and dedicated work undertaken by the previous office bearers and EXCO. The objectives of AMAL is indeed relevant now as it was when the organization was first established in 1984 and the organization is an NPO since 2007. Membership is open to all regardless of race, colour, creed or religion.
STATEMENT FROM THE GENERAL COUNCIL OF THE BAR ON THE RECENT
CRITICISM OF A DEFENCE ATTORNEY’S CROSS-EXAMINATION IN THE
TIMOTHY OMOTOSO RAPE TRIAL
The General Council of the Bar (“the GCB”) deems it appropriate to comment on recent reports in
the media – print, radio and television – which are heavily critical of the cross-examination of the
complainant in the much-publicised rape trial of the Nigerian pastor, Timothy Omotoso and to
correct certain misconceptions.
The criticism arose when Mr Omotoso’s defence lawyer, Peter Daubermann, conducted his crossexamination
of the rape victim, Cheryl Zondi, in a manner generally considered in the media to be
inappropriate, overly-robust and victim-insensitive. According to media reports, Mr Daubermann,
who is described an advocate and member of the bar, was “aggressive”, “badgering”, called her “a
liar”, and according to some reports, was unnecessarily “explicit” and bordering on “pornographic”.
Mr Daubermann is accused of being “insensitive” and “humiliating”. This is illustrated by some of
his questioning which, to cite two examples which have been quoted, has him asking the rape
complainant whether “she had a jolly time” during the alleged rape ordeal and “how many
centimetres” of penetration she endured.
The GCB’s comments are twofold. First, we would like to correct the claim that Mr Daubermann is
an advocate and member of the bar. He is neither. Mr Daubermann is an attorney from Port
Elizabeth. The governing body of attorneys is the relevant Law Society and is soon to be the Legal
Secondly, whilst cross-examination is an important tool in the hands of a criminal defence lawyer,
and a very powerful tool at getting to the truth, there are ethical constraints on its permissible use.
The GCB will always stand for the right and obligation of counsel appearing in court fearlessly to
advance his or her client’s case, however unpopular, but counsel must act within well-established
limits. Justice Snyman famously remarked in the criminal trial of Mr Azov, who was accused of
contravening certain provisions of the Liquor Act after the police set a trap for him:
I think it must be made clear to him, and perhaps to others, that witnesses who come into court, be
they police witnesses or any other kind of witnesses, are entitled to the ordinary courtesy one extendsto decent people.
Witnesses who give evidence are assisting the court in arriving at the truth and in
carrying out the administration of justice. No cross-examiner is entitled to insult a witness or to treat
him or her in the manner in which these witnesses were treated, without there being a very good
reason for it. Witnesses must be treated with courtesy and respect. They are doing a public duty in
coming to court. That must be borne in mind by both cross-examiners and by presiding officers. It was
clearly the duty of the magistrate here to protect these witnesses. I do not wish to be understood to say
that a witness may never be attacked, but before you can attack a witness you must at least lay a
foundation to the satisfaction of the presiding officer that you have grounds for attacking the witness.
Otherwise witnesses must be treated with respect and with the same courtesy that you would extend to
a man or woman in civilised society. One is not rude to people when you speak to them during
ordinary social intercourse, so why should it be any different in a court of law? Here this crossexaminer
really shocked me in regard to the manner in which he treated these respectable men and
women. He starts off by attacking them without any reason. He seems to assume that they are
dishonest people and that he is entitled to attack and insult them. When the magistrate intervenes to
protect them, he does not hesitate to attack even the magistrate. I cannot find any justification for his
conduct and I think that the magistrate's strictures of him were fully justified.
Although uttered in a different time and context, the remarks of Justice Snyman remain essentially
valid. We do not condone unnecessary aggression and the badgering of witnesses. Moreover, a
witnesses’ right to be treated with dignity and respect is proper advocacy.
The protection of the constitutional rights of all participants in a criminal trial is necessary. This
requires balancing the rights of an accused to a fair trial on the one hand against the right to dignity
of witnesses on the other.
We accept that the presumption of innocence is crucial and that an accused person is entitled to a
vigorous defence. But an accused is not entitled to a boundless defence. A defence lawyer’s duty is
one of zealous advocacy, but always within the bounds of legality, not zeal unbounded. Most
significantly, cross-examination is ethically limited by the requirement that it not be abusive or
degrading and that it is respectful of the rules of ethics and evidence. Questions must have a good
faith basis and they must explore matters that are relevant and admissible. Where a defence lawyer
knows that his or her client is guilty, there are limits on the type of defence that the lawyer can
advance. The lawyer cannot, for example, suggest a defence that he or she knows is untrue, such as
Rape trials are especially difficult to manage because rape is a crime that almost always occurs in
private. There are no witnesses. The truth is not always easy to find. For that reason, all participants
in a rape trial need to be clear about where the boundaries are when defending people accused of
rape. Defence lawyers need to refrain from asking improper questions or making improper
arguments and when they do, prosecutors need to object to inappropriate cross-examination, and
judges need to sustain those objections when defence lawyers go too far.
The bar has high standards of ethics which it expects from all of its members. There are fourteen
constituent bars across South Africa which include those at the seat of each of the High Courts.
Each bar is required by the GCB to discipline its members, all practising advocates, when they step
out of line. Mr Daubermann, because he is not an advocate and member of the bar, is not bound by
the bar’s rules of conduct for advocates and he does not fall under the auspices of our broader
control. This is why the bar has not investigated the complaints levelled against his conduct.
In conclusion we stress that it would not be proper for the GCB to deliver a verdict as to whether in any specific pending matter counsel has exceeded the bounds of permissible conduct. It is for the presiding judge to ensure that witnesses are treated fairly and with dignity, particularly in matters such as this. Should there be a complaint against one of our members in this regard, we would be obliged properly to consider the matter and take appropriate action.