PLEASE NOTE:

MyNews24 is a user-generated section of News24.com. The stories here come from users.

 
Sheena St Clair Jonker
 
Comments: 0
Article views: 293
 
 
Latest Badges:

 
View all Sheena St Clair Jonker's badges.
 

Why Oscar's Trial should look more like the TRC and less like a game of Mortal Combat

10 March 2014, 14:22

Our criminal justice system is accusatorial and it is adversarial. This means that someone who has allegedly done wrong, committed a crime is accused and that, whether he is found guilty or not guilty is borne out of a process that is adversarial or competitive or dualistic. Humans are literally pitted against each other in combat, with a judicial officer (judge or magistrate) who is charged with deciding who wins. The humans in the criminal justice process are the state (in their capacity as representatives of the people of South Africa) and the accused. The victim is not a party to the process. At most, he or she, if still alive, or his or her loved ones, if no longer living, may be a witness or witnesses.

The win I refer to is often based on who has the best lawyer. And this, in turn, is a product of who can afford the best lawyer. And so access to justice (a principle of jurisprudence or legal philosophy) is strongly determined by levels of affordability.

The system is also strongly about the rules of play. We have an artificial system of evidence as opposed to a free system of evidence. The first system was developed to protect the minds of juries, who are made up of lay people. This means that evidence can be objected to and even excluded primarily based on relevance. The problem is that issues of relevance can be very subjective and we commonly witness evidence being excluded on the grounds of irrelevance before it is even heard or tested. Examples of rules relating to relevance are hearsay and opinion evidence. Often this type of evidence contains much value and is not necessarily devoid of truth.

In a free system of evidence, testimony is given freely, without artificial rules of exclusion and at the end of the testimony the judicial officer must weigh all the evidence from beginning to end and must decide what weight to give to each aspect of the evidence. His or her determination is based on weight rather than admissibility. As we have a judicial system (ie judges and magistrates schooled in the law) rather than a jury system made up of lay persons whose minds must be protected, we should, in fact, apply a free system of evidence.

Because advocacy in our courts has so strongly become about the rules of play, we all know that it is possible to be right in the argument but wrong in substance. This means that you can win, but you were wrong. We all know that. No?

Competition, adversarialism, pitting humans against each other breeds violence. If my winning is a product of you losing, of course this stuff is going to become violent. Am I talking about physical violence or bloodshed? Not necessarily. I am talking about violence in general: violent thoughts, violent words, violent deeds. Violent deeds always started with violent thoughts or violent words.

The criminal justice system is violent. It is a violent answer to acts of violence. In Oscar’s matter the whole system cries out “Tell us the truth” but in the next breath “We will destroy you anyway. Once we get the truth, you are going to jail. Your telling the truth may just mitigate for how long”. The levels of fear created in this system and the lack of restorative alternatives, foster denialism and the tendancy to look for brilliant lawyers who can literally put the system on trial.

The brilliant cross-examination we have witnessed in this trial are more reminiscent of the mortal finishing moves in the game Mortal Combat, designed to ensure that there is indeed nothing left of the opponent. Witnesses being reduced to tears is often far more about being subject to aggressive attempts to dismantle their credibility, than it is about them lacking credibility. And sadly this is how the credibility of evidence is often dismantled: by the falling apart of the bringers of the evidence.

Whether there is actual bloodshed, or figurative bloodshed, ultimately this system seeks to answer the problem of violence in a violent way and very often truth itself is a casualty. And justice. What justice?

Enter alternative dispute resolution and restorative justice. You may say, Sheena, we cannot apply ADR diversion mechanisms in violent crimes. To which I must respond, our own Truth and Reconcilation Commission dealt with the most heinous of crimes through restorative justice. Our very own democracy was forged through an ADR dialogue process. All the mechanisms live in our law and we have a powerful legacy that we could be, and should be building on.

Ultimately we need to hear the truth in order to get to accountability. And truth and accountability are both powerful currencies to get to behavioural change and ultimately healing and restoration.

Ultimately we need the violence to stop. At every level of society. The best shot we have at this is to hear the truth and look at options in restoration. Violent answers to violent problems will always breed more violence.

I will be unpacking more about how this may look over the next few days. Please send me any questions on sheena@mediatorsa.co.za

Peace.

Sheena Jonker

Alternative Dispute Resolution, Restorative Justice Peacemaker, Human Rights Activist, Survivor of Domestic Violence, Wife, Mom, Daughter, Sister, Friend brand new vegetarian, dominator of “dis”ability

Disclaimer: All articles and letters published on MyNews24 have been independently written by members of News24's community. The views of users published on News24 are therefore their own and do not necessarily represent the views of News24. News24 editors also reserve the right to edit or delete any and all comments received.

 

Read News24’s Comments Policy

24.com publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
0 comments
Add your comment
Comment 0 characters remaining

Read more from our Users

Submitted by
CharlesSzente
How to create long term wealth fo...

I believe, in the real world, life actually follows reasonable principles. Despite the baffle and Bull, the short term push and pull, even exploitation, eventually the multitude of forces kicks you back to reality. For us that simply means, if as a country we want to grow, we have to invest.  Read more...

14 comments 513 views
Submitted by
Gail Shorkend
The world

How the world has changed. It used to be a peaceful world. You had stress. But the stress is not like these days. Read more...

10 comments 110 views
Submitted by
Linamandla Mpolase
Letter to the Capitalist God

I constantly ask myself what is the point of everything? A complex question and awfully deep but I know it is a question not unique to me. Possibly many of you have had similar thoughts. But really what is the point of it all? Read more...

104 comments 878 views
Submitted by
Dewald Esterhuizen
Humanity a rarity

I am reading so much upon this lion being killed and I see the outrage in America and the extreme extend to which they go to persecute this dentist. Read more...

21 comments 875 views
Submitted by
Jenny Reid
Identity Crisis! What to do when ...

While these people must deal with the inconvenience of applying for new passports, there’s a far more sinister issue at play. Read more...

0 comments 347 views
Submitted by
Ann Muigai
Focus on what truly matters

“Never” is an infectious word, like a flu virus. Once you’ve caught it, everything loses its sparkle. It’s commonplace to hear people say and swear that they will never do, forget or say something. Read more...

2 comments 216 views
 

services

E-mail Alerts The latest headlines in your inbox

RSS feeds News delivered really simply.

Mobile News24 on your mobile or PDA

E-mail Newsletters You choose what you want

News24 on Android Get the latest from News24 on your Android device.

SMS Alerts Get breaking news stories via SMS.

Blogs Your opinion on you, me and everyone.

TV Get us in your home, on your television.

 
Interactive Advertising Bureau
 
© 2015 24.com. All rights reserved.
There are new stories on the homepage. Click here to see them.
 
English
Afrikaans
isiZulu

Hello 

Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.


Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.

Settings

Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.




Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.