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Sheena St Clair Jonker
 
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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

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