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26 October 2014 11:27 (South Africa)
Opinionista Pierre de Vos

Lady Justice’s scales appear to be faulty

  • Pierre de Vos
Lady Justice, the depiction of the Roman goddess of Justice, is supposed to personify justice in a modern state. Depictions of Lady Justice often adorn court buildings, where she is portrayed as balancing the scales of justice on which she impartially weighs the case for and against those who appear before her. She is also depicted as blindfolded, encapsulating the ideal that justice is or should be meted out objectively, without fear or favour, regardless of the identity, wealth, power, or weakness of the person who is being judged. The reality is often far removed from this ideal – as the Oscar Pistorius trial is likely to highlight.

To be blunt: especially in criminal cases a person’s social status (sometimes associated with his or her race), his or her wealth and political or other connections van play a decisive role in determining whether he or she will be convicted of a crime. It can also influence how a person is treated after conviction.

There are several reasons for this. Some of these reasons can be traced back to the nature of South Africa’s common law criminal justice system – a hangover from the colonial era. Others relate to South Africa’s peculiar history and its specific racial and political dynamics.

The common law model of criminal justice is adversarial in nature, pitting the state against the accused in a highly structured and regulated battle of wits. This differs from the inquisitorial system prevalent in many civil law countries, in which a presiding judicial officer takes an active role in the investigation in an attempt to determine the truth. Because the inquisitorial system is not primarily seen as a battle between two evenly matched sides, the procedural rules are less strict than in the adversarial system.

It is assumed that in the adversarial system the battle between two closely matched sides will eventually reveal the truth. There are numerous rules regulating the presentation of evidence at trial to ensure that the accused would not be disadvantaged in this battle. The accused has the right to remain silent and not to testify in his or her own defence – although adverse inference may be drawn from this refusal to testify in certain circumstances. The state has a duty to share information about its case with the defence. During the trial, the ritual of the cross-examination of witnesses often provides dramatic and revealing moments on which the outcome of a trial can hinge. Because the trial is staged as a battle between the two sides and not primarily as a inquisitorial search for the truth, good lawyers are well placed to exploit these processes to the advantage of their clients.

In an adversarial system the quality of an accused’s legal representation can therefore make a big difference. If an accused has access to unlimited funds, he or she can hire the best lawyers and experts who will be able to pursue every legal loophole and will also be able to exploit every procedural safeguard available to the defence. For example, when President Zuma was charged with fraud and corruption he hired some of the best (and most expensive) lawyers in the country. His legal team could pursue the so-called “Stalingrad option”, successfully using every available legal avenue to prevent the case from being heard. Eventually they also managed to have the charges against him withdrawn (with a little bit of help from the spy friends). If he did not have access to unlimited funds, this would not have been possible and he might well have been charged long before the Polokwane elective conference.

Section 35(3)(g) of the Constitution states that an accused person has a right to a fair trial, which includes the right to have “a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly”.

There are two problems with this provision.

First, no one has an absolute right to legal representation if he or she is charged with a criminal offence. Many accused do not qualify for legal assistance because they earn more than R5,500 per month or because they are charged with less serious offences. Most middle-class people will therefore not qualify for legal aid, nor would they be able to afford a decent lawyer.

Second, if you qualify for legal aid you do not have a right to the best possible legal representation that money can buy. Some Legal Aid lawyers are inexperienced and are not capable of providing effective assistance to their clients. But even good legal aid lawyers do not have access to the kind of funds that the lawyers of Oscar Pistorius do. They cannot hire independent forensic experts or pathologists and do not have the funds to employ other experts to cast doubt on the evidence presented by the state. This is not a peculiarly South African problem.

In South Africa, apart from wealth, impermissible considerations relating to social status and political connections can also influence the outcome of a case. Would Bees Roux have gotten often so lightly after killing a police officer if he were not a famous (white) rugby player representing the Blue Bulls? Would President Zuma’s case ever have been dropped by the National Prosecuting Authority (NPA) if he had not been elected President of the ANC and if he did not have connections in the intelligence services? Would cricketer Herschelle Gibbs have gotten off so lightly from his drunken driving charge if he were not a famous cricketer?

Of course, the widespread perception of bias does not only relate to the treatment of the accused. Given the fact that most members of the South African Police Service (SAPS) are not particularly well trained and lack the investigative skills to pursue all cases with equal dedication, some serious crimes are not investigated as well as they should be. Crimes that affect foreign nationals, famous or well-connected individuals, upper middle class people, or crimes which have caused a public outcry are often prioritised. When the media reports on a crime it places political pressure on the SAPS to solve that crime, but many serious crimes are never reported in the media, as the victims of these crimes are essentially invisible to the media. We often read about the murder of a famous musician,  an acting judge, a starlet or a politician, but how often do we read about the murder of a poor woman living in a rural area?

There is also a good chance that awaiting trial and convicted prisoners will receive different treatment depending on their race, social status and political connections. Would Oscar Pistorius have been held in a police cell instead of prison if he were not a famous sports star? Would the “terminally ill” Schabir Shaik have been released on medical parole to improve his golf handicap if he were not the guy convicted of bribing the president?

Despite these problems, an accused person will generally get a fair and impartial hearing before a presiding magistrate or judge. But presiding officers cannot investigate cases, cannot provide better legal representation to those who cannot afford it and cannot ensure that all crimes are investigated with the same diligence and vigour. Neither can they generally ensure that the NPA act without fear, favour or prejudice in deciding who to prosecute and who not. They can only judge the case presented to them by both sides in the most fair and impartial way possible, weighing up the evidence like blind Lady Justice.

But because the scales used by Lady Justice are not always properly calibrated, the outcomes of different cases can sometimes seem inconsistent, and it can appear as if different people get different treatment depending on factors that have nothing to do with the guilt or innocence of the accused. DM

  • Pierre de Vos
Pierre de vos

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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