THERE have been several high profile murder trials in recent South African history. Each demonstrate the urgent need to review and reform our country’s justice system, in particular the system of lay assessors. Jury trial was abolished by the apartheid government in 1969, and the last jury case was a homicide heard in the district of Kimberley. Currently the law allows for lay assessors to assist judges in arriving at decisions, but the system is rarely utilized.
First there was the Dewani case, the so-called ‘Honeymoon Murder’, in which Shrien Dewani was cleared of his wife’s murder after judge Traverso condemned the prosecutions case. The trial was peculiar from the start and the alleged motivation by the state seemed hard to believe. Why would a Gay or Bisexual man, murder his wife?
This was followed by the well publicized and network-televised Pistorious Case, in which Olympic para-athlete Oscar Pistorious was found guilty of Reeva Steenkamp’s murder and then tried twice in regard to the legal verdict and sentencing.
The case revolved around motivation or intent, in the form of dolus eventualis. Thus legal intention, “which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder.”
Thus it was remarkable when Judge Siraj Desai read out another verdict in the Breda case, finding merely on the ‘balance of probabilities’ that Henri van Breda was guilty of the murder of his family. Notable is that no motivation was provided. The verdict appears to have revolved around inferences drawn from Breda’s own testimony, alleged “textbook self-inflicted wounds” and what could or could not be construed as “reasonably probably true” on his version.
In the estimation of media pundits, Desai was merely ‘figuring out the puzzle’, and the lack of any sign of forced entry in a security complex, posed the question why it was that Breda was left alive as the only witness, if what he said was even true. On his version, the incident was simply a home invasion and the deaths the result of unknown assailants.
The psychological profiling in the case revolved, not on Breda’s state of shock in the aftermath of the death of his family, but rather his failure to immediately call security and thus his ‘apparently odd behavior’, both inside and outside the courtroom. The characterization of his personality was very weak, and no motive or intent was found.
Breda thus stood, pale and without any emotion, but heavily under the influence of psychiatric drugs, apparently showing no remorse, as he received the verdict of murder based upon purely circumstantial evidence in which the state had not proven its case ‘beyond a reasonable doubt’.
While it may provide cold comfort to some to know that Desai was able to play the role of the almighty, and believed himself capable to deliver a verdict on the alleged facts, at the same time as determining the very essence of the law, the problematic lowering of the legal test in capital crimes, makes one wonder where this is all going, and whether or not our justice system is truly able to deliver justice?
Jury trial eliminates the troubling role that a judge currently plays in our system in determining both issues of law and issues of fact. Creating an option of jury trial in capital crimes and defamation cases would provide those accused of such crimes, with an opportunity to put the case regarding the facts, not to a judge but rather to their peers.
It is clear that Breda was found guilty by a different standard to that applied in the Pistorious and Dewani case.
A jury option would not only provide a safety margin for error, avoiding problem of double-standards, while balancing the over-reach of judicial authority, by including citizens in the justice system, it would also force the public to become more literate on legal matters, if merely to avoid the inconsistent application of law when determining issues of fact.
- Nelson Mandela called for a jury trial during the Treason Trial
- The apartheid government abolished the system to avoid the embarrassment of an all-white jury in cases where black persons were tried.
- The main reason for not providing a jury option is supposedly South Africa’s complex race relations
UPDATE: See 60 Minutes interview with Van Breda girlfriend