The trial of South Africa’s Olympic and Paralympic runner, Oscar Pistorius over the death by shooting on 14th February 2013 of his girlfriend, Reeva Steenkamp, which he admits doing, is utterly compelling for many reasons.
Essentially, what has been so gripping is the calibre, of the contributions of two key courtroom participants – the judge and the state prosecutor, their intellectual and intuitive abilities and their primary focus on justice and the delivery of justice.
This is such that it has been possible to view in operation a legal system very different from our own and to understand how far it may be superior to ours in its foregrounding of the processes of professional justice.
We have the ’12 good men [or persons] and true’ system of trial by jury under the guidance of the judge presiding over the presentation of prosecution and defence.
Serious criminal cases in South Africa’s regional High Courts are heard by a single judge, sitting alone – but, where the judge determines necessary, sitting with the assistance of one or two assessors. These are highly qualified and experienced legal people, usually themselves advocates or retired magistrates, and often strongly academic.
Assessors put their names forward for membership of a pool; and, where a judge decides that the assistance of an assessor or assessors is helpful in a specific case, the judge appoints the assessors from the pool.
The judge and the assessor/s each pay attention to the detail of the case as it is presented in evidence-in-chief and in cross examination. Together they are unlikely to miss anything and in complex cases it it is more secure to have two or three concentrating on what is done and what emerges.
Each assessor will be an acknowledged expert in a particular field – for example, in the Pistorius case, the female assessor, Janet Henzen-du Toit, is an expert in criminal justice. The second assessor, Themba Mazibuko, is a young academic not long out of University and not known yet in the courts. He may well have been appointed assessor as part of the development of a talented potential law giver than for any particular specialism he will yet bring to the process and to the Judge.
The judge, with the assessors, reviews the court record and associated documents at the end of the presentation of evidence at a trial; and together they compile the court report and agree the verdict.
What has not been mentioned anywhere in this country in relation to the Pistorius trial is that the finding of an assessor at the end of this process is of equal value to the judge’s.
If both assessors support the judge’s finding, then that, of course, is the verdict. If one assessor concurs with the judge and one does not, the majority view will carry. But the same is the case in the event of both assessors concurring in a finding at variance with the judge’s.
This is a professional legal system at work, focused on the law, the interpretation of the law and on the nature and direction of evidence; unmoved by courtroom stunts and appeals to emotion . Judge and assessor have seen it all before and routinely set it aside.
There is a very sound reassurance here of the quality of justice and the pre-eminence of the search for justice in the procedure of the court. To err, we say, is human and there will be mistakes – but they will not be born of the lottery that a jury trial can be.
The Pistorius trial is presided over by Judge Thokozile Masipa, with Gerrie Neil as the State Attorney, Janet Henzen-du Toit and Themba Mazibuko as assessors. On occasion, judge or assessor may ask a question of a witness, for the clarification of a particular issue. In general, each is silent.
Judge Masipa’s performance has been impeccable in every respect – her powers of still concentration and recall are on the far side of unbelievable. At one point, during his objection to the recent state application for the referral of Oscar Pistorius for psychiatric observation, Judge Masipa interrupted Defence Attorney, Barry Roux. ‘But what about……?’ she asked. He didn’t immediately know what she was talking about – yet it was about evidence he had led in his case – and her comprehensive grasp of it exceeded his own.
Tiny, composed, focused, thoughtful, quiet – she never raises her voice but when she speaks the court falls silent, with the occasional edge in her tone effective beyond storms. Where she has an opinion to give or a ruling to express, her interrogation is panoramic and her reasoning lucid and unchallengeable.
When she gave, as she did yesterday, 14th May 2o14, her ruling on the state’s application for the referral of the accused, she quietly went through the issue, the questions raised in witness evidence, the governing points of legislation, legal guidance and precedents – and stressed the overriding imperative of the delivery of justice before granting the application which, as she pointed out, the defence had ‘strangely’ opposed.
It is noteworthy that the balance and wisdom of Judge Masipa’s ruling was afterwards recognised outside the court by Oscar Pistorius’s sternly upright and supportive uncle, Arnold Pistorius, speaking for the family.
The equally quick minds and unshowy intellectual brilliance of Judge Masipa and state prosecutor Gerrie Nel have, together, made this trial something of an object lesson in how justice may be pursued.
That our jury system is born of ancient custom and is very long lived ought not to enforce our weddedness to it. The Gauteng division High Court at Pretoria has nothing of the ‘smart alec’ about it but is delivering a thoughtful and rivetting scrutiny which is maintaining a steady equilibrium between human and legal values.
The handling of the Pistorius trial in Pretoria asks us why we in Britain continue to employ a legal system based on the rough justice of the parish pump culture – when the parish pump has not been part of any of our lives for a very long time?
