Editorial: Justice for witnesses too
It has been said that there are two justice systems in South Africa: one for the rich and another for the poor. In this respect, our justice system is like so much of the rest of the country and its institutions; fine though so many of these institutions are, they are often inaccessible to the poor.
The trial of Olympian athlete Oscar Pistorius for the murder of his girlfriend and the furore this week surrounding the protection of the privacy of state witnesses highlight the fact that this two-level system is still in operation, 20 years into our democracy.
This past week's events also highlight the fact that, when it is very much in the public eye, our justice system operates somewhat differently from the occasions – the vast majority – when it is going about its business in media-free obscurity.
The Pistorius case came to trial pretty quickly, by South African standards. Other people accused of similar crimes, or even of relatively minor offences, can be left sitting in jail awaiting trial, or the continuation of or judgment in a trial, for anything up to years at a time. We report on such a case.
The witnesses in the Pistorius trial whose faces or phone numbers have been revealed – against their wishes and in contravention of at least the spirit of the ruling in the matter by the pre-trial judge – are having attention paid to their concerns in a way that would probably not happen for the vast bulk of witnesses in less high-profile cases.
Compare this to the treatment of witnesses due to testify or who have testified at the Farlam inquiry into the Marikana massacre. It is not a criminal trial, to be sure, but the situation of these witnesses shows how flawed the mechanisms for the protection of witnesses are: as we have reported, one of them was kidnapped and severely beaten, and others have been intimidated and possibly murdered.
It hardly encourages any citizen to stand up and testify in a court of law in South Africa, whether in the court for the rich or the court for the poor. Such attacks on witnesses are likely to compromise severely the ability of our justice system to do its job. It is clear that being a witness in a criminal trial can be an utterly harrowing experience, and not just in cases where the accused is as internationally famous as Pistorius.
We hope that the norms and standards for judges, gazetted a week ago by Chief Justice Mogoeng Mogoeng, will help to ensure the streamlining of our justice system. Mogoeng's plans are intended to ensure that everyone has equal access to justice in South Africa, and in that they are to be commended. They must go further, however, and apply the framework of equality of treatment for witnesses as well as for the accused and the accusers.