The unequal racial balance in South Africa’s=20 justice system makes it quite possible that race=20 becomes a feature of South African trials as it did=20 in the OJ Simpson circus, writes Justin Pearce=20
COULD South Africa have its own version of the OJ=20 Simpson trial? The tensions that shifted the focus=20 of the Simpson case from murder to racism are=20 equally present in South Africa. And like the=20 United States, South Africa has a justice system=20 where much depends on the quality and credibility=20 of evidence, and the relative skill of prosecution=20 and defence.=20
Several South African lawyers have noted that the=20 justice system here is no better able than its=20 American counterpart to accommodate the racial=20 tensions that pervade both societies. One lawyer=20 pointed out in an interview this week that the only=20 thing that stops South African trials from turning=20 into racial flashpoints was the fact that in this=20 country, court proceedings do not receive the same=20 level of media attention as the Simpson trial.=20
In South Africa, sub judice legislation outlaws the=20 kind of rampant speculation that took place around=20 the Simpson case, and the idea of an accused=20 publishing a book to profess his innocence while=20 the trial is in progress — as Simpson did — is=20 out of the question. It is highly unlikely that=20 South Africa’s largely conservative judiciary will=20 condone the presence of television cameras in=20 courtrooms in the forseeable future.=20
The relevance of the Simpson trial to South Africa=20 has been noted by South Africa’s Black Lawyers’=20 Association (BLA), which welcomed the Simpson=20 verdict as “a very strong signal to racist police=20 officers that decent ordinary human beings will not=20 rely on the evidence of such people to convict=20
The BLA statement echoes the line of argument=20 adopted by Simpson’s defendants, who rather than=20 contesting the forensic evidence against Simpson,=20 focused on the contention that the prosecution’s=20 evidence was racially tainted. The revelation of=20 police racism struck chords with America’s black=20 community, and caused public opinion about the=20 Simpson case to be split along racial lines:=20 according to polls, 80 percent of black Americans=20 were convinced of Simpson’s innocence, and a=20 similar proportion of whites believed him to be=20
In South Africa, race was invoked by supporters of=20 Winnie Mandela during her trial on kidnapping=20 charges in 1991. A key theme in Mandela’s defence=20 was the accusation that the minister from whose=20 home the kidnap victims had been removed had been=20 sexually abusing the boys — and Mandela’s=20 supporters responded with placards reading=20 “homosexuality is not in black culture”.=20
Racial polarisation was more obvious in Zimbabwe,=20 during the trial of anaethetist Dr Richard McGown,=20 who was charged with causing the deaths of black=20 patients through negligence. The trial prompted=20 angry protests outside the court by demonstrators=20 who saw the deaths as tantamount to genocide.=20
Such cases are likely to become more common in=20 South Africa unless urgent steps are taken to=20 change the situation whereby the majority of trials=20 involve a white judge passing sentence on a black=20
The BLA said the result of the Simpson trial=20 demonstrated that South African justice would be=20 well served by the reintroduction of juries to=20 redress the racial imbalances in the administration=20 of justice. But Etienne Mureinik, professor of law=20 at the University of the Witwatersrand, said a jury=20 system was not ideal. In South Africa, the jury=20 system was phased out in the 1960s, and while it=20 was still in place jurors were invariably white.=20 The introduction of a non-racial jury system for=20 South Africa was discussed in the early 1990s as a=20 possible means of making the justice system more=20 accesible. The idea lost favour, however, owing to=20 the often arbitrary nature of jury decisions, and=20 the fact that a representative South African jury=20 could well be hampered by the lack of a common=20
Rather than reintroduce juries, the Justice=20 Department has since last year’s elections made a=20 concerted effort to increase the number of black=20 and woman judges on South African benches. However,=20 it is clear that there are not yet enough suitably=20 qualified black lawyers to enable the benches to=20 become fully representative of South African=20
But while in Simpson’s case police racism may have=20 ended up playing into the hands of the defence, in=20 many cases the judicial system is not sufficient to=20 bring police malpractice to light. =20
University of the Western Cape senior law lecturer=20 Pierre de Vos points out that Simpson’s acquittal=20 had a lot to do with the skill of his top defence=20 lawyers, without whom the bungling of the Los=20 Angeles police might have gone unnoticed. Both in=20 the United States and in South Africa, black=20 accused are likely to be reliant on pro deo=20 lawyers. A study conducted by the University of=20 Cape Town before the abolition of the death penalty=20 showed that accused who could not afford their own=20 defence were more likely to be convicted, and more=20 likely to be sentenced to death, than accused who=20 had engaged the services of a defence lawyer.=20
“The police make mistakes,” De Vos remarked, “but=20 usually they don’t get caught.”=20
And while the police may have been damned by their=20 own racism, Simpson’s acquittal in the face of=20 compelling forensic evidence points to a=20 prosecution which was left lagging behind by a=20 brilliant defence. This too has sobering lessons=20 for South Africa, where the prosecution system is=20 struggling. As state expenditure is cut back,=20 prosecution will become an even less promising=20 career option for a law graduate.=20
The role of the prosecutor is equally crucial in=20 South Africa and the United States: in both=20 countries, a judge is an arbitrator who weighs up=20 the merits of the opposing arguments — which=20 allows the emphasis of a trial to shift towards an=20 assessment of the validity of evidence. De Vos=20 contrasted this to the system used in continental=20 Europe, where judges have greater powers to=20 investigate the case as they see fit.=20
One South African judge, welcoming the Simpson=20 judgment as “a triumph of anti-racism”, expressed=20 frustration at the inadequacy of the material which=20 judges have to work with: “The lesson is that a new=20 situation needs new methods of investigation –=20 methods that are lacking even in a technologically=20 advanced society such as the United States.”=20
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