Could Jury Trials Save Justice in South Africa?

We assume that justice is best left to judges. But in a system marked by backlogs, complexity, and inaccessibility, it may be time to ask whether ordinary citizens should play a larger role.

Photo by Wesley Tingey on Unsplash

The South African justice system regularly deals out injustice, both to victims and suspected perpetrators. Despite the problems that South Africans are willing to acknowledge, most South Africans still believe that our courts, where judges adjudicate guilt and also decide sentencing (or damages in civil cases), are much superior to the jury system. I think we should interrogate this assumption and not take it for granted.

Firstly, I must issue the disclaimer that I am not a lawyer. I am simply a concerned citizen. Perhaps that is my greater meta-point. Participation in the justice system should not just be the province of experts. We all have a stake in shaping it in such a way that justice is really the outcome.

The more practical reason why laymen should participate is that administering justice cannot depend on how many lawyers exist in a society. This is most important in this country, where courts face huge backlogs, precisely because we have left everything to the lawyers. Our justice system is highly centralised and highly specialised, which also means that there are most likely people in prison right now because they could not afford a good enough lawyer.

We can address some of those other issues another day. When it comes to the jury system, South Africans generally find the idea of trusting laymen with justice philosophically unsound. How can we trust laymen to interpret the law correctly? How can we trust them not to succumb to emotions and either let someone free who should be in prison, or imprison someone who should be free?

To the first question, I would answer with the rule of law point that laws that can send people to prison should be understandable by everyone. If the law requires an expert to interpret it in a courtroom setting, that means the law requires an expert to interpret it in every other setting and is therefore a bad law. What this critique of the jury system is saying is that the person raising it is fine with sending people to prison even though they don’t know that they did something wrong. We must all subject ourselves to the experts to decide, arbitrarily, whether we should go to prison or not.

I use the word ‘arbitrarily’ deliberately, because if the law requires experts, then for all practical purposes, it is arbitrary to the layman. The jury system cannot do anything about the legislation passed in Parliament, but it can nullify the application of that legislation in individual cases. Jury nullification simply means a jury acquits an accused person even if they believe the person may be guilty. In a similar manner, if juries do not understand the legislation being used to prosecute someone, that is a good enough reason to acquit.

So-called financial crimes would be an immediate area of application for this principle. Often, the highest-paid experts do not know if someone broke some finance legislation. Even judges often don’t know, and expert witnesses and consultants have to be utilised. The National Prosecuting Authority (NPA) has said that a lack of experts has been a top reason why they can’t prosecute more corruption cases. I would suggest they stick to prosecuting the cases that don’t require experts, and Parliament should stop passing bills that require such experts.

I can almost hear the howls of outrage at that suggestion. There is a pervasive but wrong-headed idea that the state must create legal jeopardy where it otherwise wouldn’t exist in order to punish the bad people. In the case of corruption especially, having to go to such lengths is a clear sign that the state is too involved in the economy. If it were to significantly reduce its involvement, the abuse of state resources would be reduced, and it wouldn’t need to create legal jeopardy through legislation such as the Public Finance Management Act (PFMA). But what do I know? I am not an expert.

Another area where we would benefit from jury nullification would be intellectual property (IP) law, what I prefer to think of as fake property rights. To adjudicate such cases, courts, as in the case of “financial crimes”, have to rely on experts. At least with IP cases, most are civil rather than criminal.

When it comes to the point about emotions, good jury systems do not rely on majorities to make convictions. Unlike voting in most democratic states, a good jury system relies on consensus to make convictions. Where such a consensus cannot be reached after jurors engage in as much deliberation as they need, the accused is declared not guilty. This is very similar to how justice was administered in pre-colonial Bantu court systems.

It is unfortunate that we don’t have a large body of writing from ancient Bantu courts, since these were mostly oral societies. Developing a writing system is a rare phenomenon. As far as we know, not more than six civilisations have managed to do it independently of a pre-existing system, one of which is ancient Egyptian writing, a predecessor to what became the modern Latin script we use today.

But what we do have seems to show that ancient Bantu courts were usually presided over by the chief, head of the clan, or head of the family, depending on the level at which the case arose. By presiding over, it does not mean the person presiding made the decision of guilt or gave the final sentence. They were there to ensure order and respect for long-established court rules. And they were not alone. They would usually preside over a case alongside the elders of that community or family.

Anyone in the community could cross-examine the witness, and anyone could act as a witness. There were rules against introducing inadmissible forms of evidence like hearsay. It was also understood that a verdict could not be reached based on the testimony of a single witness. Unfortunately, colonial authorities undermined and eventually destroyed this system, one of the most famous examples of this being the persecution of King Langalibalele of the AmaHlubi nation in 1874.

The AmaHlubi found themselves targeted by British colonial authorities under Lieutenant-Governor Benjamin Pine of the Natal Colony because their young men had been buying guns using their wages from working in the diamond mines of Kimberley. This alarmed the colonial authorities even though the possession of the firearms was legal under colonial and Hlubi common law.

The AmaHlubi were slaughtered and their king subjected to a sham traditional African trial under Pine, who had declared himself supreme chief of the AmaHlubi. He interpreted this to mean he could give a verdict in the trial of the king, a complete perversion of how Hlubi and broader Bantu common law worked. The king was banished to Robben Island after the sham trial, and Hlubi lands were stolen by the British.

This not only underscores that jury trials are closer to how trials were conducted in our past as South Africans. It also shows that, in many cases, colonialism, contrary to what apologists say, led to a loss of liberty for the colonised. The final lesson from this story is that the imposition of a presiding judge who also adjudicates guilt and decides sentencing is a way for a centralised state to impose its will on a subject population. Could apartheid and colonial land theft have survived jury nullification if the jurors were selected without regard to race?

Mpiyakhe Dhlamini is a libertarian, writer, programmer, entrepreneur, and associate of the Free Market Foundation. I write about personal finance and wealth building from an SA perspective, South African and African issues, policy, politics, and anything else that interests me. The views in this article are my own and not those of any organisation I am associated with.