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.
Firstly, when an author authoritatively writes that "our" Latin script is derived from Egyptian (a totally different language family from Accadian → Arabic & Hebrew from which the Greek and hence Roman/Latin alphabets are derived), it makes one question the entire article.
It is difficult to see why jury trials will speed up our legal system. The bottleneck is the lack of courts and judges/magistrates, before whom all the evidence has to be presented and cross-examined — as it still would under a jury system.
Jury selection has become a speciality in the USA, whose justice system, like ours, is based on British law. In big trials, specialist lawyers help select the jury, rejecting those who may have cultural/religious/racial or other prejudices against the client.
As the author points out, the general South African public are illiterate on law, many for example, confusing bail with the sentence; allowing these naifs into the jury box could be dangerous.
The answer, if jury trials are contemplated, is to upgrade school education so that the general public do understand the Rule of Law (assuming the inability of grade tens to read for meaning and lack of "STEM" skills is fixed).
The selection of judges will also need transformation from the JSC's current bias towards "struggle" and "transformation" judges to selecting advocates with commercial and criminal experience.
You seem to be conflating writing systems with languages, I thought my throwaway comment was the standard, widely accepted view on the evolution of the Latin script:
The law should be able to govern both the illiterate and the literate, so there's no reason why an illiterate person cannot serve, unless the case relies heavily on written evidence but again, if written evidence or testimony is given in a language the jurors don't understand, we allow translators and interpreters to assist the jury, I don't see why this should be any different.
The jury system is one aspect of this, the others are the appointment of judges and the establishment of courts. We eventually need to reform those too. In the USA, many of the judges at lower levels are elected. I am not saying we adopt that system, but it does show that they don't have this view of judges as impartial experts.
Laymen everywhere are generally ignorant on the legal systems' various nuances, but the law itself must be understood by everyone (which implies that it must be based on universal, objective ethics, a conversation for another day). The judge must be able to explain any aspect of the legal system that jurors encounter during the case, this is not a problem. Again, if any suspect, respondent or defendant can be made to understand, why not the jury?
My main concern is the injustice of subjecting people to laws they don't understand. Efficiency is an important, but secondary concern. History has proven that the expertise of judges does not stop them going along with unjust government legislation. I am not suggesting that juries would be a magic solution to our problems with administering justice, only highlighting what I consider to be a positive and provoking South Africans to think beyond their assumption that our system is superior.
I think that there is still a constraint, time-wise: " The judge must be able to explain any aspect of the legal system that jurors encounter during the case"
This takes time — first the judge must, if the issues are new, study them him/herself and then explain them to the jury, ie take *more* time to run a trial. Juries also depend upon the chairing skills of the forman, an unknown factor and may take time debating the issues (the movie "Twelve Angry Men" covered that.
Bottom line, will trial by jury, introduced with Magna Carta as a check on royal power and reinforced by Bushell's Case, serve justice better than judge/magistrate only? SA had the former until removed during apartheid,
Hayek's "Law, legislation and liberty" is worth the long read. He provides numerous examples of traditional systems such as Somalian Xeer law which is superior to their western counterparts. He also mentions traditional African law.
Jury systems have worked well for hundreds of years, and are still used in the USA in big cases.
As you say, there are far too many laws, many requiring experts to interpret them. This however, applies even more
acutely to the plethora of regulations that are issued almost weekly by the plethora of regulators we now have in our country. These regulations carry the same weight as legislation and must be stopped immediately as Parliament does not even know about them, let alone approve them.
This is where the courts could help, I know in the USA in West Virginia vs EPA (2022) and another decision overturning the Chevron doctrine they have limited the power of the regulators. I don't know the details of these, but I know our constitution does not require bureaucrats to write secondary legislation, in fact it can be argued that it requires what you say. I doubt the constitutional court would see it that way however.
Firstly, when an author authoritatively writes that "our" Latin script is derived from Egyptian (a totally different language family from Accadian → Arabic & Hebrew from which the Greek and hence Roman/Latin alphabets are derived), it makes one question the entire article.
It is difficult to see why jury trials will speed up our legal system. The bottleneck is the lack of courts and judges/magistrates, before whom all the evidence has to be presented and cross-examined — as it still would under a jury system.
Jury selection has become a speciality in the USA, whose justice system, like ours, is based on British law. In big trials, specialist lawyers help select the jury, rejecting those who may have cultural/religious/racial or other prejudices against the client.
As the author points out, the general South African public are illiterate on law, many for example, confusing bail with the sentence; allowing these naifs into the jury box could be dangerous.
The answer, if jury trials are contemplated, is to upgrade school education so that the general public do understand the Rule of Law (assuming the inability of grade tens to read for meaning and lack of "STEM" skills is fixed).
The selection of judges will also need transformation from the JSC's current bias towards "struggle" and "transformation" judges to selecting advocates with commercial and criminal experience.
You seem to be conflating writing systems with languages, I thought my throwaway comment was the standard, widely accepted view on the evolution of the Latin script:
https://en.wikipedia.org/wiki/History_of_the_Latin_script
The law should be able to govern both the illiterate and the literate, so there's no reason why an illiterate person cannot serve, unless the case relies heavily on written evidence but again, if written evidence or testimony is given in a language the jurors don't understand, we allow translators and interpreters to assist the jury, I don't see why this should be any different.
The jury system is one aspect of this, the others are the appointment of judges and the establishment of courts. We eventually need to reform those too. In the USA, many of the judges at lower levels are elected. I am not saying we adopt that system, but it does show that they don't have this view of judges as impartial experts.
Laymen everywhere are generally ignorant on the legal systems' various nuances, but the law itself must be understood by everyone (which implies that it must be based on universal, objective ethics, a conversation for another day). The judge must be able to explain any aspect of the legal system that jurors encounter during the case, this is not a problem. Again, if any suspect, respondent or defendant can be made to understand, why not the jury?
My main concern is the injustice of subjecting people to laws they don't understand. Efficiency is an important, but secondary concern. History has proven that the expertise of judges does not stop them going along with unjust government legislation. I am not suggesting that juries would be a magic solution to our problems with administering justice, only highlighting what I consider to be a positive and provoking South Africans to think beyond their assumption that our system is superior.
Have a blessed Sunday.
Thanks for the reply.
I think that there is still a constraint, time-wise: " The judge must be able to explain any aspect of the legal system that jurors encounter during the case"
This takes time — first the judge must, if the issues are new, study them him/herself and then explain them to the jury, ie take *more* time to run a trial. Juries also depend upon the chairing skills of the forman, an unknown factor and may take time debating the issues (the movie "Twelve Angry Men" covered that.
Bottom line, will trial by jury, introduced with Magna Carta as a check on royal power and reinforced by Bushell's Case, serve justice better than judge/magistrate only? SA had the former until removed during apartheid,
Fair point. It's not a panacea by any means.
Hayek's "Law, legislation and liberty" is worth the long read. He provides numerous examples of traditional systems such as Somalian Xeer law which is superior to their western counterparts. He also mentions traditional African law.
Jury systems have worked well for hundreds of years, and are still used in the USA in big cases.
I miss the FMF library. I'll get a hardcopy online.
Start by having every regulation issued by regulators subjected to the rigors of Parliament. That should eliminate at least 75% of them.
I fully agree with this.
As you say, there are far too many laws, many requiring experts to interpret them. This however, applies even more
acutely to the plethora of regulations that are issued almost weekly by the plethora of regulators we now have in our country. These regulations carry the same weight as legislation and must be stopped immediately as Parliament does not even know about them, let alone approve them.
This is where the courts could help, I know in the USA in West Virginia vs EPA (2022) and another decision overturning the Chevron doctrine they have limited the power of the regulators. I don't know the details of these, but I know our constitution does not require bureaucrats to write secondary legislation, in fact it can be argued that it requires what you say. I doubt the constitutional court would see it that way however.