Reconsidering a community-based judicial system for South African courts based on the common law jury system

Abstract

The Oscar Pistorius Trial awakened everyday citizens to the reality of what transpires in South African courtrooms on a daily basis; thereby stirring them from their slumber created by the absence of engagement and involvement in South Africa’s judicial system and the administration of justice as a whole; and propelling them into an environment which invites and facilitates engagement and debate on the functioning and judgments of South African courts. Since the abolition of the jury system in South Africa in 1969, lay participation in South Africa’s formal judicial system and more broadly in the administration of justice, has been practically non-existent save for instances where a lay person is called as a witness, expert witness or as an assessor in a trial. This lack of public participation in the administration of justice results in multiple concerns relating to legitimacy and the public’s disconnect from judicial processes and procedures. In order to address the growing need for public participation in the administration of justice, options of a judicial system providing for such involvement must be considered. This study contemplates whether a community-based judicial system is a viable consideration for South African courts, and explores options whereby South Africa’s judiciary can make a shift to a system which encourages and facilitates lay participation by drawing from the common law jury system and its functions; which are underpinned by the direct involvement of the community. Furthermore, the study assesses whether links can be drawn between the common law jury system (Western approach) and traditional (indigenous) justice and conflict resolution processes (African approach) in respect of community participation in the administration of justice.