THE LEGAL 'BLACK HOLE'
N THE 2009 election a country without a jury system found its own way to give itself a mass jury verdict concerning the allegations against Jacob Zuma, who led the ANC into the polls.
The election was, in effect, nothing less than a rough-and-tumble referendum on the alleged criminality of the ANC president.
Liberal lawyers and legal commentators have tried to wish away the inevitable interplay of politics and law, of which this Zuma jury verdict is a right and proper part.
A jury is the exact opposite of the sort of illiberal clique that until recently dominated key institutions of legal culture, such as the Judicial Services Commission.
So why, since South Africa has democratised its political system through voting rights, has jury trial lagged so badly? Juries are the classic and humane safety valve of democratic legal systems.
It has been the venerable role of juries to "nullify" the sometimes pedantic harshness of the law in the interest of the legitimacy of law within the broader society.
That's one reason why even the old whites-only jury trials disappeared in 1969, as apartheid securocrats completed their takeover of the legal system under John Vorster.
Zuma's long ordeal and the de facto mass jury verdict of the 2009 election ought to provoke a question:
Why, since 1994, has the old jury system not been brought back and deracialised within our legal system?
During the Codesa talks, imageries of popular justice were instead dominated by the terrors of "people's courts" and vigilantism, as if these horrors were all that democracy could give the legal system.
Since 1994 the jury has equally been given short shrift, with even the ANC doing no more than talk about expanded use of a few hand-picked "lay assessors" to sit alongside traditional legal officers in certain cases.
Why is this? The issue is important in itself but also for what it reveals about the continued racialisation of this important aspect of our public legal discourse.
Not long ago I heard a witty old Cape Town lawyer told what he claimed was the story of the very last apartheid jury trial to be held in the city.
The accused had pleaded not guilty by reason of insanity in a murder case, but evidently had not impressed the judge. The jury went away and came again. Its verdict was defiant: not guilty by reason of insanity. "What? All nine of you?" the judge spluttered.
Even though this was an all-white jury of the time, the notional craziness of the natives since 1994 is indeed part of the reason that there is not more jury talk, even in a democratic South Africa: the population, unfit to vote in the past, is still deemed unfit to govern factual questions, even now, in courts of law.
The fact that we don't have juries, nor even discussion about the restoration of juries, is the single best sign of the triumph of illiberalism over democracy in a post-1994 legal system that is otherwise so proudly progressive.
Apartheid distrusted the native voter; democracy still abhors the native juror.
In the Law and the Constitution, which many local illiberals take as a classic text, AV Dicey saw the national assembly (the House of Commons) and the jury as having similar responsibilities to ensure democratic accountability: the House of Commons was "in the higher part of government when juries are in the lower" Dicey wrote.
In the 18th century the jurors actually sat among members of the public in the gallery of the court.
The radical British historian EP Thompson emphasised that: "The defence of the subject against the over-mighty state was once regarded - by such men as Sir William Backstone and Thomas Jefferson - as a crucial function of the jury, elevating it to a high place among the defining institutions of a political democracy".
And the eminent British jurist Lord Devlin said "the jury is the lamp that shows that freedom lives".
The British themselves established Vorster-style "Diplock courts", stripped of juries, to deal with Northern Ireland security issues in 1972 and only abolished these courts as late as 2007, after having used them in 2005 to convict the Al-Qaeda operative, Abbas Bourtrab, who was sentenced to six years for allegedly having information that could assist bombing an airliner.
Wim Trengove, Zuma's zealous pursuer, commented in 2006 on the legal "black hole" that the George W Bush regime established in Guantanamo Bay, with prisoners denied fair trial rights: "it is wonderful that we are so different from them." (Guardian, November 26 2006).
It is not the accuracy about Bush, but rather the self-righteousness about South Africa, that is the problem with this statement.
Section 180 (c) of the Constitution provides for legislation enabling "the participation of people other than judicial officers in court decisions".
Just as Zuma has correctly democratised the scope of the criminal law by signing the strengthened Competition Law Bill that brings criminal sanctions to bear on such evil-doers as the bread cartelists, a genuinely progressive legal agenda will include a fresh look at the place of the jury in the justice system.
This would be real transformation, unlike the circus of personalities that is currently focused around on the important but already overblown matter of judicial appointments.
l Roberts is writing a legal realist critique of post-1994 South African law.