Preventing a miscarriage of justice

File photo: Chief Justice Mogoeng Mogoeng.
File photo: Chief Justice Mogoeng Mogoeng.

ISSUES of class, race and gender have been identified in a number of debates as barriers to access to justice. What has received little attention is how geography - the rural-urban divide - determines the quality of justice that people have access to.

Now that the chief justice has been firmly installed in office it should be possible to have a discussion that it is less emotive and divisive - unlike the one that clouded his appointment.

The failure to pay attention to what happens in courts located outside big cities is partly responsible for the way the debate unfolded.

In areas where there is media presence - invariably in the cities - it is often difficult to escape its glare and that of other people who have access to legal information.

It is in hearing about bad court decisions that the public and other institutions are revolted into action. Necessary remedial steps are then sought.

Unpublished court decisions, particularly bad ones, are a disservice to all concerned.

For the complainant, justice has been denied. For the judge, there's no opportunity to learn and self-correct in order and to stop piling up a judicial record that will be haunting.

For the law, bad precedents are created in court.

Like a stash of neatly hidden porn magazines or the proverbial skeletons, the chief justice's decisions on gender-based violence cases, kept on tumbling out of the North West High Court archives soon after he was nominated.

The sheer weight of the decisions being discovered, analysed round about the same, was less than helpful. Would it not have been better had these been brought to light when the judgments were delivered? Why later? Where did they come from? Where were they all along?

Leniency in sentencing in domestic violence and sexual violence cases is a worldwide phenomenon. Where the situation has improved it is because decisive actions had been taken by authorities. Prosecutors have had to appeal unduly lenient sentences. Higher courts have been able to increase sentences.

And where relevant they have also had to address the lower courts' reasoning particularly where the decisions have been based on retrogressive views on rape in marriage or society's tolerance for domestic violence.

Prosecutors do not have to learn about the decisions in the press or law reports to know what happened in court but between heavy workloads and a lack of resources, a decision to appeal a court decision can be a difficult call to make.

A tolerated culture of impunity can be challenged by the weight of civil society pressure. This pressure can make prosecutors reconsider their decision to let a lenient sentence slide.

If it proves too difficult for courts to decide what a just sentence is, parliaments have been able to adopt sentencing guidelines to assist the courts.

Of course, judicial officers along with defence lawyers will complain that this tampers with the independence of the judiciary or impedes judicial discretion. This was the case when sentencing guidelines on sexual offences were adopted.

About five years ago, civil society formations brought down the wrath of some pockets of judiciary when they published a report detailing how judges and magistrates had decided to broaden their understanding of what "substantial and compelling" meant. The law allowed judges to deviate from imposing the minimum sentence in sexual offence cases if there were "substantial and compelling" circumstances.

When judges decided the circumstances could mean being raped by a parent, a child who has been raped more than once, that the complainant was not killed by the rapist it became clear that civil society could not blindly trust the judges' discretion. Most of the decisions that made it into the report were the ones that were already in the public domain.

Without these issues being brought into light, courts, prosecutors, parliamentarians, victims and survivors are not able to play their respective roles. Knowing that their decisions will be published, analysed, appealed and reversed, helps judges and magistrates to be more diligent.

When these issues are raised during momentous occasions, like the appointment of a chief justice, relevant as they are, the manner in which they are individualised denies us the opportunity to address it as a systemic problem.

It is also unhelpful when the conversations are tempered with accusations of witch-hunt, conspiracy theories and racism.

It just feeds conspiracy theories. This has the negative effectt of turning gender-based violence into a political football. It limits the possibilities of much-needed reforms.

If there is a lesson that should not be missed from this debacle it is that we all have an obligation to find out what happens in all courtrooms. We can't choose certain occasions to register our shock.

If there is a possibility that similar decisions exist in other archives, we cannot wait for the next round of judicial services interview to find out.

It is a betrayal to the thousands of men, women and children who have to bear the brunt of such decision daily.