It is interesting to read the Internet comments on the Pistorius murder trial. It seems there is a serious lack of understanding of the legal terminology being used. For instance, there is no such thing as "premeditated murder" in South African Law. It is "murder" and murder is always premeditated and it is from the Common Law. If not, it would be called "culpable homicide" where the victim is killed but not by premeditated action by the accused. This is probably what the defense council is aiming at but we simply don't know at this stage and it is wrong to speculate.
There is also no such thing as "murder in the second degree" which is known here as "culpable homicide" and no jury system either. That stopped in 1961 though you could ask for one up to 1969 or so the old timers told me during my own years as a practising attorney. Today, when you walk into an old court room (the legal profession refers to it as having "character and old world charm"), you will note the benches where the jury used to be and they were all white (the qualification was to be able to vote).
This lack of a jury is a good thing in my eyes - though law is not exactly rocket science - I say so in all my books and lawyers totally overpaid - it is complicated for the man in the street. It has to be - how else will lawyers make money? But seriously, I would much rather place my future in the hands of someone who is trained in law, highly experienced and capable of understanding the legalities of the case. I say with respect that I doubt a jury being able to do the same and it comes down to Hollywood stunts by the lawyers to obtain a verdict. Such behaviour by the way, like walking around in the court or being disrespectful will never be tolerated by our judges and that lawyer will end up in jail for contempt of court if he tries it. Here you behave properly and the proceedings are very fair with both sides having a fair chance to state their case, cross exam the witnesses and bring their own witnesses to court. And yes the burden of proof is on the state prosecutor (called a Crown prosecutor during Colonial times) to proof "beyond reasonable doubt" that murder was indeed committed. Yes, it is the same as in any other country and the standards as high as in any first world country. Even in Apartheid the procedure was very fair even if the laws were most certainly not.
The term "lawyer" is technically wrong. In South Africa you are either an attorney or an advocate. The law degrees are the same (these days) but the training totally different. I will also state that someone who has a law degree but did not complete his legal articles afterwards and passed his bar (or side bar) exam is in no way qualified to practise law and in fact, prohibited from doing so. It is a crime to pretend to be an advocate or attorney without actually being one. Also note that advocates are addressed as Mr or Mrs and not advocate - something which is not generally known in public.
At any rate, it is way too early to speculate on the outcome of the trial. We follow the legal dictum of audi alterum partem or hear the other side first before making a judgement. Similarly, under the rules of natural justice, the judge must be neutral. Therefore you will not see her intervening all the time. You may trust her to do her job as good as any other judge.
We will talk next week or next time on the role of interpreters - something which is also causing a lot of negative comments.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a practicing commercial law attorney for eight years. He also wrote several books on business, law, counter terrorism and security issues. He is a widower and lives in Bloemfontein, South Africa.