Some time ago I acted pro deo – instructed by the state but literally meaning for God – for a client who was on trial for murdering his victims with the heavy wooden handle of a pickaxe. A judge, the prosecutor, a state advocate, and I were deployed to the Swellendam Circuit Court for the trial. My client was a tall and powerful man who had a fall out with his partner, the surviving complainant in the case. On the night of the murders, while he was systematically bludgeoning several of her family members – leaving her for last – she grabbed her young son and ran outside to take refuge in a long drop latrine – a more unlikely place to hide is hard to find. Terrified they listened to him relentlessly looking for them all night to quench his terrible thirst for vengeance.
This was her evidence before he leaped over the dock behind me to attack her. Trapped inside the witness box, she turned her back on him and he started stabbing her in the back, before both of them fell inside the witness box – he on top of her. The prosecutor grabbed exhibit “A”, the murder weapon, to hit the accused but there was not enough space in the witness box to swing the handle with meaningful force. The investigation officer ran forward while the accused was still stabbing the witness. He kneeled down to push his service pistol against the top of the head of the accused at an angle that would not injure the witness. He pulled the trigger. Suddenly it was quiet in courtroom B of the Magistrate’s Court of Swellendam.
I know this must be an unusual story for a mediator to tell but the relevance will soon be revealed. No one is interested in running the trial of a deceased accused and somewhat shaken we had to figure out how to bring legal closure to this troubling event. The prosecutor suggested we call the judge to formally remove the case from the role. And so early that fateful morning we robed to appear formally before the judge to remove the case from the roll. Appearing for the deceased, advocate Joubert. Of course I believed my client was pure evil, his death timely and relieved to hear the knife was too short to seriously injure the witness. My own trauma as lawyers do, safely tucked away in pockets of irony and dark humour. I was unable to fathom the horror that poor woman had to endure for a second time at the hands of the accused.
But my story is not over and the part I am getting to may reveal a startling inconvenient truth. Lunch with the judge is a customary event on Circuit Court. Still shaken by our experience we started talking about the incident. It was immediately apparent that we each produced different versions of what happened. Here was a highly experienced High Court judge and two experienced advocates of the same court observing the same events unfolding in front of their eyes, yet we could not agree what transpired! Mindful of the words of Dominique Botha, author of False River, that retrieving memory is the first act of fiction, I recall the following conversation:
Joubert: “Strange things happen. Never expected to appear for a dead man in Swellendam!” Judge: ”I can’t figure out how he managed to get hold of a knife. Thank God it was so short or the witness would be dead now.” Prosecutor: “My office will investigate. We may be asked to give statements about the incident. Judge: ”Unusual but not difficult. The accused climbed over the dock to attack the witness with a knife.” “Hmm”, said the prosecutor: “ I don’t know how but I saw him jumping over Joubert and landing on the desk in front of Joubert.” Joubert: “That’s impossible, the desk is too far from the dock, but I do recall him standing on the desk before he landed in the witness box.” Judge: “Landed in the witness box? How is that possible? The law of gravity applies in my court!” Joubert: “Hopefully we agree that the prosecutor hit the accused with the murder weapon at least once?” Judge: “Not so, I could clearly see that the officer shot the accused before the prosecutor reached the witness box with the murder weapon.” Prosecutor: “I tried to hit him twice with the murder weapon!” Judge (alarmed): “I can’t help thinking how easy it will be for someone to discredit our evidence under cross-examination. Perhaps even saying that one of us is lying!”
At last we have arrived at the inconvenient truth, at least for cross-examiners who admire the art of cross-examination that forms part of the (competitive) accusatorial system of Anglo Saxon jurisdictions, including that of South Africa. Witnesses like everyone else tell themselves stories about what they have witnessed, stories which over time will become for them the truth and nothing but the truth. Over time the judge, the prosecutor and I would come to believe that our different stories were the truth and nothing but the truth. Any half decent cross-examiner would be able to discredit us without much effort by probing for inconsistencies. The inconvenient truth is that inconsistencies are part of story (truth) telling and to bludgeon a witness with inconsistencies is to deny the existence of different strands of truth. Isabelle Allende may be right when she said: “What is truer than the truth? The story”.
The inquisitorial legal system of countries on the European continent does not rely on the robust cross-examination of the accusatorial system. Naturally the inquisitorial system has its own imperfections, but the Oscar Pistorius trial may yet stir debate on the imperfections of the accusatorial system as it is practiced in South Africa.
Mediation is not an appropriate tool of dispute resolution for serious criminal matters and also not for civil matters in which the other party is a sociopath. But what makes mediation ideal to resolve many (not all) civil disputes is that parties do not have to go through the ordeal of cross-examination. Mediation acknowledges the ambiguity and different strands of truth that exist in the real world. A senior Cape Town mediator recently resolved a medical negligence dispute between a specialist and patient after the patient conceded that she might have misheard the specialist’s advice after a colonoscopy was aborted due to cardiac complications. His integrity restored, the specialist immediately became amenable to settle the dispute. A case that could have run for years was settled in less than a day with an appreciation that the integrity of both parties was not at stake.
Recently the mediation caucus - meetings in private between the mediator and one side to a dispute - has come in for some harsh criticism. Dismissed as “shuttle diplomacy” that...By Diane J. Levin