Browsing by Author "Naidoo, Kanagie"

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    The Impact of courtroom demeanour and non-verbal communication on the verdict
    (University of Zululand, 2018) Naidoo, Kanagie
    Over the years concern has been growing about justice being done in South Africa. Society’s faith in the justice system is not as strong as it was before and matters are being taken on appeal all too frequently. In addition to this, the professional body for legal practioners1 (The Law Society of South Africa or LSSA) is concerned that law graduates do not have all the attributes necessary for the profession. The LSSA is also concerned that the legal qualification (Bachelor of Laws or LLB) at most institutions focuses only on the “knowledge of the law” and not on the development of skills or abilities that will help graduates cope in the working world of the profession. as presented by the Council on Higher Education (CHE) at a colloquium on 11 November 2010. The law profession in South Africa has evolved to the point that it is no longer simply about the implementation of law. The Constitution2 has brought with it the requirement of due process, the right to a fair trial and the right to confront an accuser. These developments in the law call for further development in the skills of those who practice the law. Changes in the judiciary and the legal profession in general have brought with them the need for a review of how litigation and adjudication take place. This study focuses on key areas of communication in the trial process, namely demeanour and non-verbal communication. Neither of these areas have enjoyed the benefit of substantial theory building by scholars. The ability to correctly deal with evidence is a core competency for any presiding officer and legal practitioner as it impacts on the right to a fair trial. The Constitution has also emphasised the requirement that “justice must be seen to be done” and there appears to be a weakness in the system in this regard. This study focuses on evidence of demeanour and non-verbal behaviour/communication in the courtroom and how they impact on the outcome of trial. In as much as these concepts feature rather often in judgements there is a limited amount of literature to refer to for guidance on how to deal with demeanour and non-verbal behaviour during a trial. The aim of this study is to accentuate the fact that demeanour and non-verbal behaviour/communication do indeed impact on the outcome of the trial and that presiding officers, to some extent, lack adequate training and skill to effectively evaluate this type of evidence. The proper evaluation of evidence is central to a fair trial and justice. This study sets out the various approaches to: non-verbal communication within the social context of the courtroom, how the non-verbal behaviour of role players in a trial is dealt with, and how evidence of demeanour is dealt with when evaluating evidence. The gradual, but slow, growing body of knowledge in this regard illustrates what an integral part of the communication process of non-verbal communication really is. The qualitative approach adopted by this study (where presiding officers were interviewed) expanded the researcher’s understanding of how presiding officers deal with non-verbal communication/behaviour and demeanour when evaluating evidence. The responses from the in-depth interviews were mechanically recorded and this afforded the researcher the opportunity to gain insight into the perspectives of the presiding officers. The analysis of the responses led to the emergence of themes that were then formulated in a theoretical experience. When questioned about whether they had received sufficient training in how to deal with evidence of demeanour and non-verbal communication/behaviour all the participants in this study expressed a need for training in this regard. The study revealed that legal realism coupled with a functional approach to dealing with non-verbal communication and demeanour in the courtroom will improve the quality of judgements and add value to the work of presiding officers. The formulation of guidelines on how to better deal with evidence of demeanour and non-verbal communication/behaviour will take the judiciary and the legal profession closer to ensuring that “justice is seen to be done”.