By Dr Tapiwa Shumba

In an adversarial system such as ours, the administration of justice relies heavily on the acumen and knowledge of legal representatives. This insight is dependent on many factors including an understanding of the different forms of evidential material, which may include scientific evidence, involved in the case.

Although the use of expert witnesses compensates for the lack of forensic knowledge on the part of practitioners, there is no doubt that practitioners still need to be knowledgeable about science for various reasons. A practitioner can only fully engage with forensic evidence presented by experts if he or she has an understanding of how to engage with such evidence. It is only then that a practitioner would be able to apply the test for reliability, credibility and even admissibility, in some cases.

Of course questions about whether the LLB curriculum needs to be adjusted to include science subjects or whether law students should also study accompanying science courses, are controversial and complex policy issues. Decisions on such matters, therefore, tend to be evolutionary and painstakingly slow, if ever made.

The invasion of science in our criminal justice system is a global phenomenon. However, there is no global solution in sight yet and in our case, we have to approach this matter based on the needs of a criminal justice system defined by the values of fairness, justice and equality before the law. We must decide whether justice is being adequately served by the current situation and whether more could be done.

Of course even a new LLB curriculum cannot change the situation of those already in legal practice. However, there are various avenues that could be explored to equip practitioners with the necessary knowledge and skills for working with forensic science, which has become an indispensable element of our criminal law.

The Law Society of South Africa, the National Prosecuting Authority, the Bar and the Judicial Services Commission, among other bodies involved in the regulation of the role players in our criminal justice system, can take a lead in ensuring that their members become adequately capacitated to deal with the increasingly important issue of forensic science.

At the moment, academic institutions cannot compel students and qualified practitioners to undertake additional courses in forensic law. However, it has also become critical for universities and other institutions of higher learning to contribute towards addressing this pertinent issue. For instance, universities can offer short courses on forensic law to mitigate the current situation. In any case, even if professional bodies appreciate the need, it still boils down to whether academic institutions have the capacity to offer the necessary education.

The Nelson Mandela School of Law (faculty of law) at the University of Fort Hare hosts a project known as a Research Niche Area (RNA) on law science and justice (forensic law). This interdisciplinary law, science and justice research niche area was launched by the Faculty of Law in 2014. It is headed by Professor Lirieka Meintjes-van Der Walt, a distinguished scholar on the African continent in the area of forensic law who is among the leading researchers in the field.

The RNA primarily aims to –

• conduct relevant research on the appropriate use of science in legal fact finding and decision-making and policy;
• build capacity in law, science and justice research and to promote future advances in these areas;
• develop staff members as scientists and legal scholars with national and international recognition as experts in their fields with emphasis on scientific development and National Research Foundation rating;
• publish and disseminate research findings so as to advance knowledge of relevant target groups, workshops, scientific reports, conference contributions and publications in national and international journals;
• optimise the quality and quantity of research outputs and post-graduate training, evaluated on an annual basis; and
• provide a source of expertise and assistance to statutory councils and parliamentary decision-makers on matters of research and knowledge in this field and to train and equip legal practitioners and policy makers with the knowledge and skills required in the sophisticated and complex legal arena.

These projects of the RNA are part of the national and global efforts towards supplementing the short-comings of the general law degree. Of course practitioners are not compelled to take up these opportunities to equip themselves, but the RNA offers what could be the bridge between what practitioners have and that which they ought to have in order fully to engage with forensic aspects of our criminal law.

In the long run, it can only be hoped that such efforts will become the mainstay of dealing with the ever advancing technological and scientific world of our criminal justice system. Indeed these efforts are needed to and will remain crucial to fill the void in our practitioners; a problem that is becoming apparent in the day to day administration of justice. Although they are not the panacea to the problem, these efforts together with other multiple initiatives from other role players could help to reduce the knowledge gap that our criminal justice system cannot afford.

Of course a permanent remedy is required to bridge the chasm between lawyers and scientists. However, before a lasting solution can be provided by those with the authority to do so, for the present moment we might have to rely on multiple efforts from different angles to mitigate the effects of the new wave of scientific and technological advancements impacting on the administration of justice.

Dr Tapiwa Shumba LLB Cum Laude (UFH) LLM (UCT) LLD (Stell) is a Post-doctoral Research Fellow in RNA Law, Science and Justice at Nelson R Mandela School of Law at the University of Fort Hare in East London. Dr Shumba writes in his personal capacity.

This article was first published in De Rebus in 2016 (March) DR 14.