Constitutional Hill

Innocent until guilty

Pistorius on TV: The public’s interest vs. the public interest

On Wednesday, various media groups approached the court for permission to broadcast aspects of the murder trial of Oscar Pistorius live on television and radio. The application raises important constitutional questions about the manner in which the court should deal with the intense public interest (not necessarily to be conflated with the public interest) in the Pistorius case while jealously guarding the right of the accused to receive a fair trial.

When Oscar Pistorius goes on trial on 3 March in the North Gauteng High Court for the killing of his girlfriend, Reeva Steenkamp, an army of journalists from across the world will pack into the courtroom, crouched over their laptops, smart phones and tablets, ready to “live tweet” every detail of the trial to the inquisitive public.

Only a few family members of the accused and the deceased and the journalists seated in the public gallery will be able to witness proceedings in the trial.

BT (Before Twitter), the general public would not have had immediate access to every word and gesture of the prosecutors, the accused and the various witnesses called to testify in the trial. The public would have had to rely on second hand reports provided by journalists during breaks in the proceedings.

Twitter has changed all this.

Following proceedings in a criminal trial on Twitter can have an immediacy and can provide nuance and detail about the testimony and cross-examination of witnesses that can make or break the reputation of witnesses.

As the bail hearing of Oscar Pistorius demonstrated, in the age of Twitter it is very difficult to protect the privacy or the dignity of a witness in a criminal trial. Journalists “live tweeted” the testimony of former detective Hilton Botha, leading to widespread ridicule on social media.

However, this does not mean that the court should allow the broadcasting of proceedings in a criminal trial if this would negate the fair trial rights of the accused. Nevertheless, because there are no jury trials in South Africa and because our courts assume that the judge and assessors will not easily be swayed by media reports on a trial, the dangers posed to fair trial rights by the broadcasting of a trial is probably often overstated.

Those who oppose the broadcasting of criminal trials on radio and television argue that the presence of radio and TV in court could be too invasive, could intimidate or overwhelm witnesses, could infringe on the accused’s right to privacy, could inhibit interactions between counsel and the bench, and could turn the trial into a media circus in which prosecutors, defence lawyers and even the judge “act” for the cameras to the detriment of the accused and his or her right to a fair trial.

To counter this, lawyers for the media groups asking to broadcast the Pistorius trial are arguing that modern technology would enable the operation of TV cameras via remote control, making them relatively unobtrusive. They have also agreed that “unconsenting witnesses” would not be filmed, thus protecting such witnesses against an invasion of their privacy.

Despite these arguments it is not clear that the court will grant permission to the media groups to broadcast aspects of the trial live on radio and television.

In deciding whether to grant permission for the broadcasting of most aspects of the Pistorius trial, the court will have to rely on the general principles set out by the Constitutional Court in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and Others.

This case dealt with an application by the SABC to broadcast the proceedings before the Supreme Court of Appeal in the appeal of Schabir Shaik against his conviction for fraud and corruption.

The majority of the Constitutional Court explained that when considering whether to broadcast court proceedings, the overriding interest to consider was not that of the broadcasters but that of the public and of the accused.

A strong constitutional consideration to take into account when deciding on whether to grant permission to broadcast court proceedings was the right of South Africans to know and understand the manner in which one of the three arms of government – the judiciary – functioned.

The judicial function should not, said the court, be “shrouded in mystique and protected at all times from the prying eye of the camera or the invasive ear of the microphone”.

The right of the people to be informed of judicial processes presupposes that courts are open and accessible. The fact that courts do their work in the public eye is a key mechanism for ensuring their accountability.

The Constitutional Court pointed out in the Shaik case that section 35(3)(c) of the Constitution includes as one of the aspects of the right to a fair trial, the right to “a public trial before an ordinary court”.

Several advantages could thus be associated with the broadcasting of court proceedings. Open courtrooms are likely to limit high-handed behaviour by judicial officers and to prevent railroaded justice.

Open justice could therefore be said to be an important part of that right to a fair trial and thus served as a great bulwark against abuse.

Courts should in principle welcome public exposure of their work in the court room, subject of course to their obligation to ensure that proceedings are fair. The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much as to other branches of government. These values underpin both the right to a fair trial and the right to a public hearing (ie the principle of open court rooms). The public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness.

In the subsequent case of Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another, the Constitutional Court affirmed the constitutional imperative of dispensing justice in the open.

This systemic requirement of openness in our society flows from the very founding values of our Constitution, which enjoin our society to establish democratic government under the sway of constitutional supremacy and the rule of law in order, amongst other things, to ensure transparency, accountability and responsiveness in the way courts and all organs of state function. From the right to open justice flows the media’s right to gain access to, observe and report on, the administration of justice and the right to have access to papers and written arguments which are an integral part of court proceedings subject to such limitations as may be warranted on a case-by-case basis in order to ensure a fair trial.

However, because the Shaik case dealt with an appeal – and not a criminal trial as such – the ringing endorsement of open justice to be found in the Shaik judgment is not directly applicable to the Pistorius case. Neither is the Independent Newspapers case, which dealt with the question of whether certain court documents could be kept secret, directly applicable to the question raised by the Pistorius application.

In fact, the Constitutional Court in the Shaik case suggested that it would be inappropriate to permit radio or television broadcasting of a criminal trial proper, remarking that:

no one suggested that the electronic media should be permitted to broadcast criminal trial proceedings when evidence is led and witnesses are cross-examined. Ordinarily, it will not be in the interests of justice for trial proceedings to be subjected to live broadcasts.

The court reasoned that the right to privacy of each individual witness was of overriding importance. Where this right was infringed, it could lead to an unfair trial and could conflict with “the public interest in a democratic criminal justice system” which brings wrongdoers to book while ensuring that justice is done to them. This was so because there was a real danger that witnesses would be prejudiced, intimidated, inhibited or prevented from communicating sensibly by the thought of having to appear on television.

Nevertheless, the court also quoted with approval a passage from a lower court judgment indicating that where both the State and the defence witnesses consented to the televising of their evidence, this would not necessarily render the trial unfair.

The Shaik judgment was handed down BT (Before Twitter) in 2006. Although there are indeed dangers inherent in the broadcasting of a criminal trial – amply demonstrated by the media circus that developed during the OJ Simpson trial – I would argue that these dangers could easily be managed by a competent judge who is in control of his or her courtroom and is able to manage the media by issuing the appropriate guidance or instructions.

The fact is that even if permission is not granted to broadcast the Pistorius case on radio and television, witnesses are going to be exposed to the immediate reporting allowed by Twitter. As long as the media use Twitter in a manner that does not undermine the right to a fair trial and as long as the presiding judge ensures that the media is kept in check, this will not affect the fairness of the trial.

If you take into account that new technology – including Twitter – has made it almost impossible to shield witnesses entirely from public scrutiny and publicity, and that there is no empirical evidence to suggest that a properly run trial broadcast on radio and television would in fact threaten the fairness of a trial, I cannot see why prelimiary permission should not be granted to broadcast certain aspects of the trial.

But given the mixed signals sent by the Constitutional Court jurisprudence on the matter (discussed above), it is far from clear that such permission would indeed be granted by the court to broadcast aspects of the trial – including the testimony of witnesses who had agreed to it.

Vavi: How many people truly judge others objectively?

It is very difficult – some would say impossible – entirely to escape your own skin, your sex and gender, your political commitments, your social background, your class, your moral beliefs or your economic interests. No person floats above the world and makes decisions about his or her place in the world free from these influences. When a scandal breaks about a public figure (as it did this weekend around Zwelinzima Vavi), the manner in which people respond to the scandal – in the fog of accusations and counter-accusations – often serve as a Rorschach test of who they are and what they believe.

As I read the claims and counter claims of Zwelinzima Vavi and the woman who accused him of raping her, a sombre, debilitating sadness came over me. My instinctive first response went something like this: rape, for god’s sake; surely not Zwelinzima Vavi; surely not him; surely it must be a set-up?

I scanned his statement, the comments on Twitter, as well as newspaper reports looking for information that would justify this view. After all, Vavi has been fearless in his criticism of the increasingly widespread phenomenon of corruption within the tripartite alliance. He stood up against Aids denialism. He presents himself as a champion of the poor and the marginalised. He speaks out against the abuse of power by the wealthy and politically connected. For these and other reasons, I felt myself committed to his innocence – both on the rape charges and on the charges of abuse of power and sexual harassment.

It was only after an hour or two that I came to my senses. Why was I trying to find excuses to reject the veracity of the allegations of rape (and sexual harassment) against Vavi – and that without having much information to go on? Why was I trying to avert my eyes from the fact that – even on his own version of events – he seemed to have abused his position of power (as union leader and as a powerful man) to exploit a woman – all for sexual gratification?

But then I read allegations that the woman tried to extort R2 million from Vavi and that she decided on Monday not to pursue the sexual harassment charges against Vavi. Surely this on its own says nothing about whether Vavi had raped or abused his power to sexually harass the woman. But in the context of the bitter political fight between various political factions inside Cosatu, I was utterly confused.

I am well aware that allegations of rape made by a woman against a powerful man are all too often wrongly dismissed out of hand by other men or by individuals who share the same race, political views or factional interests as the man being accused of rape. The deeply entrenched narrative (promoted by many powerful men), that woman often falsely accuse men of rape to get back at them or to gain some emotional or financial benefit, often contribute to the phenomenon of victim blaming.

Yet my first impulse when I heard that Vavi was accused of rape and that he was claiming that this was done to extort money from him, was to believe him and dismiss the claims of the complainant out of hand.

As I write this, I have no idea where the truth lies. I do know that (even on his own account) Vavi acted disgracefully by abusing his power as an employer in order to obtain sexual favours from a woman he had employed at his office. I do not know whether the woman was enticed into extorting money from him by Vavi’s wife (as the woman claims). Neither do I know what exactly happened between Vavi and the woman and whether the admitted sexual contact was consensual or whether it constituted rape.

One way to deal with this uncertainty is to rely on formalistic legal processes and to claim that Vavi is innocent until proven guilty and that he must therefore be supported until such time as he is found guilty in a court of law of either sexual harassment or rape. Another way is to assume that, given the power relations in society and the deeply sexist manner in which claims by woman about abuse against them are often dealt with, Vavi is guilty of everything he is accused of.

But the fact of the matter is that – at this moment at least – it is impossible to know with absolute certainty where the truth lies – at least about the claims of harassment and rape. You can judge Vavi, not on fake moral grounds for having extra-marital sex, but (at the very least) because he seemed to have appointed a woman without following the prescribed procedure and then used his influence and power to pursue a sexual relationship with her. But how do you judge the contested accusations and counter accusations of Vavi and his accuser?

Which brings me to the heart of the matter.

I am amazed at how convinced and assured some commentators are about what exactly happened or didn’t happen between Vavi and the woman who accused him of harassment and rape. Some people seem to have taken Vavi’s side, either because they always take the side of a man accused of sexual abuse, or because they support Vavi because of his political commitments and views.

Others assume that he is guilty of everything that he has been accused of, either because he is a powerful man and they always (wrongly) assume that accusations of rape or sexual harassment are true, or because they oppose him because of their own political, social, racial or other beliefs or commitments.

We all experience the push and pull of our own beliefs and our own multi-faceted identities. Who we are – our race, sex, language, class, political beliefs or sexual orientation, for example – and how we experience the world, often guide our first responses to public events.

Whether we believe the allegations of racism levelled by yet another black woman abused at Virgin Active by a white man; whether we believe the allegations of sexism against a man accused of harassing a woman at work; whether we think Oscar Pistorius is a villain or a hero; whether we believe a cabinet Minister is involved in corruption as alleged by the Mail & Guardian, are at least partly mediated through our own experiences and through our perceptions of the world shaped by who we are.

That is why white Afrikaners are more likely to come to the defence of Oscar Pistorius who killed his own girlfriend and – we just don’t know yet – might or might not be convicted of either murder or culpable homicide for doing so. That is also why some people who staunchly support him are convinced that President Jacob Zuma was framed and that it is utterly irrelevant that Schabir Shaik was convicted of bribing Zuma.

It is impossible to avoid making judgments. Personally, I would not like to invite Oscar Pistorius into my home – regardless of whether he is ever convicted of murder or culpable homicide. I would not feel comfortable having a drink with somebody who has the ability to shoot and kill somebody hiding behind a toilet door. But I know some other people who still love Oscar and will do so regardless of what the court decides because they believe that they, too, would have shot and killed any person hiding in their bathroom, or because they are entranced by the fact that Oscar is white or famous or rich or has overcome adversity to shine on the world stage.

But when we do make judgments, it is perhaps helpful not to be too certain or too categorical about our own beliefs and to keep on asking ourselves why we support one person while condemning another. Are we blindly giving support to a charlatan or criminal because of his or her race, sex, gender, ethnicity, religion, sexual orientation or political affiliation? Or are we condemning somebody because he or she belongs to the so-called “wrong” race, sex, ethnic group, religion, or political party?

How many people can truly tell?

Trial by media? No, that’s impossible

When magistrate Daniel Thulare took a swipe at the media this week during a routine court appearance by Oscar Pistorius, the magistrate displayed a rather archaic, pre-constitutional view of the way in which the media is allowed to report on criminal matters in South Africa. He also expressed concern that Pistorius was being subjected to a “trial by media”. But the use of this term is both silly and spectacularly uninformed. Members of the media do not have the power to either try or to convict any accused person. It is the appropriate presiding judicial officer who has the power to try and (if he or she is guilty) to convict an accused.

During the court appearance of Oscar Pistorius, magistrate Thulare expressed concern that the course of justice was being perverted by the fevered attention the case was receiving in the media. “There appears to be a trial by the media houses of Mr Pistorius,” he said. “It would appear some of the [media] activities may amount, if not to scandalising the court system in the republic, then to contempt.”

It is unclear how any media activities around the Pistorius case could amount to “scandalising the court”. I suspect that magistrate Thulare became confused about two distinct and wholly separate aspects of the crime of contempt of court. “Scandalising the court” usually relates to the publication of opinions which tend, or are calculated, to bring the administration of justice into contempt. For example, suggesting that all judges in South Africa are guilty of personal favouritism and allow themselves to be influenced by personal and corrupt motives in judicially deciding matters would constitute scandalising of the court.

As the Constitutional Court explained in S v Mamabolo, the real offence of scandalising the court “is the wrong done to the public by weakening the authority and influence of a tribunal which exists for their good alone”. It is not the self-esteem, feelings or dignity of the judicial officer, or even the reputation, status or standing of a particular court that is sought to be protected, but the moral authority of the judicial process as such.

This notion of scandalising the courts does not preclude robust and informed public debate about judicial affairs because such debate:

promotes peace and stability by convincing those who have been wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement.

In Mamabolo the Constitutional Court drew a clear distinction between important and legitimate comment and criticism of judicial conduct and the decisions of judicial officers, on the one hand, and scandalising the court, on the other, and stated the following:

An important distinction has in the past been drawn between reflecting on the integrity of courts, as opposed to mere reflections on their competence or the correctness of their decisions. Because of the grave implications of a loss of public confidence in the integrity of its judges, public comment calculated to bring that about has always been regarded with considerable disfavour. No one expects the courts to be infallible. They are after all human institutions. But what is expected is honesty. Therefore the crime of scandalising is particularly concerned with the publication of comments reflecting adversely on the integrity of the judicial process or its officers.

This means that there is absolutely nothing wrong with criticising the outcome of a case or even with criticising a judge for having got the law wrong or for having been too lenient in sentencing a convicted criminal. But where that criticism would suggest that the judge got it wrong because he or she was corrupt or otherwise swayed by impermissible factors, then the crime of scandalising the court would loom large.

Of course, as mentioned above, when magistrate Thulare said the media was scandalising the court, he must have confused this rule with the so called sub judice rule about which I wrote earlier this week. Pointing this out does not scandalise the court – it merely engages in a robust discussion about the magistrate’s seeming lack of legal knowledge or understanding of the relevant legal principles.

But apart from this obviously muddled and outdated view of media reporting of criminal trials, magistrate Thulare’s comments can also be faulted on the basis that the notion of “trial by media” is a nonsensical and legally completely irrelevant concept.

When famous, rich, politically well-connected individuals or others who hold social power because of their white skins or their class and status are charged with criminal offences, they often complain about being subjected to “trial by the media”. Strangely, the same people never get upset about the “trial by media” of someone like Johannes Kana, charged with the brutal rape and murder of Anene Booysen. Neither do they claim there is a “trial by media” when the media refers to murder accused Johan Kotze as the “Modimolle Monster” or when the media refers to Wouter Basson as “Doctor Death”.

The fact of the matter is that it is inevitable that the reputation of any person who is charged with a crime will suffer negatively. When President Jacob Zuma was charged with fraud and corruption after Schabir Shaik was found guilty of bribing him, Zuma’s reputation surely suffered (at least among everyone who are not his most ardent supporters) – even though he had not been convicted of any crime.

When Johannes Kana was charged with the rape and the murder of Anene Booysen, his reputation must surely also have suffered – even though he had not been found guilty of any crime. Similarly, if I were ever to be charged with drunken driving, my reputation would take a knock (except, maybe, with Jackson Mthembu) long before a magistrate would have had the opportunity to test the evidence to determine whether I was guilty or not.

Section 35(3)(h) of the Constitution does guarantee for every criminal accused the right to be presumed innocent by the magistrate or judge who tries his or her case. The magistrate or judge must consider all the evidence placed before him or her by the prosecutors as well as the defence of the accused and must then make an impartial decision about the guilt or innocence of the accused after weighing up all the evidence.

This right also entitles an accused not publicly to be branded a criminal before he or she has been convicted of a crime. But the right cannot prevent members of the public from forming an opinion about the guilt or innocence of an accused. Hopefully, members of the public will try to keep an open mind for as long as possible and will not quickly jump to conclusions about the guilt or innocence of an accused. (For example, just as we cannot say for certain that President Zuma will be found guilty of fraud and corruption if he were ever to be charged, neither can we say for certain that he will be acquitted.)

But ordinary citizens are not judges and they will form opinions about the guilt or innocence of a person charged with a criminal offence. As more evidence about a specific case becomes public (and especially as the trial progress and evidence is presented in court) very few members of the public who follow the case will not at some point begin to lean towards a view as to either the guilt or innocence of an accused.

Nothing – and especially not the constitutional right to be presumed innocent by a magistrate or judge – can stop that from happening. But this means the media does have an important task to report accurately and fairly on criminal cases. The media has an ethical and legal duty not to brand the accused as a criminal before he or she has been convicted of a crime. The media should also try and provide an accurate reflection of the claims and counter claims relating to an alleged criminal offence committed by an accused. Members of the public will then be placed in the position where they will be able to draw their own conclusions as to the possible guilt or innocence of the accused.

Of course, if members of the media (or members of the public commenting on social media) make wild and unsubstantiated claims in which they brand the accused guilty of a crime even before conviction, they will be defaming the accused. In the event of the accused being acquitted, he or she could potentially then sue the culprits for defamation.

This does not mean we cannot speculate about the merits of the case and engage in informed discussion about the possibility that a specific defence put up by an accused would be successful. For example, some commentators would be far from certain that (even on the version of events provided by Oscar Pistorius during his bail application) his defence of putative self-defensive will be accepted by the court. If any of them write that Pistorius’ defence team will have an uphill battle in convincing the court of this defence, they would not be stating that Pistorius is guilty of murder. They would be engaging in informed discussion about the merits of the case against an accused who has not been found guilty of a crime and there would be no legal danger in doing so.

I imagine that it must be devastating to be charged with having committed a criminal offence. Nothing in the constitution or the law can protect you from the effects of facing such charges. Rich and famous people used to adulatory publicity are often shocked when the media (whom they used to fuel their fame and power), turn against them and report honestly about the criminal charges they face. And it is usually exactly at that point that they trot out the “trial by media” complaint

Oscar Pistorius and the granting of bail

The circumstances under which a court may grant bail to an accused person charged with a heinous crime are widely misunderstood in South Africa. Although the rules around the granting of bail are relative strict if compared to many other constitutional democracies, a court is not supposed to withhold bail merely in order to punish the accused or to demonstrate disapproval of alleged crime committed by the bail applicant. To do so would amount to a form of detention without trial, which was widely used during in the apartheid era against political opponents of the National Party regime. I fear that many South Africans considering the merits of granting bail to murder accused Oscar Pistorius will lose sight of this important fact.

Section 35 of the Constitution states that every person arrested for allegedly committing a crime has the right to be brought to court (usually within 48 hours after arrest) and “to be released from detention if the interests of justice permit”. As the Constitutional Court explained in the 1999 case of S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat, the question of whether it would be in the interest of justice to grant bail will focus “primarily on securing the attendance of the accused at trial and on preventing the accused from interfering with the proper investigation and prosecution of the case”. The Court then continued:

The broad policy considerations contemplated by the “interests of justice” test … can legitimately include the risk that the detainee will endanger a particular individual or the public at large. Less obviously, but nonetheless constitutionally acceptably, a risk that the detainee will commit a fairly serious offence can be taken into account. The important proviso throughout is that there has to be a likelihood, i.e. a probability, that such risk will materialise. A possibility or suspicion will not suffice. At the same time, a finding that there is indeed such a likelihood is no more than a factor, to be weighed with all others, in deciding what the interests of justice are.

In a bail application the enquiry is not primarily concerned with the question of the guilt of the accused. The focus at the bail stage is to decide whether the interest of justice permits the release of the accused pending trial. Bail will usually be denied to protect the investigation and prosecution of the case and to protect society against the possible future life threatening criminal acts of an accused.

The bail provisions contained in section 60 of the Criminal Procedure Act must be interpreted and applied with reference to these human rights based policy considerations. It is not clear that our courts always make decisions on bail within the framework of these human rights centred policy considerations — especially in cases where an accused is poor or does not have legal representation.

Section 60 of the Criminal Procedure Act states that a court can normally refuse bail “in the interest of justice” only where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person; will evade his or her trial; will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or if, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.

But section 60(11) of the Criminal Procedure Act provides for an exception to this general rule. It states that where an accused is charged with planned or premeditated murder; with the killing of a police officer; with rape related offences; or with robbery with agravating circumstances (so called schedule 6 offences) the court must deny bail unless the accused can prove to the court that “exceptional circumstances exist which in the interests of justice permit his or her release”.  In such cases the National Director of Public Prosecutions (NDPP) can issue a written confirmation that he or she intends charging the accused with one of these schedule 6 offences, which the court considering bail will take as prima facie proof of the charge to be brought against the accused by the Prosecuting Authority.

The bail hearing of Oscar Pistorius is based on this section, but because the NDPP did not issued a note confirming the schedule 6 charge, the court must first decide whether there is a significant likelihood that Pistorius will indeed be charged with “premeditated murder”. This concept of “premeditated murder” is not a legal category found in our general criminal law principles, as no distinction is made at the trial stage of the proceedings between premeditated murder and other forms of murder. The concept is relevant for considering bail and, again, after conviction, can play a role in determining the sentence of the convicted murderer.

Premeditated or planned murder was described as follows by the Cape High Court in the case of S v Raath:

Clearly the concept suggests a deliberate weighing-up of the proposed criminal conduct as opposed to the commission of the crime on the spur of the moment or in unexpected circumstances. There is, however, a broad continuum between the two poles of a murder committed in the heat of the moment and one which had been conceived and planned over months or even years before its execution… Only an examination of all the circumstances surrounding any particular murder, including not least the accused’s state of mind, will allow one to arrive at the conclusion as to whether a particular murder is ‘planned or premeditated’. In such an evaluation the period of time between the accused forming the intent to commit the murder and carrying out this intention is obviously of cardinal importance…

This means that a court is not supposed to apply section 60(11) to a bail hearing where in the absence of a certificate from the NDPP where an accused person is suspected of killing someone else “on the spur of the moment”. Something more is required.

When considering the constitutionality of this section of the Act in the Dlamini case, the Constitutional Court pointed out that the section makes it more difficult but not impossible for a court to grant bail to an accused who will be charged with premeditated murder. The section places “a formal onus” on the accused. This means the accused must actually produce evidence of “exceptional circumstances” and cannot merely rely on the alleged weaknesses in the evidence made by the state during the bail hearing.

However, the Constitutional Court, in finding that this provision was not unconstitutional, watered down its application by watering down the meaning of “exceptional circumstances”. The onus still rests on the accused. But the Court said that the subsection does not require the accused to provide evidence of circumstances “above and beyond” those factors listed above: factors such as whether the accused will threaten the safety of the public; will pose a flight risk or will pose a risk to the investigation by, say, interfering with witnesses.

As the Constitutional Court explained in the Dlamini case, an accused charged with a schedule 6 offence could establish that “exceptional circumstances” exist to grant bail by showing that “there are exceptional circumstances relating to the his or her emotional condition that render it in the interests of justice that release on bail be ordered notwithstanding the gravity of the case”. For example, continued the Court:

an otherwise dependable man charged with consensual sexual intercourse with a fifteen year old girl, and who has a minor previous conviction dating back many years, would technically fall within the ambit of sub-s (11)(a). Yet a prudent judicial officer could find those circumstances sufficiently exceptional to warrant bail provided there were no other factors adverse to the grant.

Applying these factors to a question of whether bail should be granted to an accused charged with premeditated murder, the question is not whether – based on the arguments presented by the state and the counter arguments presented by the legal representative of the accused – a court might have doubt about the innocence of the accused. The probability that Pistorius is either guilty or innocent is therefore not of primary importance in the considering whether he should be granted bail.

What is of primary importance is whether his legal representative had provided evidence of exceptional circumstances that would demonstrate to the court that Pistorius had not been involved in similar crimes in the past, that he does not pose a flight risk or a threat to other members of the public and that he will not interfere with the investigation. If they had shown this, Pistorius should be granted bail.

As is often the case when decisions about bail are made, the public (and it must be said, sometimes also the presiding officer) conflate their abhorrence of the alleged criminal act or their suspicions about whether the accused might eventually be found guilty of the crime, on the one hand, with the question of whether exceptional circumstances exist to grant bail, on the other. They then insist that bail should have been denied. This is often in conflict with the human rights based interpretation of the relevant section of the Criminal Procedure Act that was provided by the Constitutional Court.

I know this is not a popular point to make. I am also aware that some people might wrongly believe that in pointing this out, I am demonstrating an insufficiently abhorrence of the crime that Pistorius is being charged with. But I would invoke the words of Justice Arthur Chaskalson in S v Makwanyane to answer this conceptually muddled charge:

The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.

Clutching at straws?

It might well be that Shrien Dewani is completely innocent and that he had absolutely nothing to do with the killing of his wife. However, for an innocent man he is behaving rather strangely. Instead of rushing back to South Africa to clear his name, he seems ever more desperate to avoid facing his day in court in South Africa.  It reminds one rather of a famous South African politician who made sure he never got his day in court to avoid having to explain why he took millions of Rand from a crook and then did favours for that crook.

Now the Sunday Telegraph reports that Dewani fears that he will not receive a fair trial in South Africa because he will be tried by Judge President John Hlophe. For anyone with even a passing knowledge of the South African legal system, this argument must seem laughable and even a bit desperate.

As far as I know, a trial judge has not yet been allocated for the Dewani case. It is therefore far from certain that Judge President John Hlophe will hear the case. Advancing arguments at this early stage about the impossibility of receiving a fair trial based on nothing more than the possibility that the accused will be tried by a certain judge seems, well, a bit desperate and unhinged.

But even if Hlophe decides to hear the Dewani case, this does not mean that Dewani will not receive a fair trial. Now, as we all know Judge President Hlophe is a judge who has been mired in controversy, and any accused appearing before him has a right to ask the judge to recuse himself on the basis that he would not receive a fair trial. The problem for Dewani would be that such an application is almost certain to be rejected — and rightly so.

Last month the Constitutional Court in the case of Benert v Absa Bank once again dealt with the issue of when a judge should recuse him or herself. In a judgment written by Chief Justice Sandile Ngcobo the Constitutional Court once again succinctly set out the legal position in South Africa on this issue:

It is, by now, axiomatic that a judicial officer who sits on a case in which he or she should not be sitting, because seen objectively, the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution.This case concerns the apprehension of bias. The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself or herself. The apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial.9 And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial. The test for recusal which this Court has adopted is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court.

This means that the mere fact that a judge has previously acted in a controversial manner — as Hlophe has done — is not in itself ever going to be relevant. The question is whether a reasonable person with all the facts at hand, a person not animated by the racial prejudices of your average British national (or journalist), will have a real apprehension that the judge will be biased because of what the judge had done or said either before or during the trial.

Now, personally I might not want to be tried before Hlophe JP because I have been rather critical of him and I might well have a reasonable apprehension — rightly or wrongly — that Hlophe would find it difficult to be completely impartial and unprejudiced in hearing my case. But Dewani does not have any similar history with Hlophe. Neither is there any direct link between the controversies in which Hlophe had been  involved in the past and the Dewani case.

No reasonable person with all the facts at hand would therefore be able to convince any court in South Africa – and indeed a court in any other reasonably functioning democracy — that there are any grounds for a reasonable apprehension of bias by Hlophe in the Dewani case. Hlophe has not made any utterances about the case and neither can any of his previous actions or utterances be linked in any way with the facts or the circumstances of the Dewani case.

Dewani is, of course, free to rush back to South Africa to stand trial and if he were to be tried by Hlophe he would have a right at any time to ask for the recusal of the judge if anything happens during his trial that gives rise to a reasonable apprehension of bias on the part of Judge President Hlophe. Dewani would similarly be entitled to ask for the recusal of any other judge allocated by Hlophe to hear the case — but only if there are real reasons for Dewani to fear that he would not receive a fair trial.

In effect, these arguments presented by Dewani and his spin doctors are less about legal issues than about an attempt to win the media war. I suspect Dewani and his spin doctor Max Clifford has decided to try and create sympathy for Dewani by playing into fears and prejudices of the UK public about whether an Englishman could ever get a fair trial in “deepest and darkest Africa”. IF I was a member of the UK public I would be rather sceptical about this transparent move to tap into the racial prejudices of the  public or the erstwhile colonial master and would ask: if Dewani is innocent — as he claims — why is he not rushing to South Africa to clear his name?

There is no right to be presumed innocent

In South Africa there seems to be one set of rules for politicians and another set of rules for the rest of us. How else to explain the statement of Public Services and Administration Minister, Richard Baloyi, that there is a growing chance the government will change the law to stop the practice of suspending officials on full pay for long periods when they are charged with misconduct or corruption?

You need to look at the provision for the suspension with pay as it is now. You might want to agree that before you suspend a person a preliminary kind of investigation is carried out. We need to assess the prima facie case. So you look at the merit of that … when does it merit suspension, what is the seriousness of this case.

Yet, when a politician is charged with corruption — after an investigation and after the NPA had concluded that there was a prima facie case against the politician that needed to be answered — nothing happens to that politician and we are told that we have a duty to assume that the politician is as clean and honest as Archbishop Desmond Tutu.

Take the case of John Block, ANC Northern Cape chairman and finance MEC. After his arrest, ANC secretary-general Gwede Mantashe said the party will not ask Mr Block to step down from his party position for the duration of his criminal trial. He further said it was the prerogative of Northern Cape Premier Hazel Jenkins to act in regard to Mr Block’s position in that province’s cabinet. Ms Jenkins has announced that she is fully behind Mr Block and will not suspend or fire him.

The reason given for this cowardly lack of action by both the ANC and the Premier against Mr Block was that he had a right to be presumed innocent until proven guilty and that it would be unfair to suspend or fire him. Yet every day officials are suspended (at the moment still on full pay) even though they had not been found guilty of committing any crime or breaching any rules.

In any case, it is utter nonsense to claim that a person has a general right to be presumed innocent until found guilty by a court of law. Section 35(3) of the Bill of Rights states that:

Every accused person has a right to a fair trial, which includes the right… (h) to be presumed innocent, to remain silent, and not to testify during the proceedings.

This means that every individual has a right to be presumed innocent by the court. This is part of an accused persons fair trial rights. A magistrate or judge who hears the case cannot assume that an accused is guilty merely because he or she is being prosecuted by the state.

This section does not bind those of us who are not going to decide on the ultimate guilt or innocence of an accused. It might, of course, be irresponsible for any of us to conclude that someone is a crook merely because he or she has been charged by the state. Although we might point out that there is a prima facie case against the accused (otherwise he would never have been charged), it might be morally wrong to assume the person is guilty, especially if we are not familiar with the evidence on which the decision to charge the accused was based.

It might also be risky to state that someone is a crook before he or she has been convicted because if that person turns out to be innocent or if the person is acquitted on a technicality, that person might be able to sue us for defamation if we had called him or her a crook.

But where we are familiar with the evidence (say, because the evidence was ventilated in another court case), and where we are brave enough to take the risk of being slapped with a defamation suit, we have every right to call someone a crook – even when that person has not yet been convicted of a crime.

The fact remains, where a person has been charged, the NPA is saying that there is a prima facie case against that person and that there is a strong suspicion that the person is a crook. Only the presiding judge will however be able to conclude whether the evidence show beyond reasonable doubt that the person is indeed a crook.

But as the Constitutional Court pointed out in the Sandersen case, where a person has been charged with commiting a criminal offense, that person has inevitably been tainted and a dark cloud hangs over that individual’s head. This is one of the unfortunate effects of being charged with a criminal offense. Even if one is eventually acquitted, a degree of suffering would have ensued.  In any event, a strong suspicion will linger that the person is a criminal and that is why charging a person can be such a grave thing to do.

Only a judge can remove that dark cloud by acquitting the accused. This is of course the problem with our President who took money from a convicted crook and did favours for that crook and was eventually charged with corruption. As he was never acquitted, we will never know whether President Zuma had the intention to be corrupt when he took money form that crook and did favours for that crook. We will always wonder whether our President was a crook himself or not. We will have every right to wonder about it and our President does not have the right not to have us wonder about his possible crookedness or not.

Section 35(3)(h) of the Bill of Rights cannot miraculously wipe out such serious suspicions against any politician (or anyone else, for that matter), whether it is John Block, Jacob Zuma or Masizole Mnqasela, a senior Member of Parliament for the Democratic Alliance (DA) charged with rape. In the interest of open and accountable government, such politicians have a duty to step aside until such time as they are either convicted or acquitted by a court of law who — unlike us ordinary folks — have a duty to presume that these politicians are innocent until the state has convinced the court that they are not.

This is the principle that applies to public officials who are suspended from their jobs. Why does the same principle not apply to politicians? Well, the answer is probably that politicians are the one’s who make and apply the rules and they therefore make and apply the rules so as to give themselves a special status and to claim for themselves a special “right” which does not exist in our Constitution.

Mr Block is the MEC for Finance in the Northern Cape, for goodness sake. He is in charge of the Province finances. The NPA claims that it has sufficient evidence to convict him of serious crimes of dishonesty. How can us ordinary people trust this man to deal with the Finances of the Northern Cape in an honest manner when such a dark cloud hangs over his head? The answer is we can’t and we have no duty to suspend all judgment until such time as a court either confirms the suspicion which have been created that Mr Block is a crook or clears his name.

He should step aside forthwith — along with all the other politicians who have been charged with a crime but have not yet been convicted or acquitted.

Bad day for journalists and politicians

I was one of the many people who welcomed the “election” of Ebrahim Rasool as Premier of the Western Cape back in 2004. After suffering under the ineffectual leadership of that Charles Bronson lookalike Gerald Morkel; the unspeakable windbag Peter Marais; and the arch opportunist and apartheid era Military Intelligence operative Marthinus van Schalkwyk (now ironically a Minister in the ANC cabinet !), the Western Cape finally seemed to have an honest and caring Premier who campaigned to make the Province “a home for all”.

Boy, was I duped or what?

Yesterday it was reported that Ashley Smith, a reporter for the Cape Argus until April 2006, “came clean” in an affidavit submitted to the National Prosecuting Authority, alleging that he had been bribed by Rasool. Smith claimed under oath that he and then political editor of the Cape Argus Joseph Aranes used their positions as full-time staff members on the Cape Argus to assist Rasool’s campaign against political rivals, and that they received money from a public relations company that obtained provincial government contracts handed out by Rasool’s office without using the tender route.

Rasool, who is supposed to take up the position as South Africa’s Ambassador in Washington, issued a tepid denial of these allegations, saying that the allegations are old hat and had been dealt with before. But Smiths allegations are backed up by Rasools enemies in the ANC who have made similar allegations against Rasool in the past.

If the allegations are true, Smith, Aranes and Rasool could all face conviction for corruption in terms of the excellent Prevention and Combatting of Corrupt Activities Act 12 of 2004. If convicted, they could face heavy sentences, as the High Court is empowered by the Act to impose a sentence of up to life imprisonment for contraventions of the relevant sections of the Act.

Section 3 of the Act – which creates the general crime of corruption – is rather broad and has two components.

First, it targets any person who gives or accepts “directly or indirectly” a “gratification”, which is defined as including any money, gift, contract, benefit, position, employment or service. If it can be proven that Rasool had arranged for the PR company to receive contracts from the Premiers office (as alleged by Smith), this would satisfy the first part of the test for corruption as not only direct payments or benefits are targeted. Where a front company is used to channel the payment of money or the rewarding of contracts (as is alleged in this case), that will still fall squarely within the definition of corruption set out in section 3 of the Act.

Second, the “gratification” had to be given or received with the intention to achieve any number of specific goals. Where a gratification is given or received with the understanding that the person who received it would act in an illegal, dishonest, unauthorised, incomplete, or biased way, or that would amount to an abuse of a position of authority or that would amount to any other unauthorised or improper inducement to do or not to do anything, the parties will be guilty of corruption.

If the allegations by Smith are proven to be true, this second requirement would also clearly be met as the journalists would have acted in a dishonest, unauthorized, biased and improper manner by writing bad things about Rasools enemies within the ANC and good things about Rasool while they were supposed to report fairly and honestly about politics in the Western Cape.

Section 24 of the Act further makes it easier for the state to prove its case. As long as it can prove that a “gratification” was given or received, it could be assumed that this was given or received with the intention to corrupt – unless the accused can produce evidence that raises reasonable doubt about this link.

A prosecutor would therefore have to show that the PR company did indeed receive contracts from Rasool’s office and that the journalists did indeed write stories favorable to Rasool and detrimental to his enemies in the ANC. Once this has been done, Rasool and the journalists would have to provide evidence that cast reasonable doubt on the link between these two events.

Two issues arise. First, given the fact that these explosive allegations have now been made under oath, will the police and the prosecuting authority investigate the matter properly and will they bring charges against Rasool and the journalists – despite the fact that Rasool is a well-connected member of the ANC and Ambassador designate to Washington? Or will Menzi Simelane strike again and make sure that these rather troubling allegations go away?

Second, can Rasool plausibly take up his position as Ambassador to Washington with these very serious charges of corruption hanging over his head? Rasool has, of course, not been convicted of any crime. Perhaps these allegations are all part of a dark plot by his enemies. But it seems to me untenable that he could properly represent South Africa in the USA while this dark cloud hangs over his head.

Surely the best way to deal with these allegations would be to investigate them properly and – if they seem plausible – to prosecute Rasool and the journalists who will then either be convicted or have their names cleared by the court. If Rasool is innocent, he might also want to explore the possibility of suing the Cape Argus and Smith for defamation in order to clear his name.

In the absence of such steps, Rasool would clearly not be fit to become the South African Ambassador in Washington. If President Zuma is serious about corruption he will have to withdraw the appointment until the matter has been cleared up. Any bets on whether this will happen? I guess it will depend on internal ANC politics, rather than on whether the President is committed to stamping out corruption or not.

On torture and human dignity

As many “enemy combatants” (a non-legal term if ever there was one) imprisoned by USA forces will tell you (if they were ever released from indefinite detention without trial), torture is probably the worst infringement of one’s right to bodily integrity as well as one’s right to human dignity.

The mental image of naked man shivering on the bare cement floor of a water-drenched cell with a black bag over his head being water-boarded while CIA or Military Intelligence operatives try to force him to make confessions about things he had never done and knew nothing about, serves as a reminder of why the protection of human rights is so vital for the establishment of a humane world. 

In fact the ban on torture is one of the few international human rights norms that has acquired the status of a rule of customary international law that can be enforced against any country – regardless of whether that country has signed and ratified any of the human rights treaties.

In the light of the above, I was rather shocked to read that six detectives from the elite crime-fighting unit – the Hawks – have been arrested for torture. You will all recall that the Hawks have replaced the Scorpions, which was disbanded after some ANC members at Polokwane expressed concern about the ability of the Scorpions to investigate and arrest ANC members for corruption.

Weekend Argus report says the men – who have been dubbed ‘the untouchables’ – have appeared in the Klerksdorp Magistrate’s Court, charged with serious assault. Captain Tsietsi Mano, Captain Ishmael Taung, Warrant-Officer Petros Tshiponyane, Sergeant Samuel Kutumela, Constable Godfrey Pebane and Constable Lucas Mosala were released on R500 bail each. They are alleged to have used apartheid-style torture methods on a group of bank robbery suspects. All are members of the Klerksdorp Organised Crime Unit.

Now it might of course be that these Hawks are innocent, that they have never tortured anyone and that they are merely the victims of a conspiracy by the Dark Lord Sauron or some other dark forces in the media or counter-revolutionary judges who get together late at night dressed up in chicken suits to conspire against the poor innocent ANC members driving around in million Rand cars, wearing R250 000 Breitling watches and living in R15 million mansions. I am sure the truth will emerge at their trial – if a trial is ever held.

What concerns me is that so far no politician (from any political party) has expressed concerns about the fact that members of our elite crime fighting unit have been charged with torturing suspects. As Jacob Zuma and his supporters kept on reminding us during his long battle to ensure that he never had to answer corruption charges in court and never had to be Jackie Selebi’d under cross-examination, suspects are innocent until proven guilty by a court of law.

But although these suspects must be considered innocent until proven guilty, members of the Hawks are alleged to have tortured them. God only knows what physical and mental pain might have been inflicted on these suspects. One can only look on in horror at the deathly and hypocritical silence on the part of ANC leaders about this turn of events. Imagine the Scorpions had been charged with torturing Jacob Zuma after his arrest – just imagine the outcry! 

Now, at the time when the Scorpions were killed off, many supporters of President Jacob Zuma – some of them senior leaders in the ANC – argued that the Scorpions had gotten out of hand. They pointed to the “Hollywood-style” raids on the premises of Zuma and his lawyer and the alleged leaking of information to the media which, so they claimed, infringed on the human dignity of Zuma and other high profile ANC leaders.

This concern for the human dignity of Zuma and other ANC leaders might have been touching if it was not so hypocritical and so bereft of principle. It was based on the anti-Rule of Law notion that “some animals are more equal than others” and that ANC leaders have a more urgent claim on the right to dignity than anyone else. (Some would say it illustrated the widely held belief in the ANC that its leaders are mostly above the law.)

The silence on the part of ANC politicians about the allegations of torture against the Hawks is also telling. It suggests that if a unit targets ANC members and use “Hollywood-style tactics” (which, the last time I checked, did not constitute a human rights abuse – unlike pulling out somebodies finger nails or burning their genitals with a blow torch) that unit will be disbanded. But if members of a unit are charged with committing serious acts of torture on individuals who happen “only” to be common garden variety criminal suspects and not ANC Kebbilists and tenderpreneurs, then that unit will be left alone.

So as long as the Hawks stay far away from cases of corruption involving any ANC politician, its members will be safe. There will be no grumbling of “Hollywood-style raids” and no one will say a word about any Hawks being convicted of torture and how terrible that is for the protection of the human dignity of anybody. 

I might be wrong, of course. Maybe as I write ANC leaders are preparing a policy document on the disbanding of the Hawks to be tabled at the General Council later this year. Maybe there are some principled people who think that torturing someone is a bit more serious than indulging in “Hollywood-style raids” and “humiliating” politicians by leaking information about their nefarious activities to the press.

Then again, maybe not.

After all, criminal suspects who are destined for high office in the ANC are “innocent until proven guilty” (even when someone else had been convicted of bribing them and we all know they took money from that crook and then did favours for that crook in return). Those “special” suspects also have a human dignity more exulted than even that of Princess Lindiwe Sisulu. But if you are not a blue blood, politically connected, Julius Malema-loving, tenderpreneur, then you can be tortured because you are just a criminal, scum of the earth, and someone whom the police is invited to shoot and kill. You are a bastard (or is that “a bloody agent”?) and you need to pay for your alleged crimes even long before you are ever convicted by a court of law.

The double standard in all of this is of course breathtaking. (It is even more hypocritical than Helen Zille claiming that allegations of sexual harrasment against Lennit Max was a private affair while Jacob Zuma’s sex life was a matter for public consumption). It emanates from people who have lost any sense of morality and who believe that power is its own morality, that those in power have a divine right to rule and that “ordinary” criminal suspects without connections to the rulers have no rights at all.

Be afraid, be very afraid

So, imagine you are driving home late at night in your BMW. You hear a screeching of tyres and see two overweight men pointing their guns at your head. You panic and – as if you are now sitting behind the wheel of one of those malfunctioning Toyota’s – your car accelerates. Bam! Bam! In two minutes you are as dead as Brett Kebble – but not from “assisted suicide”.

The police who shot and killed you will never be prosecuted – at least not if the new Draft Bill aimed at amending section 49(2) of the Criminal Procedure Act is passed by Parliament. The police officers in their unmarked car will say that your BMW (or one that looks just like yours) was used as getaway car in an armed robbery and they were trying to arrest you – and that will be the end of the matter. Your wife, husband,  or children will have to learn to live without you – albeit in fear of also being shot and killed by the police at a later stage.

So much for your right to life and bodily integrity and the right (so often invoked by President Jacob Zuma) to be presumed innocent until proven guilty. Those rights are obviously reserved for politicians driving in blue light convoys, with their thuggish bodyguards carrying black bags to hood enemies of the state. According to the Minister of Police, ordinary citizens do not enjoy those rights because, who knows, they might just be criminals.

The Draft Bill contains two important proposed changes which will make it far easier for the police to shoot and kill people without having to think too hard about whether this is reasonable or necessary.

First, the prosed amendments to section 49(2)(a) would allow the police to kill a suspect in order to protect themselves or the public from serious bodily harm – even when it might not have been immediately necessary to do so. In other words, as long it would have been necessary at some point before or during the arrest to kill the suspect to protect anyone from serious bodily harm, the killing would be lawful.

The police would also be able to kill a suspect not only when it is necessary to protect someone’s life or to protect someone from grievous bodily harm, but now also when it would have been necessary to protect someone from “serious bodily harm”. However, it is not clear what the difference between “grievous bodily harm” and “serious bodily harm” might be (except perhaps that the former is more difficult to spell and pronounce).

Second, the amendment to section 49(2)(b) would also allow the police to kill anyone who is reasonably suspected of having committed a crime involving the possibility of seriously harming anyone if they believe there was no other way of arresting the suspect “at that time or later”. So, if a police officer has reason to believe you have been involved in a serious assault on anyone, or you have been involved in an armed robbery and there are no other reasonable means to arrest you on the spot (as opposed to going to your house later and arresting you there), they can kill you right there, finish and klaar.

These amendments attempt to simplify the circumstances under which the police can shoot and kill suspects. They would also make it far easier for the police lawfully to kill suspects during an arrest. It tries to circumvent the problem of a lack of police training, by minimizing the requirement for  split-second decision-making by police officers making the arrest. Officers will not have to decide whether killing the suspect is immediately necessary and will also not have to decide whether there is a substantial risk that the suspect would cause imminent serious harm to anyone.

As long as the suspect was reasonably suspected of having committed a crime involving the threatening of serious bodily harm and as long as it was necessary to kill the suspect in order to effect the arrest of the suspect on the spots (say, because the suspect decides not to stop when ordered to do so), the police can shoot first and ask questions later.

The amendments are not only illogical but clearly also unconstitutional. Maybe I am missing something, but it does not seem logical for the law to state that the police can kill a suspect “if there are no other reasonable means of carrying out the arrest”. If they have killed the suspect, they would not be able to arrest him or her as one cannot arrest a dead person. The proposed amendments to section 49(2)(b) must therefore be read to mean that the police need not worry about whether it would be possible to arrest certain suspect at a later date. They would be able to kill the suspect on the spot if it would not be possible to arrest him or her right there and then.

Scary stuff.

The amendments are most probably also unconstitutional. As I have explained before, in the Walters case, Kriegler J set out in admirably clear language what the Bill of Rights require from any such section, and I quote:

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

The proposed amendments would not require the police officer to take into account “all the circumstances” before deciding whether it would be reasonable and necessary to shoot and even kill a suspect. However, this is exactly what the Constitution requires. The amendments would tilt the scales in favor of extra-judicial police killings (a bit like the Vlakplaas hit squads but this time sanctioned by law) and will not pass constitutional muster.

The drafters of the Bill obviously failed to distinguish between cases where it would be permissible to shoot and injure a suspect in order to effect an arrest and cases where it would be permissible to shoot and kill that suspect. The Constitutional Court has made it clear that the latter would only be lawful in limited circumstances and that only the least degree of force to carry out the arrest  would be allowed.

By repeating the wording of point (h) above out of context, the drafters probably thought that the amendments would pass constitutional muster. But they failed to take into account the rest of Kriegler’s summary and have not realized that it does not give the police a blank cheque to shoot and kill suspects merely because they are reasonably suspected of committing a crime that threatened serious bodily injury.

The Constitution requires police officers to decide in each case what degree of force is reasonable and necessary to effect an arrest. The proposed amendments wants to do away with the necessity for officers to make this judgment call. This makes the amendments unconstitutional.

If we start killing our own people we all lose

Politicians seldom admit to the existence of, or even embrace, complexity. Admitting that problems are complex (whether one is in government or sitting on the opposition benches) confuses people and can create a perception of indecision or even weakness (just ask Public Enterprises Minister, Barbara Hogan), so politicians often opt for easy sound bites (Julius, are you there?) and quick fix solutions.

They believe the public is stupid and will think the politicians are doing something about a problem when they announce a new initiative or an amendment to the law – even when the quick fix is going to change nothing or make things worse.

But surely voters are not stupid. (Well, some are suspiciously daft – More than one percent of voters did vote for the African Christian Democratic Party in April, but maybe they were so blinded by their hatred for homosexuals that they could not think straight.) That is why quick fix solutions will often backfire and at some point voters will turn against the politicians who have sold them a dud policy or programme or have promised them the world and delivered nothing.

Sadly, Fikile Mbalula, the Deputy Minister of Police, has not learnt this lesson. Yesterday he took time out from fighting with his Minister to tell us a lot of shocking nonsense, trying to convince us, as my grandmother would have said dat perdedrolle eintlik vye is (that horse turds are actually ripe figs).  

Firstly, defending plans to give officers greater licence to use lethal force, he said that it was unavoidable that innocent civilians will get shot in the crossfire between police and criminals. “In the course of any duty the innocent will be victimised,” Mbalula told reporters in Parliament. “In this particular situation where you are caught in combat with criminals, innocent people are going to die not deliberately but in the exchange of fire. They are going to be caught on the wrong side, not deliberately but unavoidably.”

Well, tough luck then. Those of us who are not important enough to be protected by VIP cops (at a staggering cost of R300 000 a month to us taxpayers), will just have to take our chances then. Instead of dodging criminals, we will now have to dodge both criminals and trigger happy police officers. We will also have to fork out millions to pay for all the civil claims from the family members of all the innocent civilians unlawfully executed by the police.

Second, Mbalula also said the promised amendments to section 49 of the Criminal Procedure Act would be tabled in Parliament next year, but would not amount to an overhaul of the act. In essence, lawmakers would change the act “in terms of emphasis on the word ‘necessary’” to remove ambiguity in the law, the deputy minister said. He gave no further details.

Section 49 states that if someone suspected to have committed a serious or violent crime resists arrest, the police may “use such force as may in the circumstances be reasonably necessary to overcome the resistance or prevent the person concerned from fleeing”. 

There does not seem to be any ambiguity there, but some have suggested that the Minister plans to change the law in such a way that individual police officers will not easily be held accountable when they shoot and kill civilians. Talk is that the amendment will aim to limit the necessity of individual police officers to use their discretion when they start shooting. There will be a rule that can be mechanically applied and as long as the police officer sticks to the rule everything will be fine – even if a few hundred civilians are murdered in the process.

The problem is that the Ministry cannot easily broaden the scope of section 49(2) in this manner as the exercise of a discretion is inherently required by our Constitution. In the Walters case, Kriegler J set out in admirably clear language what the Bill of Rights require from any such section, and I quote:

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

The problem for the police (and for the Minister) seems to be that this approach requires police officers to do that rather difficult think, namely to think and to use judgement in stressful situations where the wrong decision could have fatal consequences. The ethos of a human rights culture – as the Kriegler judgment makes clear – will always require police officers to exercise a discretion, as it requires them to weigh various factors and make  a decision (in a split second) about whether it is allowed to shoot and kill a person believed to be a suspect.

No matter how the Ministry tweaks the word “necessary”, it will not be able to remove this burden from police officers without changing the Constitution. The suggestions by the Ministry that it would be able to change the wording of section 49(2) to “clarify” section 49(2) and to provide clear rules not requiring the exercise of a discretion, is just plane daft.

The way to help the Police is NOT to change section 49(2) – which will give police officers a false sense of security and will lead to more Police Officers being charged with murder or culpable homicide – but rather to train police officers. A police captain was quoted in the paper this week as saying that you cannot teach police officers how to exercise this discretion and that it is all about having the right instincts. Bollocks.

In the same way that one can train a rugby team to improve its attacking and defensive abilities, one can train police officers to help them make better judgements in cases where they find themselves in stressful and potentially dangerous situations. This kind of training should include both a theoretical and a practical component. Police officers must actually be trained to understand what the law requires (not very difficult, but obviously something that bamboozle many in the police force as well as in the Ministry). Then they must be trained to sharpen their skills to apply the law in practical situations.

This kind of training, of course, requires, human and financial resources and may take time. It is a complex issue.  So, instead of doing something that will be difficult but will really make a difference, the Ministry wants to change the law. In the end this will not help us or the police. We will all become more frightened of the police while police officers themselves will wrongly think they can now act like cowboys – until they find themselves in the dock for murder.