Constitutional Hill

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.

  • abidam

    There seems to be not enough honest people in government that can get rid of the bad apples; by allowing the corrupt to stay on loyalty is assured. The first clear indication of this practice was when it was “business as usual” after travelgate.

  • spoiler

    To admit you are wrong is to admit you may be guilty is perhaps the reasoning behind this sad behaviour. That and the ANC culture of supporting their own no matter what they do. Wonder what will happen if Block is convicted – shoulder high to prison and further denouncement of the justice system?

  • Signal Hill

    Pierre, could you please try make sense of what is going on with the Jules High case and Simelane’s decision to charge the rape complainant?

    Let’s say she did indeed consent (and I hope they have unequivocal evidence in this regard), since when do we prosecute minors having sex?

    Can you think of even one case in which minors have been charged for consensual sex?
    Goodness gracious! 80 percent of our high school learners would probably be in court if that were the case.

  • Signal Hill

    I see on SAPA she admitted to consensual sex… Eish. Where to start?

  • Chris

    Politicians find it hard to understand that to presumed innocent does not mean that you are indeed innocent. A person is guilty the moment he commits the crime, not when convicted. The conviction just confirms his guilt.

    Signal Hill says:
    November 18, 2010 at 12:09 pm
    As far as the Jules-case goes, that would be an interesting one. There are of course the rules of evidence – the girl allegedly admitted consensual sex. Was that an admission or part of a cofession. To whom was it made, it will it be allowed as evidence against her? An admission is allowed as evidence only if it is made freely and voluntarily. Was this the case? A confession made to a non commisioned police officer is only allowed as evidence in certain exceptional cases. Remember Aliotti’s highly self incriminating admissions made during his bail application, and then during the trail the judge disallowed that evidence on a technical ground. This could be an interesting one. Or perhaps a very straight forward case. The trail will be held in camera, perhaps we will never know.

  • Peter L

    @Pierre
    Excellent article, Pierre.

    I would like to expand a bit on your piece, using the companies act as an analogy.

    The position of Company Directors vis a vis the organsiation compared to a normal employee can be likened to Politicians in government compared to normal civil servants.

    The companies act places a much higher requirement of acting in good faith, diligence, honesty and with integrity on Directors that it does on ordinary employees.

    In exactly the same vein, Politicians should be subjected to a MUCH HIGHER standard of honesty, integrity and probity than ordinary civil servants – especially MEC’s and senior Politicians (the political equivalent of Directors).

    @Signal Hill
    The Police and prosecuting authorities appear to possibly have made some serious blunders, and the current action seems like a PR / damage control exercise – ie they feel that they cannot do “nothing” now.

    Joining the dots – and this is pure sepculation – it appears as though this girl might have agreed to a bit of fun, then after the event realised what she had done for the whole world and her parents to see, and in an attempt to avoid censure, made the rape allegation.
    Surely the cellphone video recordings and eye witness accounts can provide much evidence and clues to what actually happened?

    Apparently, a quite common “game” played by schoolkids is to have sex in shopping mall toilets and record the evil deed on a cellphone.
    So next time you have to “go” whilst shopping, the straining and heaving noises emanating from the cubicle next door might not be quite what you think!

    When I was at school, a peck on the cheek behind the bike sheds was about the best I could hope for – eish!

  • Spuy

    Pierre

    Much as I understand where you are coming from on this issue. I believe it might not be in the interest of justice to, based on mere charging of a person and fact that the judge will be hearing the case not us ordinary people, make it a norm that the public can willy nilly make their own decisions on the guilt or otherwise of the accused. It is normally very difficult for people to change their minds on what they believe to be true. In fact, in a small town where I come from (Clocolan – Free State, some of you have never heard of it I know!) there was a 21 year old guy who was charged with rape and later acquited but to this day he is still seen as rapist by the general public. I know his case personally because he was visiting me here in Bloemfontein when the apparent rape happened. But as you and I know how poorly can our Police “Force” investigate cases AT TIMES, for some stupid incompetent reason they linked him to that crime. Luckly the Magistrate saw through this nonsense and acquited the young man but NOT the general Clocolan community. For me, this emphasised the importance of the presumption of innocence UNTIL PROVEN GUILTY rule.

    It is hence I respectfully disagree that the public “does not have a right to presume an accused innocent – only the presiding judge” as you say. We from time to time hear of stories of communities who would have burnt some old (black in complexion) lady to death on mere suspicion that she is a witch – this, simply because she is not pretty as other grannies in the community and therefore she has to be GUILTY of a crime of witchcraft – that is if witchcraft is a crime to start with, I happen to think its African Science :-)

    Seriously though Prof – that would erode the principle of natural justice.

    @Suninghill

    Did I not hear Adv Mthunzi Mhanga (what a difficult to pronouce surname), NPA spokesperson, to be saying that the NDPP, Adv Menzi Simelane, made this decision of charging these minors with the girl included with statutory rape having regard to the new Children’s (or Child) Act or something?
    They also said there was no evidence of rape and thus concluded the sex (in full view of other leaners) was consensual and therefore could only profer statutory rape charges to the trio.

  • Ricky

    It seems to be recurring problem for ANC that it does not understand that there is a difference between the obligations of the justice system (broadly speaking) and the rights of the individual vis-à-vis this system on the one hand, and the rights and obligations of every one else vis-à-vis accused or convicted persons.

    I remember when Winnie Mandela got fourth of fifth place on the ANC list for parliament and someone questioned whether a person with her convictions should have such prominent place on this list or indeed even be given a place on the ANC list (this is, of course, a very different question as to whether she could run at all based on her suspended sentence).

    When interviewed about this on the radio, a ANC spokesperson said that as Winnie Mandela had received her punishment, she was alloved to run for parliament (I am paraphrasing here – it is a long time ago). Yes, of course she could run for parliament, maybe on her own party list. But this does not give the ANC any obligation to put her on the list.

    Also when Zuma was chosen as head of the ANC, many said that he had been acquitted in the rape case and was still only accused in the corruption cases, so he should not be prevented from running for President. Well, most parties in the world would not want a person with such clouds hanging over him to run for anything. It might be unfair if he is later acquitted or the case is dropped but there is no inherent right for anyone to reach the Presicency or the Parliament.

  • Gwebecimele

    We all have the leaders we deserve and this also applies to the people of the Northern Cape. May be the ANC gave them John Block but they have every right to accept or reject him. They know his local activities and history. I have no doubt that when they start considering the pro’s and con’s of his leadership they will do the right thing and we will respect their choice and hold them to it.

    Courts are not always the best place to resolve political issues.

  • John-Michael

    The application of the prima facie construct is vulnerable to prosecutorial misconduct.

    I have been a following the Fred van der Vywer trial and its consequent civil action since 2005 and am appalled by the bias and monomaniacal persecution shown by the police during their “investigation” of the Lotz murder. It was a case, according to the Cape High Court, that should not have been brought to trial.

    Given the societal opprobrium that can be generated against an accused, a presumption of innocence prior to the trial seems to be justified in our present circumstances.

  • Anonymouse

    Spuy says:
    November 18, 2010 at 13:49 pm

    Spuy – “Did I not hear Adv Mthunzi Mhanga (what a difficult to pronouce surname)…”

    Yes, especially if in some languages that word would mean “shit”.

    Any way, Maggs take note (in the light of my earier remarks that Simelane had made a botch-up in the Block bail application), this is yet another indication that the NPA (especially the NDPP) of today, is not capable of making sound, legally tenable, decisions to prosecute. A few weeks ago, the newspapers were full of the incident where, in a school somewhere in one of the Cape Provinces, two learners had consensual sex, whose (very public) act on the school’s premises was filmed by a prefect, who then split on them (of course, after the video material had been circulated). In the end – the big culprit was the prefect. However, none of those children were charged with consensual sex with an underaged person. … Now, when a girl in circumstances, not very similar because, at least, there is evidence that she had been doped, cries ‘Rape!’, Simelane and his team says, “Bullshit! There is no proof that you did not consent. And, to teach you and everyone else a lesson because you involved the NPA in a request to prosecute, we will charge not only the two boys, but you also, with the full might of the Draconian laws at our disposal.”

    I think this is yet another indication that Simelane should not have been appointed by Zuma.

    Prof De Vos – as to the main article here – once again, a very good comment. When a person in the public domain is charged with a criminal offence, the proper thing would be for that person to step down (or made to step down by the leadership) until after both the criminal investigation and trial have been finalized. That would be the honourable thing to do. However, there are quite a few examples where this did not happen in RSA today: Selebi, Hlophe, that drunken Judge, and, might I ad, a few magistrates according to recent press reports, where, at the most, those people have been suspended (or, if you are a judge, put on leave) with full pay, much like the many offiials that Richard Baloyi was speaking about in the opinion that gave rise to this article. In the light hereof, I do not think that Baloyi has the political clout to get Parliament to agree with his way of thinking.

  • Spuy

    John-Michael

    Just because of your impressive big words – I honestly have to register with Unisa or something to do LLB. shoooooooo “monomaniacal” “approbrium” – great stuff seriously!

    Mouse
    :-)

  • thomas

    Anonymouse:

    Sex was consensual: Jules High girl
    Nov 18, 2010 2:29 PM | By Sapa

    ——————————————————————————–

    The 15-year-old Jules High School girl, who accused her schoolmates of gang-raping her, has said the sex was consensual.

    “The girl made her second brief appearance in the Magistrate’s Court on Thursday morning and admitted, for the first time, that she had consensual sex with the two boys aged 14 and 16,” the Independent Online reported.

    The three were charged with statutory rape by the national director of public prosecutions Advocate Menzi Simelane on Wednesday.

    Simelane is quoted as saying the prosecution team, based on evidence, could not prosecute the boys on the main count of rape and recommended statutory rape charges.

    During their first appearance in the Johannesburg Magistrate’s Court on Wednesday the boys admitted to their role in the consensual sex and the girl maintained that she had been raped.

    On Thursday morning during her second appearance the girl changed her mind and agreed that the sex was consensual, according to IOL.

    The two boys were arrested on November 8 after allegedly raping the girl at her school in Jeppestown on November 4. They allegedly filmed the incident on their cellphones which was later shown to prosecutors as evidence.

    Her case and the boys’ case have been postponed until December 1 for a final order, IOL said

    All three have been placed on a diversion programme.

  • John-Michael

    Spuy says:
    November 18, 2010 at 15:07 pm
    John-Michael…

    Thanks Spuy.

    Actually English graduate, Stellenbosch Univ. ;)

  • thomas

    Prof De Vos – as to the main article here – once again, a very good comment. When a person in the public domain is charged with a criminal offence, the proper thing would be for that person to step down (or made to step down by the leadership) until after both the criminal investigation and trial have been finalized. That would be the honourable thing to do. However, there are quite a few examples where this did not happen in RSA today: Selebi, Hlophe, that drunken Judge, and, might I ad, a few magistrates according to recent press reports, where, at the most, those people have been suspended (or, if you are a judge, put on leave) with full pay, much like the many offiials that Richard Baloyi was speaking about in the opinion that gave rise to this article. In the light hereof, I do not think that Baloyi has the political clout to get Parliament to agree with his way of thinking.

    —————————————————————————————————

    Should we not be saying the same thing for those in the private sector or are they immune. We have seen price fixing scandals and no CEO has resigned. Corporate governance rules are breached every day in South Africa but no one resigns even if they are accused of such.

  • Gwebecimele

    @ Thomas

    Vodacom CEO, Pioneer Foods etc

    Again in these cases the customers must vote with their feet.

  • Simphiwe Ngubane

    “Masizole Mnqasela, a senior Member of Parliament for the Democratic Alliance”

    Oh Pierre! This is one of the most junior of junior MPs you could find! He’s a deputy spokesman on some irrelevant committee, was just a councillor and became an MP last year.

    “Senior” member…

    Always exaggerating, Pierre.

  • Anonymouse

    thomas says:
    November 18, 2010 at 15:17 pm

    OK, the sex was consensual – but the specific Act has been passed not to prosecute and punish kids who have sex with each other – that is the parents’ and teachers’ business, to teach them morals and all that stuff, and to punish them appropriately if they would not listen – but the Act was passed to prosecute and punish adults who abuse the fact that children are not emotionally ripe enough to consent to sex, to take an informed decision about pregnancy etc. I still think it was a bad decision by Simelane to prosecute them in a criminal process (or at least to subject them to a criminal diversion programme).

  • Anonymouse

    thomas says:
    November 18, 2010 at 15:34 pm

    Yes I agree, private guys should be subject to the same principle – who is that ANC guy again who became Director of a number of companies after he was jailed for having lied to Parliament? Yengeni?

  • marco polo

    Very enlightening article. Alas, the principles outlined here are unhelpful in explaining the ANC’s decision regarding Mr Block or any other cadre who may be charged with corruption. It amused me no end to see pictures of the “lumpy proletariat” demonstrating their undying support for Mr Block outside the court house (shades of the JZ trial). Apparently, they took umbrage at the fact that Mr Block was being fingered while other people who had been less than honest were not. This highlights two aspects of typical South African mentality: (1) my leader, right or wrong; and (2) if everyone else is doing it, the person who happens to get caught should not be singled out.

  • Pierre De Vos

    From Wikipedia: Masizole Mnqasela is a South African politician, currently a Member of Parliament with the Democratic Alliance, and the Shadow Minister of Home Affairs.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Anonymouse says:
    November 18, 2010 at 14:38 pm

    Hey Mouse,

    “Any way, Maggs take note” – I am taking careful note. If Block gets sentenced you lose :).

    Otherwise – Pres Zuma, you lose.

    In the meanwhile there’s egg on some faces :

    Tshwaranang Legal Advocacy Centre spokesperson Lisa Vetten said it was dubious that the girl was also being charged. “It is a surprise charge. The girl was drugged before she was raped. She was not in a state to give consent. It is deeply concerning because the boys even recorded the incident. I don’t understand why they are charging her.”

    Regional psychological support initiative deputy director Lynette- Mudekunye said: “It doesn’t make sense. It was two against one. She was drugged before she was raped.

    How do they charge her with anything? We have a problem here.” Samantha Waterhouse of the University of the Western Cape’s community law centre said she was concerned that it seemed that the allegation of a date rape drug and the recording and distribution of the video were not being taken seriously.

    http://www.sowetanlive.co.za/news/2010/11/18/anger-over-charge-of-raped-girl

  • Maggs Naidu – maggsnaidu@hotmail.com

    Spuy says:
    November 18, 2010 at 15:07 pm

    Hey Spuy,

    It seems that Croninitis is highly contagious.

    :)

  • Maggs Naidu – maggsnaidu@hotmail.com

    Gwebecimele says:
    November 18, 2010 at 14:14 pm

    Hey Gwebs,

    “We all have the leaders we deserve”

    Sadly so.

    The best functioning government department is SARS.

    No effort is spared in making them super-efficient.

    That’s cos it (SARS) collects the money for the trough!

    Otherwise everyone with influence is presumed innocent until proven guilty. The guilty ones with influence are innocent too after paying the dues.

    Block is dispensable so he will go through the motions and maybe found guilty if so he deserves to go to jail. NC has less than a million people? KZN on the other hand has an MEC with the fingers in the same till – but nothing.

    Most of this as far as I can see is no more than an excuse for the more powerful to keep as much of the loot for themselves. Why should they share the kitty with lesser crooks?

  • Ricky

    Gwebecimele, you right that the people of the Northern Cape have the right to accept or reject John Block. Pray, how would that be? To my knowledge, the people do not vote for individuals for the provinces – or for MECs. So only ANC (or the Premier) can remove him.

    And then you right “Courts are not always the best place to resolve political issues.” – and what has this to do with the John Block case? Is it not simply about corruption? Or are you aware of some dark political conspiracy by the rented dog Simelane to get rid of mr Block for political reasons?

  • Clara

    “… Masizole Mnqasela, a senior Member of Parliament for the Democratic Alliance (DA) charged with rape”

    He “had a smirk on his face when January told Mohamed that the teenage girl and her friend had been to a braai at his home and had stayed the night” (iol news).

    A smirk! He’s guilty. All men are presumed guilty until proven innocent. Poor DA … beggars can’t be choosers …

  • sirjay jonson

    Prof: It is only my opinion but can we have a blog on education. After all, you are an educator.

    It goes without saying, education is ‘everything’. crossing all barriers, all inequalities, tribalism and cultural variables.

    I would like to draw attention to die boek: “Die Cambridge Wiskunde-woordeboek,” vir skole….

    Its all about maths, virtually a dictionary for mathematical concepts and precepts, a favorite of libraries, although beyond most students and library attendees. However there are rumors that it is ‘mostly’ about the new curriculum’, although in my mind it reaches to university mathematical levels.. and thus far beyond our beggared present system.

    Its mistake, although valuable for the information detailed, is not just in effectively explaining all the mathematical conceptions, but rather how they have arrived at the conclusion, as in a short formed detailed method to determine outcomes and correct answers; rather, it presents itself as a guide, as a dictionary or encyclopaedia exposition of mathematical logic.

    Anyone out there interested in making this a viable?… as in an easily understandable guide for youth, students, as a route to understanding and mastering maths, as in how you arrive through formula to accurate decisions?

  • Oupoot

    Thomas, just so you also know: Nearly half the board members of Pioneer Foods resigned (way back in March) within a week after the price fixing hit the headlines, including the chairman of the board. See Business day (http://www.businessday.co.za/articles/Content.aspx?id=104894) and Moneyweb (http://www.moneyweb.co.za/mw/view/mw/en/page292520?oid=477076&sn=2009+Detail&pid=294690) for more info.

  • Thomas

    In the SENS statement Blanckenberg said he was confident the new board members would make a positive contribution to the work the outgoing directors had done.

    “I believe now is the time for me to relinquish my position as chairman in favour of KK. I believe the new board is well positioned to lead Pioneer Foods…”, he said.

    I thank the outgoing board for this contribution and their dedication to grow the company. Without their efforts Pioneer Foods will not be a major player in the relevant industries it operates in today. I wish them well with their future endeavours.

    These statements suggest to me that the change was not because of the scandal, but that they were just changing the board. Or was the board being praised for facilitating in the robbing of consumers? What happened to their CEO by the way?

  • Spuy

    Maggs

    :-)

  • Ricky

    Am I the only one who find the power centered at Luthuli frightening? I just read some articles about the changing of Premier of the North-West Province. According to the M&G: “The current premier, the politically weak Maureen Modiselle, was appointed instead [of Thandi Modise], even though her name did not feature among the three recommended by the North West ANC to the party’s national leadership. The ANC’s national executive committee meeting at the weekend endorsed Modise’s deployment to lead the government of her home province.”

    The resolution of the stand-off between the Parliament’s defense committee and the Minister of Defense, a threatening letter on ill discipline by Luthuli House, showed the ultimate lack of independence of the ANC parliamentarians.

    Are there ANY decisions with the ANC structures that are not ultimately made by the national and centralised structures of the ANC, whether they refer to the state, the provinces or the municipalities? And where does that leave accountability and true participatory democracy?

    Now, I do not know if the other parties have the same systems in place – but it does not matter in the same way due to ANC’s near monopoly on power in SA.