Constitutional Court, fair trial rights and the small matter of a Zuma trial

At the Polokwane conference the ANC decided that the Constitutional Court should become the highest court for all matters, thus replacing the Supreme Court of Appeal as the highest court for non-constitutional matters. I have argued before that this proposal is superfluous because the Constitution Court can already hear almost any matter if it so wishes.

Although the Constitutional Court only has the power to decide on “constitutional matters and issues connected with decisions on constitutional matters” they have the final say whether a matter is constitutional or connected with a constitutional matter. This gives the Court very wide powers to decide almost any case if it so wishes.

Yesterday the Court handed down judgment in the case of Molimi v S and illustrated again how wide their powers are. This case dealt with the question of whether statements made by two co-accused in an armed robbery case was admissible against Mr Molimi.

Don’t ask, but in terms of the arcane rules of criminal law a “confession” by one accused cannot be admitted as evidence against another accused, while an “admission” may be used against another accused in certain circumstances. (There is a neat distinction between a confession and an admission but as I am not a Criminal lawyer I will not try to explain that.) The Supreme Court of Appeal had found that a statement made by the one of the accused was an admissions, but the Constitutional Court disagreed with this, saying that it was a confessions. It therefore precluded this confession from being used to prove the guilt of Mr Mosimi.

The Court also found that statement made by another co-accused was an admission and then considered whether it could be accepted as hearsay evidence. The Court was therefore confronted with the task of dealing with an important aspect of the criminal law on the admissibility of hearsay evidence in terms of section 3 of the Law of Evidence Act of1988.

This the court could do (despite being a Constitutional Court and not a final court on criminal law matters) because it could argue that it was necessary to interpret section 3 of the Act in conformity with the fair trial rights in section 35 of the Constitution. It ruled that the SCA had paid insufficient regard to the applicant’s fair trial rights and did not ensure that he knew what the evidence against him was at the end of the state’s case or that inadmissible evidence was left out of account at that stage.

What was required was for the trial judge to make a ruling on the admissibility of the hearsay evidence early on in the trial so as to give the defense a chance to deal with such evidence. This did not happen in this case, so the Court therefore found that the confessions was wrongly admitted as evidence against Mr Molimi and that he could not be convicted on the strength of the other circumstantial evidence alone.

It is interesting to read this judgment (well, at least for me) because the Court confirmed once again that one should not be formalistic in interpreting legislation that safeguards the fair trial rights of an accused. Instead one should look at the matter substantively and ask: will the right to a fair trial of an accused be affected by the conduct of the state or by the conduct of the presiding judge. One must ask whether there was real prejudice or real likelihood of prejudice against the accused.

This general approach would be of interest, of course, in any application brought by Mr Jacob Zuma to have his trial quashed even before it starts. It suggests the Constitutional Court at least will not be overtly formalistic but will ask whether in the specific South African context one could say that Mr Zuma had really suffered from an unfair process to such a degree that his trial would likely be unfair.

At the same time one has to remember the judgment in the Wouter Basson case in which the Constitutional Court confirmed that it has extraordinary trust in judges to “do the right thing” and that it will not be quick to say that an accused had not had a fair trial as long as there really was – on the facts – no clear indication that the accused had suffered some unfairness.

The Court will most likely assume that a judge will not be affected by the news reports of the past seven years or any of the other actions around Mr Zuma and will poresume that a judge will be able to provide Mr Zuma with a platform for a fair trial – given the safeguards in section 35 of the Constitution.

This might suggest that Mr Zuma’s lawyers will have an uphill battle with any application for a mistrial – although they might have some success in keeping some evidence out of court if that evidence was produced in a way that unfairly disadvantaged the accused. Mr Zuma may therefore find himself winning several battles in his war with the NPA, but may well, in the end, lose the war.

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