As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Section 35(5) of the Constitution states that “evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”. This provision was included in the Bill of Rights to ensure the effective but fair prosecution of criminals while protecting the rights of the individual at the same time.
In a country like South Africa with a less than perfect criminal justice system, any rule that would automatically exclude evidence that were obtained in a manner that violates a right in the Bill of Rights would probably have sabotaged the criminal justice system. Such a rule would not have made any difference to the protections of the rights of thousands of poor and uneducated accused that are unrepresented or represented by inexperienced or bad lawyers. It would have greatly assisted rich people with money to pay for the best lawyers in town.
That is why this section is so important: it balances the rights of the accused to a fair trial on the one hand, against the rights of the state and of society to have crimes effectively prosecuted on the other, by eschewing an overtly formalistic approach to the exclusion of illegally obtained evidence. The Constitutional Court today affirmed the importance of this provision and found that as a general rule this provision should not be allowed to be circumvented by accused persons (such as Mr. Zuma) with deep pockets and an interest in delaying the commencement of a trial by allowing them to challenge the lawfulness of the way evidence was obtained even before the trial starts.
As Chief Justice Langa rightly points out today:
I nevertheless do agree with the prosecution that this Court should discourage preliminary litigation that appears to have no purpose other than to circumvent the application of section 35(5). Allowing such litigation will often place prosecutors between a rock and a hard place. They must, on the one hand, resist preliminary challenges to their investigations and to the institution of proceedings against accused persons; on the other hand, they are simultaneously obliged to ensure the prompt commencement of trials. Generally disallowing such litigation would ensure that the trial court decides the pertinent issues, which it is best placed to do, and would ensure that trials start sooner rather than later. There can be no absolute rule in this regard, however.
This seems to me an implicit rebuke of the Stalingrad legal strategy employed by Mr Zuma’s lawyers and hints that Mr Zuma and his lawyers have only themselves to blame for the long delays in the commencement of his trial. Why could they not have challenged the admissibility of the evidence obtained during the raids once the trial commence? Obviously the answer is that they had an interest in making sure the trial does not commence until the election. They have in effect abused the Constitution to achieve this goal and were reprimanded by the Constitutional Court for doing so.
But one must remember that this case is not only about Mr. Zuma and should not only be read as a judgment for or against Zuma. It is also a case that deals with the very difficult issue of how to balance the rights of the individual accused to a fair trial, against the interest of the state and society to have crimes prosecuted succesfully.
The judgment – like the Constitution itself – seems to strike a sensible and pragmatic balance between these two interests. This judgment is therefore a transformative, pro-poor judgment. While it will help to prevent rich and powerful people from abusing the rights system to delay and eventually derail their prosecution, it will also assist an accused person who may suffer real (as opposed to imagined or manufactured) prejudice to his or her right to a fair trial.
If we take Mr Zuma out of the picture, it is a revolutionary – as opposed to a counter-revolutionary- judgment. Pity COSATU and the SACP will not view it in this way because they are too blinded by their loyalty to a flawed (but still innocent) man. Maybe Gwede Mantashe will now retract his statement that the judges of the Constitutional Court are counter-revolutionaries – unless, of course, Mr Mantashe’s revolution has nothing to do with the poor and everything to do with the protection of the rich and famous.BACK TO TOP