Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
The contrast in tone and content of the majority and dissenting opinions in the Constitutional Court judgment in the Jacob Zuma and Thint cases handed down yesterday is stark. It provides a fascinating window into the two different approaches to the very difficult question of how to balance the rights of accused persons on the one hand, against the need of the state to successfully prosecute complicated crimes of dishonesty on the other.
To my mind the majority opinion – penned by Chief Justice Pius Langa – is based on the (probably reasonable) assumption that persons faced with fraud and corruption charges that carry a minimum 15 year sentence may well have a strong motive to try and hide or destroy evidence that might help the state to secure a conviction. In order to ensure the successful prosecution of fraud and corruption cases the state should therefore be given some leeway in obtaining evidence that might well otherwise be hidden or destroyed by the accused.
Thus Langa argues that the state should be allowed to carry out search and seizure operations to gather evidence – rather than less invasive procedures – whenever there is “an appreciable risk, to be judged objectively, that the state will not be able to obtain the evidence by following a less invasive route”. This would not require the state to prove that less invasive means will not produce the document, something, the majority argues, which may be well nigh impossible to do.
Justice Sandile Ngcobo takes a different view. He argues that the state must show that it is not likely to succeed in obtaining the evidence without a search warrant. This is a much higher standard as it requires the state to show that there are no other ways of obtaining the evidence. If there are other ways of obtaining the evidence that may succeed, the state should first pursue this. In this view, the state can only obtain search and seizure warrants if they produce detailed evidence to the judge issuing the warrants that the accused has not co-operated with the state or is likely to hide or destroy evidence sought by the state.
Chief Justice Langa, on the other hand, argues that in making a decision in this regard it is not necessary for the state to provide exhaustive information to the judge to justify this invasive procedure as this would make it almost impossible to obtain search and seizure warrants.
In the case of Mr Zuma, for example, justice Langa argues that it is sufficient for the state to show that its fears about the destruction of evidence are reasonable. Thus:
[T]he crimes of which Mr Shaik had been convicted, and in which Mr Zuma and Thint have been implicated, involve pre-meditation and dishonesty. These factors must be taken into consideration. They do not engender confidence that those involved would respond honestly to a subpoena. Accordingly, the state could not assume with confidence that the applicants would be fully truthful and honest in response to a section 28 summons. There was at the very least an appreciable risk that they might not be.
There is also reason to believe that the full, voluntary co-operation of Mr Zuma may not have been forthcoming. Early in the investigation, he denied attending a crucial meeting during March 2000, a meeting which was evidenced by the encrypted fax and also by Mr Thétard’s 2000 diary. According to the judgment in the trial of Mr Shaik, Mr Zuma did attend that meeting.
In other words, because Mr. Zuma had lied previously to investigators, it was reasonable for the state to obtain search and seizure warrants against him because he may well have hidden or destroyed incriminating documents otherwise.
Justice Ngcobo points out that Mr. Zuma had co-operated with the Scorpions in answering questions and that he was never requested to provide specific documents to the Scorpions, He thus argues that the state had not shown that it was necessary to launch raids on his premises because he may well have co-operated fully with them if they had followed a less invasive procedure. In response to the majority, Ngcobo argues:
I am unable to agree with the views expressed by the majority and the state. They seem to proceed on the premise that suspects, in particular those who are accused of crimes involving dishonesty, cannot be trusted to co-operate in response to a section 28 summons. These views are inconsistent with our constitutional values of human dignity, the achievement of equality and the advancement of human rights and freedoms for all. They are indeed inconsistent with the right to be presumed innocent until proven guilty. This is an elementary principle of our law.
In other words Justice Ngcobo argues that one should not be overtly suspicious of those accused of fraud and corruptions – which are crimes of dishonesty – without any proof that would support such a suspicion. To do otherwise would be to place a hand on the scales on the side of the state and would infringe on the rights of the accused. The state should first ask the accused for the documents and if he or she then refuses to co-operate or destroyd those documents, more invasive procedures could be used.
To me Ngcobo’s judgment tips the scales too far in favour of the accused. If one is going to be too trusting of accused individuals many of them will make use of this trust to destroy or hide evidence and few unscrupulous fraudsters will ever be convicted. How many people facing 15 years in jail will willingly hand over evidence to the state that could have them convicted? How many would rather try and hide or destroy that evidence?
I know what my answers to these questions are. But maybe I am just cynical and distrustful and fail to aperciate the basic honesty of human beings? Or maybe I am so blinded by the Zuma angle that I cannot see how dangerous it would be for the state to be given some leeway in such matters?BACK TO TOP