Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
30 November 2006

Innocent untill proven guilty

Why is it that I get so irritated every time a politician or some other powerful Brett Keble-type deploys a phrase such as “political conspiracy”, “smear campaign”, and, my favourite, “innocent until proven guilty”?

It is not as if politicians are never smeared or framed by opponents in or outside their own political party. And section 35(3) of the Constitution clearly states that every accused has the right to a fair trial which includes the right to be presumed innocent.

I suppose the problem is that these phrases are often used to avoid talking about the substance of a specific allegation in an attempt to portray an accused as the victim rather than as the one who needs to answer questions.

It’s an abdication of responsibility without which the democracy cannot function properly.

The “innocent until proven guilty” phrase is further misused to silence any criticism of a person and to stop people from making a political or ethical judgment about a person unless he or she has been convicted in a court of law.

This leads to an absurdly low standard of ethical discourse. Unless one is proven beyond reasonable doubt to have committed a crime, one can remain – at least amongst some – an angel and a hero of the people.

In the 1997 Constitutional Court judgment of Sanderson v Attorney General, Eastern Cape wily Justice Kriegler showed that he understood that it was inevitable that a presumption of innocence played a bigger role inside the court room than in the court of public opinion.

He pointed out that as soon as anyone was accused and/or charged it was unavoidable that the person would be prejudiced.

While the presumption will continue to operate in the context of the [court] process itself, it has little force in the broader social context. Indeed many pay no more than lip service to the presumption of innocence. Doubt will have been sown as to the accused’s integrity and conduct in the eyes of family, friends and colleagues. The repercussions and disruption will vary in intensity from case to case, but they inevitably arise and are part of the harsh reality of the criminal justice process.

The Constitution, Justice Kriegler said, understood this and dealt with this problem in a pragmatic manner. What one had to ask was not whether a person suffered harm by being accused and charged – although the harm must be minimised it is inevitable.

The question is whether a person can receive a substantively fair trial in front of a judge or magistrate. Will a judge be able to come to the case without such strong preconceptions that it would make it impossible for him or her to have an open mind about the guilt or innocence of the accused.

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