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.
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.BACK TO TOP