An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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