No, the constitution does not guarantee a right to be presumed innocent by everyone until proven guilty

The South African Constitution does not guarantee for anyone the right to be presumed innocent by ordinary citizens until proven guilty in a court of law. Although most of us know this intuitively and – when it suits us – refrain from invoking this empty platitude, some tend to invoke the “right” (which is not a right at all) when they wish to avoid any discussion of the alleged wrongdoing by people they explicitly or implicitly support (because of the political party they belongs to; because of their sex or gender, because of their race; or because they are in the same corrupt WhatsApp group).

After newspapers first reported that a woman called Penny Sparrow posted the most horrific racist rant on her Facebook page, social media exploded in condemnation. Sparrow was rightly branded as a racist and many people (myself included) expressed the view that she had made herself guilty of hate speech in contravention of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

It did not cross my mind (nor that of most people who condemned her on social media) to argue that we should not express any opinion about the matter because Penny Sparrow had a constitutional right to be presumed innocent by all of us until such time that a court had decided on her guilt.

Most of us would have thought it at best absurd and at worst a deliberate attempt to defend racist hate speech if somebody had tried to stop us by saying: “Wait! Penny Sparrow is innocent until proven guilty and a court has not pronounced on her guilt, so we cannot possibly form or express any opinion about whether she is racist or guilty of hate speech.”

It turns out that the instincts of those of us who proceeded to express an opinion about Penny Sparrow’s racism were correct. It is a myth (much loved and promoted by corrupt politicians and men accused of rape as well as by their supporters and defenders) that everyone has a constitutional right to be presumed innocent by people – even when a reasonably informed person, assessing the available facts, would conclude that the person is indeed guilty of that which he or she was accused of.

Section 35(3)(h) of the Bill of Rights guarantees for everyone the right to a fair trial,  which includes the right to be presumed innocent at that trial. In S v Dzukuda and Others; S v Tshilo the Constitutional Court endorsed the principle that the right to a fair trial requires a substantively fair trial:

At the heart of the right to a fair criminal trial and what infuses its purpose is for justice to be done and also to be seen to be done. But the concept of justice itself is a broad and protean concept… An important aim of the right to a fair criminal trial is to ensure adequately that innocent people are not wrongly convicted, because of the adverse effects which a wrong conviction has on the liberty, and dignity (and possibly other) interests of the accused. 

Section 35(3)(h) thus guarantees for everyone the right to be presumed innocent by those presiding at the trial and does not bind those of us who will not preside at the trial. This makes perfect sense because where a judge or magistrate presumes guilt on the part of the accused, there would be a real danger that they would wrongly convict and sentence an innocent person. But section 35(3)(h) does not apply to ordinary citizens as we do not preside at criminal trials and we do not have the power to convict the accused or to deprive them of their liberty.

In some other jurisdictions, where juries decide on the guilt or innocence of an accused person, the right to be presumed innocent, may extend to the general public. At the very least, in such countries the right to a fair trial places a constitutional obligation on members of the jury to presume that the accused is innocent until such time as the state has proven his or her guilt beyond reasonable doubt.

But in South Africa we do not conduct jury trials. Trials are conducted by presiding officers and, at most, two assessors. The views of the rest of us – no matter how strongly expressed – will seldom have any impact on the fairness of the trial (I refrain from considering here whether the large and intimidating crowds gathered outside Jacob Zuma’s rape trial, where they chanted hate speech and called for revenge against the accused, or Zuma’s use of violent imagery when he spoke to the crowd, influenced the presiding officer to acquit Zuma of rape.)

In Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) – in which the Supreme Court of Appeal (SCA) abolished the sub judice rule as we know it – the court confirmed that it was not, as a general rule, prohibited to comment or report on an ongoing trial or even to express strong opinions about it.

[A] publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information.

As there would only in extreme cases be demonstrable and substantial risk that the views of the ordinary public about the guilt or innocence of an accused will influence the fairness of a trial, section 35(3)(h) of the Bill of Rights does not impose an obligation on ordinary citizens to presume the innocence of the accused until he or she is convicted by a court.

Of course, the law cannot regulate the opinions we form and hold privately. If, after reading Jacques Pauw’s recently published book, The President’s Keepers – Those Keeping Zuma in Power and out of Prison, I form the opinion that the President is a terminally corrupt gangster, no law can stop me from privately holding this view. And if I express it publically, I am not in breach of any imaginary constitutional right to be presumed innocent until proven guilty.

Similarly, if I form the opinion (as I have done) that I believe Jennifer Ferguson when she says Danny Jordaan raped her (and if I state so publically as I do here), I am not in breach of Danny Jordaan’s (imaginary) constitutional right to be presumed innocent until proven guilty. Incidentally, apart from the fact that one would tend to believe the rape accuser and not the person accused of rape, there is another (more legally relevant technical reason) why, at present Jordaan’s claim that he is innocent is not easy to believe.

Here we have testimony from Jennifer Ferguson, providing details of the rape. From Jordaan we have a general claim of innocence, but no counter version from him about what he claims actually happened. In other words, Jordaan has thus far chosen to remain silent about what happened on the date that Ferguson said he raped her. If this had been a court case, he might have been in trouble because in S v Boesak the Constitutional Court held that where there is evidence

calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence.

Ferguson’s evidence calls for an answer. None has been forthcoming from Jordaan apart from a blanket claim of innocence. This happens to be another reason why I believe Ferguson and not Jordaan. When I write the above I am not infringing on Jordaan’s right to be presumed innocent by a presiding judge as guaranteed by section 35(3)(h) of the Bill of Rights.

However, this does not mean the law allows any person to level the most scandalous and obviously untrue accusations at another person.

We are all protected by the law of defamation and, in certain circumstances, you could be sued if you say or write that you believe President Zuma is corrupt or that Danny Jordaan is a rapist. In both cases the statement would be defamatory and the legal question would be whether you have an appropriate legal defence that would protect you against a defamation suit.

If you can show – “on the balance of probabilities” – that the statement was both true and in the public interest, you will be safe. Moreover, if your view is expressed as an opinion about a matter of public interest and if the opinion is based on facts, you will also be protected against a defamation suit.

So, the next time you hear anyone say that person X is “innocent until proven guilty” and that we are therefore not permitted to have an opinion about whether X did anything wrong, ask yourself whether the person would have said the same about Penny Sparrow. If he or she would not, you will have a pretty good indication that there is a self-serving motivation behind invoking a non-existent constitutional rule.

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