Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.

1 June 2017

No, there is no duty on us to presume someone is innocent until proven guilty

When evidence emerge that a public figure may have done something wrong, it is more likely than not that the alleged wrongdoer and his or her defenders will say that the person must be presumed innocent until proven guilty. As the person would not have been convicted of a crime, so the argument goes, the public has a constitutional duty to presume he or she is innocent of wrongdoing. The only problem is, there is no right enshrined in the Constitution requiring us to presume someone is innocent until proven guilty in a court of law.

It is important to remain open-minded about people and their actions, and not to assume somebody did something wrong without having some factual basis to justify that conclusion. Far too often people assume the worst of someone about whom a negative article appeared in the newspaper, despite not having a firm factual basis for that negative opinion.

Because of subliminal or not so subliminal racism, there is also the real danger that some white South Africans will not give the same benefit of the doubt to black people than they would have given to somebody if that person was white.

For all these reason it is always a good idea to be self-critical and self-reflexive, and to ask yourself: why am I holding this view; do I have any factual or ethical basis for holding this view; is my view unduly being influenced by my political commitments, my race, my gender or some other irrelevant factors.

So, when I saw on Twitter that emails from the Gupta family and their associates were leaked to Sunday newspapers, I wondered whether these were real emails or whether the emails might not have been faked. After all, just two months ago President Zuma invoked a fake intelligence report as one of the justifications for firing the Minister of Finance, Pravin Gordhan.

Of course, as the scale of the email leak became clear, and as I read, first the newspaper articles and then the emails themselves, I came to the conclusion that the emails are almost certainly genuine. (Even our criminal courts do not require absolute certainty – they only require the state to prove the case against the accused beyond reasonable doubt.)

The sheer detail contained in the emails, their messy and complicated character, and the actual visual presentation of the emails would lead a reasonable person to conclude that they are more likely than not genuine.

This is not the same as concluding that the emails would be admissible in a criminal court as evidence of criminal wrongdoing. I am not a procedural lawyer, so I express no opinion on what would be required to have such emails admitted before the court. But as citizens we are not required to assess evidence in the same way that criminal courts are required to do. Neither are we required to assume that a person did nothing wrong unless the state had proven his or her criminal guilt before a court of law.

If credible evidence suggest that, on a balance of probabilities, the person is guilty of wrongdoing, then as members of the public we have every right to assume that the person did something wrong and to say so.

First, not all forms of wrongdoing could ultimately be pursued in the criminal courts because not all such acts rise to the level of criminal sanction. For this reason most of us would agree that it would be absurd to argue that we cannot criticise Helen Zille for trying to find something positive in colonialism unless she had been convicted before a court of law. Some forms of wrongdoing are not criminal in nature so the “innocent until proven guilty” requirement would not apply.

Second, the Constitution places no obligation on ordinary citizens to presume somebody is innocent until he or she had been proven guilty of a crime before a court of law. The wording of the Constitution is rather specific on this. Section 35(3)(h) states that:

Every accused person has a right to a fair trial, which includes the right…. (h) to be presumed innocent, to remain silent, and not to testify during the proceedings.

As we do not have the jury system, ordinary citizens are not involved in criminal trials. This is also one of the reasons, as I have written before, that the courts have watered down the so called sub judice rule to such an extent that (for all intents and purposes) it is no longer part of South African law. Despite what politicians sometimes believe (or say they believe) there is currently no legal rule that prohibits members of the public from talking about, commenting on, or even speculating about, ongoing court cases.

The reason is that – unlike in countries with a jury system – an accused person’s right to a fair trial will not be impacted on by what the public do or say about the accused or his or her alleged offences. Our courts have held that there is an assumption that presiding judges and magistrates will not be influenced by outside factors such as reporting in the media or comments made by citizens and that this would therefore not influence an accused’s right to a fair trial. As the Constitutional Court explained in S v Van Rooyen:

Our Courts are manned [sic] by full-time Judges trained in the law, who are outside party politics and have no personal interest in the cases which come before them, whose tenure of office and emoluments are protected bylaw and whose independence is a major source of the security and well-being of the state.

The Constitution thus guarantees for every accused person the right to a fair trial which includes the right to be presumed innocent by the presiding officer until such time as the state had proven its case beyond reasonable doubt. No one therefore has the constitutional right to be presumed innocent by the public until proven guilty. Moreover, section 35(3)(h) guarantees the right to be presumed innocent by the magistrate or judge who presides in the accused’s criminal trial only for an accused person. People who have not been brought before a court do not enjoy this right.

Of course, this does not mean ordinary citizens are legally or ethically entitled to say anything about anyone regardless of whether there is any credible evidence to support the claim. When the media reports that a person has been involved in some sort of wrongdoing (capturing the state or being captured; taking part in corrupt activities; flouting rules or the Constitution; acting unethically), or when ordinary citizens draw conclusions from such reporting and take to social media to condemn that person, the affected person is always entitled to sue the media publication or private citizen for defamation.

Journalists and members of the public should therefore take care – both because of the threat of being slapped with a defamation suite and because it is ethically the right thing to do – not to make unwarranted assumptions about people and not to say something defamatory about that person if there is not a good chance that the statement is true.

I would propose that, from an ethical perspective, we should try to apply the same standard of proof applicable in a defamation suit when we assess allegations against a person.

We should ask: how credible is the information linking the person to wrongdoing. (Of course, the question is not whether the evidence will be admitted in a criminal court or will prove criminal guilt beyond reasonable doubt). We should ask: given the factual allegations and the probability that they are true, is there another, less damaging, explanation provided by the implicated person that is more likely to be true than the allegations made against him or her.

In short, I propose that we should ask ourselves in each case: on a balance of probabilities, taking into account all the evidence known to us, is this person guilty of wrongdoing or not. This is a very different standard than the standard politicians often invoke, which would require us to presume that somebody is innocent of any (even non-criminal) wrongdoing unless the implicated person was convicted of a crime by a court of law.

Not only does the Constitution not impose a duty on ordinary citizens to presume a person is innocent of any wrongdoing until proven guilty of a crime, but further, from a policy perspective, imposing such a requirement would inhibit democratic discussion and would undermine the need for public figures (in both the public and the private sector) to be accountable. If followed, the “innocent until proven guilty” mantra could inhibit democratic discussion and debate.

In any case, even if we restrict ourselves to cases where a person is accused of wrongdoing that, if proven, would lead to criminal conviction, it is not currently feasible or desirable for us to comply with such a rule.

This is because the South African Police Service is politically compromised. For example, the Hawks seems to be extremely reluctant to investigate politically connected people in the public and private sector. Given the fact that there is also, at the very least, plausible evidence to suggest that the leadership of the National Prosecuting Authority sometimes make decisions on who to prosecute and who not to prosecute not based on legal considerations but rather for political reasons, the chances of being convicted of a crime if you happen to have the right political connections are currently slim.

Prohibiting members of the public to ask any questions about the honesty and integrity of a business executive or a political leader unless that person was convicted of a crime would make it impossible for us to talk about many of the real problems which plague our society: racism; corruption; state capture and much more besides.

So remember: better to leave the “innocent until proven guilty” assumption to magistrates and judges.