Those implicated in the so-called ‘Gupta leaks’ would hold that they are innocent until proven guilty – but legal expert Pierre de Vos says that amid mounting and credible evidence, South Africans are well within their rights to think, and say otherwise.<\/p>\n
According to de Vos, “innocent until proven guilty” is a fair and critical way to approach accusations, but it is no means a requirement for every day South Africans to uphold it when the evidence stacks up against an accused.<\/p>\n
The term is often raised by those in power who stand accused of wrongdoing, as defence to shake off the perception that they are doing anything illegal. This has been a long-standing defence used by the Gupta family and even the president in all their scandals which, despite best efforts, have not all gone on to criminal court cases.<\/p>\n
While citizens cannot go around making accusations as they please\u00a0– and holding onto beliefs with no basis does more harm than good – when evidence is present, and mounting, they are absolutely allowed to declare their belief that the accused is guilty.<\/p>\n
De Vos said that the Constitution is quite clear that the ‘right’ to be deemed innocent until proven guilty in a court of law only applies to those being judged by a magistrate or judge.<\/p>\n
Specifically\u00a0Section 35(3)(h), which states that:<\/p>\n
Every accused person has a right to a fair trial, which includes the right\u2026. (h) to be presumed innocent, to remain silent, and not to testify during the proceedings.<\/p><\/blockquote>\n
In every day life, the term is a good basis on which to challenge one’s on views and to approach accusations critically – but when the evidence is overwhelmingly against the accused, there is no reason why the public should view them as innocent until a judge says otherwise.<\/p>\n
“If credible evidence suggests that, on a balance of probabilities, the person is guilty of wrong-doing, then as members of the public we have every right to assume that the person did something wrong and to say so,” de Vos said.<\/p>\n
This is because not all\u00a0forms of wrong-doing could ultimately be pursued in the criminal courts – because not all such acts rise to the level of criminal sanction.<\/p>\n
“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,” de Vos said.<\/p>\n
Secondly, de Vos \u00a0said, the Constitution itself places no obligation on ordinary citizens to presume somebody is innocent until he or she has been proven guilty of a crime before a court of law, he said.<\/p>\n
Referencing the recent Gupta email leak, de Vos said that the sheer number of emails, and their structure and detail, all point to them being credible and more than likely genuine.<\/p>\n
While this does not mean they are legally admissible as evidence in a criminal case, or even proof of criminal wrong-doing (this would be for a court to decide), everyday citizens are not required to view them in the same way a court has to.<\/p>\n
“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,” de Vos said.<\/p>\n
“The Constitution 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.<\/p>\n
“No one therefore has the constitutional right to be presumed innocent by the public until proven guilty,” he said.<\/p>\n
Read the full article at Constitutionally Speaking, here<\/a><\/em><\/p>\n
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