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The presumption of Innocence

Our constitution provides that any person accused of an offence has the right to be presumed innocent until proven guilty. That means every accused person has the right to be regarded as innocent until properly convicted by a court of law. A conviction is a formal decision of the court that someone is guilty of a criminal offence. A legal conviction is taken through an objective, impartial, properly conducted and fair trial.

A person may seem morally or factually guilty of a crime in the public’s view but that does not mean he or she will be legally guilty. The public’s views on an individual’s guilt or innocence do not count, what matters is whether it can be proved that the person is guilty in court and only legal guilt counts.

Criminal law does not deal with prosecution of criminals but of suspects and accused persons. Generally, referring to persons who have not yet been charged and convicted as criminals is defamatory. It is defamatory to call someone who is accused of committing robbery a robber or of killing someone a murderer. That label will only stick once the individual is convicted by a court of law.

Being suspected of committing a crime is not a crime in itself. Sometimes justice systems can be wrong; the police may arrest the wrong person, witnesses can falsely identify an individual accused of committing a crime, and people can be framed.

When an individual is suspected of committing a crime, they can be arrested. At that time, the individual is known as a suspect. Once the individual has been formally charged with the crime, they are now referred to as the accused.

The accused person does not need to prove his or her innocence. They are presumed innocent. The responsibility rests on the prosecution to prove that the person is guilty beyond reasonable doubt. This means that the prosecution must prove that the person committed the crime they are accused of and show that all elements of a crime are satisfied.

For example murder:

If Munya is accused of murdering his wife- Thandi’s lover Themba, the state has to prove a number of things. First, the state has to show that Themba was indeed killed. If Themba’s body cannot be found then they can only say he has disappeared but cannot conclude that he was murdered.  Second of all, the prosecution has to show that Munya killed Themba. There has to be evidence that links Munya to the killing. This could be DNA samples e.g. saliva or hair follicles or fingerprints on the murder weapon. There could also be testimonies from eye witnesses who saw Munya killing Themba or saw Munya with Themba at the time that Themba was killed. However, even if the prosecution proves that Munya killed Themba, they have to show that he intended to kill Themba.

If a single element is not proved by the prosecution, Munya cannot be convicted and can even be discharged at the end of the state’s case. If the state does succeed in proving a prima facie case (proving a case sufficient to prove a fact) and Munya does nothing to disturb the prima facie case, the State would have succeeded in proving its case beyond reasonable doubt and Munya will be convicted.

The fact that Munya killed Themba does not make Munya’s actions murder. If he puts up a defence which produces doubt in the Court’s mind about his guilt, he may be charged with a lesser crime or be discharged. Maybe he was drunk and acted negligently; in that case he would be charged with culpable homicide which has a lesser sentence than murder. Maybe he was drugged or intoxicated and did not know what he was doing, so then he would plead the defence of diminished responsibility or intoxication. Maybe Themba made fun of Munya and Munya acted out of anger so then he can plead the defence of provocation. Maybe Themba was attacking Munya and Munya reacted to protect himself so he can plead the defence of self-defence. In each case, the prosecution would have the task of showing that Munya’s explanations for his actions were not for the reasons that he claims them to be.

Right to silence

Related to the presumption of innocence is that an accused can never be forced to testify. A person who exercises his or her right to silence should accordingly not be penalised. If an element of a crime has not been established in the state’s case, an accused person cannot fill the gap and should not be forced to fill the gap. The right to silence protects an accused person from self-incrimination. However, if the State has proved a case sufficient to establish a fact against an accused person, it is advisable that the accused person says something to rebut (disprove) the established fact by giving his or her version of events.



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