Publication: City Press Issued: Date: 2004-06-26 Reporter: Brenda Wardle

The Prima Facie Case is not Necessarily Watertight



City Press

Date 2004-06-26


Brenda Wardle, LLB (UNISA) Mondeor

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I would like to comment briefly on Thabo Masombuka's assertion that a prima facie case is a watertight case (City Press, June 13).

A good point of departure would be to analyse the term prima facie as it relates to evidence, proof or case, as all these are interrelated concepts.

Prima facie evidence in the criminal law places an evidentiary burden on the accused to adduce evidence, which is sufficient to give rise to a reasonable doubt.

If the court is left with such a doubt, the state would have failed in its duty to prove guilt on every element of the alleged offence beyond reasonable doubt (which is the requisite standard of proof in criminal matters). Therefore, in cases where the state has a prima facie case and the accused does not disturb the case, prima facie proof hardens to proof beyond a reasonable doubt. However, prima facie proof cannot be equated to a water-tight case a priori.

The reasonable doubt mentioned above can be raised by the accused in any or all of the following ways: cross-examining state witnesses, objecting to admissibility of certain evidence or by testifying in rebuttal of such prima facie evidence.

In criminal cases, therefore, even if the state's version is more likely or probable than that of the accused, he/she will be acquitted if there is a reasonable possibility that such a version may be true. Such possibility need not be a probability.

It's also important to mention that South Africa does not follow a system of compulsory prosecution. However, the national director of public prosecutions, Bulelani Ngcuka, was duty bound in this case to prosecute Deputy President Jacob Zuma.

You cannot on the one hand claim to have a prima facie case and in the same breath say that you do not have a winnable case. A prima facie case, in essence, means that there are reasonable prospects of success.

It is not the duty of Ngcuka to establish whether Zuma has a defence or not. Obviously there are grounds which entitle the national director of public prosecutions not to prosecute but none of these are present in the current circumstances and therefore do not even merit mention here.

Besides the alleged violation of Zuma's right to dignity, Ngcuka's non-enforcement of the criminal law amounted to unjustifiable distinctions between a person in similar circumstances, like myself (who is not above the law) and Zuma.

It amounts to discriminatory prosecution and is in conflict with the equal protection and due process ideals of the criminal justice system enshrined in Section 9 (1) of the constitution (the "right to equality" clause). Zuma is thus justified to demand that he be prosecuted as questions will always be left unanswered.

A watertight case, in my opinion, is equivalent to concrete evidence - even in such a case an accused person has a right to challenge and adduce evidence. Neither concrete evidence nor prima facie is an indication of a person's guilt. Guilt only comes at the end of the trial after the court has considered all evidence before it.

With acknowledgements to Brenda Wardle and the City Press.