Publication: Business Day
Issued:
Date: 2007-10-04
Reporter: The Insider
Innocent until proven guilty. No legal term, with the possible exception of “sub
judice”, has been as cynically abused by
those seeking to avoid having to answer probing questions
about their conduct. Yet the maxim remains an essential element of any
legitimate judicial system, and one we allow to be compromised at our peril.
That does not mean the right to freedom of expression should be put on hold
whenever anybody is accused of a crime, as some prominent politicians would have
it. But it does mean public opinion should play no part in determining the
outcome of a trial, and it is incumbent upon judicial officers to ensure that
this is the case.
SA has a proud tradition of judicial independence
that survived even the darkest days of apartheid
and has been carried through to the democratic era. Unfortunately, just as there
were judges who participated enthusiastically in the oppression of the past, so
there are those who allow their prejudices to overwhelm
legal principles today.
The difference, of course, is that today’s judges do not face the dilemma of
being required to enforce immoral laws promulgated by an illegitimate regime.
They do, however, have to cope with increasing political and public pressure, a
fact that was tacitly acknowledged by the Constitutional Court this week when it
opted to omit the name of the judge responsible for
turning down Schabir Shaik’s application for leave to appeal against his
corruption and fraud conviction *1.
Public pressure almost certainly affected Phalaborwa High Court Judge George
Maluleke’s judgment when he convicted Mark Scott-Crossley
*2 of murder, a ruling the Supreme Court of Appeal recently slated while
issuing a stern warning against racial and social stereotyping. Television
footage of an accused person having to be protected by police from a baying mob,
many wearing ruling party T-shirts, not only puts pressure on the presiding
officer but undermines the credibility of the judicial process.
Judges have enough on their plates; they should not be subjected to pressure
from people who believe freedom of expression trumps the accused’s right to a
fair trial.
With acknowledgements to Business Day.
*1 Wrong - all the 10 judges were
responsible for turning down Schabir Shaik’s application for leave to appeal
against his corruption and fraud conviction.
However, it is normal practice for just one judge to draft the written judgment
and get the others to concur or otherwise.
In this case, no one wanted to stand out at all.
*2 At the time, I thought I must have missed something
because it just didn't seem right.
Not that Mark Scott-Crossley is inclined towards the most pleasant of body
disposal methods.