Dikgang Moseneke
Justice is not only for victims
Here Moseneke writes about how the precepts of justice and fairness were extended under chief justice Arthur Chaskalson:
On balance the court came down on the side of a substantive notion of fairness in criminal cases as it sought to give content to the fair trial guarantees of the interim Constitution. As these fair trial rulings increased, some critics felt that the Constitutional Court had become lenient towards “criminals” and was only concerned with protecting the accused persons and not the victims of the crime. It is plainly not so. Correctly so, the Constitution was concerned that every person accused of a crime should be afforded a fair hearing by application of the law and before an independent court or tribunal. This is a very important principle in an open, democratic and just society. There is an inherent risk of assuming that people are guilty even before credible and sufficient evidence before a court has found that they are indeed guilty as charged. It cannot be that a mere accusation or suspicion of having committed a crime should suffice to establish guilt.
Good riddance to apartheid methods
If we don’t keep a strict line on the fairness of the trial of even the “worst” offender among us, we may end up with many innocent and vulnerable people in jail on mere accusation. During the dark days of apartheid security police detained many opponents of the state on the suspicion that they had or might have committed a political crime against the state. Activists were detained for long and indefinite periods without a fair trial, let alone before an independent court. In fact, often the government would declare a state of emergency, which meant that the law was suspended. A person’s liberty could be taken away at the whim of the police and without a charge or appearance before a court. The detention was indefinite and the courts were not allowed to decide on the reason for or the length or lawfulness ofPthRe detention.
Closer to home, my brother Malatse Moseneke was detained without charge under the state of emergency regulations together with other activists of the time like Zoli Kunene, Moses Chikane (Robala ka kagiso Mokwena) and Dr Joe Variawa for well over a year at Modderbee Prison and was released only when the security police chose to release them. My other brother, Tiego Moseneke, was detained together with Zwelakhe Sisulu (Lala ngoxolo Mfokabawo) for well over three years at Sun City, as Johannesburg Prison was mockingly nicknamed.
Our notion of a just society must never tolerate such rank injustice. The Constitution promises that no person will be deprived of their liberty or have it taken away without a valid and lawful cause or reason.
A conviction before a court may result in the loss of liberty. That is a serious limitation of the right to human dignity, equal protection of the law and freedom of the person, not to mention the impact imprisonment might have on the family and friends of a wrongly convicted person. We are better off being careful and dutiful in applying rules in order to ensure criminal justice. As the saying goes, we are better off with a guilty person walking free (God forbid, my judicial instinct tells me) than a truly innocent person ending up in gaol.
Jailed for a crime he did not commit
I have had more than a passing encounter with the miscarriage of justice.
I know something about a person being kept in prison for many years after a mistaken conviction by a court. During my term on the Constitutional Court we had to grapple with a case of wrongful conviction and imprisonment. The court ordered the release of Mr Thembekile Molaudzi, who had served more than ten years in prison on a conviction of murder, armed robbery and two other counts. On the facts, Molaudzi was charged, convicted and sentenced for the murder of a police officer that occurred in August 2002. It was alleged that Molaudzi, together with a group of six other men, shot the policeman in his home and planned to steal his vehicle.
The case of Molaudzi raised very difficult questions for our criminal justice system. He, together with fellow accused, was convicted by the trial court on 22 July 2004 and his appeal was dismissed by a full bench of the high court. The Supreme Court of Appeal dismissed his petition for leave to appeal his conviction and sentence. Molaudzi approached the Constitutional Court without legal representation but it, too, dismissed his application for leave to appeal, citing that it did not raise proper constitutional issues and that the appeal had no reasonable prospects of success. He remained in prison.
After two of his co-accused were successful in appealing their convictions, Molaudzi approached the
If we don’t keep a strict line on the fairness of the trial of even the ‘worst’ offender among us, we may end up with many innocent and vulnerable people in jail on mere accusation
Constitutional Court again, seeking leave to reopen his conviction on the grounds that the conviction was unlawful. He argued that the trial court relied on constitutionally invalid hearsay utterances of a fellow accused made outside court that Molaudzi had been part of the robbery in which the police officer was disarmed and murdered. No other evidence during the trial linked Molaudzi to the commission of the fatal robbery.
The second approach to the Constitutional Court forced the justices to look into the mirror. Ordinarily, the law does not allow a court to reopen a case in which it has given a final decision. The reason for the rule is to achieve certainty and finality. Once all the legal steps in a case have been exhausted, the case should not be reopened. The principle in fancy language is called res judicata. A court is required not to overlook the res judicata principle unless there are truly compelling reasons that make it in the interest of justice to reopen a finalised and closed case.
In order to decide whether there were compelling reasons to relax res judicata, the court had first to find the injustice in the trial that Molaudzi relied on. A closer look at the evidence showed that the trial court had failed to apply the law of evidence correctly and that had it done so, it would have found that there was insufficient evidence upon which a court could find him guilty of the charge. What was more, the
Supreme Court of Appeal and the Constitutional
Court had both failed to detect the mistake of law which the trial court made.
A humbling case for judges
The obvious but difficult question was whether the court should refuse to relax the rule of res judicata and not get to the claim of injustice, or whether it should go in there and correct the injustice despite the rule not to re-open finalised cases. The court made the decision to rectify the injustice. Molaudzi’s appeal was upheld and the court ordered his immediate release from the undeserved imprisonment.
The horrific experience of Mr Molaudzi tells us that judicial officers do make mistakes. The case is humbling for judges and reminds us and society of judicial fallibility. It is so that to err is human. But it is intolerable when one’s mistake, particularly as one who ought to dispense justice, ends in hardship for another person. The judicial role calls for an unfailing attention to detail. First, the facts must be understood in their proper context and sequence and care must be taken to make findings supported by credible facts. A judicial officer must know the law, and if they do not, they must take urgent steps to find the right law and apply it to the properly proven facts in the dispute. Even more important is for the judge to decide on an outcome and formulate an order which the facts and the law permit and which is fair and just.
Experience over the years has taught that a good judicial officer must listen. They must listen patiently to the parties and their counsel on all aspects of the case. Usually, at the beginning of the hearing, the litigating parties and their counsel know a lot more about the case than the judge does. They would have lived with the intricacies of the dispute much longer. They would have given greater attention to the facts and the law than a judge. So listening carefully to them can only help. But in the end, it is the judge who must decide. Adequate moments of reflection by the judge after hearing a case are most helpful.
Sorting wheat from chaff on appeal
I add lastly that our court system is indeed premised on judicial fallibility. It is so that ordinarily a judge strives for a fair hearing for the parties and a just outcome in accordance with the law, but this does not always happen. Things can go wrong on the weighing of and making findings on the facts, or on identifying or applying the law.
Most court systems entitle a litigant to a right of appeal. Usually a litigant is allowed at least two levels of appeal from the original level of decision. In our country, in theory, a party may have up to four levels of appeal: from the magistrate’s court to the high court; within the high court from a single judge to a full bench of the high court; thereafter to the Supreme Court of Appeal; and, lastly, to the Constitutional Court.
The higher the level of appeal the more the number of judicial officers: three judges on appeal in the high court, five in the Supreme Court of Appeal and eleven in the Constitutional Court. The rationale or objective of the appeal system is to stop or reduce the prospect of a wrong judicial outcome. The system works like a sieve that gets finer the higher up in the system one goes. So the more pairs of eyes and individual brains studying and considering a dispute, the greater the prospect of reducing or excluding poor judgments. We know that thePaRppeal system is not foolproof, but we are yet to find one that is absolutely fault-free.
It was therefore quite correct for the new Constitutional Court to make such a fuss about adhering to the new notions of substantive fairness in the criminal justice system.