Jacob Zuma has an uphill fight in advance if he desires to de…

Anybody who would like to keep on the argument that the Constitutional Courtroom dedicated a cardinal sin by refusing Jacob Zuma his suitable to assert his silence in the non-felony proceedings of the Zondo Fee, you should be aware that this is a lawful mountain to climb.

The mystery of the Zuma and Malema Nkandla tea occasion on Friday 5 February 2021 and the secrecy all around what they essentially talked over is one particular of the biggest conversing factors all-around. Every person who was at the tea party is silent about what really happened or was discussed, and speculation abounds in the media in excess of the social gathering with some problem about the implications of the Zuma fightback tactic.

And other folks suggest that Julius Malema was to there to influence the former president to cooperate with the Zondo Commission and use the platform to expose Deputy Justice Raymond Zondo’s alleged bias in direction of Jacob Zuma. What we know is that the tea like any other tea was very hot and nice.

One curious report is a assertion attributed to Bonginkosi Khanyile, a #FeesMustFall activist, that Zuma remained resolute. With the documented resoluteness of the former president and the normal storm in a teacup more than his declared defiance of the Constitutional Courtroom, it is not surprising that the South African Council of Churches is reportedly concerned and anxious about what the ramifications of all these can be for our fragile democracy.

“We are deeply concerned about where this could possibly go and the achievable dent in our nationwide reconciliation journey, as perfectly as respect for the regulation. Mr Zuma is an quick past head of state and govt, as very well as the speedy past leader of the governing party”, mentioned the assertion.

Chatting about silence: Mr Zuma’s appropriate to silence remains one particular of the contentious concerns and is element of the foundation of his gripe with the Constitutional Court. Politics of tea in Nkandla aside, as a authorized scholar I discovered it apposite to offer with the subsequent inquiries currently being posed all over the Zuma vs Zondo vs Constitutional Courtroom discourse: What is the right to keep on being silent and the appropriate from self-incrimination? Is the regulation obvious and absolute that Mr Zuma can’t assert to exercise the correct to silence at the Zondo Commission, simply because the commission is not a felony trial? Could the Constitutional Courtroom have derogated from the confines of standard prison evidential procedures to accomplish a certain stage of procedural and substantive fairness justice for Zuma, and stay clear of him plunging the state into a constitutional disaster?

Just before I remedy the higher than inquiries, I would also like to pose a even further question myself: is the nub of people generating noise that the Constitutional Court docket has been unfair on Zuma’s contention that the court docket erred in its interpretation and software of the suitable to silence contained in Area 35 of the Structure? And what is our comprehension of the correct to continue being silent and the right towards self-incrimination?

Again to the concerns, in particular on the ideal to continue to be silent as assured in Segment 35 of the Constitution of 1996: “The right to keep on being silent has application at distinctive levels of a felony prosecution. An arrested individual is entitled to continue being silent and may perhaps not be compelled to make any confession or admission that could be made use of in proof versus that human being. […]. The fact that an accused particular person is under no obligation to testify does not imply that there are no penalties attaching to a decision to stay silent through the trial. If there is proof calling for an answer, and an accused particular person chooses to stay silent in the experience of such evidence, a court docket could nicely be entitled to conclude that the proof is sufficient in the absence of an explanation to confirm the guilt of the accused. Regardless of whether these a conclusion is justified will rely on the weight of the evidence,” said Justice Pius Langa in the 2000 ruling of Allan Boesak v The Point out.  

By required implication, this suitable applies only to prison proceedings. The problem, hence, hinges on whether the proceedings at the Zondo Commission are “criminal proceedings” or “semi-legal proceedings” or are in essence “criminal cases”.

Portion 39(1)(c) of the Structure states that: “When interpreting the Invoice of Rights, a courtroom, tribunal or discussion board could take into consideration overseas regulation.”

The overseas regulation that will come to head as handy in answering the dilemma is US law and jurisprudence. The question of no matter if the application of Portion 35 should really increase to non-felony proceedings, which was conclusively answered by the Constitutional Courtroom, was at a level also crippled with respect to the Fifth Modification of the American Constitution.

The US Supreme Courtroom in the case of MacCarthy v Arnstein, resolved on 20 October 1924, dominated: “The constitutional privilege from self-incrimination applies to civil proceedings” [at p 266]. In this scenario, the Supreme Court docket stated that these kinds of a correct can even be asserted in administrative bankruptcy circumstances. The US Supreme Court dismissed the government’s argument “that broadly that the constitutional privilege towards self-incrimination does not use in any civil proceeding” and that “the opposite should be approved as settled”.

If Secretary-basic of the ANC Ace Magashule’s remarks on altering the Structure are nearly anything to consider, then it is published all more than the wall of Constitutional Hill that our Constitution and the Invoice of Legal rights could be changed must the famed progressive forces of the ANC have their way.

To this end, the court docket held that “the privilege is not ordinarily dependent upon the character of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and legal proceedings, wherever the solution may well tend to subject matter to legal accountability him who provides it…” [at p 266].

In 1997, the United States 11th Circuit Court docket place items in viewpoint in United States v Gecas by stating that the risk of long run prosecution will have to in fact be “reasonable, real, and appreciable” for a individual in civil proceedings or non-prison proceedings to be justified in asserting their Fifth Amendment rights. The court docket referred to the 1972 Supreme Court docket ruling in Kastigar v United States, in which Mr Justice J Powell, providing the court docket belief, mentioned that the privilege versus self-incrimination “reflects a advanced of our essential values and aspirations, and marks an essential advance in the progress of our liberty. It can be asserted in any continuing, civil or felony, administrative or judicial, investigatory or adjudicatory and it protects towards any disclosures that the witness fairly believes could be utilized in a prison prosecution or could direct to other evidence that may possibly be so used” [at p 445].

Therefore, on the strength of this jurisprudence you do not need to give answers to any inquiry that can be a cigarette smoking gun for the law enforcement businesses or the police to use as proof to examine and/or incriminate you.

On a precautionary note: even if one was to use the over US Supreme Court rulings as authority to construct a scenario from the rationality of the decision of the Constitutional Court, and for the defence of the position taken by Mr Zuma towards the judgment of the Constitutional Court docket, it would not signify that he can bluntly refuse to provide answers at the Zondo fee. Nor can any other witness for that subject.

In advance of anyone will get energized about working with the purpose and logic of conditions cited in this viewpoint, be sure to notice that just boasting that your right to silence and not to incriminate you has been violated or denied and that you panic upcoming prosecution just to keep away from giving facts at the commission, is not ample. In addition, the South African Constitution in Segment 39(1)(c) is crystal clear that international jurisdiction does not have authority in excess of South Africa and does not set precedence for South African courts, but can only mutatis mutandis (Latin for with the necessary qualification) be of influential benefit to our regulation.

Any one who would like to continue the argument that the Constitutional Court committed a cardinal sin by refusing Mr Zuma his suitable to assert his silence in the non-felony proceedings of the Zondo Fee, make sure you note that this is a legal mountain to climb.

More, if you are thinking of making use of the rulings of the US Supreme Courtroom circumstances of MacCarthy v Arnstein and Kastigar v United States as an influential authority, acquire note that it is not as conveniently carried out as two political heavyweights from two opposing political functions arranging to have tea on a Friday afternoon.

Very first of all, one particular should get started adopting the routine of going to courtroom to defend his or her scenario or to condition his or her facet of the tale. It is a self-inflicted wound that Zuma and his legal professionals administered and they skipped a best possibility to encourage the Constitutional Court or else.

Luckily, unlike a British specific named “Freeborn John” Lilburne who in 1637 was decided not to reply any self-incriminating inquiries and refused to choose an oath in court docket to tell the truth of the matter, Mr Zuma will not be “whipped and pilloried”. As reported in a 1972 article by Richard McMahon, Lilburne “refused to choose an oath to solution all queries honestly for the reason that this kind of an oath intended that he could not refuse to solution any issue, no make any difference how wide or incriminating” [at p 317].

Regrettably, the South African lawful method will consider a beating and the country’s constitutional framework will be permanently on shaky grounds. The story goes that Lilburne was relentless in his quest to be accorded the suitable to keep on being silent, and successfully filed a petition to parliament that resulted in parliament creating his right to continue to be silent.

If Secretary-general of the ANC Ace Magashule’s opinions on transforming the Constitution are anything to take into account, then it is created all in excess of the wall of Constitutional Hill that our Structure and the Bill of Rights might be changed need to the famed progressive forces of the ANC have their way. We may well be in for a shock with some in Parliament arguing that Portion 35 of the Constitution ought to be amended or broadened to apply to non-felony lawful proceedings. DM


About Antoinette G. Tucker

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