purpose conveys exactly the same ordinary meaning as the phrase in accordance with employed in art 13 (1), serves the same purpose: It allows by implication for the law’ limitation of the right presumption of innocence and implies a measure of flexibility to allow the legislature to determine substantive and procedural frameworks in the public interest in terms of which a person may be proved guilty according to law. This implicit flexibility is necessary if a balance is to be struck between the rights of the individual to be presumed innocent and the obligation to protect the interest of the public. state’s I am mindful of the objectives the impugned provision seek to achieve, but, in my view there is no reasonable and justifiable limitation on the right to be presumed innocent. The risk that an accused may be convicted despite the existence of reasonable doubt clearly infringes the presumption of innocence. And it was also not shown that the relation between the limitation and its purpose is proportional. As it was stated in Manamela case ’ the light of the vital importance to our criminal justice system to be presumed ‘In innocent and the cluster of fair trial rights which accompany it, the imposition of a full burden of proof in the circumstances has a disproportionate impact on the right in question.’ I find the reasoning in the majority judgment in the Manamela case persuasive. In a society where the majority of our population is illiterate and engage in informal trading as a way of making a living on a daily basis, the risk of innocent people being convicted and sent to jail is too high if the reverse onus in s 7(1) is to be retained. The reverse onus imposes a full legal burden of proof on the accused and after hearing all the evidence, there is doubt in the mind of the judicial officer as to where the truth lies, the constitutional presumption of innocence is replaced by a statutory presumption of guilt and a conviction will follow even though the version of the accused might reasonably be true. To safeguard against that risk, the presumption of innocence is crucial. It ensures that until the state proves the guilt of an accused person beyond reasonable doubt, he or she is innocent and that is essential in a society committed to fairness and justice. The presumption of innocence instills confidence in the judicial system and respect for the rule of law.
purpose conveys exactly the same ordinary meaning as the phrase in accordance with law’ employed in art 13 (1), serves the same purpose: It allows by implication for the limitation of the right presumption of innocence and implies a measure of flexibility to allow the legislature to determine substantive and procedural frameworks in the public interest in terms of which a person may be proved guilty according to law. This implicit flexibility is necessary if a balance is to be struck between the rights of the individual to be presumed innocent and the state’s obligation to protect the interest of the public. I am mindful of the objectives the impugned provision seek to achieve, but, in my view there is no reasonable and justifiable limitation on the right to be presumed innocent. The risk that an accused may be convicted despite the existence of reasonable doubt clearly infringes the presumption of innocence. And it was also not shown that the relation between the limitation and its purpose is proportional. As it was stated in Manamela case ’ ‘In the light of the vital importance to our criminal justice system to be presumed innocent and the cluster of fair trial rights which accompany it, the imposition of a full burden of proof in the circumstances has a disproportionate impact on the right in question.’ I find the reasoning in the majority judgment in the Manamela case persuasive. In a society where the majority of our population is illiterate and engage in informal trading as a way of making a living on a daily basis, the risk of innocent people being convicted and sent to jail is too high if the reverse onus in s 7(1) is to be retained. The reverse onus imposes a full legal burden of proof on the accused and after hearing all the evidence, there is doubt in the mind of the judicial officer as to where the truth lies, the constitutional presumption of innocence is replaced by a statutory presumption of guilt and a conviction will follow even though the version of the accused might reasonably be true. To safeguard against that risk, the presumption of innocence is crucial. It ensures that until the state proves the guilt of an accused person beyond reasonable doubt, he or she is innocent and that is essential in a society committed to fairness and justice. The presumption of innocence instills confidence in the judicial system and respect for the rule of law.
Gomes%20v%20Prosecutor-General%20(A%2061-2012)%20%5B2013%5D%20NAHCMD%20240(9%20August%202013).docx