Can we discard the doctrine of legal guilt?

• Jurisdiction: South Africa
• Pages: 360-373
• Published date: 15 August 2019
• Date: 15 August 2019
• Author: Pamela-Jane Schwikkard

Can we discard the doctrine of legal guilt?

PAMELA-JANE SCHWIKKARD*

The doctrine of legal guilt enjoys little popular support and there are systemic

breaches of this doctrine in the criminal justice system. These breaches only

occasionally attract public approbation and due process is frequently blamed in

both popular and political discourse for the government’s inability signif‌i-

cantly to reduce South Africa’s high crime rate. I argue that despite the

unpopularity of the doctrine it would be dangerous and futile to discard it for

short-term political gains.

I INNOCENCE AND LEGAL GUILT

The late Chief Justice Langa played a signif‌icant role in the Constitutional

Court’s impeccable record in upholding the presumption of innocence.

1

South African case law shows that the presumption of innocence is used

to describe two different phenomena:

(1) A rule regulating the location and standard of the burden of proof.

(2) A policy directive that the subject of a criminal investigation must be

treated as innocent at all stages of the criminal process irrespective of

the probable outcome of the trial. This is what Packer refers to as the

doctrine of legal guilt.

2

The latter is no doubt a logical consequence of the f‌irst, in that if it is

stipulated that guilt is dependent on the prosecution proving its case

beyond reasonable doubt it follows that a person must be treated as if

innocent until the state has discharged its burden of proof. In this way the

reasonable doubt rule ‘conveys powerful symbolic messages to all crimi-

nal justice functionaries and to the community at large’.

3

The requirement that the prosecution bear the burden of proof in a

criminal trial seems to be based on the requirement that the state must

explain why it brings an action.

4

The standard of proof beyond a

reasonable doubt recognises the possible draconian consequences of a

criminal conviction and the corresponding injustice of an erroneous

conviction. This is encapsulated in the judgment of Chief Justice Dickson

in R v Oakes:

5

* Dean of the Faculty of Law, University of Cape Town; BA LLB (Witwatersrand) LLM

(Natal) LLD (Stellenbosch).

1

See in particular S v Coetzee 1997 (3) SA527 (CC).

2

HL Packer The Limits of the Criminal Sanction (1968) 161.

3

WS Laufer ‘The rhetoric of innocence’(1995) 70 Washington LR 329 at 344.

4

JC Morton & SC Hutchinson The Presumption of Innocence (1987) 2.

5

(1986) 50 CR (3d) 1 (SCC). See also S v Mbatha; S v Prinsloo 1996 (1) SACR 371 (CC)

para 20.

360

2015 Acta Juridica 360

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