Litigating innocence: The problem of wrongful convictions and absence of effective post-conviction remedies in South Africa

• Jurisdiction: South Africa
• Citation: (2017) 30 SACJ 179
• Published date: 24 May 2019
• Pages: 179-197
• Date: 24 May 2019
• Author: Tapiwa Shumba

Litigating innocence: the problem of

wrongful convictions and absence of

effective post-conviction remedies in

South Africa

TAPIWA SHUMBA*

ABSTRACT

The right to fairness a nd access to appeals and reviews enshr ined under

the South Afr ican Constitution seek s to ensure that justice is ser ved. In

essence the Constitut ion and the law have put in place mechanisms to

ensure that a misc arriage of justice th rough wrongful convic tions does

not occur. However, even within an ideally perfect lega l system wrongful

convictions would still occ ur. Therefore, it is not so much of the failings

of a legal system that demand at tention, but mechanisms to red ress the

results of such faili ngs where evidence becomes available that a wrong ful

conviction occurred. I n this context, th is presentation considers the Sout h

African cr iminal procedur al mechanisms for litigat ing innocence post-

conviction. The discu ssion focuses on the role of s 327 of the South Af rican

Criminal P rocedure Act (CPA) and its apparent shortcomings in providi ng

an avenue for victims of miscar riages of justice to lit igate their innocence

by adducing new evidence at any stage during the ir wrongful inca rceration.

By looking at developments in other jur isdiction such as England , where

South Africa n criminal pro cedure draws much of its histor y, and the North

Carolina example which i n itself was inspired by Eng land, Wales and

Northern Ireland C riminal Cases Review Commission, it i s possible to make

comparisons and dr aw invaluable lessons for the South Afr ican crimi nal

justice system. Lesson s from these foreign jurisd ictions show that South

African post- conviction crimi nal procedures need reform in l ine with the

constitutional values of hum an dignity, equalit y before the law, openness

and transparenc y. This research proposes an indep endent review of the

current processes to as sess the current pos t-conviction procedures under

s 327. The review must look into the effectiveness of the cur rent system

and how it can be improved in line with ne w substantive legal provisions

creating access to DNA evidence for post-convic tion exonerations. Although

the England, Wales and Ireland Cri minal Cases Rev iew Commission should

not be slavishly followed, its operations and t he process leading to its

establishment cer tainly provide a good point of r eference and invaluable

lessons for the South Afr ican crimi nal justice system. A new indep endent

mechanism that tre ats innocent victims of the failures of t he criminal justice

* LLB cum laude (UF H), LLM (UCT), LLD (Stelle nbosch); Advocate of the High Cou rt

of South Afric a; Senior Lect urer, Nelson R. Mandela School o f Law, University of

Fort Ha re

179

(2017) 30 SACJ 179

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system with dignit y, away from the current political proces s, is proposed

to enable South Africa n criminal j ustice to benet fully fr om recent and

upcoming advances in science and tech nology.

1 Introduction

A fundamental pri nciple, not only of the South African legal system but

also of the principles of natural jus tice and fairness, dictates that on ly

the guilty must be convicted whi lst the innocent must be acquitted.1

Any crimina l justice system that does not guara ntee that an innocent

person should not suffer punishment for a crime he did not comm it,

would go against the salient principles of justice. However, history

and experience have shown that the criminal ju stice system, despite

all its safeguards, has not ma naged to ensure that only the gui lty

persons are convicted and that the innocent a re acquitted.2 In South

Africa, the cri minal justice system is an adversa rial system which

presupposes some equality between t he parties3 where the state wit h

its vast resources prosecute and has to prove beyond reasonable doubt

that an accused person, whose right to a fair tr ial is guaranteed by the

Constitution, has commit ted a crime.4 Among other things, an accus ed

person has the right to appeal where a higher court ca n conrm or

vary the decision of a lower court. The purp ose of an appeal is to

seek a remedy that the accused could not get from the lower court,

by convincing the superior court that he did not commit t he crime in

question.

The right to fairness and access to appeals and reviews ensh rined in

the Constitution seeks to ensure t hat justice is not only done but is also

seen to be done.5 In essence the Constitution and South Africa n law

have put in place mechanisms to ensure that a misc arriage of justice as

1 See JR Acker & DC Brody Cr iminal Procedure- A Conte mporary persp ective (1999) 2.

Blackstone wrote th at ‘the law holds that it is better that ten g uilty persons escape,

than that one in nocent suffer.’ W Blackstone Commentaries on the La ws of England

(1897) (2010) 713. This is now known as t he ‘Blackstone ratio’. Thomas St arkie

added ‘that it is bet ter that ninet y-nine … offenders sh all escape than t hat one

innocent man be cond emned.’ T Starkie A prac tical treatise on the law of eviden ce,

and digest of proofs, in civ il and criminal proceedings (1824) 751. See also A Volokh

‘n Guilty Men’ (1997) 146 Univ Penn L Rev 173 at 195 for a one thousand to one ratio.

2 See G Edmond and MS Roque ‘ The cool crucible: Forensic science and the fra ilty of

the crimi nal trial’ (2012) 24 Curr Issue s in Crim Jus 51.

3 PJ Schwikkard & SE va n der Merwe (eds) Principles of Evi dence 4ed (2016 ) 12.

4 Section 35 of the Const itution of the Republic of Sou th Africa, 1996. S ee also

JJJoubert (ed) Criminal Pro cedure Handbook 10ed (2011) 15-22.

5 This often- quoted aphorism from R v Su ssex Justices , Ex parte McCarthy (1924) 1

KB 256, (1923) All ER Rep 233 now forms part of ou r crimina l justice system. It

should not only be constr ued to refer to insta nces of impartia lity but also fai rness

in general.

180 SACJ . (2017) 2

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