Friday, June 2, 2017





Stes de Necker

Burden of proof is a legal construct which states that one must provide enough relevant evidence supporting their claim or argument in order for a judge or jury to rule in their favour. While most are familiar with the “beyond a reasonable doubt” standard used in criminal cases, civil lawsuits use a different standard called “preponderance of the evidence.”

Criminal cases and civil cases (e.g. personal injury lawsuits) vary greatly in many respects. That said, evidence is always the key factor in deciding a case.

The burden of proof in any case lies with the plaintiff (person or entity bringing the claim) as opposed to the defendant.

While prosecutors in criminal trials must prove that the defendant is guilty beyond a reasonable doubt, plaintiffs in civil trials must only prove their case by a preponderance of the evidence.

Beyond a Reasonable Doubt

In a criminal case, the defendant is presumed innocent until proven guilty. The plaintiff in a criminal case (also known as the prosecutor, state or government) must produce evidence to prove beyond reasonable doubt that the defendant (accused) committed the crime for which they are being charged.
Essentially, this means that the case must be proven to an extent that no “reasonable person” could “reasonably doubt” the defendant’s guilt.

While there can still be doubt in the mind of a juror, this doubt “must not affect a reasonable person’s belief regarding whether or not the defendant is guilty.”

The reason for this high burden of proof can be partially explained by Blackstone’s formulation, which states that “it is better that ten guilty persons escape than that one innocent suffer.”
The consequences of a wrongful conviction are extremely serious, and for that reason, the courts must err on the side of innocence.

Preponderance of the Evidence

Civil cases, on the other hand, are not as difficult to prove in court. Instead of proving your case beyond any reasonable doubt, the plaintiff must only show that their proposition is more likely to be true than not true. The preponderance of the evidence standard of proof (AKA balance of probabilities) is essentially met if there is greater than 50% chance that the plaintiff’s claims are true.

The burden of proof in South Africa – a Constitutional perspective

The wording of the Constitution is rather specific in Section 35(3)(h) that states:
“Every accused person has a right to a fair trial, which includes the right…. (h) to be presumed innocent, to remain silent, and not to testify during the proceedings.”

The presumption of innocence is the foundation of our legal system. The very same legal system protected in the much revered 1994 Constitution.

However, the Constitution places NO obligation on ordinary citizens to presume somebody is innocent until he or she has been proven guilty of a crime before a court of law.

The Constitution guarantees for every accused person the right to a fair trial which includes the right to be presumed innocent by the presiding officer until such time as the state has proven its case beyond reasonable doubt.

No one therefore has the constitutional right to be presumed innocent by the public until proven guilty.

Moreover, section 35(3)(h) guarantees the right to be presumed innocent by the magistrate or judge who presides in the accused criminal’s trial only for an accused person.

People who have not been brought before a court do not enjoy this right!

So whenever evidence emerges that a public figure (more likely a politician) may have done something wrong, it is almost certain that the alleged wrongdoer and his or her defenders will say that the person must be presumed innocent until proven guilty.

It seems however that this percepetion only applies in the case of black politicians and office bearers and not to white people.

As the person would not have been convicted of a crime, so the argument goes, the public has a constitutional duty to presume he or she is innocent of wrongdoing.

If credible evidence suggests that, on a balance of probabilities, the person is guilty of wrong-doing, then as members of the public we have every right to assume that the person did something wrong and to say so.

Despite what politicians sometimes believe (or say they believe) there is currently no legal rule that prohibits members of the public from talking about, commenting on, or even speculating about, ongoing court cases.

However, this does not mean that anyone is legally or ethically entitled to say anything about anyone regardless of whether there is any credible evidence to support the claim or not.

So when politicians or the media reports that a person has been involved in some sort of wrongdoing (capturing the state or being captured; taking part in corrupt activities; flouting rules or the Constitution; acting unethically, stealing land), or when ordinary citizens draw conclusions from such reporting and take to social media to condemn the accused person/s, the affected person is always entitled to sue the media publication or private citizen for defamation.

Politicians, journalists and members of the public should therefore take care – both because of the threat of being slapped with a defamation suit and because it is ethically the right thing to do – not to make unwarranted assumptions about people and not to say something defamatory about that person if there is not a good chance that the statement is true.

Lately we often hear: “Whites have stolen our land!”

Why then has nobody gone to a police station and opened a criminal case of theft against any white man who allegedly stole his land? If the legal system is so transparent and so fair and the constitution so sacred, the matter of land ownership becomes very easy to settle.

Why hasn’t any black South African or liberal supporter gone to a police station with evidence of the crime of theft and pressed charges for the stealing of their land and let the Police go and catch the alleged thief and send him to prison!

The reason is very simple: Because there exists no proof of any such theft!


On the contrary, the right thing to do would be for the whites of South Africa and organisations like ‘Afri Forum’ or 'Solidarity' to vigorously pursue and seek legal redress against anyone or any group who makes such unfounded malicious allegations.

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