With all the recent developments politically, the shunning of the Gupta Family, the President’s call to end corruption and further the much publicised penultimate finale of the Van Breda case, we  find it necessary to explain the differences in burden of proof in different fields of law.

In general, our law is divided into Public and Private Law.  Public Law, being law that affects society as a whole, and Private Law which governs relationships between individuals (including juristic persons).

In most areas of our law, the burden of proof rests on the accuser and involves the accuser proving their matter on a balance or preponderance of probabilities. This burden involves proving that a certain version was more likely than not to have occurred.  In essence, a person would only need to prove on a balance of probabilities that their version is 50.01% more likely, in order to be successful with their case. This, of course, has its own set of rules and it is therefore essential that you consult with an attorney to ensure that your evidence and witnesses are sufficient to satisfy the requirements of the law of evidence.

Criminal matters on the other hand, require the Court to make a decision based on the accused’s guilt and a Court must therefore establish the fact beyond a reasonable doubt. This means that if any reasonable doubt or possibility of another explanation exist as to the accused’s guilt, the accused cannot be found guilty of the offence.

Public opinion however often shows that the members of the public do not fully understand how certain accused individuals are not found guilty of what appears to be drastic and inexcusable charges. This has to do with the burden of proof and the facts presented during trial. Legally, this understanding or distinction is clear cut.

Members of the public become even more confused when this line is crossed where labour and criminal law matters are concerned.  In both cases, a person could be charged with committing an offence, and despite this the verdict, penalties and repercussions might be vastly different. For example, an individual could be found guilty of theft in a labour law matter and be dismissed with immediate effect, but subsequently found not guilty in a criminal law matter of the same nature. It is important to understand the burden of proof and the clear distinction between civil and criminal law matters. This confusion might result in a party failing to discharge their necessary onus.

In furtherance, Section 35(3)(h) of the Constitution, Act 108 of 1996, provides that “every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during these proceedings”.

In the case of S v Van Rooyen,^[1] the Constitutional Court provided the following: “Our courts are manned by full-time Judges trained in the law, who are outside party politics and have no personal interest in the cases which come before them, whose tenure of office and emoluments are protected by law and whose independence is a major source of the security and well-being of the state”.

Decisions made by the Courts do not take (or are not supposed to take) public opinion into consideration, but merely the legal facts put before them and as such, we trust our Judges and Magistrates to make an informed decision based on the legal principle established through the burden of proof. These decisions may be taken on review or appeal resulting in a tried and tested legal system. Therefore, no matter the outcome of any decision of any potential future actions, we trust this article will assist in a better understanding of how our Honourable Courts’ have made their decisions and conclusions.

^[1] S and Others v Van Rooyen and Others (General Council of the Bar of South Africa Intervening) (CCT21/01) [2002] ZACC8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002).