Most of us have heard the American expression of “Pleading the Fifth”. This comes about in most movies and TV series where a person is arrested and wishes to remain silent. The Right to not give evidence which would incriminate yourself in a crime is a fundamental Constitutionally protected operative. The purpose of the Right is of course to protect oneself.
It seems paradoxical to want justice to be served on persons believed to be guilty, but in the same breath letting an accused have the right to keep evidence out of reach which would lead to their guilt. The right extends as set out in the Constitution of the Republic of South Africa that:
“35 (3) 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 the proceedings;
- not to be compelled to give self-incriminating evidence;”
Every person should know that they have the right to remain silent. Every accused should know that their rights also extend to not give self-incriminating evidence. These rights are fundamental. The ideal being that the State has a duty to produce evidence of their own which would serve to find a person guilty of a crime or offence on the basis of “Beyond a reasonable doubt”. It could be argued that it is the right of an accused person not to assist the State in proving their case.
This right continues not only through criminal proceedings, but also during civil proceedings. Through civil proceedings the litigants have the opportunity to request and to compel documents and evidence to be given to one another to prove their respective cases. This however has been countenanced through the recent case of MTN (Pty) Ltd v Madzonga and Others [2023] JOL 58026 (GJ). This case is summarised in that MTN requested for documents to be disclosed from Madzonga and his co-defendants. During the application by MTN to compel that the documents be rendered, the Defendants were also in the process of criminal proceedings against them on charges of fraud. Although MTN had crossed the hurdle that the documents they demanded were relevant to the civil case, the Court also found that the documents would be evidence of a self-incriminating nature in the Criminal case. Ultimately, the Court dismissed the application on the basis of protecting the Defendants’ right to not give self-incriminating evidence.
In the realm of legal adjudication fairness is a protected right. It is not the duty of litigants to help their opponents prove their point. This however comes to be balanced by that evidence of an autoptic nature is not regarded as protected. An accused may be asked to stand up in Court to show his height, stature, even to lift his shirt to show scars or marks on his body. This has been found not to infringe on an accused’s right to remain silent.
It can be said that the accused has the opportunity to remain “Passive” during his criminal proceedings. The accused having the right not to give evidence which would incriminate them, as well as the right to remain silent. Should an accused exercise these rights then no negative inference may be made on their choice to do so. It is the State who must play an active role in finding and procuring evidence through any means other than through the accused themselves.
It is essential that all persons should come to know and understand their rights. Judicial and trial fairness are the cornerstones of society’s administration of justice.
