Omphetmetse Sibanda argues that the postponement of Jacob Zuma's corruption trial to August should be welcomed as it will bring more clarity to the challenges of virtual hearings.
After a day of legal wrangling and tug-of-law, Judge Piet Koen of the KwaZulu-Natal High Court in Pietermaritzburg has granted former president Jacob Zuma's application for the postponement of his corruption trial.
The case was postponed to 10 August, and it is expected to run until 13 August.
'Stalingrad Season 27' or confirmation of 27 years of democracy that is undergirded by rights and freedoms? That is the question.
Some, like City Press's Mduduzi Nonyane argue that the postponement is a temporary relief. In my view, this is a development that we should cherish because it will bring more clarity to the challenges around the virtual hearing.
Acts 25 in Bible details the story of Roman Governor Festus who was asked by the chief priests and the Jewish elders from Jerusalem, for a sentence of condemnation for Paul. A pronounced version of the statement given by Festus about the right to a fair trial is found in the King James' version of Acts 25:16, which reads:
Our courts too have acknowledged the importance for an accused person to be in court and allowed to confront his or her accusers. For example, in S v Nkabinde 1998 (8) BCLR 996 N, Combrinck J stated that "Inherent in the adversarial procedure under which an accused is entitled to face his accusers in open court to test their allegations of misconduct against him, cross-examination provides, in usual circumstances, the only, but extremely efficient mechanism of testing the veracity of testimony." (at 1004). On the other hand, section 35(3)(e) of the Constitution provides that "an accused has the right to be present when being tried". It would seem however that the in-person testimony and virtual testimony is a marriage made in hell.
Denial of the Confrontation Clause
The critical argument by Zuma's legal representatives Thabani Masuku and Adv Dali Mpofu SC centered around what is generally considered the Confrontation Clause and the effect of virtual testimony on the constitutionally protected right to a fair trial.
"A virtual hearing in criminal matters is an exception," said Masuku. "In other words, it constitutes a limitation on the scope of the rights that an accused person is entitled to under Section 35 of the Constitution. Therefore, it must be justified in terms of section 36 of the Constitution." Masuku went on to implore the NPA to do right by Zuma. "They (NPA) must apply the law as they are commanded to do so in terms of the act. This zealous pursuit for Mr Zuma at all costs, by bending the rules and cutting corners, is not right. Let's have a fair trial. Let's have him in court. Let's have everybody there [and] let's argue the case there," retorted Masuku.
Mpofu on the other hand made a special plea application to postpone the matter until Zuma could appear before the court in person at the Pietermaritzburg High Court.
Watching and listening to Masuku and Mpofu it became clear to me that the King James' version must be considered the most impactful base for the argument advanced by Mpofu and Masuku on behalf of the former president. Adv Wim Trengove SC on the other hand would have none of it, arguing that the request to allow Zuma to appear before the Court in person once the environment is conducive was "merely a ruse" to avoid him answering charges put to him.
Politics and legal wars aside, this case will create an important precedent in our case law - not only will it be a precedent as something novel but confirming the law under section 158(1) of the Criminal Procedure Act (CPA) No 51 of 1977. Section 158(2) of the Act further allows as an exception for evidence to be heard through closed-circuit television or similar electronic media, provided the accused agrees to it. This is a very important section to be read with section 35(3)(e) of the Constitution because it justifies virtual courts or e-justice.
Judge Piet Koen adjourned the trial to 10 August. One of Judge Koen's significant pronouncements relates to the virtual proceedings directive of 15 July 2021. According to him, the directive to hear arguments in the matter virtually "shall continue to apply unless revoked or revised." The parties and the Department of Correctional Services have been ordered to provide a list of considerations or prejudices that they consider relevant to his decision to hold the special plea hearing on a virtual platform.
So far the law is clear - a court making an order for a virtual hearing as contemplated in section 158(2) of the CPA must be convinced that doing so will: "(a) prevent unreasonable delay; (b) save costs; (c) be convenient; (d) be in the interest of the security of the State or of public safety or in the interests of justice or the public; or (e) prevent the likelihood that prejudice or harm might result to any person if he or she testifies or is present at such proceedings."
Interestingly, Judge Koen was careful to confine the parties to listing considerations and possible prejudice, "compiled with reference to the circumstances that would prevail or are anticipated to prevail as from 9 August 2021."
In essence, there can be no references to previous or historical circumstances.
If Koen's order straightjackets Mpofu and Trengove in their respective presentations come 10 August, it is still to be seen. What is clear though is that we are in for a very interesting episode over those three days. We may even see the case needing additional days to look into the merits or demerits of considerations and possible prejudices listed by the NPA, Zuma and the Department of Correctional Services.
For instance, it will not be plain sailing for the NPA, and it will still have to show why the directive for a virtual trial is in the best interest of justice not only for the public but for Zuma as a rights holder.
At this point, the NPA's fear that Zuma will rehash his previous allegation once in court is irrelevant. The decision can go either way. It is a fact that virtual trials in criminal cases may not be ideal for effective criminal trial practice. So their contemplation must be under extreme circumstances, and at the same time, ensuring that the accused interests outweigh the inherent constitutional risks to a fair trial.
Mpofu decried the difficulties in consulting with Zuma since his incarceration at the Escort Correctional Facility. In this case, Judge Koen was conferred a wide discretion to grant or refuse such an application.
Virtual proceeding and telepresence technology to be used with caution
Internationally, there are concerns about the use of remote video technology, in particular the challenges it poses on fair judicial proceedings. Therefore, in some jurisdictions, judges are encouraged to adopt the technology with caution. Others oppose the return to in-person proceedings in the wake of the Covid-19 pandemic. Challenges such as the Covid-19 pandemic disruption of court operations globally cannot be taken lightly.
The South African judiciary will have to seriously consider e-courts and expanding of use of remote technology as a permanent feature of our justice system as part of the country's Justice Project. If appropriately done virtual proceedings and e-courts can become one of the best innovations in the quest for access to justice.
On the flip side, it can become a bedrock for the most egregious forms of injustice and denial to a fair trial to accused persons. For example, a 2008 study of immigration courts by Frank M. Walsh and Edward M. Walsh (titled "Effective Processing or Assembly-Line Justice - The Use of Video-conferencing in Asylum Removal Hearings" published in Georgetown Immigration Law Journal 271-277) reported that detained individuals were more likely to be deported when their hearings occurred virtually through video-conferencing than in person.
One study in 2013 by Eric Bellone (titled "Private Attorney-Client Communications and the Effect of Videoconferencing in the Courtroom" published in the Journal of International Commercial Law and Technology) suggests that virtual proceedings can make attorney-client communications more difficult, particularly when the courts using video conferencing does not provide or has no provisions to enable privacy of remote communications between attorneys and their clients. This is a similar argument made by Mpofu.
The virtual proceeding was never envisioned by framers of our Constitution
Framers of the South African Constitution probably never envisioned accused persons and witnesses testifying via google meet, Zoom or Microsoft Teams. However, the idea of witnesses testifying by video in criminal trials is not a novel concept. For example, section 170A was in 2007 inserted into the CPA to take the testimony of child witnesses with the aid of an intermediary via closed-circuit television. One of the main reasons for section 170A is to protect child witnesses from the stress and suffering of testifying in the accused's presence. The use of closed-circuit television in terms of section 170A has been ruled constitutional in the case of Klink v Regional Magistrates NO. In particular, the court held that the use of the intermediary did not affect the fundamental fairness of the criminal process.
That said, the Court in Klink noted that "sensitivity to the interests of witnesses (including children), should not contribute to an easy disregard for the guaranteed and basic principles underlying a fair trial" (para:34).
Notwithstanding section 170A of the CPA and Klink case, virtual testimony in criminal cases has not been elevated to a general rule, and thus it remains a careful exception to the constitutional rules on fair trial. Face-to-face testimony of and confrontation by the accused person is guaranteed as a right under section 35 of the Constitution, meaning that the NPA must provide sound and cogent reasons to dispense with it.
Virtual proceedings have both disadvantages and advantages. For this reason, the CPA framework as a general rule requires the accused person to be present in court. However, the CPA did not close the door for virtual proceedings. It is unfortunate that our legal system and the judiciary have been sluggish in moving the country to smart courts and e-justice. The chickens have now come home to roost.
We still do not have an appropriate system to support the requirements of justice and dispel arguments for ambiguous regulatory rules, as we have seen already. If it did, we would not be facing a situation where the likes of Judge Koen having to navigate the controversies around virtual proceedings in the Zuma case.
Despite the cloud hanging over virtual court proceedings, the country should never throw out the baby with the bathwater. What needs to be done is to assure that parties' legal rights are fully protected during virtual trials, in particular rights under section 35 of the Constitution.
- Professor Dr Omphemetse S Sibanda, Legal Scholar Without Borders, is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North-West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the former Vista University, Soweto Campus.
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