13/09/2023
Critical thinking forces us to jettison our current comfort zones to undertake a journey back in memory and zoom into the following, among others:
The setting of the case, ZAR 1957.
PLACE: Republic of South Africa.
Year of hearing:1956 - 1957
Composition court a quo:
Composition of Appeal court: An all white male bench.
Nature of state: Apartheid imperial and colonial state.
Prevailing legal thought: White supremacy's and black inferiority. Perfectly legal to refer to an African as Kahir. African had no representation in parliament.
Race of accused: Black
native.
Race group of the bench: Malan JA White, Afrikaans Male.
Nature of case: Criminal.
Type of onus: The state must prove case beyond reasonable doubt.
The accused version must be reasonably possibly true.
Note the ruling of the court and its impact on the applicable onus.
Look at the silent nuances attendant to the case.
The approach laid down in the case of R v Mlambo 1957 (4) SA 727 (A), at 738 A-C was per Malan JA:
"In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man after mature consideration comes to the conclusion that there exists no reasonable doubt that the accused has committed the crime charged. He must in other words, be morally certain of the guilt of the accused. An accused's claim to the benefit of the doubt that may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable influences which are not in conflict with, or outweighed by the proved facts of the case."
Things to look out for.
Observe how the onus, beyond reasonable doubt is replaced with,
"Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man after mature consideration comes to the conclusion that there exists no reasonable doubt that the accused has committed the crime charged."
In other words evidence establishing high probability that the accused is guilty of crime charged.
Note here also the court refers to the so called: "a reasonable man after mature consideration".
Can a white Afrikaner judge in apartheid ZA of 1957 presiding in a matter involving a Kahir, be said to be a modicum of the so-called reasonable man.
Flipped, the question is whether a whiteman serving to enforce apartheid supremacy can be said to be a model of a reasonable man to determine the guilt of a Kahir?
Per Malan JA in R v Mlambo, there is no need to prove the case beyond reasonable doubt. As long as prosecution establishes a high degree of probability that the accused is guilty.
The postulation by of this apartheid era bench leaves me with the impression that the onus resting upon the state was lowered in casu.
Let's engage.
