Many of us in the legal fraternity have been discussing the jailing of former President Jacob Zuma and we seem to agree and asking the same questions as to “Since when does a court sentence any citizen in the civil court where the test is on the balance of probabilities and not beyond reasonable doubt as in the criminal proceedings?”
The Constitutional court justices when they allowed affidavits as the way of conducting the proceedings in President Zuma case (meaning the Founding Affidavit by Zondo, wanted Zuma to file an Opposing Affidavit/Replying Affidavit), the proceedings against him were conducted by way of civil proceedings.
However they then handed down the judgment and found him guilty.
You don’t do that in civil litigation. Instead you deliver a judgment, then you hand down the declaratory order as the standard of proof is on the balance of probabilities.
When you find a person guilty it means the standard of proof is beyond reasonable doubt.
The judges got everything wrong by fusing the civil proceedings and criminal proceedings in one case, obviously the end result will be total confusion and it would have been wrong. When you find a person guilty in terms of Section 274 of the Criminal Procedure Act 51 of 1977, you pause and give the convicted person a chance to address you on mitigation before sentence and the state to address you on aggravation or mitigation before sentence (others argue that CJ Mogoeng Mogoeng wrote to President Zuma and asked him “if you were to be found guilty what would be your mitigating circumstances?
President Zuma rightly so refused to address on mitigation as he was not yet found guilty. There are four stages in the criminal proceedings; 1. Pleadings, 2. If a person pleaded not guilty I.t.o. Section 115 of the Criminal Procedure Act 51 of 1977 then you proceed to trial as the 2nd stage, 3. Is the judgment stage; 4. If a person is found guilty during judgment you proceed to this 4th stage which is the last stage, called the sentencing stage.
So you don’t ask a person to address you on mitigation or state on aggravation or mitigation during the trial stage. All this was miscarriage of justice which created Constitutional disgrace.
After President Zuma had been found guilty, the Concourt justices had to pause and postpone the case to afford the former President an opportunity to address on mitigation before sentence. Never in any law the judicial officer sentences before the convicted has been afforded this opportunity.
This is where they plead for leniency on sentence maybe raising issues such as age, health and that they are first offenders as President Zuma was and request more so a none custodial sentence.
So the Concourt justices combined Civil proceedings and Criminal proceedings in one case and there is no legal provision or law which provides for everything that they did. They acted against the United Nations International Covenant Article 9 and Article 14 which UN International Covenant is the basis of our Constitution in particular Sections 12 (1), 34, 35(3) and Section 39 of our Constitution and including Section 274 of the Criminal Procedure Act 51 of 1977 as amended.
