Ashish Sewgoolam
Ashish Sewgoolam

Innocent ’til proven guilty…

I, like many, have been following the Oscar Pistorius saga on Twitter. The plethora of tweets on one topic is something that I have not seen before. Almost everyone seems to have an opinion, a view on what happened and how it went down, and some, maybe even most, have a verdict.

Yesterday Pistorius was granted bail and the backlash was extreme. It seems many who are following the story with keen interest have a limited understanding of the judicial system yet think that they are now legal experts. These same people are reacting to bail being granted like he was found not guilty.

Ei incumbit probatio qui dicit, non qui negat is a Latin term that translates as: “The burden of proof lies with who declares, not who denies.” This is commonly referred to as “innocent till proven guilty”.

These are words that most should be familiar with and have likely heard at one point or another. The reality is that these aren’t just words bandied about. They are engrained in Roman law, civil law, Islamic (sharia) law and common law. This notion is even found in our very own South African Constitution in the Bill of Rights — “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”.

Even the UN has this incorporated into The Declaration of Human Rights where Article 11 reads as follows:
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

With this case receiving a lot of international coverage and views coming in from celebrities from all over the world via Twitter, opinions are certainly flying around. Piers Morgan is having his say, Trevor Noah has made a few jokes, and even John Cleese broke his twitter silence to make an Oscar joke.

Then you have footballers, like Joey Barton, adding their two cents and last but not least Perez Hilton, the most foreknown paparazzi celebrity gossip blogger has even given his opinion on the matter.

For the most part, these celebrities are using the case as a medium to draw attention to themselves and garner more followers. In some cases it is even aligned with their jobs. But I feel that we owe it to ourselves as South Africans to rise above the temptation to rant by making presumptions over social media and give the man a fair chance to stand trial.

I am not condoning his actions in the least. His actions as documented in his affidavit seem like he had intent to kill, whether it be Reeva or an intruder. As for whether it was accidental or not, this remains to be adjudged in a court of law from June 4.

I am not against some of the views and opinions about the case. I’m even okay with some of the banter with trending topics like #ThingsFoundInOscarsHouse and #SinceNairsReadingStarted but it is not up to us pass the verdict. The burden of proof is on the prosecution. They have to collect and present enough compelling evidence to convince the court, which is obliged to consider only actual evidence and testimony that is legally admissible as well as lawfully obtained, that the Oscar is guilty beyond a reasonable doubt.

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    • Jon Story

      There are so many facets to this case and the trial by public opinion is but one of them. Not only of his alledged slaying of his girlfriend but also of his alledged violence-against-her (and thus against all women she represented).

      The family of Reena Steenkamp meanwhile, appear to have reacted reasonably, even forgivingly. That must have taken courage. But it is the right spirit: pray for those who persecute (act violently against) you.

      Hatred or forgiveness, in a civil society only the latter will save the day.

    • Ian

      Hmmm. Innocent he certainly is not, what needs to be determined is what he is guilty of… Premeditated, culpabale or manslaughter . Innocent doesn’t factor into it at all…

    • http://http// Paul Whelan

      Precisely. ‘Innocent until proven guilty’ is a kind of watchword of the legal profession confirming that everyone has a right to a trial by due process, which the defense will win or lose. It has nothing whatever to do with people expressing their opinions, which is impossible to stop in any event.

    • Momma Cyndi

      Isn’t it ‘presumed innocent’?
      You can’t prove a negative so the burden of proof has got to be on the accuser.

      Everyone is entitled to an opinion. My opinion of his guilt or innocence is likely to be swayed from one side to the other any number of times during the trial itself. Unfortunately, the legal system has changed from being a weighing of the evidence and the search for the truth to being a dance between the prosecutor and the defense attorney. That is great entertainment but not really something that Ma’at or Alethia would approve of

    • Thandinkosi Sibisi

      I agree with Ian “innocent he certainly is not”!

      Question is what can a court (any court for that matter not only a South African court ) possibly establish given what Pristorius himself has admitted: he shot , (presumably)with an intention to kill, somebody whom he(supposedly) thought to be a burglar.The test for South African law is: “What is the legal status of shooting “burglar” or any other person for that matter (Reeva in this case) with an intention to kill him/her? Murder? Culpable homicide with aggravating circumstances?

      Did this “burglar” pose any visible threat?Well, if this “burglar” was “visible” he would have seen her to be Reeva and hence he would have to give a good explanation why he shot her (were they fighting for example?). If this ‘burglar” (who presumably deserved to be summarily executed as such?) was not visible how did Pristorius decide that s/he was a threat given that he lived in a gated suburb, and he presumably knew that there was somebody else in the house?

      I am no law expert , however the law has to send a clear message ; it is wrong to summarily execute a “burglar” whether that “burglar” is Reeva or someone else who does not exactly have a pretty face!

      Proving Pristorius guilty of “premeditated murder, beyond reasonable doubt” will be difficult given that the only credible witness is dead and most evidence will have to be circumstantial not direct..One thing is clear though, Pristorius has to “do time”!…

    • suntosh

      I agree.

      However, sentiment overrules rationality.

      p.s. “possible sociopath” might come back to bite you on Twitter if one day you shoot people. Just saying 😉

    • Tofolux

      How hypcritical. Not so long ago, it was the very same commentators who accused the President, tried and convicted this even before he appeared in a court of law. Not only did they do this the all pervasive language was quite different. But sure, all of this is to be expected especially from those who cannot bring themselves to believe that their massers are quite inhumane.

    • Concerned

      The slogan “innocent until proven guilty” is, of course, a denial of truth, and an attempt at perverting justice. The perpetrator, the victim and the observer know of innocence and guilt. And no court can change it. The ambit of courts is to demonstrate guilt or innocence in terms of conviction and a definitive statement to the public, and whether the public can be persecuted for libel.

      Guilt is absolute, the courts at most a statement to the public and a decision for punishment!

    • Heinrich

      What will be the purpose of the trial of this man? To establish beyond any reasonable doubt…what exactly?

      It has already been established beyond any reasonable doubt that he killed someone. That is called murder. Can he be presumed innocent (of this act) ?

      Court cases are so often a show of smoke and mirrors, and reflect more often than not, financial strenght behind the accused or the prosecutor, rather than justice.

    • The Creator

      The affair was a bail hearing. Nothing to do with his innocence, which is legally presumed under Roman Dutch law until a trial has been convened and the evidence can be seen. The decision of the bail hearing was that he was not so much of a flight risk that he couldn’t be let out (after surrendering passports and money).

      The reason for putting the man on trial is the same as for putting anyone else on trial; to determine what legal crime he has committed and to decide what punishment he should have.

      Is that so difficult to follow?

    • Percipient

      Great article, thanks Ashish.

      @ Tofolux: we the public were dumbfounded how the 783 charges of theft, fraud and corruption that were slapped onto Jacob Zuma just disappeared into thin air, despite Zuma’s wishing to have his day in court, hmm… this flies in the face of common sense and reason if you ask me.


      does not oscars affidavit amount to an admission of guilt?….perhaps not admission of pre meditated murder of reeva specifically….but perhaps pre meditated murder of a burglar?….who turned out not to exist……..admission of straight murder?….culpable homicide?……oscar has admitted guilt of something…im just not quite sure what as of yet… the state has a few angles it can argue….

    • Ashish Sewgoolam

      Unsurprisingly, @Tofolux has found a way to somehow link this to politics and the president…

      The intention of this post was to clarify that it was indeed a bail hearing and not his trial as @TheCreator clarifies, as well as that the court needs to decide his guilt (and for which crime), not the public over social media.

      Glad that it has encouraged some debate.

    • Tofolux

      @Ashish, Winston Churchill once said “ýou will never reach your destination if you stop and throw stones at every dog that barks” but allow me to humour you. The hypocrisy shown by some in our society is quite telling to say the least. Here again, it is this hypocrisy that plays its ugly hand. We all understand the principles of our democracy, the preambles and especially the very decree that states that ALL ARE EQUAL BEFORE THE LAW. These principles are commonly understood even in our townships. But here again, it seems that some are so quick to fall at the feet and defend a certain section of our society. This fawning and waxing lyrical is quite embarrassing noting the attitude that exposes itself when another section of our society finds itself in the same situation.

    • Mr. Direct


      For me, Pistorius’ life, as he knows it, is over. I doubt he will recover from this emotionally or financially. He has to live with the consequences of his actions ,whether the court decides this is prison or elsewhere.

      But what irritates the hell out of me is that others are able to just pull some strings and the accusations are slowed, postponed, or disappear all together. People who believe they are above the law are who we should be afraid of.

      So you want to compare Mr. Zuma to Pistorius? Tell you what, maybe we should be insisting both of them to face their accusers.

      Throw a stone at that dog, please.

    • bernpm

      “Innocent ’til proven guilty…” or……

      “Innocent until the money is finished…”

    • Ashish Sewgoolam

      @tofolux I’ll humour the others reading with another Sir Winston Churchill quote:
      “A fanatic is one who can’t change his mind and won’t change the subject.”

    • Tofolux

      @Mr Direct, since the brutal killing of Reeva Steenkamp there has been numerous questions raised across society about the preferential treatment meted out to Pistorius in fact everyone agrees that this ”treatment” is unprecedented iro our court systems, the police handling, the handling by media, the sympathetic news coverage of a certain 24hr news channel and especially in the context of violence against women and children. Now, any person will take that and measure it against the treatment meted out to our President and Madiba by the same people. We all know the answer but for the record where are all those civil organisations, the media interest groups who are parade themselves as ”protectors of the constitution”. In fact, where are they or you especially now when we have a victim named, Reeva?

    • Momma Cyndi

      I was told by an someone that it is possible for the defendant to request that the accused be held at a police station. I subsequently asked a cop that I know and he told me that it happens quite often. The old copshops all have cells and if the defendant can find a station that is willing to accommodate him/her and the defense council puts forward a reason for them being there, then that is where they stay. He also mentioned that the world press was on this and the Dewani (as well as other) defense councils would be watching closely. Now if Oscar was in the back of the van and it went around a corner too quickly or braked for a taxi too vigorously and he got out of the back with a blood nose and a black eye …. well that wouldn’t have gone down well in the international media