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408 Chapter 17
For Snyckers, the thinness of the Court’s criminal procedure jurisprudence
– as evident in Molimi, Zuma, Thint (Holdings), Shaik and Zealand
– imposes a different set of costs on a single set of parties: the accused. 43
Although the Constitutional Court certainly got off to a fast start in
protecting the accused with respect to its reverse onus decisions, Snyckers
contends that recent cases suggest a weakening of that resolve. He traces that
weakening to the Court’s preference for determining specific cases in terms of
the balancing of rights and interests rather than in rule generation in terms
of the panoply of criminal procedure protections found in the various
substantive provisions of the Bill of Rights. He writes:
In an adversarial criminal justice system, rules tend to favour the accused. Rules,
when applied strictly, create rights. The fewer the rules, the more likely the
conviction. The longer the view taken by a justice system, the more generous
the system to those at its barrel-end. Due process intrudes upon the immediate
desire to punish with an appeal to the perennial need to be humane. It arrives
at the critical moment, embodying the conscience of society, to spoil the
quenching of the bloodlust at the hanging party ... More often than not, [the
accused’s] salvation will lie in the extent to which he is able to invoke rules,
rights and principles that were created for the benefit of others, for situations
other than his, and for the long-term benefit of society. 44
Naturally, Snyckers continues, the accused will prefer rather uncritical
application of these rules rather than nuanced assessments of the application
of the rule in a particular set of circumstances. But the thwarted desires of the
accused are not what troubles Snyckers here. His concern – highlighted by the
quintet of cases handed down by the Constitutional Court in 2008 (Molimi,
Zuma, Thint (Holdings), Shaik and Zealand) 45 – is that the Court’s reflexive
invocation of society’s interests in fighting crime has a tendency to outweigh
the rights-based or rules-based arguments of the defendant. Or as Snyckers
puts it: ‘Such balancing exercises will tend, in the nature of things, to end badly
for [the defendant].’ 46 And that is so because the Court has a tendency to
engage in hand-waving exercises when it comes to the content of a right – too
often preferring a notional approach to rights analysis (in which the abrogation
of the right is merely assumed) as opposed to a value based rule-generating
43 F Snyckers ‘The flight from rights: Rule aversion in dealing with the criminal process
Molimi, Zuma, Thint (Holdings), Shaik and Zealand’ (2009) 2 Constitutional Court Review
269.
44 Snyckers (n 82 above) 1.
45 S v Molimi 2008 3 608 (CC); Thint v National Director of Public Prosecutions; Zuma v
National Director of Public Prosecutions 2009 1 SA 1; Thint Holdings v National Director
of Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 1 SA 141; S v
Shaik 2008 5 SA 354 (CC); Zealand v Minister of Justice and Constitutional Development
2008 4 SA 458 (CC).
46 Snyckers (n 43 above) 1.