By Paul Ngobeni
Our criminal justice system failed entirely when Duduzane Zuma who had voluntarily surrendered himself and walked into the courthouse on his own volition was shackled in leg irons shortly before he appeared before the judge where he allegedly faced corruption charges. Some apologists have excused this inhumane act and have argued that this is a routine practice throughout South Africa. They claim it is a daily occurrence in the courts where less famous or less politically connected accused face sundry charges.
They argue therefore that former president Zuma’s son should not be granted special favours or given preferential treatment. Blinded by such personalization of the issues, these proponents of “leg irons for all accused” have never pondered whether such practice passes constitutional muster and whether it should be abolished in line with our post-apartheid dignity-based jurisprudence.
Unfortunately, in the Duduzane Zuma case, all role players in the judicial system failed both Mr. Zuma and our constitution. Mr. Zuma’s lawyer was duty-bound to fiercely and fervently defend the interest of his client. He should have immediately objected when Duduzane walked into the courtroom in leg restraints and should have demanded an explanation from the court as to why his client who had voluntarily surrendered himself to the authorities and the judicial system required leg restraints just to appear before the judge.
The Hawks’ conduct was equally disgraceful and they should have known that the Courts have already established legal precedent requiring correctional officials and other role-players in the judicial system not to bring non-violent accused persons who posed no flight risk before the court in leg chains. That was the ruling in State v. Khubeka 2013(1) SACR 257 (GNP) Judge Bertelsman did not mince his words – he made it abundantly clear that the court would impose fines on correctional officials for being in contempt of court if prisoners are brought to court in leg irons.
The court indicated it would resort to such measures as a last resort if it had repeatedly admonished the correctional officers for disregarding this clear directive not only from the local Magistrate but also from the Supreme Court of Appeal. For the judge, this conduct by the officers clearly raised the constitutional issue if it was not remedied immediately. I am also forced to say that the performance of the judge in the Duduzane case was equally appalling. The judge failed in his duty to evaluate the defendant based on his behaviour, his past record or to require a recommendation from court officials as to whether the accused should remain in leg chains in the courtroom. Such decisions cannot be surrendered to the Hawks, they must remain a non-delegable duty of the judge who must not only do justice but must ensure that justice is seen to be done. I offer several reasons for the above criticism.
Section 10 of the Constitution – Dignity – tells us that we must, at a minimum, treat every individual as an end in herself, and never solely as a means. As clearly articulated by Justice O’Regan in Dawood & Another v Minister of Home Affairs & Others  ZACC 8, 2000 (3) SA 936 (CC), 2000 (8) BCLR 837 (CC) at para 35: ‘The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings.’ It can never be justifiable or defensible to perpetuate an unjust practice which is not grounded in rationality but is simply being continued because it has its origin in the odious past court practices.
Obviously, leg restraint on a non-violent accused who has voluntarily surrendered to authorities has come to court on his own volition to answer criminal charges and presents no flight risk constitutes a dignity suffocating practice and gratuitous humiliation of the accused which serves no legitimate judicial purpose. Moreover, a judge who presides over a proceeding in which human rights and dignity are debased not only brings the judicial office into disrepute but he becomes an accomplice to a direct violation of the Constitution.
This is not to deny that there may be good reasons to apply leg restraints to those persons with a history of violence in court or for interfering with law enforcement. The right to be free from unwarranted restraint no matter the proceeding respects our foundational principle that defendants are innocent until proven guilty. A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom.
Our own judges would do well to follow the exemplary approach of Judge Bertelsmann. In addition, they can benefit from the recent 2017 analysis of the US Ninth Circuit Court of Appeals in United States v. Sanchez-Gomez, where the court held that a lower federal court’s policy of routinely shackling all defendants in the courtroom was unconstitutional. The court held that under the Fifth Amendment to the US Constitution, no person shall be “deprived of life, liberty, or property, without due process of law.” It reasoned that the U.S. Supreme Court has said time and again that “liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from an arbitrary governmental action. Youngberg v. Romeo, 457 U.S. 307, 316 (1982).
Liberty from bodily restraint includes the right to be free from shackles in the courtroom, reasoned the court. Also, the right to be free from unwarranted shackles no matter the proceeding respects their founding principle that defendants are innocent until proven guilty. “The principle isn’t limited to juries or trial proceedings,” said the Court. It also includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel:
“A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain . . . The fact that the proceeding is non-jury does not diminish the degradation a prisoner suffers when needlessly paraded about a courtroom, like a dancing bear on a lead, wearing belly chains and manacles.”
The Court further reasoned that “Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life.” It reasoned that a member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. “Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.” Further, the court observed:
“We must take seriously how we treat individuals who come into contact with our criminal justice system—from how our police interact with them on the street to how they appear in the courtroom. How the justice system treats people in these public settings matters for the public’s perception, including that of the defendant. Practices like routine shackling and “perp walks” are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise. We must treat people with respect and dignity even though they are suspected of a crime.”
In conclusion, the court reasoned that the Constitution enshrines a fundamental right to be free of unwarranted restraints. “Thus, we hold that if the government seeks to shackle a defendant, it must first justify the infringement with specific security needs as to that particular defendant.” Courts must decide whether the stated need for security outweighs the infringement on a defendant’s right. This decision cannot be deferred to security providers or presumptively answered by routine policies, said the Court. “All of these requirements apply regardless of a jury’s presence or whether it’s a pretrial, trial or sentencing proceeding. Criminal defendants, like any other party appearing in court, are entitled to enter the courtroom with their heads held high.”
We can observe with a measure of pride that some members of our own judiciary such as Justice Bertelsmann were many years ahead of the US courts on the issue of restraint for accused persons in the courtroom.
Sadly, that progressive jurisprudence is being undermined and rejected by those blinded by anti-Zuma hysteria and hatred. We can criticize the Hawks but the lawyers we hire in cases must also come under scrutiny.
The presiding judge was also asleep and not alive to the Bill of Rights in the Zuma case.