To speak or not to speak, that is the question: Does prima facie evidence place an evidentiary burden on the accused to lead evidence?

September 1st, 2022

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The South African criminal justice system is one of the most constitutionally progressive justice systems globally and the progressive nature of the criminal justice system has its foundations in the Constitution. Section 35 of the Constitution guarantees certain rights to arrested, detained, and accused persons. The rights of detained, arrested, and accused persons include the right to a fair trial (s 35(3) of the Constitution). The right to a fair trial, in turn, consists of the right to be presumed innocent, to remain silent, and not to testify during trial proceedings (s 35(3)(h) of the Constitution). The right to be presumed innocent is a universally acclaimed right (Article 14(2) of the International Covenant on Civil and Political Rights) and is now entrenched in the South African jurisprudence. The right to remain silent has two dimensions (S v Boesak 2001 (1) SA 912 (CC) at para 24). The right to remain silent during the pre-trial stage is interpreted differently from the right to remain silent during a criminal trial. In criminal trials, legal practitioners must be careful on how they approach the defence case and how they advise their clients on the issue of a right to a fair trial and to be presumed innocent. This article gives guidance to legal practitioners on the practical approach to the rights to be presumed innocent and to remain silent when advising their clients in criminal trials.

The right to a fair trial

The right to a fair trial has always been a fundamental principle of South African law, even before the constitutional dispensation (S v Tyebela 1989 (2) SA 22 (A) at para 29G-H). In establishing the right to a fair trial, the question is whether there was a deviation from the formalities, rules, and procedural principles that the law requires a criminal trial to be initiated or conducted (S v Rudman and Another; S v Mthwana [1992] 1 All SA 294 (A)). The right to a fair trial embodies the right to be presumed innocent, remain silent, and not testify during a trial (s 35 of the Constitution). The accused retains the right to a fair trial throughout the criminal proceedings.

The state’s case and prima facie proof

During a criminal trial, the state must prove its case beyond a reasonable doubt, and the accused persons, in theory, do not have to prove their innocence. However, it is not practically correct that the accused person does not have the corresponding duty (due to the perceived protection offered by the right to be presumed innocent) during the trial proceedings. During a criminal trial, an accused person may carry an evidentiary burden that, failure to discharge, may put such an accused at risk of a conviction. As part of its duty, the state has to prove every element of the offence (with the evidence considered collectively) beyond a reasonable doubt. As the alleging party, the state leads evidence first in criminal proceedings. At the close of the state’s case, the court must establish whether the state has established a prima facie case against the accused person. The term prima facie entails that if the proceedings ended immediately, that would be established, but new evidence could emerge that would alter the outcome if they continued further. In other words, prima facie proof is evidence calling for an answer (Ex parte the Minister of Justice: In re Rex v Jacobson & Levy 1931 AD 466 at 478). At the close of the state’s case, where a prima facie case is required for the case to go further, is often where some defence practitioners and accused persons face challenges. Whenever there is evidence on which a court could or might, applying its mind reasonably, find for the state, a prima facie case has been established. In practice, where the state has failed to make a prima facie case against an accused, the court normally discharges the accused person in terms of s 174 of the Criminal Procedure Act 51 of 1977 (the CPA). The courts can either mero motu discharge the accused or do so on application by either party. It also happens, for whatever reason, that the court does not discharge the accused in terms of s 174 of the CPA. At this stage, some legal practitioners face challenges regarding the best approach to respond to the state’s case.

The accused’s case and the evidentiary burden

The accused person has several options in responding to the state in a defence case (SE van der Merwe in JJ Joubert (ed) Criminal Procedure Handbook 12ed (Cape Town: Juta 2017) at 346). Firstly, the accused can choose not to testify and refuse to call any witnesses. Secondly, the accused may decide to lead evidence in response to the state’s case. Legal practitioners representing the accused must choose the options very carefully. The choice is not based on the question of fact but on the point of law. The legal practitioner must address whether the state has presented a prima facie case against the accused during its decision making on the defence’s case. Where the state has shown prima facie proof of the commission of the offence, the accused carries an evidentiary burden to rebut the state’s evidence. According to Zeffertt and other authors, the concept of evidentiary burden has two distinct features (David Theodor Zeffertt, James Grant and A Paizes 2ed Essential Evidence (Durban: LexisNexis 2020) at 37-38)). The first feature of the evidentiary burden is an onus on the person to lead evidence refuting the opponent’s prima facie case. The second feature is the party’s duty to begin and lead evidence to escape certain procedural consequences (Zeffertt et al (op cit) at 37-38). As evident from the two key features mentioned above, the accused’s right to remain silent weakens and diminishes as soon as the state has presented a prima facie case against them. As the state leads the evidence and makes out a prima facie case, substantive and procedural rules justifiably limit some components of the accused’s right to a fair trial. Some of the features restricted by the state’s presentation of prima facie evidence are the right to remain silent and the right not to testify during the trial proceedings (s 35(3)(h) read with s 36 of the Constitution). The Constitutional Court also reiterates that the right to remain silent has a different application within the different stages of the criminal prosecution (Boesak at para 24). The nature of the right to remain silent during the pre-trial stages is different from the right to remain silent during a criminal trial where evidence is admitted into the court records (see s 35(1)(a) and 35(3)(h)). The courts have further held that an accused’s right to choose whether to testify or not is not a violation of the right to silence (Boesak at para 22). Legal practitioners must advise clients who insist on remaining silent despite the overwhelming evidence of the risks inherent in exercising the right to remain silent. Where the accused person is unrepresented, the courts must communicate to such accused the consequences of opting not to lead evidence where the state has led prima facie evidence.

The fact that a client elects not to lead evidence where there is a prima facie case may have unintended consequences. In some instances, the court may be justified to conclude that, in the absence of a response to evidence that requires a response, the evidence is sufficient to establish the guilt of the accused (Thebus and Another v S 2003 (10) BCLR 1100 (CC) at para 56). In Scagell and Others v Attorney-General of the Western Cape and Others 1996 (11) BCLR 1446 (CC) at para 12, it was held that when an accused person has an evidential burden, there must be sufficient evidence to raise reasonable doubt to escape conviction. The state’s prima facie case impacts the accused’s election to testify and the quality of evidence required from the accused. The court in S v Mathe (GP) (unreported case no CC145/2017, 21-11-2018) (Sardiwalla J) at para 47 held that the evidentiary burden, in the presence of a prima facie case, was imposed on the accused and their evidence. The accused’s evidence must sufficiently give rise to a reasonable doubt about the accused’s guilt. Thus, before the criminal trial commencement, legal practitioners must sensitise their clients to the limits of the right to a fair trial in the event of the state presenting a prima facie case.


It is trite law that an accused has a universally acclaimed right to remain silent, integral to the right to a fair trial. However, the right is only absolute during the pre-trial stages, and ‘it is impermissible for a court to draw any inference of guilt from the pre-trial silence of an accused person’ (Thebus at para 58). During the criminal trial, the nature of the accused’s right to remain silent is different. Where there’s prima facie evidence against the accused at the close of the state’s case, there is an evidentiary burden placed on the accused. The triggered evidentiary burden places an onus on the accused to lead credible evidence to rebut the state’s case or risk a conviction. The courts must explain different interpretations to an unrepresented accused person during a criminal trial. Legal representatives also need to advise clients of the dangers of not leading evidence to create a reasonable doubt where the state has presented a prima facie case.

Mahlubandile Ntontela LLB LLM PGDip Labour Law Practice (NMU) PGDip in Drafting and Interpretation of Contracts (UJ) is a legal practitioner and lecturer at the University of Fort Hare.

This article was first published in De Rebus in 2022 (Sept) DR 13.

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