When somebody stands at our door claiming to be a Telkom technician, we check his credentials before letting him in – effectively assuming his guilt until he can prove otherwise, writes Anton Harber in Business Day. This is normal behaviour, and politicians should not keep trotting out what is effectively a useful legal fiction, that a person is innocent until proven guilty. Journalists, too, should be sceptical of power.
Anton Harber writes in Business Day:
EVERY now and then, there is a need to challenge a notion that has become so commonplace that it is repeated again and again, even though it is patent nonsense. One of these is the idea that we are obligated to presume a person innocent until proven guilty.
Presidential nominee Jacob Zuma wants to be presumed innocent, even though there is evidence pointing to his guilt. But outside of the courts we don’t, can’t and shouldn’t presume someone is innocent when the evidence is otherwise, particularly if we are trusting them with authority, power and public resources.
If someone applies for a job as a security guard, and is currently awaiting trial for theft, we would be damn silly to give them the job on the assumption that they were innocent.
They have to prove it first.
When a man knocks on the door and tells us that he is from Telkom and that he has come to check the line, we have to be pretty naïve to presume that he is not a thief and allow him in. We ask him to prove that he is not before we open the door.
In fact, elaborate public campaigns are run by the authorities to tell you not to open the door to such a stranger, insisting you must assume he is guilty until proven otherwise. Even though there is no evidence against the man.
When we are waiting at a traffic light in the middle of the night and find a gun being pressed to our heads, we do not presume that the gunman is innocent  we are well aware that he is not and we hand over the keys.
The presumption of innocence is what is known as a legal fiction, an artifice used in courts to achieve a particular purpose.
Lawyers are fond of this tool, as it is useful in legal reasoning. But legal fictions are exactly that. They are fictions and do not necessarily coincide with fact.
An example: companies are accepted in law as natural persons. This is to enable them to sue and be sued, a throwback to a time when the law said only a person could litigate.
Nobody actually believes companies are real persons, but inside a courtroom everyone pretends they are.
If two people die in an accident, and it matters which one died first (if their wills, for example, dictate a different outcome depending on who went first), but nobody knows which it was, the law in most places assumes it was the older one.
Nobody knows if it is true, but the law treats it that way.
Perhaps the best-known legal fiction is the presumption of innocence. It protects a person from being subjected to criminal penalties until it has been proved that he or she has committed a crime. If in due course it is proved that he or she is guilty then he or she was guilty from the start. The legal fiction did not coincide with the facts.
But in ordinary life we do not live according to legal fiction. We make our decisions according to fact. We ask the Telkom man to prove he is genuine, we choose the applicant who does not have an accusation hanging over them, and we hand our keys over to the gunman.
So why do politicians think that we should act differently when it comes to them?
Why do they expect us to place or retain them in high office on the legal fiction that they are honest instead of satisfying us as a fact that they are? Why do they insist that we rely upon legal fiction rather than telling us the facts?
Journalists, by the way, have a different approach: the journalistic fiction is a presumption of guilt. I tell aspirant young journalists to assume anyone with power is lying and guilty. The last thing you want a young reporter to do is accept the word of authority at face value.
Their job is to disbelieve and question. They know it is a fiction. They know that some politicians are honest sometimes. But if you assume they are not, you start asking useful questions.
* Harber is the Caxton Professor of Journalism, Wits University. This column first appeared in Business Day on 4 March 2009.
