05 September 2019
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A great uproar arose over the past week following media reports that Springbok forward Eben Etzebeth had allegedly been involved in a reported incident in a pub in Langebaan, with the most recent reports being that the docket regarding two counts of assault against Etzebeth, has been handed to the National Prosecuting Authority (NPA).
Since this is all happening at the same time as which the Springboks find themselves in Japan ahead of the 2019 Rugby World Cup (which kicks off quite soon), reports that the docket has been handed to the NPA, might have created in us the (uneasy) sense that Etzebeth has in fact already been ‘red-carded’ and found guilty. To any sport fan (including myself), this will be bad news to say the least!
That’s why it’s important to understand that certain procedures must be followed before a person can be found guilty or not guilty. The mere fact that Etzebeth is such a well-known rugby player is irrelevant and in no way weighs against him – and as such the exact same procedures will be followed as will be the case for any other member of the public.
In this instance formal criminal charges have been lain, which is why a police docket has been opened. The detective investigating the case has however decided not to make any arrest, instead opting to refer the docket to the Senior Prosecutor for a final decision. In most cases in which liquor and violence are alleged to be involved, this is often the case since usually at this stage of the investigation little or no proof is contained in the docket.
Should the detective have been of the opinion that, at first glance, there appeared to be a strong case against Etzebeth, he could immediately have applied for a warrant for arrest – which we all now know did not take place.
Going forward - no pun intended - the case will be further investigated, statements from eyewitnesses, possible video-recordings and other forms of evidence will be obtained, and only then will the relevant Senior Prosecutor decide if Etzebeth should be prosecuted, or not.
In the event that the NPA decides not to prosecute, the complainant has the option to refer the case to the Director of Public Prosecution (DPP). Should the DPP also decide not to prosecute, a nolle prosequi certificate will be issued (resulting in the prosecutor declining to further pursue the case against the defendant) – and should the complainant then still feel dissatisfied with the outcome, he/she can refer the case for private prosecution.
In the event that the NPA or DPP does decide to prosecute, Etzebeth will have to appear before a court, following which the formal court process will then follow.
Underlying the above, are two important facts: 1) that our courts follow the audi alteram partem principle, which basically means that both parties’ sides need to be heard before a court can make a finding; and 2) that our courts also follow the principle of ‘’innocent until proven guilty’’, which places the onus entirely on the State to prove that a person is guilty beyond all reasonable doubt.