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Why the courts are sceptical about sick notes

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The High Court issuing of an stayed arrest warrant for former President Jacob Zuma over a questionable sick note is by no means a first time the courts have looked sceptically at claims of illness, writes Pierre de Vos on his Constitutionally Speaking blog.

To understand how reluctant courts are to accept claims of illness on the say-so of a criminal accused or his doctor, one need look no further than the curious case of alleged fraudster Gary Porritt, who failed to convince the court that he was too ill to attend court, despite providing three different doctor’s notes to that effect.

According to the Constitutional Court, the failure of a criminal accused (such as Jacob Zuma) to appear in court has the potential to undermine the administration of justice: This may well result in the public losing confidence in the system of criminal justice. The ensuing consequences may be far-reaching.

The Criminal Procedure Act contains punitive provisions to prevent a criminal accused from avoiding court by merely offering weak or fabricated excuses for his or her absence. While the accused does not have to prove beyond reasonable doubt that it was impossible for him or her to attend the court hearing, he or she must satisfy the court that there is a reasonable possibility that his failure was not due to fault on his part. In the case where the reason for the absence is ill health, the accused must either testify him or herself about the alleged illness, or the defence must present other evidence to the court to show that the accused was really ill and that it was therefore impossible for him or her to testify.

The reason why the “sick note” presented by Jacob Zuma’s lawyer was not sufficient was because it contained far too little information to satisfy the court that there was a reasonable possibility that Zuma was too ill to attend court. Zuma and his lawyers will have to provide some detail about his alleged illness and some evidence not only that he has been admitted to a foreign hospital but also that it was necessary to be admitted in this manner.

Like any other criminal accused, Zuma will not be able to argue that he cannot be expected to take the court into his confidence about his health because it would infringe on his right to privacy. As the Constitutional Court has held in several cases, an accused in a criminal case by definition loses some of his or her rights. One does not have a right not to suffer the ordinary and inevitable consequences of being a criminal accused.

There is no better illustration of how the courts deal with claims by a criminal accused that he or she is too ill to attend court, than the curious case of the alleged fraudster, Gary Porritt. Porritt was the CEO of Tigon, who like Steinhoff, was one of the top companies on the JSE before imploding because the company was run as a pyramid scheme. It has now been more than 14 years since Porritt was first arrested, yet his trial (which started back in 2016) still continues in the High Court.

Part of the delay was caused by Porritt not attending court due to alleged illness and De Vos recounts several attempts by Porritt to use the medical system to avoid court.

De Vos writes:

The state was rather sceptical about Porritt’s claim that he was seriously ill, given the fact that – a bit like Jacob Zuma – he had a long history of delaying his trial. A mini-trial ensued to establish whether there was sufficient reason to justify Porritt’s absence from court.

Under cross-examination, [a] doctor had to concede that his sicknote may have been misconstrued as it did not mean to certify as fact that Porritt was too ill to attend his trial. For these reasons it is no wonder the court did not accept Porritt’s various sick notes. It held that these did not provide sufficient evidence to conclude that there is reasonable possibility that Porritt was really so ill that it was impossible for him to attend court.

The Porritt case should worry Jacob Zuma and his lawyers because it suggests that an accused who claims ill health is required to do more than submit a vague sicknote from a doctor to escape accountability. It appears that an accused is required to present some credible evidence to the court that he or she is really ill and also that the illness is so serious that the accused is not able to attend court. This should not be difficult to do – as long as Zuma is really too ill to attend his trial.

Similarly, Zuma’s doctors will have little to worry about as long as their submissions to the court remain truthful and accurate. What they would want to avoid, is to expose themselves to charges of unethical or unprofessional behaviour.

The stakes are high, because if Zuma and his lawyers fail to bring sufficient evidence to convince the court that there is a reasonable possibility that Zuma is too ill to attend, Zuma will be guilty of a criminal offence and could be sent to prison for up to 3 months.

Constitutionally Speaking blog

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