Beyond reasonable doubt vs Balance of probabilities

We have all seen the courtroom dramas where the accused are charged with criminal offences, and the State has to prove its case. Similarly, we are very familiar with the phrase, “beyond reasonable doubt”. But what does the phrase mean, and where does it fit in court cases? And what are the differences in proving an employee’s guilt during disciplinary proceedings?

Background: 

In litigation, there is a distinction between criminal litigation and civil litigation. The civil litigation process also resembles more closely the requirements for disciplinary proceedings.

In any legal or disciplinary dispute, the party instituting the action must prove their case (with exceptions such as arbitration at the CCMA or a Bargaining Council). This duty is referred to as the burden of proof or onus. So, for example, in the case of an employer initiating a disciplinary process, the burden of proof would be on the employer.

In criminal litigation, the State must prove its case against an accused regarding an alleged crime that was committed. Here the burden of proof is that the State must prove the accused’s guilt beyond a reasonable doubt. The State will execute its duty if it proves all elements of a particular crime beyond a reasonable doubt.

Civil litigation in its simplest form is a dispute between two parties, whether people or companies/institutions. The burden of proof in civil litigation is that the party alleging an occurrence must prove it on a balance of probabilities. This essentially means that something occurred more likely than not.

During disciplinary proceedings and arbitrations at the CCMA or a Bargaining Council, the party with the burden of proof must also prove their version on a balance of probabilities.

What is beyond reasonable doubt? 

In the case of Woolmington v Director of Public Prosecutions, it was established that there rests no onus on the accused to prove their innocence. That burden lies on the State and at no stage is the State relieved of this burden of proof.

Proving a case beyond reasonable doubt includes the following:

1. The State must prove that the accused committed an unlawful act or omission (“active”).
2. If the offence is consequential in nature, the State must prove a causal link between the act and the result of such an act constituting the crime (e.g. if a person throws a brick and causes a person’s death, the act of throwing the brick would be considered causal and the State must prove that the accused threw the brick, causing the victim’s death).
3. The State must also show that there were no defences that formed grounds for justification of the unlawful act (e.g. circumstances showing that the person in the above example, acted in self-defence by the throwing of the brick – they could be acquitted on the grounds that their unlawful actions were justified).
4. The State must then also need to prove the perpetrator’s criminal liability by establishing fault (the perpetrator having had the intention to act or having been negligent, depending on the alleged crime).  The exception to this is when mental illness is given as a defence. In this case, the burden of proof shifts to the accused and must prove on the balance of probabilities.
5. Lastly, the State must prove the guilt of the accused.

In criminal litigation, the court requires a high degree of probability (beyond reasonable doubt), not absolute certainty (beyond a shadow of a doubt). If the evidence against the accused is so strong as to leave only the remote possibility in his favour, and if that remote possibility is possible but not in the least probable, the State has proven its case beyond a reasonable doubt.

Why is the burden of proof of criminal matters heavier than civil and disciplinary matters? A well-known philosophical principle is that it is better to spare a guilty person than to make an innocent person suffer, and the South African Constitution affords every person the right to be presumed innocent until proven guilty.

What is a balance of probabilities? 

In the case of Assmang Limited (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation Mediation And Arbitration and Others (2015), it was clearly explained that a balance of probabilities entails ‘establishing facts by a preponderance of probability’ and that the standard of proof is therefore lower than where it must be proved beyond reasonable doubt.

Probability in this case is not a quantitative, mechanical matter, but rather qualitative, assessing the truth and considering each version’s general likelihood. This should be based on the evidence given by witnesses, then used to discern which version is more probable. Probability in this case was also shown to be inextricably linked to the credibility and reliability of the witnesses involved.

As such, any proceeding in which a balance of probabilities is required (disciplinary, arbitration proceedings, etc.) need not be concerned with reasonable doubt, but focus on the likelihood of the versions presented through the evidence given.

Reference List:

• L.E.A.D Criminal Court Practice 2020
• Miller v Minister of Pensions [1947] 2 All E.R 372 at 373
• Woolmington v Director of Public Prosecutions 1935 A.C. 462
• Assmang Limited (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation Mediation And Arbitration and Others (2015)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE).