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Tichawana Nyahuma
The law is divided into two broad spheres: criminal and civil.
This week, I endeavour to explain how the two are distinguishable and exactly how, in certain instances, the two may in fact be crocheted.
From where I am sitting, the criminal law regime in any country was conceived and set up to do three and only three things:
1. prohibit conduct considered objectionable by a particular society;
2. provide punishment of offenders;
3. act as a deterrent by threatening punishment to those inclined to delve into the criminal world.
As for the last mentioned, I cannot but quote the words of former UN Secretary-General Mr Kofi Anan who remarked: “The best way to use weapons is to use them in such a way that you won’t have to use them.”
In a way, this can be likened to the reasons why criminal law is part and parcel of our lives.
It acts mainly as a preventive measure without which the generally tranquil and serene environment of the world would have been unknown and planet earth would have been a totally different landscape from what is has been for all these centuries. Indeed, the world without the wide eye of criminal law watching over it is unfathomable.
It is up to any given society to decide conduct which can be classed as criminal. This depends largely on the moral values and beliefs of that society. For instance, in our country, marriage between persons of the same sex is considered abhorrent and is accordingly criminal but in South Africa and many western countries, it is not. The criminal process is handled in terms of the relevant statues and culminates in the sentence of the accused person if he is found guilty at the end of a trial.
Consequently in short, the criminal law regime is intended to act as a whip to keep citizens in check with the overall aim of ensuring that citizens live harmoniously among themselves as well as with their environment.
Interestingly, in a criminal trial, the complainant is not the victim of the offence but the State itself. The victim of the crime comes to court only as a witness. And the “State” is the whole or country as represented in court by a public prosecutor. That is why in our country, every criminal matter is titled “State versus X” (“X’ being the accused person).
This is so because criminal infractions are viewed very seriously by society and, therefore, the State rightly finds it imprudent to leave it in the hands of private citizens to take the law into their own hands and punish perpetrators of crime as otherwise chaos, confusion as well as injustice will ensue.
In fact, lawlessness will reign and that is undesirable.
So, when a criminal court sentences X to a fine or a prison term, the objective is both to punish and coerce him into changing his ways by the time he is reintegrated into society. The fine is paid not to the victim of the offence but to the State.
The reason is that by committing an offence against the complainant, the criminal is taken to have caused harm not only to the complainant but to society as a whole.
“An injury to one is an injury to all”. So, the fine is paid to society through the State as the overall guardian of society.
An important factor to note in a criminal trial is that for a conviction to stick, the State has to prove its case against X beyond reasonable doubt.
This is a very high standard of proof but does not mean that the court must be 100 percent certain that X is guilty; but that in all probabilities, X is guilty.
In a civil case, the situation is somewhat different. There, the complainant is the victim of the infraction and the matter proceeds in court in the name of the complainant herself and that of the wrong doer. At no point is the complainant allowed self-service and by that it is meant that she may not seek to take on the wrong doer herself except in limited instances such as in self-defence or where the wrong-doer takes or recovers her property from another without that person’s consent or a court order.
In such a scenario, the complainant has to act instantaneously to recover the same. Otherwise, she has to lay her claim via a court of law. Self-service is unlawful and whatever action the complainant may have taken is bound to be set aside by the court no matter how culpable the wrong-doer was.
So, in a civil case, the dispute is between the citizens themselves and the only involvement of the State is through the provision of the appropriate apparatus to resolve the dispute in the form of the court.
Civil-Criminal Mix
There are some disputes that have both criminal and civil law colours.
A good example is one where a motorist strikes and injures a pedestrian because he drove his motor vehicle negligently. In such a case, the motorist is liable to be charged in the criminal court for that offence. At the same time, the accident victim is at large to sue the same motorist for her injuries. An important point to note here is that in the criminal case, the prosecution is enjoined, as already said, to prove its case against that driver beyond a reasonable doubt but in the civil case, the pedestrian only has to prove her case on a balance of probabilities.
This is at times referred to as the reasonable man standard.
By reason of the different standards of proof, it is quite possible that out of the very same facts – and I repeat, the very same facts – in criminal court, the driver can be acquitted for negligent driving yet be found liable for the pedestrian’s injuries in civil court.
And the civil suit does not necessarily have to be postponed or delayed to allow the criminal matter to be concluded first.
It can and does actually proceed independently or concurrently. However, where the criminal case is concluded before the civil matter and the wrong-doer is convicted, then that conviction can be used to buttress the civil case.
The opposite, is amazingly, not true.
If the wrong-doer is acquitted in the criminal case, that is not evidence that he has no case to answer in the civil suit because as we have said, the level of proof in a civil case is set at a much lower level.
This frequently occurs in employment disputes where, for example, the employee is accused of fraud and is arrested and tried in the criminal court.
If acquitted, this does not prohibit or bar the employer from dismissing him on the very same charge under employment regulations because of lower level of proof in the civil dispute.
The reason the standards of proof are set at different levels is that in a criminal matter, the State does not suffer much, if any, prejudice if it loses a case against X and yet the State yields so much power that X’s conviction can have dire consequences for him which consequences can stretch from a lengthy prison term to even death.
Therefore, nothing should be left to chance in a criminal matter hence the higher standard of proof.
Further, the interest of the State in a criminal case is not as direct as that of a person who has been wronged by X in a civil case. There, the interests of the parties are set at 50:50.
Y claims money from X, but X disputes that he owes the money. Put in another way, X is charged at the workplace with fraud, naturally the employer does not want to continue to employ a fraudster yet X also does not want to lose his job unjustly.
The court, therefore, has to “balance” the two competing interests and the consequences of the court’s decision are not as dire as would be if X losses a criminal case hence proof on a preponderance or balance of probabilities in a civil matter.
In disciplinary proceedings against their members by professional bodies such as the Nurses Association or the Law Society, where the allegations are of a criminal nature, the standard of proof is also set at the higher level.
The reason being that, when the professional body is chastising one of its own, it does so on behalf of the public for its protection and will be acting much like the State in a criminal trial.
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