‘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.’

So says constitutional law expert Professor Pierre de Vos, in response to the High Court issuing a warrant of arrest for former President Jacob Zuma (stayed until his next appearance in May) because Zuma failed to attend his criminal trial and his lawyers ‘did not provide adequate evidence to justify this failure’.

In his analysis on his Constitutionally Speaking blog, De Vos notes that the Constitutional Court pointed out in 2002 – in its judgment in State v Singo – that the failure of an accused in a criminal trial to appear in court ‘manifestly hinders the administration of justice’.

It is therefore important, said the court, that the law provide for the effective prosecution of those who fail to appear in court without a valid reason.

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.

De Vos notes the reason why the ‘sick note’ presented by 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,’ says De Vos.

How do the courts deal with claims by a criminal accused that he or she is too ill to attend court?

De Vos says this is best illustrated in State v Porritt and Another, where the High Court applied the same test developed by the Constitutional Court in State v Singo.

The High Court found that Porritt had failed ‘to satisfy the court that his non-appearance was not due to circumstances which reasonably prevented him from appearing’.

De Vos notes the state was rather sceptical about Porritt’s claim that he was seriously ill, given the fact that – ‘a bit like 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. Porritt himself had to testify. The state also called some of the doctors who treated Porritt to testify about Porritt’s health.’

The court subsequently held that there was insufficient evidence that Porritt was really so ill that it was impossible for him to attend court.

Says De Vos: ‘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 sick note 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.’

Full analysis on the Constitutionally Speaking blog

State v Singo

State v Porritt and Another