REVERSE ONUS OF PROOF

Use of reverse burdens of proof

in South African legislation

Introduction

This document investigates statutes which create criminal offences and impose reverse burdens of proof for elements of the offence concerned. Not all instances are identified.

The investigation considers court cases about the validity of reverse burdens of proof.

This document touches on whether a reverse burden of proof complies with the Rule of Law, and whether any court judgments endorsing a reverse onus are correct.

Summary

There are statutory provisions which create criminal offences that lay down a reverse onus.

The pattern in which such provisions are usually framed is that, if the prosecution proves elements of the offence, then it is deemed that another element of the offence exists too, unless the accused proves the contrary.

The prosecution has the burden of proving the elements of an offence beyond a reasonable doubt. Where a reverse onus is laid on an accused to disprove any element of an offence, he was only expected to discharge that burden on a balance of probabilities, and not the heavier onus of proving beyond reasonable doubt.

The courts have struck down statutory provisions which impose a reverse burden of proof on an accused. Courts deem a reverse onus to be a violation of the fundamental right to a fair trial, and in particular the right to be presumed innocent.

The courts have mostly rejected prosecution arguments that a particular element of the offence concerned is more difficult for the state to prove than for the accused to disprove.

The judiciary is unwilling to uphold statutes reversing any element of the burden of proof, by reason that such statutes give rise to a risk that accused persons can be convicted, despite reasonable doubt that they committed the crime.

The courts have tolerated statutes which merely limit the fundamental right of an accused to remain silent. The justification is that an accused is not expected to discharge a burden of proof, but merely to lead evidence that raises a reasonable doubt about the state’s case. The burden is on the state to prove all elements of the offence.

The courts more readily allow statutory reverse burdens of proof for mere regulatory offences, where the accused can discharge the onus of proof by, say, producing a licence authorising him to carry on an activity which is prohibited unless licensed. This is legitimate, and does not amount to a violation of the Rule of Law.

This document, after brief discussion of the onus of proof generally and the presumption of innocence, as well of the applicable principle of the Rule of Law, addresses some ten statutory provisions that reverse the burden of proof and with the court cases which struck down most of them. These are dealt with at some length, unavoidably.

Most of the provisions struck down by the courts remain on the statute book.

General rule about onus of proof

England

In England, the general rule in a criminal trial is that the onus of proof[1] lies on the Crown:

It is for the prosecution to prove the guilt of the accused,[2] and no burden is laid on the accused to prove his innocence.[3]

The prosecution must prove the charge it makes beyond reasonable doubt. If there is a reasonable doubt, the accused has the benefit of the doubt.

The rule is of general application in all charges under the criminal law. The only exceptions arise are in the defence of insanity, and in offences where the onus of proof is specially dealt with by statute.[4]

South Africa

The English general rule, that in criminal cases the burden of proof is on the prosecution, accurately lays down the rule in South African law also: It is for the prosecution to establish the guilt of the accused, not for the accused to establish his innocence.

The onus is on the prosecution to prove all averments necessary to establish his guilt, either by direct evidence, or proof of facts from which a necessary inference may be drawn.

One such fact, from which (together with the other facts) such an inference may be drawn, is the lack of an acceptable explanation by the accused.

But, despite the lack of an acceptable explanation by the accused, if the court on a review of all the evidence[5] is in doubt, the accused is entitled to the benefit of that doubt. The doubt must be one which reasonable men would entertain on all the evidence.[6]

The only exceptions to the above rules (that the onus is on the prosecution to prove the unlawfulness of the act and the guilty intent of the accused, and of his being entitled to the benefit of any reasonable doubt) are [7] the defence of insanity, and[8] offences where the onus of proof is placed on the accused by the wording of a statute.[9]

It is not necessary that the court should believe the accused’s evidence. But if the accused’s evidence could reasonably be true, a conviction cannot follow.[10]

This basic principle, that the person who avers must prove, casts on the state the burden of proving every element of the crime including the act,[11] the unlawfulness thereof,[12] the accused’s criminal capacity,[13] and the accused’s intention.[14]

General rule is based on presumption of innocence

This procedural and evidentiary rule that at trial the prosecution must prove the guilt of the accused beyond reasonable doubt is derived from the presumption of innocence.

The presumption enjoys wide acceptance as a fundamental principle of criminal justice nationally and internationally.[15]

The presumption of innocence lies at the very heart of the criminal law. The presumption has enjoyed long recognition at common law and gained widespread acceptance as evidenced from its inclusion in major international human rights documents.

The presumption protects the fundamental liberty and human dignity of any person accused by the state of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, social stigma and ostracism, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the state proves an accused’s guilt beyond all reasonable doubt, he is innocent. This is essential in a society committed to fairness and social justice.

The right requires that (1) an individual be proven guilty beyond a reasonable doubt; (2) the state must bear the burden of proof; and (3) prosecutions must be carried out in accordance with lawful procedures and fairness.[16]

Rule of law

Bingham

The Rule of Law requires that adjudicative procedures provided by the state should be fair.

Questions have arisen concerning statutory offences defined so as to place a reverse burden on the defendant. These are not in themselves objectionable, but may be so if the burden is one which an accused, even if innocent, may in practice be unable to discharge.[17]

Sanders

“[I]n die strafprosesregtelike sfeer veral [moet] op die volgende gelet word: [D]at qui allegat, probat, oftewel dat ’n beskuldigde vermoed word om onskuldig te wees en dat die bewyslas op die staat rus.”

“Infringements of the rule of law can only be justified on the ground of necessity.”[18]

Delhi

The application of the Rule of Law involves an acceptance of the principle that an accused person is assumed to be innocent until he has been proved to be guilty.

An acceptance of this general principle is not inconsistent with provisions of law which, in particular cases, shift the burden of proof once certain facts creating a contrary presumption have been established. The personal guilt of the accused should be proved in each case.[19]

Bill of Rights

The 1996 Constitution[20] confirms the presumption of innocence. It declares[21] that every accused person has a right to a fair trial,[22] including[23] the right “to be presumed innocent, to remain silent, and not to testify during the proceedings.”[24]

The rights in the Bill of Rights may be limited[25] to the extent that the limitation is reasonable and justifiable.[26]

The Constitutional Court[27] has stated that, while the presumption of innocence was not identically worded in the interim Constitution, the presumption’s formulations in the two constitutions were[28] indistinguishable, and what infringed the interim Constitution would likewise infringe the new Constitution. In considering a possible justification of the infringement, it would make no difference whether one applies the limitation clause of the interim Constitution or of the 1996 Constitution.[29]

Court rulings about statutory provisions placing onus of proof on person accused

1. Deeming false representation to have been made with knowledge of falsity

The Criminal Procedure Act, 1977[30] provides that, “If at criminal proceedings at which an accused is charged with an offence of which a false representation is an element, it is proved that the false representation was made by the accused, he shall be deemed, unless the contrary is proved, to have made such representation knowing it to be false.”[31]

The Constitutional Court observed that the phrase “unless the contrary is proved” means that the accused may rebut the presumption by proof on a balance of probabilities.

Absent such proof (as where the probabilities are evenly balanced at the end of the trial), the court would be obliged to convict, despite reasonable doubt regarding his state of mind.

An essential element of crimes such as fraud and theft by false pretences is knowledge of the falsity of the representation by the person making it. The effect of the provision is that once it has been proved that the accused had made the false representation, the presumption of knowledge comes into operation and the onus of disproving it falls on the accused.

It is clear that the presumption is in conflict with the long-established rule of common law on the burden of proof that “it is always for the prosecution to prove the guilt of the accused person, and that the proof must be proof beyond a reasonable doubt.”  The provision clearly infringes the presumption of innocence entrenched in the Constitution.

What remains to be determined is whether the infringement can be said to be a permissible limitation to the right in terms of the Constitution.

The Court found that the provision’s purpose is to facilitate the task of the state in the prosecution of crimes such as fraud and theft by false pretences by relieving the prosecution of the need to prove that the accused knew that the misrepresentation was false at the time that he made it. The presumption has been held to be applicable to instances in which the representation relates to facts which are objectively ascertainable.

There was no doubt a pressing social need for the effective prosecution of crime. Reasonable presumptions may be required by the prosecution, in relation to certain categories of offences, to assist in this task. It must be accepted that the provision was instituted by the legislature to facilitate the attainment of its objective to protect society. The measures taken were, however, enacted before the Constitution was in force; they had now to be weighed against the rights that are guaranteed by the Constitution which puts a high premium on the values of freedom and equality.

The Court noted that, in other cases concerning the entrenched right to be presumed innocent, it has emphasised the importance of that right in an open and democratic society based on freedom and equality.  Underlying its decisions in those cases was the recognition that a consequence of the value system introduced by the Constitution is that the freedom of the individual may not lightly be taken away. Presumptions which expose an accused person to the real risk of being convicted despite existence of a reasonable doubt as to his guilt were not consistent with what is clearly a fundamental value in our criminal justice system.

The rationale for the provision is that it deals with matters which are peculiarly within the knowledge of the accused. Indeed, the accused is in the best position to know why he made a representation. It may well be that proving the state of mind of the accused in the context of a false representation presents the state with more difficulties than in other cases.

However, the touchstone for justification was not merely that an obligation to prove an element of an offence which falls peculiarly within the knowledge of the accused makes it more difficult for the prosecution to secure a conviction. The question was whether it makes it so difficult as to justify the infringement of the accused’s right to be presumed innocent.[32] The court was not persuaded that this difficulty is, in itself, sufficient to outweigh the importance of the right infringed and to justify the reversal of the onus.

Discharging the burden of proof is a function which the criminal justice system requires the prosecution to perform in the normal course with regard to many common law and statutory offences.  It was not claimed that if all the circumstances surrounding the false representation are fully and properly investigated and presented in evidence the prosecution cannot obtain the conviction to which it might be entitled.

It has not been contended that other open and democratic societies based on freedom and equality have found it necessary to resort to such an unqualified presumption for the proper enforcement of the criminal law in relation to all offences of which a false representation is an element. The Court was not aware of, and was not referred to, any examples in comparable jurisdictions, where a general provision in the same context is employed.  No good reason suggests itself why it should be necessary in this country to have such a provision if, in general, crimes involving misrepresentations are adequately dealt with in other jurisdictions without the expedient of a reverse onus provision.

The provision makes severe inroads on the right of those who fall within its ambit to be presumed innocent. No grounds were advanced in argument to justify the infringement and the Court was unable to find sufficient justification for this limitation to the constitutionally protected right.

The Court unanimously held that, because the provision fails to comply with the requirements of reasonableness, justifiability and necessity,[33] it follows that it is unconstitutional by reason of its inconsistency with the presumption of innocence.[34]

2. Deeming servant or director of corporate body to be vicariously liable

The same case[35] also dealt with the provision of the said Criminal Procedure Act which states that, “When an offence has been committed, whether by the performance of any act or by the failure to perform any act, for which any corporate body is or was liable to prosecution, any person who was, at the time of the commission of the offence, a director or servant of the corporate body shall be deemed to be guilty of the said offence, unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it, and shall be liable to prosecution therefor, either jointly with the corporate body or apart therefrom, and shall on conviction be personally liable to punishment therefor.”[36]

All members of the Court were in agreement that there was no justification for including the category of “servants” along with directors in the provision.

There was, however, division on the question of the constitutionality of the remainder of the provision:

A majority[37] held that the remainder was unconstitutional and could not be saved by severance. It was recognised that directors occupied a special position of responsibility to the public in general, and the state had an interest in ensuring that the affairs of corporate bodies were conducted properly and honestly. The provision of special measures to enable the prosecution to overcome the difficulty of gathering evidence about corporate activities would not in itself be unreasonable. Such special measures would, however, have to meet the requirements of the Constitution. The question arose as to whether this purpose could not have been adequately achieved by less invasive means. While it was not the function of the Court to prescribe to the legislature as to how it should seek to achieve its objective, there appeared to be less drastic means that could have been adopted. The State could impose appropriate statutory duties on directors in ensuring that the affairs of the corporate body were conducted honestly. Duties of disclosure and reporting could also have been imposed. There was no suggestion that such measures, enforced through appropriate sanctions, could not accomplish the objective as effectively as the impugned provision.

Some of the concurring majority judges[38] stated that the provision was overbroad in alluding to an “offence” and “any corporate body”. The offences encompassed were not confined to those committed peculiarly or mainly by corporate bodies. Nor was any distinction drawn between companies incorporated with limited liability and other corporate bodies, nor between public and private companies, nor between companies which solicited and received money from investors and those which did not do so. Many corporate structures existed where it would be unrealistic, unfair and oppressive to exact the same high level of personal responsibility that was expected of directors of companies engaging with the public and placing the public at risk. An example was that of share-block companies owning properties of which units were occupied by members as dwellings.

No attempt had been made to confine the operation of the provision to a limited class of cases in which public policy required directors to maintain a high degree of circumspection, diligence and vigilance in order to protect members of the public. It embraced all offences however remote their connection with the ordinary purposes and activities of the corporate body. There had been no attempt to limit it to prohibitions of a regulatory character.

In this case two judges[39] concluded that the said remainder of the provision (i.e., after taking out “servants”) was not unconstitutional. One of them[40] observed that, even if it was unconstitutional, it was unnecessary to strike down the whole provision, because severance of the words “unless it is proved that” was possible and would remove the objections.

One of these judges[41] found that the remaining wording was not unconstitutional. It was a permissible limitation of the right to be presumed innocent. The mere fact that a provision entailed the possibility that an accused person may be convicted in circumstances where a reasonable doubt as to guilt remained did not per se render the provision unconstitutional. In certain circumstances a reversal of the onus on certain issues was warranted. This depended largely on the nature of the offence and on the objective of the provision in question. The presumption of innocence, like all other rights and freedoms guaranteed constitutionally, was not absolute. It was of paramount importance that the affairs of companies and corporate bodies and associations be conducted properly and honestly. The provision assisted in the achievement of that objective. It facilitated the important societal interest of dealing with the proliferation of serious corporate fraud. The directors and other officers of a company were “the brains, eyes and ears of the company”. They were often the only persons who had knowledge of the workings of the company. In assuming such an office the incumbent consented to assuming the responsibility concomitant with the office. The difficulty of obtaining evidence to prove an offence where the relevant information was usually within the exclusive knowledge of a few and the high cost involved in implementing regulatory enforcement mechanisms made the provision practically and objectively justifiable.

The other judge[42] held that the provision did not engage the right to be presumed innocent at all. It created a form of vicarious liability and did not create an evidential presumption. The liability so created was not absolute. The legislature had mitigated the harshness of such vicarious liability by permitting a director to escape liability by bringing himself within the terms of the exempting circumstances specified in the subsection. The object of the provision was to control the activities of corporate entities by imposing a responsibility on those whose controlled or conducted such activities and ensuring that they would not be beyond the reach of the criminal law if a crime were committed in the course of such corporate activities. In any event, even if the section were unconstitutional on the basis of the majority view, striking it down in its entirety was not called for. The words “unless it is proved that” were grammatically severable. Their excision would ensure that an accused person would be required to do no more than raise a reasonable doubt as to his participation in the commission of the offence. The remnant of the provision after such severance would still accord with the main objective of the provision.

Two other judges[43] held that severance of the words “it is proved that he did not take part in the commission of the offence” would save the remaining wording.

One of these judges[44] took the view that an accused person might be convicted of an offence despite the existence of a reasonable doubt as to whether he was in fact guilty. The question then arose as to whether this invasion of the right was justified . She held that the objectives of the provision could have been achieved by less invasive means. The provision covered all offences, common law and statutory. It drew no distinction between prohibitions which were merely regulatory and criminal offences. Furthermore, the defence which an accused person needed to establish was not that he acted with due diligence. The accused had to go further and show that he did not have knowledge of the offence, or that he could not have prevented it. For these reasons she concurred in the conclusion reached by the majority that the provision was inconsistent with the Constitution.[45] But the unconstitutionality could be cured by severance leaving a remnant which would attract liability in the case of a director of a corporate body which had committed an offence, where the director had failed to prevent the commission of that offence when it was possible to do so. Severance was preferable to striking down because striking down would render void the duty imposed on directors by the provision to take steps to prevent the commission of criminal offences by the company.

3. Presumption of dealing in dagga, if found in possession of certain quantity

The Drugs and Drug Trafficking Act, 1992[46] states that no person shall deal in any[47] undesirable dependence-producing substance,[48] and that a person who contravenes this prohibition commits an offence.[49] An “undesirable dependence-producing substance” means any substance or any plant from which a substance can be manufactured included in part of a schedule to the Act,[50] including cannabis (dagga), the whole plant or any portion thereof.[51]

The Act stipulates that, “If in the prosecution of any person for any such offence, it is proved that the accused was found in possession of dagga exceeding 115 grams, it shall be presumed, until the contrary is proved, that the accused dealt in such dagga.”[52]

The Constitutional Court observed that, as both possession of dagga and dealing in dagga are offences, the effect of the presumption is that, once the offence of possession has been proved, and the amount of dagga in question is shown to have exceeded the specified quantity, the offence of dealing is presumed to have been committed. The Act lays down more substantial penalties for dealing than for possession, and a conviction for dealing is altogether a graver matter for possession.

The effect of the provision is that, once the state has proved that the accused was found in possession of an amount of dagga in excess of the specified quantity, the accused will, on a balance of probabilities, have to show that such possession did not constitute dealing.[53] Even if the accused raises a reasonable doubt as to whether he was dealing in the drug, but fails to show it on a balance of probabilities, he must nevertheless be convicted.

The effect of imposing the legal burden on the accused may therefore result in a conviction for dealing despite the existence of a reasonable doubt as to his guilt. Such a provision infringes the presumption of innocence. If there is doubt that the accused is a dealer, he should be entitled to the benefit of that doubt.

It did not appear to be logical to presume that a person found in possession of this specified quantity[54] of dagga was more likely than not to have been dealing in dagga. From the evidence placed before the Court, it appeared that 115 grams of dagga is equal to between 50 and 100 cigarettes. The prosecution conceded that it would not be unreasonable for a regular user of dagga to possess that quantity of dagga. Indeed, the criminalisation of dagga possession may make it more likely that ordinary users will purchase large quantities because of the risks associated with purchase.

The quantity stipulated[55] had remained constant since the presumption was first introduced in 1954.[56] No explanation was proffered by the state as to why this particular quantity was selected. It appeared to be an arbitrary figure.[57]

The Court held[58] that the provision could not be justified under the Constitution.[59]

4. Presumption that accused dealt in undesirable dependence-producing substance other than dagga, if any quantity found in his possession

The Drugs and Drug Trafficking Act, 1992 also states that if, in the prosecution of a person for any offence of dealing in an undesirable dependence-producing substance other than dagga, it is proved that the accused was found in possession of that substance in any quantity, it shall be presumed, until the contrary is proved, that the accused dealt in such substance.[60]

The Constitutional Court observed that the reasoning adopted in the case above[61] applied a fortiori to the presumption in question here. There was no rational connection between the proven fact and the presumed fact. Possession of, for example, a single mandrax tablet did not indicate an intention to deal in mandrax rather than possession for personal use. Saddling a possessor with such an onus did not accord with common sense, nor did such possession naturally raise an inference of an intention to deal in the substance.

Whatever policy considerations underlay the provisions, they were in conflict with the presumption of innocence and not justifiable The Court declared them invalid.[62]

5. Presumption of dagga dealing if plants of which accused was aware are found on cultivated land in his charge

The Drugs and Drug Trafficking Act further states that if, in the prosecution of any person for any offence of dealing in dagga, it was proved that “dagga plants, of the existence of which plants the accused was aware or could reasonably be expected to have been aware, were found on a particular day on cultivated land, and that the accused was on the particular day the owner, occupier, manager or person in charge of the said land, it shall be presumed until the contrary is proved, that the accused dealt in such dagga plants.”[63]

The accused was convicted by a magistrate of having dealt in dagga. The magistrate relied on this presumption.

The constitutionality of the provision was queried when the conviction and sentence were considered on automatic review in the Natal high court. The high court[64] declared the provision to be invalid as inconsistent with the Constitution, and ordered that accused be released on his own recognisance pending confirmation by the Constitutional Court.

The Natal high court cited three decisions of the Constitutional Court in support of its finding that the provision clearly imposes a legal burden upon an accused person which offends against the presumption of innocence.[65]

The Constitutional Court agreed with the high court that the three cited judgments were dispositive of this case. The presumption did not differ in any material respect from that in another paragraph of that provision,[66] which the Court had dealt with in two of the cases cited.[67] Nor was there any distinction to be drawn between the principles the Court had set out in the third case[68] (relating to the invalidity of a provision of the Arms and Ammunition Act) and those that are applicable here.

In each instance one was confronted with a statutory instruction to infer guilt from circumstances that did not necessarily support such inference. In each such instance the fundamental objection is the same: Interfering with the ordinary processes of inferential reasoning entails a risk of a conviction despite a reasonable doubt as to guilt in the mind of the trier of fact. That is the antithesis of the presumption of innocence.

The fundamental rights bound up with the presumption of innocence were so important, and the consequences of their infringement potentially so grave, that compelling justification would be required to save them from invalidation. None was apparent here. On the contrary, the importance of the values and the extent and nature of the risk involved in their erosion outweighed any societal interest likely to be advanced by the provision. The Court confirmed the Natal court ruling invalidating the provision.[69]

6. Inability of person in possession of goods suspected as stolen to give satisfactory account of possession

The General Law Amendment Act, 1955[70] states, “Any person who is found in possession of any goods[71] in regard to which there is a reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence.”[72]

The accused had been arraigned in the regional court on a charge of contravening the provision. They objected to the charge on the grounds that the provision was in conflict with the fundamental right to be presumed innocent. They contended that it imposed a duty upon a person found in possession of goods reasonably suspected of being stolen to provide an account of such possession. They argued that the provision was in conflict with[73] the fundamental right to be presumed innocent.

The trial was postponed for an approach to the high court to determine the provision’s constitutionality. The high court found that the provision was not constitutionally valid.

The offence created by the provision had three elements:

(1) Possession of goods by the accused;

(2) finding the goods in circumstances giving rise to a reasonable suspicion they were stolen;

(3) inability by the person in possession to give a satisfactory account of his possession.

The state bore the onus to prove each of the three elements.

The question of the accused’s inability to give a satisfactory account arose only after possession of the goods and reasonableness of the suspicion had been proved. It was not the accused’s failure to give an account that rendered him liable, but his inability to do so.

The Constitutional Court upheld the high court judgment. It confirmed that the state bears the burden of proving each of the essential elements of an offence charged, and there is no onus on an accused to disprove any of them. The court a quo had correctly observed that it was the inability to give a satisfactory account of possession, not the failure or unwillingness to do so, that constituted the offence.

The burden of proving this element remained on the state throughout the trial. Where the prosecution has proved a reasonable suspicion that the goods are stolen, that they were found in possession of the accused, and that the accused had not satisfactorily accounted for such possession or led evidence to the contrary, this will ordinarily establish a prima facie case of a contravention of the provision. Absent any evidence to the contrary, it may be possible to infer that the accused is unable to give a satisfactory account.[74]

7. Receiving stolen goods without proof of reasonable cause to believe they are the property of the person he receives them from

The said General Law Amendment Act, 1955[75] also used to state, “Any person who […[76]] acquires or receives into his possession from any other person stolen goods, […[77]] without having reasonable cause, proof of which shall be on such first-mentioned person,[78] for believing at the time of such acquisition or receipt that such goods are the property of the person from whom he receives them […[79]], shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of receiving stolen property knowing it to have been stolen […[80]].”[81]

A high-court local division declared that the phrase in the provision,[82]proof of which shall be on such first mentioned person” was inconsistent with the Constitution and invalid, subject to confirmation by the Constitutional Court.

The issue to be determined by the Constitutional Court was whether this reverse onus contained in the provision was consistent with the constitutionally entrenched right to[83] be presumed innocent.

The Court observed that the approach to interpretation of the provision which had evolved over time[84] required the prosecution to establish the following three elements of the offence beyond a reasonable doubt: That the accused was found in possession of goods; which were acquired otherwise than at a public sale; and that the goods had been stolen.

Once the prosecution has established those three elements, the accused was required to establish that: He believed at the time of acquiring the goods that the person from whom they were received was the owner of such goods; and his belief was reasonable. The accused must discharge this onus on a balance of probabilities.

By imposing on the accused this burden of establishing the reasonableness of his subjective belief, the impugned provision effectively introduces statutory liability for the negligent, albeit innocent, acquisition or receipt of stolen goods.[85]

The question of whether the reverse onus in the provision infringed the rights of an accused person to[86] be presumed innocent had to be determined against that background.

The court held that the provision transgressed the presumption of innocence. A reverse onus of this kind imposes a legal burden of proof on the accused. Accordingly, if after hearing all the evidence, the court is of two minds as to where the truth lies, a conviction must follow, even if the court concludes that the accused’s version, though not proved to be probable, might reasonably be true.

Although the Court had so far not found an impugned reverse onus provision to pass constitutional muster, it had been at pains to articulate that there were circumstances in which such measures might be justifiable:

The effective prosecution of crime was a societal objective of great significance which could, where appropriate, justify the infringement of fundamental rights. Ordinarily, a reverse onus could be justifiable only if the risk and consequences of erroneous conviction produced by a statutory presumption against the accused were outweighed by the risk and consequences of guilty persons escaping conviction simply because of categorical adherence to an impervious presumption of innocence.

A broad context in which the use of reverse onus provisions might be justified concerned “regulatory offences”, as opposed to “pure criminal offences”. There were other categories where practicalities and common sense dictated that in view of the reduced risk of error involved it would be disproportionately onerous for the State to be obliged to discharge its normal burden in order to secure a conviction. Traffic regulation fell in this class.

The duty of a court was to decide whether the legislature had overreached itself in responding, as it had to, to matters of great social concern. When giving appropriate effect to the factor of “less restrictive means”, the Court was not to limit the range of legitimate legislative choice. Such legislative choice was influenced by considerations of cost, implementation, priorities of social demands, and the need to reconcile conflicting interests.

While the prevalence of serious crime called for government action, it did not give the legislature carte blanche to erase all procedural safeguards. Something case-specific and contextualised was required to bring the scales down on the side of limitation.

In the case of the impugned provision, there were convincing reasons for an incursion into the right to silence. But not for a reverse onus which would unduly increase the risk of innocent persons being convicted.

In most cases the State had no information as to the circumstances in which, and the persons from whom, an accused acquired the goods in question. Almost invariably the information relevant to the determination of reasonable cause was peculiarly within the knowledge of the accused. In the absence of evidence emanating from the accused it was extremely difficult for the state to demonstrate the absence of reasonable cause. There was nothing unreasonable, oppressive or unduly intrusive in asking an accused who had already been shown to be in possession of stolen goods to produce evidence that he had reasonable cause for believing that the goods were acquired from the owner or from some other person who had the authority of the owner to dispose of them.

For that reason the challenged phrase’s limitation on the right to silence was justified.

The primary ground for the justification of the reverse onus in the impugned provision was the legislative endeavour to provide effective means to eradicate the market in stolen property which had a devastating effect on the maintenance of law and order. But the level of crime did not on its own, however, justify any invasive infringement of the Bill of Rights.

The relation between the reverse onus and the governmental purpose was not proportionate in this instance. The impugned provision was too broadly formulated. It applied to all kinds of goods acquired in a multitude of different circumstances. This aspect together with the manner in which “possession” had been judicially interpreted led to extending the net to a wide range of people, including persons acquiring ordinary household necessities.

The risk of erroneous convictions was unacceptably high. For this reason the limitation on the presumption of innocence was not sufficiently focused to be justifiable.

The problem facing the prosecution would be met by requiring the accused to furnish evidence as to the reasonableness of his belief. There was no persuasive or compelling reason for also reversing the usual onus of proof.

Accordingly, held a majority of the Court, the provision justifiably limited the right to silence. But its limitation of the presumption of innocence was not justifiable.[87]

In this case, a minority of the Court[88] disagreed with the majority’s conclusion that the provision’s limitation of the presumption of innocence was not justifiable:

To the minority, use of a reverse onus placing obligations on members of society to ensure that they are vigilant in inhibiting trade in stolen goods is constitutionally legitimate.

The market in stolen goods was extensive, and theft and robbery feeding that market was excessively violent. In these circumstances society was entitled to oblige citizens to act vigilantly to ensure that they can prove that they had reason to believe that goods acquired by them had not been stolen.

Although the offence created by the provision trenched upon the right to silence, and also upon the presumption of innocence, it did so in a justifiable manner. Only if the state had proved three crucial elements did an accused attract the burden of establishing that he had reasonable cause for believing at the time of the acquisition that the person from whom the goods were received was the owner, or authorised by the owner, to dispose of them.

The provision merely required that an accused establish, on a balance of probabilities, that he had reasonable grounds for believing that the goods in question were not stolen.

The approach to limitation was to determine the proportionality between the extent of the limitation of the right considering the nature and importance of the infringed right, on the one hand, and the purpose, importance and effect of the infringing provision, taking into account the availability of less restrictive means available to achieve that purpose.

The provision infringed the right to be presumed innocent. The presumption of innocence and the rules concerning the onus of proof (both its incidence and the standard required) existed because fact-finding by a court could never be without the risk of error, and because at times courts were unable to determine the facts at all.

Rules regulating the burden of proof sought to determine the acceptable level of risk and who should bear it in each case.

The purpose of entrenching the presumption of innocence as a fundamental right was to minimise as much as was reasonably possible the risk of error in proceedings that determined whether a person was to be punished by the state for criminal conduct, and to ensure that an accused was reasonably protected from the risk of error.

As with other rights, the presumption of innocence was not absolute. The level of justification required to warrant a limitation upon a right depended on the extent of the limitation. The more invasive the infringement, the more powerful the justification had to be.

Not every reverse onus offended the presumption of innocence in the same manner or to the same extent. To assess the extent of the limitation it was necessary to examine carefully the legislative provision in question. An examination of how the provision would operate in practice revealed that the risk of unfair convictions under the provision should not be overstated.

Other reverse onus provisions which had been struck down involved an onus relating to a factual matter on which the state could be expected to lead evidence contradicting an accused’s denial. In some cases the connection between the proven fact and the presumed fact was strained.

In the case of this provision, however, the manner in which the accused came into possession of the stolen goods was uniquely in the accused’s knowledge, but in the absence of explanation the inference that a culpable connection existed between the accused and the criminal conduct that deprived the rightful owner of the goods would generally follow.

Although the provision infringed the presumption of innocence, the infringement was materially different from, and less invasive than, the infringement caused in many of the earlier cases concerning reverse onus heard by the Court.[89] In enacting the provision, the legislature had created a provision that was closely tailored to meet the state’s difficulties without unduly menacing the public with the criminal sanction.

The effect of the presumption was to require members of the public to take care when acquiring goods otherwise than at a public sale, to ensure that they took steps that would enable them to establish that they had reasonable cause to believe the goods were not stolen.

The presumption required an accused to give evidence of a matter which it would be unreasonable to expect the state to be able to prove. Weighing the scope of the infringement of the presumption of innocence against the purpose, importance and effect of the impugned provision, the provision met the proportionality test for justification.

A limitation on the presumption of innocence that resulted in a duty of vigilance, coupled with an obligation to persuade a court that in acquiring goods one had acted responsibly, in order to achieve the overall purpose of stifling the market in stolen goods, was justifiable, in the minority’s view. To the minority, the provision was not unconstitutional.[90]

After this decision, Parliament, in order to implement the Court’s majority decision (that the provision justifiably limited the right to silence, but its limitation of the presumption of innocence was not justifiable), altered the provision[91] by an amendment[92] which deleted the phrase “proof of which shall be on such first-mentioned person.” The provision now reads:

“Any person who […[93]] acquires or receives into his possession from any other person stolen goods, […[94]] without having reasonable cause [the amendment deleted the phrase “proof of which shall be on such first-mentioned person,” where it appeared here] for believing at the time of such acquisition or receipt that such goods are the property of the person from whom he receives them […[95]], shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of receiving stolen property knowing it to have been stolen […[96]].”[97]

In the absence of evidence to the contrary which raises a reasonable doubt, proof of such possession shall be sufficient evidence of the absence of reasonable cause.”[98]

The insertion of this latter paragraph was presumably intended to reflect the Court’s decision that a provision such as this can justifiably limit the right to silence.

8. Presumption of possession of firearm if proved that an article has at any time been on the premises

The Arms and Ammunition Act, 1969[99] prohibited a person from having a firearm in his possession unless he held a licence to possess it.[100]

It stated, “Whenever in any prosecution for being in possession of any article contrary to the provisions of this Act, it is proved that such article has at any time been on or in any premises […[101]], any person who at that time was on […[102]] such premises, shall be presumed to have been in possession of that article at that time, until the contrary is proved.”[103]

In two separate matters before the Witwatersrand Local Division, the question of the constitutionality of the presumption was referred to the Constitutional Court. In both cases the applicants contended that the presumption offended against[104] the entrenched constitutional right to be presumed innocent. It was common cause that the provision amounted to a reverse-onus provision, the effect of which was to relieve the prosecution of the burden of proof of an essential element of the offence.

The Constitutional Court observed that a provision of this nature breached the presumption of innocence, since it could result in the conviction of an accused person despite existence of a reasonable doubt as to his guilt. No legal system could guarantee that no innocent person would ever be convicted; the existence of appeal and review procedures acknowledged the possibility of judicial fallibility.

But it was one thing to acknowledge the possibility of wrongly, but honestly, convicting the innocent and to provide appropriate measures to reduce the possibility of that occurring as far as is practicable; it was another thing to heighten the possibility of a miscarriage of justice by compelling a trial court to convict where it entertained a real doubt as to guilt, and to prevent any reviewing court from altering the conviction even if it shared the same doubt.

The state had argued that the limitation was constitutionally justifiable in order that offences under the Act were to be effectively prosecuted in the prevailing circumstances. The objective of the presumption, so it was argued, was to assist in combating the escalating levels of crime as part of the government’s duty to protect society generally. It was intended to ensure effective policing and to facilitate the investigation and prosecution of crime as well as to ease the prosecution’s task of securing convictions for contraventions of the Act. The detection of persons in unlawful possession of arms and ammunition was difficult. The task was time-consuming and dangerous. The difficulties were compounded by geographical factors and a severe shortage of trained police personnel. Members of the public were reluctant to come forward with information because they were terrified and intimidated by armed gangsters and traffickers in narcotic drugs and illegal arms.

The Court observed that it was not difficult to sympathise with the difficulties of those whose task it was to deal with the truly serious problem of combatting the proliferation of illegal firearms. The objective of protecting society generally from the escalating levels of crime was a truly laudable object. There was a distressing increase in crimes of violence, most of which involved firearms. This constituted a threat to social stability. There was no doubt that the proliferation of illegal firearms in the country contributed in no small measure to the high incidence of violent crime which had reached an intolerably high level warranting urgent corrective measures.

However, the question was not simply whether there was a pressing social need to combat crimes of violence, but whether the instrument to be used in meeting that need was permitted by the Constitution.

The presumption of innocence was of vital importance in the establishment and maintenance of an open and democratic society based on freedom and equality. There had to be clear and convincing justification for a provision which effectively substituted a presumption of guilt for the presumption of innocence.

The state had contended that without the presumption of possession it would be almost impossible for the prosecution to prove both the mental and physical elements of possession. This was not, however, so. The circumstances of each case would determine whether or not the elements of possession had been established beyond reasonable doubt. Circumstantial evidence would often be sufficient to secure a conviction without the assistance of the presumption. There would inevitably be cases where it would be difficult to prove that a particular person against whom the presumption would have operated was in fact in possession of the prohibited article. In those instances, the absence of the presumption might enable a guilty accused to escape conviction. But that was an inevitable consequence of the presumption of innocence; and that possibility had to be weighed against the danger that innocent people may be convicted if the presumption were to continue to operate. Concern for the rights of innocent persons had to take precedence. The consequences of a wrong conviction were not trivial.

The wide terms in which the presumption had been couched entailed the risk of convicting innocent persons who happened to be in the wrong place at the wrong time. No attempt had been made to fashion its provisions so as to restrict its operation to persons connected with the offending article proved to have been found on the premises in question.[105]

The presumption did not depend on there being a logical or rational connection between the presumed fact and the proven fact; nor was the presumed fact something which was more likely than not to arise from the proven fact. Mere presence of an accused on premises at the same time as a prohibited article did not, in the normal course, give rise to an inference of possession. The provision contained no mechanism to exclude innocent persons.

The state had contended that these untoward consequences would not eventuate in practice because the presumption was applied with circumspection by prosecutors. This argument was unconvincing. If it were clear that the presumption could lead to the conviction of innocent persons, the constitutional rights of such persons could not be made to depend on the discretion of the police or the prosecuting authorities. If the police and prosecutors were satisfied of the guilt of the accused, they should be able to establish that in the ordinary way.

The provision was not only too wide in its application with regard to persons, but it cast a heavy burden on those who were caught within its net to disprove guilt. Assessing the potential effect of the presumption on innocent persons, the presumption could not, as it stood, satisfy the requirements of reasonableness and justifiability. It had also not been demonstrated that its objective could not reasonably have been achieved by other means less damaging to constitutionally entrenched rights. It had not been shown to be reasonable. It was inconsistent with the values underlying an open and democratic society based on freedom and equality, and was not justifiable.

The Court hence declared the provision to be invalid and of no force or effect.[106]

A few years later, the Act[107] was repealed by the Firearms Control Act, 2000.[108] The new Act contains a provision[109] which creates a presumption of possession of a firearm. (The provision[110] is attached in full.[111])

9. Exceptions, exemptions, provisos, excuses or qualifications

The Criminal Procedure Act, 1977[112] states that, in criminal proceedings any exception, exemption, proviso, excuse or qualification[113] “may be proved by the accused,” but need not be specified or negatived in the charge and, if so specified or negatived, “need not be proved by the prosecution.”[114]

The reason for this provision, in regard to the burden of proof, lies in its efficiency. While it is easy for an accused to prove that exculpatory factors operate in his favour, the state would face insurmountable problems in proving that an exception or other limitation would not apply in a particular case. In defining statutory offences, prohibited conduct is often cast in the form of a general prohibition. The general prohibition is then made subject to a series of exceptions. These exceptions may, for example, relate to factual situations, a person’s sex, age or profession. An accused who alleges that he is excluded from the scope of the provision by an exception, exemption, proviso, excuse or qualification will, however, have to prove the same.[115]

Our legal system is an adversarial one.  Once the prosecution has produced evidence sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk.  The failure to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable doubt.  An accused, however, always runs the risk that, absent any rebuttal, the prosecution’s case may be sufficient to prove the elements of the offence.[116]

10. Presumption of lack of authority

The Criminal Procedure Act also states that, if a person would commit an offence if he carried on any occupation or business; performed any act; owned or had in his possession or custody or used any article; or was present at or entered any place, without being the holder of a licence, permit, permission or other authority or qualification (the “necessary authority”), an accused shall, on a charge that he committed the offence, be deemed not to have been the holder of the necessary authority “unless the contrary is proved.”[117]

This reverse-onus clause has been held to be justifiable and constitutionally valid.[118]

A reverse-onus provision is not per se invalid or unconstitutional. Some provisions would fall within the ambit of the limitations clause and be justified thereby. But such justification in the case of a limitation of the presumption of innocence had to be compelling:

Some such presumptions might be rational, requiring only proof of facts to which the accused had easy access, and which it would be unreasonable to require the prosecution to prove. In some instances the presumption might be necessary in order to prosecute the type of offence effectively, because in the nature of things the state could not be expected to produce evidence of the kind contemplated.[119]

No fundamental right is absolute. There are circumstances a reverse onus provision can pass constitutional muster.[120]

ATTACHMENT

Section 117 of Firearms Control Act 60 of 2000

(as amended by Firearms Control Amendment Act 43 of 2003 s 14)

Presumption of possession of firearm or ammunition

117. (1) For purposes of this section “residential premises” does not include a hotel, hostel, or an apartment building, but includes a room or suite in a hotel, a room in a hostel and an apartment in an apartment building.

(2) Whenever a person is charged in terms of this Act with an offence of which the possession of a firearm or ammunition is an element, and the State can show that despite the taking of reasonable steps it was not able with reasonable certainty to link the possession of the firearm or ammunition to any other person, the following circumstances will, in the absence of evidence to the contrary which raises reasonable doubt,[121] be sufficient evidence of possession by that person of the firearm or ammunition where it is proved that the firearm or ammunition was found —

(a) on residential premises and the person was, at the time—

(i) in control of such premises; or

(ii) over the age of 16 years and ordinarily resident at such premises;

(b) buried in or hidden on land used for residential purposes and the person was, at the time—

(i) in control of such land;

(ii) employed to work on the land in or on which the firearm or ammunition was found; or

(iii) over the age of 16 years and ordinarily resident on such land;

(c) on premises other than residential premises and the person was, at the time—

(i) in control of such premises;

(ii) ordinarily employed on the premises;

(iii) present in the immediate vicinity of the place on the premises where the firearm or ammunition was found and the circumstances indicate that the firearm or ammunition should have been visible to that person; or

(iv) in control of a locker, cupboard or other container within which the firearm or ammunition was found;

(d) in or on a vehicle and the person was, at the time—

(i) the driver of the vehicle;

(ii) the person in charge of the vehicle;

(iii) in control of all the goods on the vehicle;

(iv) the consignor of any goods in or among which the firearm or ammunition was found;

(v) the only person who had access to the firearm or ammunition;

(vi) the employer of the driver of the vehicle and present on the vehicle;   or

(vii)   over the age of 16 years and present on the vehicle;

(e) on any aircraft other than an aircraft which was used to convey passengers for gain, and the person was at the time—

(i) present on the aircraft and in charge of the aircraft; or

(ii) over the age of 16 years and present on the aircraft;

(f) in the hold of an aircraft and the person was, at the time, the person in charge of the goods in the hold;

(g) in a place on an aircraft or vessel—

(i) to which no one besides the person had access; or

(ii) where the circumstances indicate that the firearm or ammunition should have been visible to no one besides the person;

(h) on any vessel other than a vessel which was used to convey passengers for gain, and the person was, at the time—

(i) in charge of that vessel or that part of the vessel in which the firearm or ammunition was found;

(ii) ordinarily employed in the immediate vicinity of the place on the vessel where the firearm or ammunition was found; or

(iii) over the age of 16 years and present in that part of the vessel; or

(i) in the cargo of a vessel and the person was, at the time—

(i) in control of the cargo of the vessel; or

(ii) the consignor of any goods in or among which the firearm or ammunition was found.

(3) In any criminal proceedings against a person where it is alleged that such person has injured or killed another person or has damaged property belonging to another person, the following circumstances will, in the absence of evidence to the contrary which raises a reasonable doubt,[122] be sufficient evidence that such person participated in the injury, killing or damage, where it is proved that—

(a) the person was driving, or was a passenger in, a vehicle other than a vehicle designed or licensed to convey more than 20 passengers;

(b) a firearm was discharged from that vehicle while the person was driving or was a passenger in the vehicle; and

(c) as a result of such discharge, a person was injured or killed, or property was damaged.

 

[1] Also referred to as the burden of proof (the word onus being the Latin for a burden).

[2] I.e., that the offence was the result of a voluntary act by the accused with intention by the accused.

[3] And it is sufficient for him merely to raise a reasonable doubt as to his guilt. Woolmington v Director of Public Prosecutions [1935] UKHL 1, [1935] AC 462, (1936) 25 Cr App R 72 (HL), discussed in R v Ndhlovu 1945 AD 369 373–375.

[4] Mancini v Director of Public Prosecutions [1942] AC 1 (HL) 13.

[5] Whether led by the prosecution or by the accused.

[6] The court should not speculate on the possible existence of matters upon which there is no evidence, or the existence of which cannot reasonably be inferred from the evidence. R v Ndhlovu supra 385–386.

[7] In regard to intention.

[8] In regard to both unlawfulness and intention.

[9] R v Ndhlovu supra 386–387.

[10] R v Biya 1952 (4) SA 514 (A) 521D–E;  R v Hlongwane 1959 (3) SA 337 (A) 340H; S v Mhlongo 1991 2 SACR 207 (A) 210; S v Kubeka 1982 (1) SA 534 (W) 537.

[11] Including the fact that it was the accused who committed the crime and that, e.g., the accused’s alibi was fictitious. R v Biya 1952 4 All SA 304 (A), et al.

[12] Thus the state must prove the absence of justifiable self-defence. R v Kaukakani 1947 3 All SA 47 (A), et al.

[13] Thus the state must prove the absence of provocation. R v Thibani 1949 4 All SA 449 (A), et al.

[14] Law of South Africa vol 18 3 ed par 270, Evidence: Sufficiency: Burden of proof: Incidence in criminal trials (DP van der Merwe (orig text by CWH Schmidt and DT Zeffertt)).

[15] Tydskrif vir Hedendaagse Romeins-Hollandse Reg vol 66 [2003] 634. Aantekeninge: “The burden of proof and the weighing of evidence in criminal cases revisited.” W de Villiers.

[16] R v Oakes [1986] 1 SCR 103 [29]–[32] (Supreme Court of Canada).

[17] Lord Bingham (then Senior Law Lord), “The Rule of Law” (Sixth Sir David Williams Lecture 2006, Centre for Public Law, Univ. of Cambridge), seventh sub-rule.

Sheldrake v Director of Public Prosecutions [2004] UKHL 43, [2005] 1 All ER 237 (HL) pars [50]–[53].

[18] Sanders, A J G M. „Die ‚Rule of Law’ — ’n gemeenskaplike westerse gedragskode.” vol 34 [1971] Tydskrif vir Hedendaagse Romeins-Hollandse Reg pp 164 et seq and 284 et seq, at 293, 297.

[19] Report of committee III: The Criminal Process and the Rule of Law: The presumption of innocence

[20] Constitution of the Republic of South Africa, 1996.

[21] Constitution s 35 (Arrested, detained and accused persons).

[22] Constitution s 35(3).

[23] Inter alia.

[24] Constitution s 35(3)(h).

[25] Only in terms of law of general application.

[26] In an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

  • the nature of the right;
  • the importance of the purpose of the limitation;
  • the nature and extent of the limitation;
  • the relation between the limitation and its purpose; and
  • less restrictive means to achieve the purpose.

Constitution s 36(1).

[27] In a case about a statute creating a reverse onus of proof in connection with the offence of dealing in dagga.

[28] For purposes of the issue at hand.

[29] Although they were worded differently and did not set identical criteria, the infringement in question went beyond the bounds of justifiability in either case. S v Ntsele1997 (11) BCLR 1543 (CC) fnn 5 and 6.

[30] Criminal Procedure Act 51 of 1977.

[31] Criminal Procedure Act s 245 (“Evidence on charge of which false representation is element”).

[32] In light of the fact that the (then applicable) 1993 Constitution requires the prevailing state interest to render a provision not only reasonable but “necessary” as well.

(The current, 1996, Constitution, in contrast, does not state that a law may limit a fundamental right if the limitation is (inter alia) necessary.)

[33] As required by s 33(1)of the 1993 Constitution.

[34] As enshrined in s 25(3)(c) of the 1993 Constitution. S v Coetzee and others 1997 (4) BCLR 437 (CC) pars [5][17] per Langa J, all other members of the Court concurring.

[35] S v Coetzee and others 1997 (4) BCLR 437 (CC).

[36] Criminal Procedure Act s 332(5).

[37] Chaskalson P, Mahomed DP, Ackermann, Didcott, Kriegler, Langa and Sachs JJ.

[38] Didcott J, and Mohamed DP (Kriegler J concurring), in separate judgments.

[39] Madala J and Kentridge AJ.

[40] Kentridge AJ.

[41] Madala J.

[42] Kentridge AJ.

[43] O’Regan J (Mokgoro J concurring).

[44] O’Regan J.

[45] The 1993 Constitution applied as mentioned.

[46] Drugs and Drug Trafficking Act 140 of 1992.

[47] Inter alia.

[48] Subject to narrow exceptions relating to medicinal purposes. Drugs and Drug Trafficking Act 5(i)(aa), (bb) and (cc), (ii), (iii) and (iv).

[49] Drugs and Drug Trafficking Act s 13(f).

[50] Drugs and Drug Trafficking Act s 1(1) svv “undesirable dependence-producing substance” read with Schedule 2 Part III.

[51] Except dronabinol [(-)-transdelta-9 tetrahydrocannabinol]. Drugs and Drug Trafficking Act Sched 2 Pt III.

[52] Drugs and Drug Trafficking Act s 21(1)(a)(i).

[53] As defined in the Act.

[54] Viz., 115 grams.

[55] I.e., 115 grams.

[56] When it was expressed as four ounces.

[57] Nowadays, whatever sense (if any) it may have made in the socio-economic environment that prevailed when it was originally introduced.

[58] Unanimously.

[59] S v Bhulwana, S v Gwadiso 1995 (12) BCLR 1579 (CC) per O’Regan J, the other judges concurring.

[60] Drugs and Drug Trafficking Act s 21(1)(a)(iii).

[61] S v Bhulwana, S v Gwadiso supra.

[62] S v Julies 1996 (7) BCLR 899 (CC).

[63] Drugs and Drug Trafficking Act s 21(1)(b)(i) and (ii).

[64] Combrinck J, Hurt J concurring.

[65] S v Bhulwana, S v Gwadiso 1995 (12) BCLR 1579 (CC); S v Julies 1996 (7) BCLR 899 (CC); S v Mbatha; S v Prinsloo 1996 (3) BCLR 293 (CC). These cases are all discussed in this document.

[66] Drugs and Drug Trafficking Act s 21(1)(a).

[67] S v Bhulwana, S v Gwadiso 1995 (12) BCLR 1579 (CC); S v Julies 1996 (7) BCLR 899 (CC).

[68] S v Mbatha; S v Prinsloo 1996 (3) BCLR 293 (CC).

[69] S v Ntsele 1997 (11) BCLR 1543 (CC) per Kriegler J, the other judges concurring.

[70] General Law Amendment Act 62 of 1955.

[71] Other than stock or produce as defined in the Stock Theft Act.

[72] And liable on conviction to the penalties which may be imposed on a conviction of theft. General Law Amendment Act 1955 s 36.

[73] Inter alia.

[74] Osman and ano v Attorney-General, Transvaal 1998 (11) BCLR 1362 (CC).

[75] General Law Amendment Act 62 of 1955.

[76] “…in any manner, otherwise than at a public sale…”.

[77] “…other than stock or produce as defined in section one of the Stock Theft Act, 1959,…”.

[78] (Italics added.)

[79] “…or that such person has been duly authorized by the owner thereof to deal with or to dispose of them…”.

[80] “…except in so far as the imposition of any such penalty may be compulsory.”

[81] General Law Amendment Act s 37(1).

[82] See italicised wording.

[83] Inter alia.

[84] Particularly in regard to the meaning of “possession.”

[85] S v Manamela and ano (Director-General of Justice Intervening) 2000 (5) BCLR 491 (CC) par [20].

[86] Inter alia.

[87] S v Manamela and ano (Director-General of Justice Intervening) 2000 (5) BCLR 491 (CC) pars [22]–[59], per Madala, Sachs and Yacoob JJ. (Chaskalson P, Langa DP, Ackermann, Mokgoro and Ngcobo JJ concurred.)

[88] O’Regan J and Cameron AJ.

[89] S v Manamela and ano (Director-General of Justice Intervening) at pars [81]–[83].

[90] S v Manamela and ano (Director-General of Justice Intervening) at pars [22]–[59], per O’Regan J and Cameron AJ (dissentientes).

[91] General Law Amendment Act 1955 s 37(1).

[92] Judicial Matters Amendment Act 62 of 2000.

This stated that it was an Act to amend inter alia the General Law Amendment Act, 1955 “so as to remove a reverse onus.” Judicial Matters Amendment Act 2000 (Long title).

[93] “…in any manner, otherwise than at a public sale…”.

[94] “…other than stock or produce as defined in section one of the Stock Theft Act, 1959,…”.

[95] “…or that such person has been duly authorized by the owner thereof to deal with or to dispose of them…”.

[96] “…except in so far as the imposition of any such penalty may be compulsory.”

[97] General Law Amendment Act s 37(1)(a).

[98] General Law Amendment Act s 37(1)(b). Italics added.

[99] Arms and Ammunition Act 75 of 1969.

[100] Arms and Ammunition Act s 2 read with s 1(1) sv “arm”.

[101] “…including any building, dwelling, flat, room, office, shop, structure, vessel, aircraft or vehicle or any part thereof…”.

[102] “…or in or in charge of or present at or occupying…”.

[103] Arms and Ammunition Act s 40(1). Italics added.

[104] Inter alia.

[105] Indeed, it appeared that its intention was to override restrictions which had been read into equivalent provisions of earlier arms and ammunition statutes.

[106] S v Mbatha; S v Prinsloo 1996 (3) BCLR 293 (CC).

[107] Arms and Ammunition Act, 1969.

[108] Firearms Control Act 60 of 2000.

[109] Firearms Control Act 2000 s 117.

[110] As amended by Firearms Control Amendment Act 43 of 2003 s 14.

[111] See Attachment (Firearms Control Act s 117).

[112] Criminal Procedure Act 51 of 1977.

[113] Whether or not it accompanies in the same section the description of the offence in the law creating the offence.

[114] Criminal Procedure Act s 90.

[115] Commentary on the Criminal Procedure Act, E du Toit, F de Jager, A Paizes, S E van der Merwe, A Skeen pp 14-32.

[116] S v Boesak 2001 (1) SACR 1 (CC) par [24] per Langa DP, the other judges concurring.

[117] Criminal Procedure Act s 250.

[118] Hadebe v S [2009] ZAKZDHC 31 per Kooverjee AJ.

[119] S v Meaker 1998 (8) BCLR 1038 (W) per Cameron J, Mailula J concurring.

This case was cited with approval by the majority in S v Manamela and ano (Director-General of Justice Intervening) 2000 (5) BCLR 491 (CC) pars [27], [29].

[120] S v Manamela and ano (Director-General of Justice Intervening) at par [36].

[121] [Italics added.]

[122] [Italics added.]

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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