Osman and Another v Attorney-General, Transvaal

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Yacoob J
• Judgment Date: 23 September 1998
• Counsel: E Bertelsmann SC (with him K T Jordt) for the appellants J A van S D'Oliviera SC (Attorney-General, Transvaal) (with him E Leonard) for the respondent
• Hearing Date: 07 May 1998
• Court: Constitutional Court

Madala J:

[1] This matter comes to us by way of appeal from the judgment and order of McCreath J, with Van Dyk J concurring, in C the Transvaal High Court [1], dismissing the appellants' application challenging the constitutionality of s 36 of the General Law Amendment Act 62 of 1955 (the Act).

[2] The appellants were charged in the regional court for the North West Province sitting at Rustenburg with a D contravention of s 36 of the Act. It was alleged that they were found in possession of tyres, which were reasonably suspected to have been stolen. The appellants were allegedly unable to give a satisfactory account of such possession. E

[3] At the commencement of the trial the appellants objected to the charge, contending that s 36 was in conflict with s 25(2)(c) and s 25(3)(c) of the interim Constitution [2]. Section 25(2)(c) affords an arrested person the right:

'(c)

not to be compelled to make a confession or admission which could be used in evidence against him or her. . . .' F

In respect of trial rights, s 25(3) guarantees an accused person:

'(3) . . . the right to a fair trial, which shall include the right -

. . . .

(c)

to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial . . . .' G

[4] The appellants requested that the proceedings in the regional court be stayed to enable them to pursue their challenge. However, the need to refer the matter to this Court fell away when the appellants and the respondent agreed in terms of s 101(6) of the interim Constitution [3] to the jurisdiction of the Transvaal High Court. H

Madala J

A [5] The High Court ruled against the appellants. It held that the impugned section was not in conflict with the constitutional provisions which enshrine the right to a fair trial and in particular it held that the section was not in conflict with the right of an accused person to remain silent at all stages of the trial and not to be compelled to testify or to become B a witness against himself or herself. Following the issue of a positive certificate in terms of Constitutional Court Rule 18(e), the appellants proceeded to seek and were granted leave to appeal by this Court.

[6] Although the alleged offence occurred during August 1993, the appellants were summoned to appear in court only on C 30 August 1994. In the light of Mhlungu [4] and Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658) [5], both parties correctly accepted that the appellants were entitled to rely on the provisions of s 25(3)(c) of the interim Constitution. The question before us is whether s 36 of the Act is inconsistent with those D provisions.

[7] By the time the matter was heard in the High Court, the 1996 Constitution had come into force. Item 17 of Schedule 6 of the 1996 Constitution [6], dealing with transitional arrangements, reads as follows:

E 'All proceedings which were pending before a court when the new Constitution took effect, must be disposed of as if the new Constitution had not been enacted, unless the interests of justice require otherwise.'

Regarding this item, this Court in S v Pennington and Another 1997 (4) SA 1076 (CC) (1997 (10) BCLR 1413) [7] held:

F 'The wording of this provision is different to that of the comparable transitional provision of the interim Constitution considered by this Court in S v Mhlungu and Others 1995 (2) SACR 227 (1995 (7) BCLR 793). It was correctly accepted by both counsel that in terms of item 17 of Schedule 6 the 1996 Constitution would not be applicable to pending proceedings unless it is "in the interests of justice" that its provisions should be applied.'

G (Footnotes omitted.) From this it is quite apparent that the interim Constitution applies unless it can be shown that, in the interests of justice, the 1996 Constitution should displace it. No evidence was presented to this Court as to why the 'interests of justice' warranted the application of the 1996 Constitution in preference to the interim Constitution. In my H view, to the extent that the Court a quo entertained the possibility of the 1996 Constitution being applicable, it was incorrect. The validity of s 36 is to be evaluated only against the yardstick of the interim Constitution.

[8] The impugned provision of the Act, s 36 [8], states:

Madala J

'Any person who is found in possession of any goods, other than stock or produce as defined in s 1 of the Stock Theft Act 57 of 1959, in regard to A 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 and liable on conviction to the penalties which may be imposed on a conviction of theft.'

The elements of the offence are that: (a) the accused person must actually be found in possession of goods; (b) a B suspicion founded on reasonable grounds must exist in the mind of the finder (or possibly some other person) that the goods had been stolen; and (c) there must be an inability on the part of the person found in possession to give a satisfactory account of such possession. It is the last requirement - the inability to give a satisfactory explanation - which raises the challenge to s 36 in the case before us. C

[9] It was contended on behalf of the appellants that s 36 requires a person suspected of, detained or arrested for theft or for being in possession of stolen property to give an explanation which may amount to a confession of the crime charged D or of another crime, and that such confession would at all relevant times be admissible against the accused. The accused, it was submitted, is put under pressure to react to a request to provide an explanation for the possession of goods and faces the danger, if not the probability, of a conviction should he or she fail to so react. This compulsion was said to violate the accused's rights contained in s 25(2)(c). The respondent's answer to this was that a suspect who is E asked for an explanation is not 'under arrest' and that s 25(2)(c) is accordingly not applicable.

[10] The right entrenched in s 25(2)(c) protects an arrested or detained person against incriminating himself or herself or against being compelled to make a confession or admission which could be used in evidence against him or her. The right F is of particular significance having regard to our recent history when, during the apartheid era, the fundamental rights of many citizens were violated. It is in that context that the right of arrested persons was progressively eroded. The right was honoured more in the breach than in its observance, and our courts found themselves having to adjudicate an ever G increasing number of cases where coerced confessions had become the order of the day. Police interrogations were often accompanied by physical brutality and by holding arrested persons in solitary confinement without access to the outside world - all in an effort to extract confessions from them. Our painful history should make us especially sensitive to H unacceptable methods of extracting confessions...