S v Baloyi

• Jurisdiction: South Africa
• Judge: Sachs J
• Judgment Date: 03 December 1999
• Citation: 2000 (1) SACR 81 (CC)
• Hearing Date: 09 November 1999
• Counsel: H Fabricius SC and S Lebala for the first intervening party G Marcus SC, M Chaskalson and A Kalla for the second intervening party J Botha for the appellant
• Court: Constitutional Court

Sachs J:

Introduction

[1] The Transvaal High Court declared invalid s 3(5) of the Prevention of Family Violence Act 133 of 1993 ('the Act'), and referred its declaration to this Court for confirmation. [1] It based its order of invalidity on three findings: first, that the section places a reverse onus of proving absence of guilt on a person charged with B breach of a family violence interdict, secondly, that in so doing it conflicts with the presumption of innocence, [2] and thirdly, that such limitation of the right to be presumed innocent cannot be constitutionally justified. [3] In dealing with the matter, this Court faces the novel and complex task of establishing the C appropriate balance between the State's constitutional duty to provide effective remedies against domestic violence, and its simultaneous obligation to respect the constitutional rights to a fair trial of those who might be affected by the measures taken.

[2] Even though all the relevant provisions of the Act are about to be replaced by the Domestic Violence Act D 116 of 1998, which comes into force on 15 December 1999, [4] a decision on the constitutional validity of the present Act is necessary, since it continues to affect the appellant and others in a similar position.

The factual background E

[3] The dispute is between the appellant, an army officer, and his wife, the complainant. The complainant laid a charge of assault against the appellant with the police and was advised by them to obtain an interdict

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A in terms of the Act. [5] The interdict was granted by a magistrate in Pretoria, who ordered the appellant not to assault the complainant and their child and not to prevent them from leaving or entering their joint home. A warrant for the arrest of the appellant was simultaneously granted but suspended in terms of the B Act. [6] The appellant then allegedly assaulted the complainant again and threatened to kill her. The complainant reported this to the police and was requested to make an affidavit in terms of the Act setting out the alleged facts. [7] The police then arrested the appellant [8] and brought him before a magistrate for an enquiry into the alleged breach of the interdict.

C [4] The Act provides that a person so arrested must be brought before a judge or magistrate as soon as possible [9] and:

'3(4)

The judge or magistrate before whom a respondent is brought in terms of ss (2) shall enquire into the respondent's alleged breach of the conditions of the order made in terms of s 2(2) and may at the conclusion of such enquiry -

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(a)

order the release of the respondent from custody; or A

(b)

convict the respondent of the offence contemplated in s 6.' [10]

[5] It was at that state that the provision under review in the present matter became operative. Section 3(5) of the Act reads:

'The provisions of the Criminal Procedure Act 51 of 1977, relating to the procedure which shall be followed in respect of an enquiry referred to in s 170 of the Act, shall apply mutatis mutandis in respect of an enquiry under ss (4).' B

[6] Section 170 of the Criminal Procedure Act 51 of 1977 ('CPA') deals with failure of an accused in a criminal trial to appear after an adjournment or to remain in attendance. It reads as follows: C

'(1)

An accused at criminal proceedings who is not in custody and who has not been released on bail, and who fails to appear at the place and on the date and at the time to which such proceedings may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, shall be guilty of an offence and liable to the punishment prescribed under ss (2).

(2)

The Court may, if satisfied that an accused referred to in ss (1) has failed to appear at the place and on the date and D at the time to which the proceedings in question were adjourned or has failed to remain in attendance at such proceedings as so adjourned, issue a warrant for his arrest and, when he is brought before the court, in a summary manner enquire into his failure so to appear or so to remain in attendance and, unless the accused satisfies the court that his failure was not due to fault on his part, convict him of the offence referred to in ss (1) and sentence him E to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.'

(My emphasis.)

[7] At the enquiry the complainant and her brother testified first. Her story was that he had kicked her F heavily on the buttocks and pushed her roughly. Thereafter the appellant, who was represented by an attorney, elected to testify. His story was that she had thrown something at him while her brother had tried to throttle him. Stating that the matter had to be judged 'on the basis of the onus being on a balance of probabilities', the magistrate decided that the appellant's version was improbable and untrue. She G convicted the appellant of violating the interdict, and sentenced him to 12 months' imprisonment, six suspended.

[8] The appellant appealed to the Transvaal High Court, contending that the section in terms of which he was convicted imposed an onus on him to prove that he had not wilfully violated the interdict. This, he H sumitted, was unconstitutional because it infringed his right under s 35(3)(h) of the Constitution to be presumed innocent and to have his

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A guilt proved beyond reasonable doubt by the State. As already mentioned, the High Court upheld this contention. The High Court went on to state that the limitation of the right to be presumed innocent could not be justified under s 36 of the Constitution inasmuch as the injustice of sending an innocent person to B jail outweighed the evil flowing from the difficulties encountered by the State in establishing proof beyond a reasonable doubt. The High Court further indicated, with little elaboration, that it was essentially a case of the appellant's word against that of the complainant and her brother. If the reverse onus applied, the conviction must be sustained. If, on the other hand, the State had to prove the appellant's guilt beyond a C reasonable doubt, his appeal should be upheld. After declaring s 3(5) of the Act to be invalid, the High Court referred its decision to this Court for confirmation.

[9] Responding to notice given to various bodies by the President of the Court, the Minister of Justice and the Commission for Gender Equality made written and oral submissions on the constitutionality of s 3(5). D The Court is indebted to the Commission for Gender Equality for its intervention and to Mr Marcus, Mr Chaskalson and Ms Kala who appeared for the Commission pro bono.

[10] Counsel for the Minister and for the Commission, respectively, challenged the decision of the High E Court on several grounds. There was considerable overlap between them, and for the sake of convenience I will consolidate their various contentions into three main arguments. The first is that alleged violators should not be considered as 'accused persons' entitled to the protection of the presumption of innocence. The second is that even if they are to be regarded as accused persons the sections should not be F interpreted to impose a reverse onus. The third is that if the proper interpretation of the sections involves the imposition of a reverse onus on accused persons, then the limitation of the presumption of innocence involved can be justified. Before considering these three questions I will establish the relevant constitutional and legislative context.

The constitutional requirement to deal effectively with domestic violence G

[11] All crime has harsh effects on society. What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society and, in particular, on family life. [11] It cuts across

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class, race, culture and geography, [12] and is all the more pernicious because it is so often concealed and A so frequently goes unpunished. The Law Commission, supporting the need for appropriate legislation to reduce and prevent family violence, invoked the following quotation from a document drafted by the US National Council of Juvenile and Family Court Judges: B

'Domestic and family violence is a pervasive and frequently lethal problem that challenges society at every level. Violence in families is often hidden from view and devastates its victims physically, emotionally, spiritually and financially. It threatens the stability of the family and negatively impacts on all family members, especially the children who learn from it that violence is an acceptable way to cope with stress or problems or to gain control over another person. It violates our C communities' safety, health, welfare, and economies by draining billions annually in social costs such as medical expenses, psychological problems, lost productivity and intergenerational violence.' [13]

The imperative for such legislation, as noted by the Law Commission, derives from s 12(1) of the Constitution, which reads: D

'Everyone has the right to freedom and security of the person, which includes the right -

. . . E

(c)

to be free from all forms of violence from either public or private sources; . . .'

The specific inclusion of private sources emphasises that serious threats to security of the person arise from private sources. Read with s 7(2), [14] s 12(1) has to be understood as obliging the State directly to protect the right of everyone to be free from private or domestic violence. Indeed, the State is under a F series of constitutional mandates which include the obligation to deal with domestic violence: to protect both the rights of everyone to enjoy freedom and security of the person [15] and to bodily and psychological integrity, [16] and the right to have their dignity respected and protected, [17] as well as the defensive...