S v Bhulwana

• Jurisdiction: South Africa
• Judge: Marais J and Brand J
• Judgment Date: 19 October 1994
• Docket Number: A1004/94
• Court: Cape Provincial Division
• Hearing Date: 19 October 1994
• Citation: 1995 (1) SA 509 (C)

D Marais J:

This matter came before me on automatic review. The accused was charged in the main count with contravening s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the Act) in that he dealt in 850 grams of dagga. He was charged in the alternative with contravening s 4(b) of the Act by being in possession of the same quantity of dagga. In the result, he was convicted upon the main count and was sentenced to a fine with an E alternative of imprisonment, and a further suspended term of imprisonment. He has paid his fine and is not in custody.

The evidence before the court would certainly not have sufficed to prove beyond reasonable doubt that the accused intended to deal in the dagga which was found in his possession and, but for the invocation by the State F of, and reliance by the court upon, the presumption contained in s 21(1)(a)(i) of the Act, he could not properly have been convicted of dealing in dagga. His guilt upon the alternative count was plainly established. This is consequently a case in which the validity of that presumption is critical to the correctness of his conviction upon the main G count. Its validity depends upon whether or not it is intra vires the Constitution of the Republic of South Africa Act 200 of 1993 (the Constitution). There appear to me to be good grounds for concluding that it is not.

Section 21 (1)(a)(i) of the Act reads:

'Presumptions relating to dealing in drugs

H (1) If in the prosecution of any person for an offence referred to -

(a)

in s 13(f) it is proved that the accused -

(i)

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 or substance; . . .'

I The plain effect of the presumption is to burden the accused with the onus of establishing on a balance of probability that he is not guilty of the offence of dealing, once it has been proved by the State that he was in possession of more than 115 grams of dagga. That is in direct conflict with the accused's entrenched right 'to be presumed innocent' of the crime J of dealing in dagga.

Marais J

A Section 25(3)(c) of the Constitution reads:

'Every accused person shall have 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;

. . . .' B

The only remaining question...