S v Bhulwana; S v Gwadiso

• Jurisdiction: South Africa
• Judge: Chaskalson P, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, Ngoepe AJ, Sachs J [*]
• Judgment Date: 29 November 1995
• Citation: 1996 (1) SA 388 (CC)
• Docket Number: CCT 12/95 and CCT 11/95
• Hearing Date: 12 September 1995
• Counsel: A P Blignault SC (with him J C Butler) for the accused at the request of the Court, the heads of argument having been prepared by G Josman SC and J C Butler. J Slabbert for the State.
• Court: Constitutional Court

A O'Regan J:

[1] The question referred to this Court in both these cases was whether the provisions of s 21(1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 ('the Act') are in conflict with the provisions of the Republic of South Africa Constitution Act 200 of 1993 ('the Constitution'). Section B 21(1)(a)(i) of the Act provides that:

'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 C in such dagga or substance;

. . . .'

Section 13(f) refers to offences mentioned in s 5(b) which, in turn, relates to the offence of dealing in certain substances, including dagga.

[2] The basis of the attack on s 21(1)(a)(i) of the Act is that the D section imposes a burden of proof on the accused, a so-called 'reverse onus' provision, which is contrary to the provisions of s 25(3) of the Constitution. Section 25(3) provides that:

'Every accused person shall have the right to a fair trial, which shall include the right -

. . . E

(a)

to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during a trial;

. . . .'

[3] Mr Bhulwana was found in possession of 850g of dagga (cannabis) near Kleinmond on 20 May 1994. He was convicted of dealing in dagga on 8 F September 1994 and was fined R500 with the alternative of six months' imprisonment and, in addition, a 12-month prison sentence was suspended for a period of five years on condition that he was not found guilty of dealing in drugs during that period. The matter then came before the Cape Provincial Division of the Supreme Court on automatic review. Marais J (in whose judgment Brand J concurred) held that the evidence before the G magistrate's court would not have been sufficient to convict Mr Bhulwana of dealing in dagga, absent a reliance on the presumption contained in s 21(1)(a)(i) of the Act. Accordingly, the correctness of the conviction depended on the constitutionality of the presumption. Marais J was of the view that there were good grounds for concluding that the presumption was H not constitutional. In terms of s 102(1) of the Constitution, therefore, the Court referred the question of the constitutionality of the presumption contained in s 21(1)(a)(i) of the Act to this Court for determination and suspended the review proceedings before it.

I [4] In the other case before us, the accused, Mr Gwadiso, was found in possession of 444,7g of dagga on Main Street, Grabouw, on 26 August 1994. In convicting him of dealing in dagga, the magistrate in the Caledon magistrate's court expressly relied upon the presumption contained in s 21(1)(a)(i) of the Act. Mr Gwadiso was fined R600 with the alternative of J a six-month prison sentence and in addition a further

O'Regan J

A one month prison sentence was suspended for four years on condition that he not be found guilty of dealing in drugs during that period. The matter came before the Cape Provincial Division of the Supreme Court on automatic review. Traverso J (in whose judgment Conradie J concurred) held that it was clear that Mr Gwadiso's conviction for dealing could not have been B sustained but for the existence of the presumption. She agreed with Marais J's conclusion in S v Bhulwana that the presumption was prima facie unconstitutional. The Court accordingly also referred the issue of the constitutionality of the presumption to this Court.

C [5] At the request of this Court, the Cape Bar Council requested Mr Josman SC and Mr Butler to prepare heads of argument on behalf of Mr Bhulwana and Mr Gwadiso. Mr Josman was not available for the hearing and the Cape Bar Council arranged for its chairman, Mr Blignault SC and Mr Butler to appear on their behalf at the hearing. Mr Slabbert of the office of the Western D Cape Attorney-General argued on behalf of the State. The Court wishes to express its appreciation to the Cape Bar Council and to these counsel for their assistance.

[6] Section 21(1)(a)(i) is a provision which has existed in our law since 1954. It was first introduced as s 90bis of the Medical, Dental and Pharmacy Act 13 of 1928 by s 31 of the Medical, Dental and Pharmacy E Amendment Act 29 of 1954. As both possession of dagga and dealing in dagga are offences in our law, 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 115g, the offence of dealing is presumed to have been committed. The Act provides for more substantial penalties for the offence of dealing than it does for the offence of F possession and there is no doubt that a conviction for dealing is altogether a graver matter than a conviction for possession.

[7] Mr Slabbert submitted that s 21(1)(a)(i) was not a true reverse onus provision, in that it imposed on the accused not a legal burden, but G merely an evidential burden. An evidential burden would require the accused, once possession in excess of 115g dagga has been shown, to adduce evidence which raises a reasonable doubt as to whether he or she was guilty of dealing in order to be acquitted of the offence of dealing. A legal burden, on the other hand, would require the accused to demonstrate on a balance of probabilities that he or she was not guilty of dealing in H order to be acquitted of that offence. It cannot be accepted that the subsection imposes an evidential, not a legal, burden. Section 21(1)(a)(i) provides that, where an accused is found in possession of a quantity of dagga in excess of 115g, it shall be presumed, until the contrary is proved, that the accused was guilty of dealing in dagga. The clear language of the text suggests that the presumption will stand unless I proof to the contrary is produced. Presumptions phrased in such a way have consistently been held to give rise to a legal burden since the judgment of the Appellate Division in Ex parte Minister of Justice: In re R v Jacobson and Levy 1931 AD 466. On several occasions the Appellate Division has held that provisions in the legislation antecedent to this Act which gave rise to the presumption of facts 'unless the contrary is J proved'

O'Regan J

A imposed a legal burden upon accused persons. (See S v Guess 1976 (4) SA 715 (A) at 719B-C; S v Radloff 1978 (4) SA 66 (A) at 71H.) There is no significant difference between the formulation of the earlier presumptions considered in these cases and s 21(1)(a)(i), although the formulation in the earlier legislation was 'unless' rather than 'until' the contrary is proved. In the Court a quo in Bhulwana's case Marais J was of the view B that s 21(1)(a)(i) plainly gave rise to a legal burden. (See S v Bhulwana 1995 (1) SA 509 (C) at 510I-J (1994 (2) SACR 706 at 707e-f and 1995 (5) BCLR 566 at 567H-I).) I agree that there can be no doubt that s 21(1)(a)(i) is a reverse onus provision which imposes a burden of proof on the accused.

C [8] 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 115g, the accused will, on a balance of probabilities, have to show that such possession did not constitute dealing as defined in the Act. Even if the accused raises a reasonable doubt as to whether he or she was dealing D in the drug, but fails to show it on a balance of probabilities, he or she 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 or her guilt.

[9] Is the imposition of this burden a breach of the presumption of E innocence as enshrined in s 25(3)(c)? As this Court held in S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401) at para [33], the presumption of innocence is not new to our legalsystem. As early as 1883, in R v Benjamin 3 EDC 337 at 338, Buchanan J noted that:

F 'But in a criminal trial there is a presumption of innocence in favour of the accused, which must be rebutted. Therefore there should not be a conviction unless the crime charged has been clearly proved to have been committed by the accused. Where the evidence is not reasonably inconsistent with the prisoner's innocence, or where a reasonable doubt as to his guilt exists, there should be an acquittal.'

G [10] Authoritative support for the rule as a fundamental principle of our law was given by the Appellate Division in R v Ndhlovu 1945 AD 369. Davis AJA held that the presumption of innocence which had been endorsed by the House of Lords in Woolmington v DPP [1935] AC 462 (HL) ([1935] All...