S v Bhulwana; S v Gwadiso

• Jurisdiction: South Africa
• Citation: 1995 (2) SACR 748 (CC)

S v Bhulwana;
S v Gwadiso
1995 (2) SACR 748 (CC)

1995 (2) SACR p748

Citation	1995 (2) SACR 748 (CC)
Court	Constitutional Court
Judge	Chaskalson P, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, Ngoepe AJ and Sachs J [*]
Heard	September 12, 1995
Judgment	September 29, 1995
Counsel	A P Blignaut 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

Flynote: Sleutelwoorde

Drug offences — Dagga — Dealing in in contravention of s 5(b) of Drugs and Drug G Trafficking Act 140 of 1992 — Presumption in s 21(1)(a)(i) of Act — Presumption in conflict with presumption of innocence entrenched in s 25(3)(c) of Constitution Act 200 of 1993 — Presumption not reasonable, justifiable or necessary as contemplated by s 33 of Constitution and accordingly invalid — H Section 21(1)(a)(i) of Act 140 of 1992 declared invalid.

Fundamental rights — Right to be presumed innocent in terms of s 25(3)(c) in Chapter 3 of Constitution Act 200 of 1993 — Presumption in s 21(1)(a)(i) of Drugs and Drug Trafficking Act 140 of 1992 — Presumption in conflict with presumption of innocence entrenched in s 25(3)(c) of Constitution — Presumption I not reasonable, justifiable or necessary as contemplated by s 33 of Constitution and accordingly invalid — Section 21(1)(a)(i) of Act 140 of 1992 declared invalid.

Statute — Validity of — Declaration of invalidity of provisions of statute J

1995 (2) SACR p749

— Provisions A inconsistent with fundamental rights in Chapter 3 of Constitution Act 200 of 1993 — Effect of s 35(2) and s 232(3) of Constitution — Reading down of provision in issue — Court can only read down provision which is capable of more restricted and constitutional interpretation — If provision is capable of B being read down in way consistent with Constitution, Constitution requiring it to be read in such way — If not capable of such reading down, s 98(5) requiring Court to hold provision invalid — Court may then exercise discretion conferred upon it by proviso to s 98(5) or by s 98(6) — Presumption in s 21(1)(a)(i) of Drugs and Drug Trafficking Act 140 of 1992 inconsistent with Constitution and not C capable of being read down as imposing an evidential burden rather than a legal presumption — Presumption accordingly declared invalid.

Court — Constitutional Court — Powers of — Declaration of invalidity of statutory provision — Power of Court in terms of s 98(5) of Constitution Act 200 of 1993 in interests of justice and good government to direct that constitutionally defective D law shall remain in force pending correction of defect by competent authority — Presumption in s 21(1)(a)(i) of Drugs and Drug Trafficking Act 140 of 1992 inconsistent with Constitution — No compelling reason for presumption to remain in force pending parliamentary attention — Risk that, if presumption remained in E force, person may be convicted on basis of presumption despite existence of reasonable doubt as to guilt — Presumption declared invalid.

Headnote: Kopnota

As was 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 an established principle of South African law which places the burden of proof squarely on the F prosecution. The entrenchment of the presumption of innocence in s 25(3)(c) in Chapter 3 of the Constitution Act 200 of 1993 must be interpreted in this context. It requires that the prosecution bear the burden of proving all the elements of a criminal charge. A presumption which relieves the prosecution of part of that burden could result in the conviction of an accused person despite the existence of a reasonable doubt as to his or her guilt. Such a presumption is in breach of the presumption of G innocence and therefore offends s 25(3)(c). Section 21(1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 (which provides: '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; . . .', which is an offence in terms of s 5(b) of the Act) is such a presumption. The answer to the threshold H enquiry as to the constitutionality of that presumption is therefore that s 21(1)(a)(i) clearly gives rise to a breach of s 25(3)(c) of the Constitution. (Paragraph [15].)

Section 21(1)(a)(i) of Act 140 of 1992 cannot be justified in terms of s 33(1) of the Constitution. Although the need to suppress illicit drug trafficking is an urgent and I pressing one, it is not clear how, if at all, the presumption in s 21(1)(a)(i) furthers such an objective. In addition, there appears to be no logical connection between the fact proved (possession of 115 grams) and the fact presumed (dealing). On the other hand, the presumption gives rise to an infringement of the right entrenched in s 25(3)(c) of the Constitution, which is a pillar of the South African system of criminal justice. Section 21(1)(a)(i) of the Act is an unconstitutional infringement of the right entrenched in J

1995 (2) SACR p750

A s 25(3)(c) of the Constitution which is not reasonable, justifiable or necessary as contemplated by s 33 of the Constitution. (Paragraph [24].)

It is clear from s 35(2) and s 232(3) of the Constitution that the Court must read down a provision which is 'reasonably capable' of a more restricted and constitutional interpretation. If the provision is 'reasonably capable' of being read down in a way which would be consistent with the Constitution, the Constitution requires that it shall be read in such a way. If the provision is not reasonably capable of such an B interpretation, then s 98(5) requires the Court to hold the provision invalid. Thereafter the Court may exercise the discretion conferred upon it by the proviso to s 98(5) or the discretion conferred by s 98(6). (Paragraph [28].)

To read s 21(1)(a)(i) of Act 140 of 1992 as imposing an evidential burden upon the accused rather than a legal burden would require reading the words in s 21(1)(a)(i) C 'until the contrary is proved' as meaning 'unless the evidence raises a reasonable doubt'. These words are not reasonably capable of such an interpretation, both in the light of the unambiguous language of the phrase 'until the contrary is proved' and the considerable and consistent judicial dicta interpreting that phrase. Accordingly, it cannot be accepted that s 21(1)(a)(i) should be read down to give rise to an evidential D and not a legal burden. (Paragraph [29].)

As to the question whether the Court should exercise its power under the proviso to s 98(5) of the Constitution, in the interests of justice and good government, to suspend the effect of the order of invalidity and require Parliament to remedy the defect in the E legislation, no compelling interest of good government which would require that the presumption remain in force pending parliamentary attention can be identified. It was not necessary for the conviction of offenders, or for the furthering of the objects of the legislation. On the other hand, it is clear that, while the presumption exists, there is a risk that a person may be convicted of dealing in dagga despite the existence of a reasonable doubt as to his or her guilt. In the absence of persuasive reasons to F exercise the Court's power in terms of s 98(5), the effect of the Court's finding, that s 21(1)(a)(i) is inconsistent with the Constitution, must be the invalidity of that section. (Paragraph [30].)

The Court accordingly made an order declaring s 21(1)(a)(i) and the words 'dagga or' in s 21(1)(a) of the Drugs and Drug Trafficking Act 140 of 1992 to be inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 and declaring G them, with effect from the date of the judgment (29 November 1995), to be invalid and of no force and effect. The Court further ordered, in terms of s 98(6) of the Constitution, that such declaration of invalidity should invalidate any application of s 21(1)(a)(i) in any criminal trial in which the verdict of the trial court was entered after the Constitution came into force and in which, as at the date of the Constitutional H Court's judgment, either an appeal or review was pending or the time for the noting of an appeal had not yet expired. The matters of S v Bhulwana and S v Gwadiso were referred back to the Cape Provincial Division to be dealt with in accordance with the Court's judgment. (Paragraph [34].)

Case Information

I Adjudication of a constitutional issue referred to the Constitutional Court by the Cape Provincial Division in S v Bhulwana 1995 (1) SA 509 (C) (1994 (2) SACR 706; 1995 (2) BCLR 566 (C)) and S v Gwadiso. The facts appear from the judgment of O'Regan J.

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

1995 (2) SACR p751

J Slabbert for the State. A

Cur adv vult.

Postea (November 29).

Judgment

B 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 C 1993 ('the Constitution'). Section 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 in such dagga or substance;

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