S v Coetzee and Others

• Jurisdiction: South Africa
• Citation: 1997 (1) SACR 379 (CC)

S v Coetzee and Others
1997 (1) SACR 379 (CC)

1997 (1) SACR p379

Citation	1997 (1) SACR 379 (CC)
Court	Constitutional Court
Judge	Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J
Heard	March 6, 1996
Judgment	March 19, 1996
Counsel	W H Trengove SC and G J Marcus SC for the appellants; A J Fourie and CTH McKelvey for the State; J J Gauntlett SC (with him A M Breitenbach) for the Government of the Republic of South Africa.

Flynote: Sleutelwoorde

Fundamental rights — Right to be presumed innocent in terms of s 25(3)(c) of Constitution of the Republic of South Africa Act 200 of 1993 — Presumption in s 245 of Criminal Procedure Act 51 of 1977 relating to onus of proof in offences of which false representation an element-Presumption a 'reverse onus' provision in conflict with common-law rule that it is always for prosecution to prove guilt of accused person beyond a reasonable doubt — Presumption infringes presumption of innocence in s 25(3)(c) of Constitution — Infringement not reasonable, justifiable and necessary as contemplated by s 33(1) of interim Constitution — Section 245 accordingly unconstitutional. A

Fundamental rights — Right to be presumed innocent in terms of s 25(3)(c) of Constitution of the Republic of South Africa Act 200 of 1993 — Presumption in s 332(5) of Criminal Procedure Act 51 of 1977 providing that servant or director of corporate body that has committed an offence deemed guilty of that offence B unless able to prove on a balance of probabilities that he or she did not participate in offence and could not have prevented it-Presumption violates right to be presumed innocent by permitting conviction of an accused despite existence of reasonable doubt as to his or her guilt — Violation not justifiable in terms of s 33(1) of Constitution because impermissibly overbroad in scope of C operation and in application to any servant of corporate body — Severance of invalid provisions of section impossible — Section accordingly unconstitutional.

Headnote: Kopnota

Section 245 of the Criminal Procedure Act 51 of 1977 provides that in criminal proceedings when an accused is charged with an offence of which a false representation is an element and it is proved that a false representation was made by D the accused, he/she shall be deemed to have made the representation knowing it to be false, unless the contrary is proved.

Section 332(5) of the Criminal Procedure Act provides that a servant or a director of a corporate body that has committed an offence is deemed to be guilty of that offence and personally liable to punishment unless the accused can prove on a balance of probabilities that he or she did not participate in the offence and could not have E prevented it.

The accused were standing trial in the Witwatersrand Local Division on charges of, inter alia, fraud. On the request of the accused, the trial was suspended and the issue of the constitutionality of ss 245 and 332(5) of the Criminal Procedure Act 51 of 1977 was referred to the Constitutional Court by the trial court in terms of s 103(1) of the Constitution of the Republic of South Africa Act 200 of 1993. F

Section 245 of the Criminal Procedure Act

Held (per Langa J, the other members of the Court concurring), that the phrase 'unless the contrary is proved' in the section meant that the presumption may be rebutted by proof on a balance of probabilities. Absent such proof, for example where the probabilities were evenly balanced at the end of the trial, G

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the court would be obliged to convict, notwithstanding the existence of a reasonable A doubt regarding the state of mind of the accused. The presumption therefore fell into the class of 'reverse onus' provisions which infringed the right of an accused person to be presumed innocent as envisaged in s 25(3)(c) of the interim Constitution. The function and effect of the presumption was to relieve the prosecution of the burden of B proving all the elements of the offence with which the accused is charged.

Held, further, that the presumption was in conflict with the long-established rule of the common law on the burden of proof that it was always for the prosecution to prove the guilt of the accused person, and that the proof had to be proof beyond a reasonable doubt. The provision clearly infringed the presumption of innocence which was entrenched in s 25(3)(c) of the Constitution. C

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401) applied.

Held, further, as to the question of limitation, that the importance in an open and democratic society based on freedom and equality of the rights entrenched in s 25(3)(c) of the Constitution, which included the right to be presumed innocent, had to be emphasised. The freedom of the individual could not lightly be taken away. D Presumptions which exposed an accused person to the real risk of being convicted despite the existence of a reasonable doubt as to his or her guilt were not consistent with what was clearly a fundamental value in the criminal justice system.

Held, further, that the touchstone for justification, where s 33(1) of the Constitution required the prevailing State interest to render a provision not only reasonable but also E necessary, was not simply the fact that an obligation to prove an element of an offence which fell peculiarly within the knowledge of the accused made it more difficult for the prosecution to secure a conviction. The question was whether it made it so difficult as to justify the infringement of the accused's right to be presumed innocent on the grounds of necessity. Here, this difficulty was not, in itself, sufficient to outweigh the F importance of the right infringed and to justify the reversal of the onus. Discharging the burden of proof was a function which the criminal justice systems required the prosecution to perform in the normal course with regard to many common law and statutory offences. It could not be argued that if all the circumstances surrounding the false representation were fully and properly investigated and presented in evidence the prosecution could obtain the conviction to which it might be entitled. Moreover, no G good reason suggested itself why it should be necessary to have such a provision if, in general, crimes involving misrepresentations were adequately dealt with in other jurisdictions without the expedient of a reverse onus provision. (15-16)

Held, accordingly, that s 245 is unconstitutional. (17)

Section 332(5) of the Criminal Procedure Act

Held, that the onus provisions of s 332(5) violated the right to be presumed innocent H in s 25(3)(c) of the interim Constitution. The effect of the provision was to permit the conviction of the accused despite the existence of a reasonable doubt as to his or her guilt. (Langa J (Chaskalson P and Didcott J concurring), Mahomed DP (Chaskalson P and Kriegler J concurring), Madala J, O'Regan J (Ackermann J, Mokgoro J and Sachs J concurring); Kentridge AJ dissenting.) I

Held, further, that the violation of s 25(3)(c) by the section could not be justified in terms of s 33(1) of the interim Constitution. (Langa J (Chaskalson P and Didcott J concurring), Mahomed DP (Chaskalson P and Kriegler J concurring), Mokgoro J, O'Regan J (Ackermann J and Sachs J concurring). Kentridge AJ and Madala J dissenting.)

Held, further, that the section was impermissibly overbroad in imposing an onus on a servant of a corporate body to avoid liability for an offence committed by J

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that corporate body. (Langa J (Chaskalson P and Kriegler J concurring), Mahomed A DP (Chaskalson P and Kriegler J concurring), Didcott J, Kentridge AJ, Madala J, O'Regan J (Ackermann J, Mokgoro J and Sachs J concurring).)

Held, further, that notwithstanding the legitimate purpose served by the section in relation to the honest conduct of the affairs of corporate bodies, the section was impermissibly overbroad in its scope of operation. The type of offence by the B corporate body for which an accused director or servant could be held liable was not limited. All offences were included notwithstanding their nature, purpose or degree of remoteness from the ordinary activities of the corporate body and therefore from the legitimate purpose of the section. (Mahomed DP (Chaskalson P and Kriegler J concurring), Didcott J, Mokgoro J, O'Regan J (Ackermann J concurring), Sachs J; Kentridge AJ and Langa J dissenting.) C

Held, further, that no severance of the invalid provisions of s 332(5) was possible that would leave the section constitutionally valid while giving effect to the purpose of the legislative scheme. (Langa J (Chaskalson P, Mahomed DP and Kriegler J concurring), Mahomed DP (Chaskalson P and Kriegler J concurring), Ackermann J, Didcott J, D Sachs J; Kentridge AJ, Mokgoro J and O'Regan J dissenting.)

Ordered accordingly (per Langa J, Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J and Sachs J concurring):

1.

Sections 245 and 332(5) of the Criminal Procedure Act 51 of 1977 were inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 and were, with effect from the date of this judgment, invalid and of no force or E effect.

2.

In terms of s 98(6) of the Constitution, this declaration of invalidity should invalidate any application of ss 245 and 332(5) of the Criminal Procedure Act 51 of 1977 in any criminal trial in which the verdict of the trial court was or would be entered after the Constitution came into force, and in which, as at the date of this F judgment, either an appeal or review was pending or the time for noting such appeal had not yet expired.

3.

The matter was referred to the Witwatersrand Local Division of the Supreme...