S v Coetzee and Others

• Jurisdiction: South Africa
• 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
• Judgment Date: 06 March 1997
• Citation: 1997 (3) SA 527 (CC)
• Docket Number: CCT 50/95
• Hearing Date: 19 March 1996
• Counsel: W H Trengove (with him GJ Marcus) for the applicants A J Fourie (with him C T H McKelvey) for the State J J Gauntlett (with him A M Breitenbach) for the Government of the Republic of South Africa
• Court: Constitutional Court

Langa J: G

[1] This matter is one of many which have been dealt with by this Court, in which the constitutionality of provisions of the Criminal Procedure Act 51 of 1977 (the 'Act'), have been challenged. The Act plays a crucial role in the criminal justice system of this country; it is nonetheless legislation which was drafted and enacted in a different constitutional era in which the legal validity of its provisions could not be questioned. H The Constitution of the Republic of South Africa Act 200 of 1993 (the 'Constitution') has brought about a drastic change, not only in doing away with parliamentary sovereignty, thus making all laws subject to judicial review, but also in the values which must now hold sway. The problem is that important provisions of old legislation, and in I particular the Act, are being struck down because they are inconsistent with the Constitution, leaving gaps in the law which only the Legislature can fill. It is primarily the task of the Legislature, and not the Courts, to bring old legislation into line with the Constitution. Although understandable because of the transitional stage we are in, the continued operation of, and reliance by the prosecutors on, provisions which do not reflect the J

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new constitutional order is an unsatisfactory state of affairs. Hopefully, it will not be A long before a revised Criminal Procedure Act, consistent with the Constitution, is put in place.

[2] The applicants are standing trial in the Witwatersrand Local Division of the Supreme Court, inter alia, on 12 counts of fraud. At the conclusion of the B prosecution's case, Marais J acceded to the applicants' request for the suspension of the trial and the referral to this Court of the constitutionality of two provisions of the Act, namely ss 245 and 332(5).

[3] Although the propriety of the referral has been challenged by the Attorney-General, it is clear from the judgment of Marais J that he has applied his mind to the issues C relevant to the referral. It was not in dispute that there were reasonable prospects of the provisions being found to be unconstitutional by this Court. Having decided, correctly in my view, that the issues referred could be decisive for the case and that it would be in the interests of justice for him to refer the matter to this Court, I am of the D view that the matter is properly before us. It will be convenient to deal separately with the challenged provisions.

Section 245

[4] The section provides thus:

'If at criminal proceedings at which an accused is charged with an offence of E which a false representation is an element, it is proved that the false representation was made by the accused, he shall be deemed, unless the contrary is proved, to have made such representation knowing it to be false.'

[5] The phrase 'unless the contrary is proved' means that the presumption may be rebutted by proof on a balance of probabilities. [1] Absent such proof, for example F where the probabilities are evenly balanced at the end of the trial, the court would be obliged to convict, notwithstanding the existence of a reasonable doubt regarding the state of mind of the accused.

[6] The presumption falls into the class of 'reverse onus' provisions which have been held by this Court to infringe the right of an accused person to be presumed innocent G as envisaged in s 25(3)(c) of the Constitution. [2] The function and effect of the presumption is to relieve the prosecution of the burden of proving all the elements of the offence with which the accused is charged.

[7] An essential element of crimes such as fraud and theft by false pretences is H knowledge of the falsity of the representation by the person making it. The effect of the provision is that once it has been proved that the accused had made the false representation, the presumption of knowledge comes into operation and the onus of disproving it falls on the accused.

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[8] It is clear that the presumption is in conflict with the long-established rule of the A common law on the burden of proof that 'it is always for the prosecution to prove the guilt of the accused person, and that the proof must be proof beyond a reasonable doubt'. [3] The provision clearly infringes the presumption of innocence which is entrenched in s 25(3)(c) of the Constitution. B

[9] The applicants contended, however, that in addition to the presumption of innocence, the section also infringed what was described as 'the cluster of rights associated with it', namely the general right to a fair trial, the privilege against self-incrimination, the right not to be a compellable witness against oneself and the right C to silence. Because of the view I take that the presumption infringes the right to be presumed innocent that is protected by s 25(3)(c) of the Constitution, I do not consider it necessary to deal with the nature and scope of 'the cluster of rights' or how the impugned provision impinges on those rights.

[10] What remains to be determined is whether the infringement can be said to be a D permissible limitation to the right in terms of s 33(1) of the Constitution. In order to pass muster, a law which limits a right enshrined in s 25 of the Constitution must, in addition to being a law of general application, be reasonable, justifiable in an open and democratic society based on freedom and equality, and necessary. [4] The limitation E must also be such that it does not negate the essence of the right in question. [5]

[11] It has been held that this inquiry involves a weighing up of competing values and ultimately an assessment based on proportionality. The relevant considerations in this balancing process include F

'the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question'. [6] G

[12] The provision has its origins in s 280bis of the Criminal Procedure Act 56 of 1955 which was added in 1959. [7] Section 245 in the current Act is substantially similar. Its purpose is to facilitate the task of the State in the prosecution of crimes such as fraud and theft by false pretences by relieving the prosecution of the need to prove H that the accused knew that the misrepresentation was false at the time that he or she made it. The

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presumption has been held to be applicable to instances in which the representation A relates to facts which are objectively ascertainable. [8]

[13] There is no doubt a pressing social need for the effective prosecution of crime. Kentridge AJ, speaking for the Court in Zuma, [9] noted that reasonable presumptions may be required by the prosecution, in relation to certain categories of offences, to B assist in this task. It must be accepted that s 245 was instituted by the Legislature to facilitate the attainment of its objective to protect society. The measures taken were, however, enacted before the Constitution was in force; they must now be weighed against the rights that are guaranteed by the Constitution which puts a high premium on the values of freedom and equality. C

[14] In a number of cases decided by this Court, we have emphasised the importance of the rights entrenched in s 25(3)(c) of the Constitution, which include the right to be presumed innocent, in an open and democratic society based on freedom and equality. D [10] Underlying the decisions in those cases is the recognition that a consequence of the value system introduced by the Constitution is that the freedom of the individual may not lightly be taken away. Presumptions which expose an accused person to the real risk of being convicted despite the existence of a reasonable doubt as to his or her guilt are not consistent with what is clearly a fundamental value in our criminal justice system. E

[15] The rationale for the provision is that it deals with matters which are peculiarly within the knowledge of the accused. Indeed, the accused is in the best position to know why he or she made a representation. It may well be that proving the state of mind of the accused in the context of a false representation presents the State with F more difficulties than in other cases. However, the touchstone for justification, where s 33(1) of the Constitution requires the prevailing State interest to render a provision not only reasonable but necessary as well, is not simply the fact that an obligation to prove an element of an offence which falls peculiarly within the knowledge of the accused makes it more difficult for the prosecution to secure a conviction. The G question is whether it makes it so difficult as to justify the infringement of the accused's right to be presumed innocent

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on the grounds of necessity. I am not persuaded that this difficulty is, in itself, sufficient A to outweigh the importance of the right infringed and to justify the reversal of the onus. It is a difficulty, moreover, which is not peculiar to offences in respect of which s 245 is applicable. Discharging the burden of proof is a function which the criminal justice system requires the prosecution to perform in the normal course with regard to B many common-law and statutory offences. [11] It was not claimed that if all the circumstances surrounding the false representation are fully and properly investigated and presented in evidence the prosecution cannot obtain the conviction to which it might be entitled.

[16] It has not been...