S v Coetzee and Others

• Jurisdiction: South Africa
• Citation: 1997 (3) SA 527 (CC)

S v Coetzee and Others
1997 (3) SA 527 (CC)

1997 (3) SA p527

Citation	1997 (3) SA 527 (CC)
Case No	CCT 50/95
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 19, 1996
Judgment	March 6, 1997
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

Flynote : Sleutelwoorde G

Constitutional law — Human rights — Right to be presumed innocent in terms of s 25(3)(c) in chap 3 of Constitution of the Republic of South Africa Act 200 of H 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 reasonable I doubt — Presumption infringing presumption of innocence in s 25(3)(c) of Constitution — Infringement not reasonable, justifiable and necessary as contemplated by s 33(1) of Constitution — Section 245 accordingly unconstitutional.

Constitutional law — Human 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 J

1997 (3) SA p528

providing that servant or director of corporate body that has committed A offence deemed guilty of that offence unless able to prove on balance of probabilities that he or she did not participate in offence and could not have prevented it — Presumption violating right to be presumed innocent by permitting conviction of accused despite existence of reasonable doubt as to B guilt — Violation not justifiable in terms of s 33(1) of Constitution because impermissibly overbroad in scope of operation and in application to any servant of corporate body — Severance of invalid provisions of section impossible — Section 332(5) unconstitutional.

Headnote : Kopnota

Section 245 of the Criminal Procedure Act 51 of 1977 provides that in criminal proceedings where an accused is C charged with an offence of which a false representation is an element and it is proved that a false representation was made by the accused, he/she shall be deemed to have made the representation knowing it to be false, unless the contrary is proved. The Act, in s 332(5), further provides that a servant or a director of a corporate body that has committed an offence is deemed to D be guilty of that offence and personally liable to punishment unless the servant or director can prove on a balance of probabilities that he or she did not participate in the offence and could not have prevented it.

The accused were standing trial in a Local Division on charges of, inter alia, fraud. On the request of the accused, the trial was suspended and the issue of the constitutionality E of ss 245 and 332(5) of the Criminal Procedure Act 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.

Held, as to s 245 of the Criminal Procedure Act (per Langa J, the other members of the Court concurring), that the phrase 'unless the contrary is proved' in the section F meant that the presumption might 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, the court would be obliged to convict, notwithstanding the existence of a reasonable 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 G accused person to be presumed innocent as envisaged in s 25(3)(c) of the Constitution. The function and effect of the presumption was to relieve the prosecution of the burden of proving all the elements of the offence with which the accused was charged. (Paragraphs [5]–[6] at 534E/F–G/H.)

Held, further, that the presumption was in conflict with the long-established rule of the common law on the burden of proof, namely that it was always for the prosecution to H 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. (Paragraph [8] at 535A–B.)

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

Held, further, as to whether the infringement was a permissible limitation in terms of s 33(1) of the Constitution, 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 might not lightly be taken away. Presumptions which exposed an accused person to the real risk of being convicted despite the existence of a reasonable doubt J

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as to his or her guilt were not consistent with what was clearly a fundamental value in A the criminal justice system. (Paragraph [14] at 536C–E.)

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 necessary, was not simply the fact that an obligation to prove an element of an offence B 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 importance of the right infringed and to justify the reversal of the onus: it was a difficulty which was not peculiar to offences in respect of which s 245 was applicable. C Discharging the burden of proof was a function which the criminal justice system 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 not obtain the conviction to which it might be entitled. (Paragraph [15] at 536F–537B/C.) D

Held, further, that no 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. (Paragraph [16] at 537D–D/E.) E

Held, accordingly, that, as no grounds had been advanced justifying the infringement and no sufficient justification for such limitation to the constitutionally protected right could be found, s 245 failed to comply with the requirements of reasonableness, justifiability and necessity as required by s 33(1) of the Constitution and was therefore unconstitutional. (Paragraph [17] at 537E–F.) F

Held, further, as to s 332(5) of the Criminal Procedure Act, that the onus provisions of s 332(5) violated the right to be presumed innocent in terms of s 25(3)(c) of the 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. (Paragraphs [39] and [44] at 545D/E–F and 547B, per Langa J, Chaskalson P and Didcott J concurring; para [60] at 552A–B/C, per Mahomed DP, Chaskalson P and Kriegler J concurring; G para [118] at 583A–A/B per Madala J; para [190] at 600G, per O'Regan J, Ackermann J, Mokgoro J and Sachs J concurring; Kentridge AJ dissenting.)

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 Constitution. (Paragraph [49] at 548I, per Langa J, Chaskalson P and Didcott J concurring; para [61] at 552C–D, per Mahomed DP, Chaskalson P and Kriegler J concurring; paras [139]–[140] at 587A/B–E, per H Mokgoro J; para [199] at 603A/B–D, per 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 that corporate body. (Paragraph [26] at 540H, per Langa J, Chaskal- son P and Kriegler J concurring; para [55] at 551A/B, per Mahomed DP, Chaskalson P and Kriegler J I concurring; para [73] at 555G/H–I, per Didcott J; para [101] at 574B/C–E/F, per Kentridge AJ; para [111] at 581C, per Madala J; para [184] at 598I–599A, per O'Regan J, Ackermann J, Mokgoro J and Sachs J concurring.)

Held, further, that notwithstanding the legitimate purposes served by the section in relation to the honest conduct of the affairs of corporate bodies, the J

1997 (3) SA p530

section was impermissibly overbroad in its scope of operation. The type of offence by A the 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. (Paragraph [61] at 552D–F, per Mahomed DP, B Chaskalson P and Kriegler J concurring; para [74] at 555I–556B, per Didcott J; para [140] at 587D/E–F, per Mokgoro J; para [199] at 603B/C–D, per O'Regan J, Ackermann J concurring; para [219] at 612B/C–E, per Sachs J; Kent- ridge AJ and Langa J dissenting.)

Held, further, that no severance of the...