S v Manamela and Another (Director-General of Justice Intervening)

JurisdictionSouth Africa
Citation1999 (2) SACR 177 (W)

S v Manamela and Another (Director-General of Justice Intervening)
1999 (2) SACR 177 (W)

1999 (2) SACR p177


Citation

1999 (2) SACR 177 (W)

Court

Witwatersrand Local Division

Judge

Tip AJ

Heard

October 7, 1998; November 3, 1998; April 20, 1999

Judgment

June 18, 1999

Counsel

G I Hulley for the appellants, instructed by the Legal Resources Centre
M J D Steyn for the State
E M Patel SC and E Tsatsi for the Director-General of Justice

Flynote : Sleutelwoorde

Fundamental rights — Enforcement of — Challenge to validity of Act of Parliament — Jurisdiction of High Court — Implicit in s 172(2)(a) of the Constitution of the Republic of South Africa Act 108 of 1996 that Court generally C required to determine validity of Act of Parliament only when such determination necessary for disposal of case before it — No absolute rule, however, that constitutional issue to be determined only when strictly necessary for disposal of case to do so — Grounds for exceptional determination of constitutional question (ie, where not strictly necessary to do so) existing where compelling public interest, issue of public importance, or need to avoid D uncertainty requiring such determination.

Fundamental rights — Limitation of — Limitation of fundamental rights in terms of s 36 of Constitution of the Republic of South Africa Act 108 of 1996 — Right to be presumed innocent in terms of s 35(3)(h) of Constitution — Section 37(1) of General Law Amendment Act 62 of 1955 (receiving stolen goods without reasonable cause for E believing that person from whom goods acquired was owner thereof, or authorised by owner thereof to dispose of goods) casting onus on accused to establish reasonableness of belief in title of person from whom goods received — Such reverse onus presumption infringing accused's right to be presumed innocent — Reverse onus presumption not saved by s 36 of Constitution — Reverse onus presumption declared invalid. F

Receiving of stolen property — Contravention of s 37(1) of General Law Amendment Act 62 of 1955 (receiving stolen goods without reasonable cause for believing that person from whom goods acquired was owner thereof, or authorised by owner thereof to dispose of goods) — Elements of — Acquiring or receiving 'possession' of goods — G Accused in casu receiving possession of goods from person who requested accused to carry goods to nearby taxi rank — Mere act of carrying implying substantial degree of physical control, sufficient to constitute 'possession' for purposes of s 37(1) — Fact that carrying performed at request of another not altering that result.

Trial — Irregularity in — What constitutes — Failure of judicial officer to advise unrepresented accused of reverse H onus presumption contained in offence which is competent verdict on the charge against him — Accused in casu charged with theft, but not properly advised by trial court that competent verdict of contravention of s 37(1) of General Law Amendment Act 62 of 1955 (receiving stolen goods without reasonable cause for believing that I person from whom goods acquired was owner thereof, or authorised by owner thereof to dispose of goods) casting onus on accused to establish reasonableness of belief in title of person from whom goods received — Accused not being aware of reverse onus presumption, and not addressing court thereon — Accused convicted of contravention of s 37(1) — By reason J

1999 (2) SACR p178

A of inadequate advice, accused having suffered prejudice — Convictions and sentences set aside.

Headnote : Kopnota

Section 37(1) of the General Law Amendment Act 62 of 1955 provides that a person who acquires or receives possession of stolen goods from another person, 'without having B reasonable cause, proof of which shall be on such first-mentioned person, for believing at the time of such acquisition or receipt that such goods are the property of the person from whom he receives them or that such person has been duly authorised by the owner thereof to deal with or to dispose of them', shall be guilty of an offence.

The appellants were charged in a regional court with theft. At the outset of the proceedings the C presiding magistrate advised the appellants of the competent verdicts on that charge (as contemplated in s 264 of the Criminal Procedure Act 51 of 1977) inter alia as follows: '[Y]ou may be found guilty of receiving stolen property alleged to have been stolen. If not you may be found guilty of contravening ss 36 and 37 of the General Amendment Act [sic]. That is unexplained possession of stolen goods or (inaudible) receipt of the goods.' No further advice D about competent verdicts was given to the appellants during the course of the trial. It appeared that the appellants were arrested while carrying certain boxes of hair products and a sports bag in the streets of Johannesburg, which property had been stolen from a parked vehicle. They testified that they had received the property from one S, who asked them to carry it for him to a nearby taxi rank, and that they had believed that S was the owner of the property. E The evidence adduced at the trial was not such that it established, beyond reasonable doubt, that the appellants' belief in the status of S as owner was unreasonable; on the other hand, the appellants had not established on a balance of probability that that belief was reasonable. Accordingly, if the onus of showing that the appellants' belief was unreasonble had rested on the State, they would have been entitled to an acquittal. However, because s 37 of the General F Law Amendment Act imposed an onus upon the appellants to establish the reasonableness of their belief, which they had not discharged, they were convicted of a contravention of that section. In an appeal:

Held, that in order to establish 'possession' for the purposes of s 37, two elements had to be proved: detentio and physical control. The precise point at which control was sufficient to G satisfy the requirements of s 37 could not be exhaustively defined. Although an undertaking by the accused to safeguard property might in certain cases be a factual consideration leading to the conclusion that there had indeed been possession, it was no general prerequisite. In casu, notwithstanding the limited duration and purpose of the detentio exercised by the appellants, it sufficed to bring them within the ambit of 'possession' as contemplated in s 37. The mere act H of carrying implied a substantial degree of physical control, and the fact that the carrying was performed at the request of another could not alter that result.

Held, therefore, that the State had established that the appellants had 'possessed' the stolen property as contemplated in s 37.

I Held, further, that the advice given to the accused, about the competent verdicts on a charge of theft, was inadequate. No mention had been made therein of the existence of the reverse onus provision in s 37 of the General Law Amendment Act. The reference by the magistrate to 'unexplained possession of stolen goods' in no way conveyed to the appellants that they bore an onus to persuade the court, on a balance of probabilities, that they held the belief set out in s 37 and that such belief was reasonable and acceptable. The desirability of informing an accused person, particularly one who was unrepresented, of the nature of a competent verdict J and of the existence of a

1999 (2) SACR p179

reverse onus presumption within it, had been recognised for some time. The explanation A furnished had to be given carefully and in detail by the presiding officer: The accused had to know the case he had to meet in its entirety. If this was not done, an unrepresented accused could not be taken to have been properly informed of the charge, the primary purpose of which was to place him in a position to comprehend what had to be presented by way of defence.

Held, further, on the facts, that the appellants were entirely ignorant of the reverse onus B presumption, and did not at any stage before conviction seek to address this vital part of the case against them. They had accordingly suffered prejudice as a result of the failure of the magistrate properly to inform them of the onus.

Held, therefore, that the convictions and sentences of the appellants had to be set aside. C

Held, further, that it was implicit in the powers conferrred upon the High Court in s 172(2)(a) of the Constitution Act 108 of 1996 that no Court would make an order concerning the validity of an Act of Parliament unless it was necessary for the proper disposal of the case before it to do so. Accordingly, in the light of the conclusion that the convictions and sentences in casu had to be set aside on procedural grounds, it was not strictly required of the Court to address the D question whether the reverse onus presumption in s 37 of the General Law Amendment Act was unconstitutional.

Held, however, that there was no absolute rule that a constitutional issue could not be determined unless it was strictly necessary to do so in order to decide the case as a whole. Grounds for an exceptional determination of a constitutional question (that is, in the absence of such strict necessity) could exist where there was a compelling public interest, an issue of E public importance or the need to avoid uncertainty.

Held, further, that the aforesaid factors arose in the present appeal, and that it was accordingly necessary for the Court to decide the constitutional questions arising out of the provisions of s 37 of the General Law Amendment Act. F

Held, further, that the reverse onus presumption in s 37 of the General Law Amendment Act plainly amounted to an infringement of the right to be presumed innocent, as entrenched in s 35(3)(h) of the Constitution. It placed a full burden of proof on the accused in respect of two...

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9 practice notes
  • S v Manamela and Another (Director-General of Justice Intervening)
    • South Africa
    • Invalid date
    ...- 29A/B.) The order made in the Witwatersrand Local Division in B S v Manamela and Another (Director-General of Justice Intervening) 1999 (2) SACR 177 (W) (1999 (9) BCLR 994) confirmed in part. Cases Considered Annotations Reported cases: Demmers v Wyllie and Others 1978 (4) SA 619 (D): ref......
  • Weare and Another v Ndebele NO and Others
    • South Africa
    • Invalid date
    ...(3) SA 391 (CC) (1995 (2) SACR 1;1995 (6) BCLR 665): referred toS v Manamela and Another (Director-General of Justice Intervening) 1999 (2)SACR 177 (W) (1999 (9) BCLR 994; [1999] 4 All SA 161): referred toS v Ntsele 1997 (2) SACR 740 (CC) (1997 (11) BCLR 1543): referred toS v Steyn 2001 (1)......
  • Lodi v MEC for Nature Conservation and Tourism, Gauteng, and Others
    • South Africa
    • Invalid date
    ...2000 (1) SACR 414 (CC) (2000 (3) SA 1; 2000 (5) BCLR 491): applied S v Manamela and Another (Director-General of Justice Intervening) 1999 (2) SACR 177 (W) (1999 (9) BCLR 994): dictum in para [45] S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793): applied F ......
  • Lodi v MEC for Nature Conservation and Tourism, Gauteng, and Others
    • South Africa
    • Invalid date
    ...2000 (3) SA 1 (CC) (2000 (1) SACR 414; 2000 (5) BCLR 491): applied S v Manamela and Another (Director-General of Justice Intervening) 1999 (2) SACR 177 (W) (1999 (9) BCLR 994): dictum in para [45] at 188 applied S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 7......
  • Request a trial to view additional results
9 cases
  • S v Manamela and Another (Director-General of Justice Intervening)
    • South Africa
    • Invalid date
    ...- 29A/B.) The order made in the Witwatersrand Local Division in B S v Manamela and Another (Director-General of Justice Intervening) 1999 (2) SACR 177 (W) (1999 (9) BCLR 994) confirmed in part. Cases Considered Annotations Reported cases: Demmers v Wyllie and Others 1978 (4) SA 619 (D): ref......
  • Weare and Another v Ndebele NO and Others
    • South Africa
    • Invalid date
    ...(3) SA 391 (CC) (1995 (2) SACR 1;1995 (6) BCLR 665): referred toS v Manamela and Another (Director-General of Justice Intervening) 1999 (2)SACR 177 (W) (1999 (9) BCLR 994; [1999] 4 All SA 161): referred toS v Ntsele 1997 (2) SACR 740 (CC) (1997 (11) BCLR 1543): referred toS v Steyn 2001 (1)......
  • Lodi v MEC for Nature Conservation and Tourism, Gauteng, and Others
    • South Africa
    • Invalid date
    ...2000 (1) SACR 414 (CC) (2000 (3) SA 1; 2000 (5) BCLR 491): applied S v Manamela and Another (Director-General of Justice Intervening) 1999 (2) SACR 177 (W) (1999 (9) BCLR 994): dictum in para [45] S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793): applied F ......
  • Lodi v MEC for Nature Conservation and Tourism, Gauteng, and Others
    • South Africa
    • Invalid date
    ...2000 (3) SA 1 (CC) (2000 (1) SACR 414; 2000 (5) BCLR 491): applied S v Manamela and Another (Director-General of Justice Intervening) 1999 (2) SACR 177 (W) (1999 (9) BCLR 994): dictum in para [45] at 188 applied S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 7......
  • Request a trial to view additional results

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