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

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Madala J, Mokgoro J, Ngcobo J, O'regan J, Sachs J, Yacoob J, Cameron AJ
• Judgment Date: 14 April 2000
• Citation: 2000 (1) SACR 414 (CC)
• Hearing Date: 04 November 1999
• Counsel: W Trengove SC (with him G Hulley) for the appellants. J A van S D'Oliveira SC (with him P Louw and E Matzke) for the State. E M Patel SC (with him P Dhlamini) for the intervening party (the Director - General of Justice).
• Court: Constitutional Court

Madala, Sachs and Yacoob JJ:

Introduction

[1] The central issue in this matter is whether the reverse onus in a statute dealing with acquisition of stolen goods is compatible with the right to a fair trial, and, in particular, the right to silence and the presumption of innocence. The question of the constitutionality of reverse onus provisions has come to this Court with more D frequency than any other matter and has produced a number of judgments in which such provisions have been struck down. The problems that they raise do not lend themselves to formulaic answers. The facts and circumstances of the present case introduce elements that compel further reflection. E

[2] This case comes to us as a referral for confirmation in terms of s 172 (2) (onus) [1] of the Constitution, of an order made on 7 June 1999 in the Witwatersrand High Court. In that order, Tip AJ (with Wunsh J concurring) declared the reverse onus provision contained in s 37(1) of the General Law Amendment Act [2] (the Act) to be unconstitutional and invalid. [3] In terms of s 172(2) (b) of the Constitution, the order has no force, unless F confirmed by this Court.

[3] Section 37(1) reads as follows:

'Any person who in any manner, otherwise than at a public sale, acquires or receives into his possession from any other person stolen goods, other than stock or produce as defined in s 1 of the Stock Theft Act, 1959, without having reasonable cause, proof of G 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 authorized by the owner thereof to deal with or to dispose of them, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of receiving stolen property knowing it to have been stolen except in so far as the imposition of any such penalty may be H compulsory.'

(Emphasis added.)

The relevant terms of the order are:

Madala, Sachs and Yacoob JJ

'2.

A That the words "proof of which shall be on such first mentioned person" in s 37(1) of the General Law Amendment Act 62 of 1955 are declared to be inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996, and accordingly invalid.

3.

That in terms of s 172(1) (b) of the Constitution, the order in paragraph 2 hereof shall not invalidate any application of the reverse onus created by the words declared therein to be unconstitutional and invalid, unless: B

3.1

the verdict of the trial Court was entered after 27 April 1994; and

3.2

either an appeal against or a review of that verdict is pending or the time for the noting of such appeal or the bringing of such review has not yet expired.

4.

The orders set out in paragraphs 2 and 3 hereof are not of force and effect until and unless they are confirmed by the C Constitutional Court pursuant to the provisions of s 172(2) (a), read with s 167(5) of the Constitution.'

The appellants seek confirmation of paragraphs 2 and 3 of the order, while the State and the intervening party (the Director - General of the Department of Justice) oppose confirmation.

D [4] The crux of the issue which falls to be determined is whether the reverse onus provision contained in s 37(1) is consistent with the constitutionally entrenched right to a fair trial and, in particular, s 35(3) (h) of the Constitution which guarantees the right 'to be presumed innocent, to remain silent, and not to testify during the proceedings.'

E [5] For the sake of convenience, we shall refer to the parties as they were referred to in the High Court. The appellants were charged in the regional court with theft. They were arrested on 13 May 1997 in central Johannesburg while carrying boxes containing goods proved to have been stolen shortly before from a vehicle parked in the vicinity. From the record it appears that two other persons, who were walking some way ahead of F the appellants, were carrying similar boxes. They managed however to avoid arrest. The appellants' version was that one of these two other persons, known to them only as 'Shorty', a hawker, who ran a stall in Soweto where they lived, had asked them to carry the boxes for him to a nearby taxi rank. They claimed that they had neither G stolen the goods nor had they known that the goods had been stolen. They had simply assumed that the goods belonged to Shorty. The magistrate accepted that their evidence in this regard could reasonably possibly be true and found them not guilty on the charge of theft. He held nonetheless that they had had physical possession of the stolen goods, which brought the provisions of s 37 into play. He rejected the evidence adduced by the H appellants in support of their belief that the goods had not been stolen, and convicted them on a competent verdict of having contravened s 37. [4] Neither of the appellants was a first offender and they were sentenced to seven and six years' imprisonment respectively.

I [6] On 7 October 1998 they appeared unrepresented, as had been the case at their trial in the regional court, at the hearing of the appeal. During the hearing, the court itself raised the issue of the constitutionality of the reverse onus in s 37(1) which had been material to the conviction of the appellants. The hearing on appeal was postponed for the purpose of

Madala, Sachs and Yacoob JJ

appointing counsel to represent them. At the request of the Court, the Legal Resources Centre (LRC) undertook A that task. Mr Hulley, instructed by the LRC, submitted heads of argument. The hearing resumed on 3 November 1998 and judgment was reserved. The High Court subsequently ordered the release of the appellants and undertook to furnish reasons at a later date. While the High Court was formulating its reasons, it came to a provisional conclusion that the reverse onus provision in s 37(1) was inconsistent with the Constitution. It invited B the Department of Justice to file argument, advising it and all parties concerned that its prima facie view was that the reverse onus provision was unconstitutional. After the filing of further submissions and service thereof on all parties concerned, the matter was again heard on 20 April 1999. C

[7] In its judgment, the High Court set aside the convictions and sentences on two grounds. First, a procedural exception and a finding that the appellants had not enjoyed a 'just and fair trial'. The appellants had not been represented in the regional court and had not been duly warned by the magistrate of the operation of s 37(1). D Second, on the ground that the reverse onus provision was inconsistent with the Constitution and as it had been decisive in the finding by the magistrate, the conviction could not be sustained.

[8] Mr D'Oliviera, on behalf of the State, and Mr Patel, on behalf of the intervening party, called upon this Court to decide two preliminary issues. First, it was argued that this matter is not ripe for hearing and second, it was E contended that the constitutional issue in question is moot. It was submitted that, if successful, these preliminary arguments would dispose of the matter and obviate the need for this Court to consider the constitutionality of s 37(1). F

Ripeness and Mootness

[9] Mr D'Oliviera submitted that the matter was not ripe for hearing, since this Court could not properly determine the issues before it in the absence of an analysis of the Stock Theft Act. [5] No serious argument was addressed to us in this regard and, in our view, the argument on ripeness has no merit. G

[10] Mr D'Oliviera and Mr Patel proceeded to argue that the question of the validity of s 37(1) had become moot as the High Court had upheld the appeal on the basis of procedural shortcomings which violated the right of the accused to a fair trial. Counsel moreover contended that there was no pressing public need for the High Court to H have considered the constitutionality of s 37(1). It was accordingly argued that this Court should not entertain the confirmation proceedings. In support of this argument, counsel referred us to various pronouncements of this Court, including Kriegler J's statement in S v Dlamini that 'this Court has long since held that, as a matter of I judicial policy, constitutional issues are generally to be considered only if and when it is necessary to do so'. [6]

Madala, Sachs and Yacoob JJ

A [11] In our view however, the issue of the constitutionality of the reverse onus was not moot in the proceedings before the High Court. That court was of the opinion that the acquittal of the appellants, on the basis of a violation of their right to a fair trial, was not dispositive of the case since the appellants could be prosecuted afresh. It accordingly went on to deal with the question of the validity of the s 37(1) reverse onus and found on the facts B that the accused had been 'in possession' of stolen goods. The Court was, however, unable to come to a finding as to whether or not the appellants had discharged the onus of proving reasonable cause, presumably as a direct consequence of the fact that the unrepresented accused were unaware of what they had to establish to C secure their acquittal, so that there was virtually no evidence on record as to why they could reasonably have believed that the goods had not been stolen. The High Court nonetheless made the following observations: first, whether or not the accused were entitled to an acquittal depended ultimately on the incidence of the onus of D proof. Second, the absence of the reverse onus would lead to their acquittal since the established facts did not support a conviction if the test was the conventional one of proof beyond reasonable doubt, with the onus on the State. Ultimately then the accused would be acquitted on...