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

• Jurisdiction: South Africa

S v Manamela and Another (Director-General of Justice Intervening)
2000 (1) SACR 414 (CC)

2000 (1) SACR p414

Citation	2000 (1) SACR 414 (CC)
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Ackermann J, Madala J, Mokgoro J, Ngcobo J, O'regan J, Sachs J, Yacoob J, Cameron AJ
Heard	November 4, 1999
Judgment	April 14, 2000
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).

Flynote : Sleutelwoorde

Fundamental rights — Right to be presumed innocent in terms of s 35(3) (h) of Constitution Act 108 of 1996 — Section 37(1) of General Law Amendment Act 62 of 1955 (receiving stolen goods without reasonable cause for believing that person from C 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 — Phrase 'proof of which shall be on such first-mentioned person' in s 37(1) declared D inconsistent with the Constitution — Section 37(1) to be read so as to have a last sentence: 'In the absence of evidence to the contrary which raises a reasonable doubt, proof of such possession shall be sufficient evidence of the absence of reasonable cause'.

Fundamental rights — Right to remain silent in terms of s 35(3) (i) of Constitution Act 108 of 1996 — Section 37(1) of General Law E 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) casting onus on accused to establish reasonableness of belief in title of person from whom goods received — Such limitation on right to silence justified.

F Fundamental rights — Limitation of — Whether limitation reasonable and justifiable — Factors itemised in s 36 of Constitution Act 108 of 1996 not exhaustive list: they are key factors that have to be considered in an overall assessment as to whether or not the limitation reasonable and justifiable.

Fundamental rights — Infringement of — Remedies — Reading in — Reading in not necessarily confined to cases in which it was G necessary to remedy a provision which was under-inclusive — Could also be used as part of the process of narrowing the reach of a provision which was unduly invasive of a protected right.

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 H thereof to dispose of goods) — Proof of — Reverse onus provision contained in s 37(1)-Provision infringing right to silence but such infringement justified — Provision however an infringement of right to be presumed innocent and phrase 'proof of which shall be on such first-mentioned person' in s 37(1) declared inconsistent with the Constitution — Section 37(1) to be read so as I to have a last sentence: 'In the absence of evidence to the contrary which raises a reasonable doubt, proof of such possession shall be sufficient evidence of the absence of reasonable cause'.

Evidence — Presumptions — Statutory presumptions — Validity of — Reverse onus provisions — Section 37(1) of General Law J Amendment Act 62 of 1955 (receiving stolen goods without reasonable cause for believing that

2000 (1) SACR p415

person from whom goods acquired was owner thereof, or authorised by owner thereof to dispose of goods) casting onus on A 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 — Phrase 'proof of which shall be on such first-mentioned person' in s 37(1) declared inconsistent with Constitution Act 108 of 1996 — Section 37(1) to be read so as to have a last sentence:''In the absence B of evidence to the contrary which raises a reasonable doubt, proof of such possession shall be sufficient evidence of the absence of reasonable cause'.

Headnote : Kopnota

The appellants had been convicted in a regional magistrate's court of a contravention of s 37 of the General Law C Amendment Act 62 of 1955 and were sentenced to terms of imprisonment. At the hearing in a Local Division of an appeal against the convictions the Court raised mero motu the constitutionality of the reverse onus in s 37(1) which had been material to their conviction. The Court held that the reverse onus provision, which provided for an accused to prove that he or she had reasonable cause for believing that goods acquired or received were the D property of the person from whom they were received or that such person had the authority of the owner to dispose of them, was unconstitutional and the appellants had accordingly not had a fair trial. The convictions and sentences were accordingly set aside.

On referral of the decision to the Constitutional Court for confirmation, the Court dismissed a contention on E behalf of the State that the matter was not ripe for hearing and 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. The Court held that the issue of the constitutionality of the reverse onus was not moot in the proceedings before the High Court: that Court had been of the opinion that the acquittal of F 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. The High Court accordingly went on to deal with the question of the validity of the s 37(1) reverse onus and found on the facts that the accused had been in possession of stolen goods. The High Court was however unable to come to a finding as to whether or not the appellants had G discharged the onus of proving reasonable cause, presumably as a direct consequence of fact that the unrepresented accused were unaware of what they had to establish to 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 had nonetheless observed firstly, whether or not the accused were entitled to an acquittal had depended ultimately on the incidence of the onus of proof; secondly, the absence of the reverse onus would H 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 the merits if the State bore the conventional onus. The determination of the validity of the reverse onus in s 37(1) was essential to an acquittal on the merits in the case before the High Court: it followed that the contention I that the matter had become moot had no basis and had to fail. The Court held further that there was a compelling public interest that the constitutionality of s 37(1) be determined. Continuing uncertainty in this regard could well prejudice the general administration of justice as well as the interest of the accused persons affected. J

2000 (1) SACR p416

A The Court proceeded to examine the history and effect of s 37(1) and held that the provision not only placed on the accused the burden of proving the requisite mens rea on a balance of probabilities but introduced a further departure from the common law: by imposing on the accused the burden of adducing evidence establishing the reasonableness of his or her subjective belief, the impugned provision effectively introduced statutory liability for B the negligent, albeit innocent, acquisition of or receipt of stolen goods. The inclusion of reasonableness in the subsection extended its reach to those persons who would effectively form a link in the chain of the disposal of stolen goods, even though they did not know that the goods were stolen. The Court held that the challenged phrase directly implicated the right to silence as well as the presumption of innocence and the key to the solution C of the problems raised in the matter laid in unravelling the connections between them. Both were procedural rights which were central to the adversarial criminal process developed under the common law and subsumed into the Bill of Rights. Viewed in its context, the challenged provision could be justified only to the extent that it infringed the right to silence. Once the objective of the statute could be met by limiting the right to silence, the core reason for breaching the presumption of innocence fell away. D

The Court held that the right to silence, seen broadly as an aspect of the adversarial trial, was clearly infringed: the inevitable effect of the challenged phrase was that the accused was obliged to produce evidence of reasonable cause to avoid conviction or even if the prosecution led no evidence regarding reasonable cause. E Moreover, the absence of evidence produced by the accused of reasonable cause in such circumstances would result not in the mere possibility of an inference of absence of reasonable cause but in the inevitability of such a finding. In these circumstances, for the accused to remain silent was not simply to make a hard choice which increased the risk of an inference of culpability; it was to surrender it to the prosecution's case and provoke the F certainty of conviction. In a similar way the presumption of innocence was manifestly transgressed. The Court had frequently held that reverse onuses of this kind...