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

• Jurisdiction: South Africa
• Citation: 2000 (3) SA 1 (CC)

S v Manamela and Another (Director-General of Justice Intervening)
2000 (3) SA 1 (CC)

2000 (3) SA p1

Citation	2000 (3) SA 1 (CC)
Case No	CCT 25/99
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 H 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 T P Dhlamini) for the intervening party (the Director-General of Justice).

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to be presumed innocent in terms of s 35(3)(h) of Constitution of the Republic of South Africa Act 108 of 1996 — Section 37(1) of General Law Amendment Act 62 of 1955 casting onus on accused to establish C 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 — Section 37(1) to be read so as to have last sentence:'In the absence of evidence to the contrary which raises a D reasonable doubt, proof of such possession shall be sufficient evidence of the absence of reasonable cause.'

Constitutional law — Human rights — Right to remain silent in terms of s 35(3)(i) of Constitution of the Republic of South Africa Act 108 of 1996 — Section 37(1) of General Law Amendment Act 62 of 1955 E casting onus on accused to establish reasonableness of belief in title of person from whom goods received — Such limitation on right to silence justified.

Constitutional law — Human rights — Limitation of — Whether limitation reasonable and justifiable — Factors itemised in s 36 of Constitution of the Republic of South Africa Act 108 of 1996 not exhaustive list but F are key factors that have to be considered in overall assessment as to whether or not limitation reasonable and justifiable.

Constitutional practice — Courts — Powers of — Where Court has declared law or provision thereof inconsistent with Constitution of the Republic of South Africa Act 108 of 1996 — Remedies — Reading in — Reading in not G

2000 (3) SA p2

necessarily confined to cases in which it is necessary to remedy A provision which is under-inclusive — Can also be used as part of process of narrowing reach of provision which was unduly invasive of protected right.

Headnote : Kopnota

The appellants had been convicted in a regional magistrate's court of a contravention of s 37 of the General Law Amendment Act 62 of 1955 and were sentenced to terms of imprisonment. At the hearing of an B appeal in a Local Division 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 she or he had reasonable cause for believing that goods acquired or received were the property of the person from whom they were received or that such person had the C 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. The decision was referred to the Constitutional Court for confirmation in terms of s 172(2)(a) of the Constitution of the Republic of South Africa Act 108 of 1996.

Held, as to a contention by the State that the matter was D 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, 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 the E 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 had accordingly gone on to deal with the question of the validity of the s 37(1) reverse onus and had found on the facts that the accused had been in possession of stolen goods. The Court had, however, been unable to come to a finding as to whether or not the appellants had discharged the onus F of proving reasonable cause, presumably as a direct consequence of fact that the unrepresented accused had been unaware of what they had to establish to secure their acquittal, so that there had virtually been 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, that whether or not the accused were entitled to an G acquittal had depended ultimately on the incidence of the onus of proof; secondly, that 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 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 H acquittal on the merits in the case before the High Court: it followed that the contention that the matter had become moot had no basis and had to fail. There was further 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. (Paragraphs [11] and [12] at 10I - 11F.) I

Held, further, on an examination of the history and effect of s 37(1), 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 her or his subjective belief: the impugned provision effectively introduced statutory liability for the J

2000 (3) SA p3

negligent, albeit innocent, acquisition of or receipt of stolen goods. The A 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 challenged phrase directly implicated the right to silence in terms of s 35(3)(i) of the Constitution as well as the presumption of innocence in terms of s 35(3)(h) of the Constitution and the key to the solution of the problems raised in B the matter lay 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 C silence, the core reason for breaching the presumption of innocence fell away. (Paragraphs [20] and [23] at 15A - C and 15H - 16B/C.)

Held, further, 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 even if the prosecution led no evidence regarding reasonable cause. Moreover, the D 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 E prosecution's case and provoke the 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 imposed a full legal burden of proof on the accused. Accordingly, if, after hearing all the evidence, the Court was of two minds as to where the truth lay, the constitutional presumption of innocence was replaced by a statutory presumption of guilt. By virtue of the same F logic, a conviction had to follow if the court concluded that the accused's version, even though improbable, might reasonably be true. (Paragraphs [24] and [25] at 16B/C - F.)

Held, further, that a contention of the appellants that a statutory provision which introduced the certainty that innocent persons would be convicted was ethically offensive and could never be justified had to be rejected: it was clear from the wording of s 36(1) G that no rights enshrined in chap 2 of the Constitution of the Republic of South Africa Act 108 of 1996 were absolute. Although the Court had so far not found an impugned reverse onus provision to pass constitutional muster, it had been at pains to articulate that there were circumstances in which such measures may be justifiable. Effective prosecution of crime was a societal objective of great significance which could, where appropriate, justify the H infringement of fundamental rights. The Court had expressly kept open the possibility of reverse onus provisions being justifiable in certain circumstances. Ordinarily, a reverse onus could be justifiable only if the risk and consequences of erroneous conviction produced by a statutory presumption against the accused were outweighed by the risk and consequences of...