16

         IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

                                             CASE NO CCT 19/95
In the matter between:

The  STATE
and
WELLINGTON MBATHA

and

                                             CASE   NO.    CCT
35/95
In the matter between:

The  STATE
and
NICOLAAS  MARTHINUS  PRINSLOO
Heard on:           16 NOVEMBER 1995
Delivered on:        9 FEBRUARY 1996

                            JUDGMENT

LANGA J:

[1]  Two  matters come to this Court by way of referrals  from
     the  Witwatersrand Local Division of the  Supreme  Court.
     The  accused in the first case is Wellington  Mbatha  who
     was  tried  and  convicted  in  the  Regional  Court   at
     Germiston. Nicolaas Marthinus Prinsloo, an accused in the
     second  matter,  is  standing trial in the  Witwatersrand
     Local Division with 25 others in the case of the S  v  Le
     Roux  and  Others.   I  shall refer to  the  two  accused
     persons as the applicants.

[2]  In  the first matter, the applicant appealed against  his
     conviction on two counts under the provisions of the Arms
     and  Ammunition  Act 75 of 1969 (the  Act).   The  charge
     concerned the unlawful possession of two AK47 rifles  and
     twelve rounds of ammunition, in contravention of sections
     32(1)(a)  and  32(1)(e)  of the  Act  respectively.   The
     sentences  imposed, of eight and two years’  imprisonment
     respectively,  were  ordered  to  run  concurrently.   On
     appeal, the matter was in turn referred to this Court  by
     Leveson  J, with MacArthur J agreeing, for a decision  on
     the  constitutionality  of the presumption  contained  in
     section 40(1) of the Act.

[3]  The  twenty-six  (26) accused in the second  matter  were
     indicted  on  various charges, 96 counts in all,  arising
     out  of  a  series  of bomb explosions which  took  place
     before  the national elections in April 1994.  After  the
     close  of the prosecution case,  Flemming DJP refused  an
     application for the discharge of all the accused  on  all
     counts.   The applicant and six others were acquitted  on
     all  but  four of the counts, namely,  counts 80  to  83,
     which  relate to the unlawful possession of machine guns,
     firearms and ammunition, in contravention respectively of
     sections 32(1)(a) and 32(1)(e) of the Act. In refusing to
     discharge  the applicant on those remaining  counts,  the
     trial   Judge  stated  that  he  relied  solely  on   the
     presumption  in  section  40(1)  of  the  Act.   He  then
     suspended the proceedings and made the referral order  in
     terms  of  section  102(1)  of the  Constitution  of  the
     Republic   of   South  Africa  Act  200  of   1993   (the
     Constitution)  on the basis that it was in the  interests
     of  justice that the issue be resolved at this  stage  of
     the  proceedings.   The  case has been  postponed  to  16
     February 1996.

[4]  The  issue  in  both  matters  is  the  validity  of  the
     presumption contained in section 40(1) of the Act in  the
     light  of the provisions of section 25(3)(c) and  (d)  of
     the   Constitution.  The  applicants  complain  that  the
     presumption  offends against the ‘fair trial’  provisions
     in  the  Constitution, in particular,  the  right  to  be
     presumed   innocent  and  the  privilege  against   self-
     incrimination. Section 40(1) of the Act provides:

          Whenever  in  any  prosecution  for  being   in
          possession  of  any  article  contrary  to  the
          provisions of this Act, it is proved that  such
          article  has  at any time been  on  or  in  any
          premises,  including  any  building,  dwelling,
          flat,  room,  office, shop, structure,  vessel,
          aircraft  or  vehicle or any part thereof,  any
          person  who  at that time was on or  in  or  in
          charge  of  or  present at  or  occupying  such
          premises,  shall be presumed to  have  been  in
          possession of that article at that time,  until
          the contrary is proved.

[5]  The  first  comprehensive statute to  regulate  arms  and
     ammunition nationally was the Arms and Ammunition Act  28
     of  1937.  Prior to this, each of the four provinces  had
     their own acts regulating the possession and distribution
     of  arms  and  ammunition.  Section 32 of  the  1937  Act
     provided:

          Any occupier of premises and any person who  is
          upon  or  in  charge of or who accompanies  any
          vehicle,  vessel  or animal upon  which  or  in
          which there is any article mentioned in section
          one  or any arm or ammunition shall, until  the
          contrary  is proved, be deemed for the purposes
          of this Act to be the possessor of such article
          or arm as the case may be.

     The Orange Free State (Act 23 of 1908) and Transvaal (Act
     10  of  1907)  had substantially similar provisions.  Our
     courts,  in  an  attempt  to avoid  obviously  unintended
     results,  interpreted the word “occupier” in the 1937 Act
     strictly.   Thus in S v Mnguni 1962(3) SA  662  (NPD)  at
     664D-E,  the  word was held to mean the  person  “who  is
     responsible for the premises and has the general  control
     of  them.” It was held further that the word did not mean
     “any  person who is an occupant of premises”  because  it
     was  “unlikely  that the legislature  would  have  deemed
     every person residing on the premises to be the possessor
     of  arms.”   Section 40(1) of the present Act  came  into
     operation   on  1  February  1972.  The  terms   of   the
     presumption are clearly wider in scope than those in  the
     antecedent   legislation,  and  now  include   not   only
     occupants  of  premises but also persons  “on”,  “in”  or
     “present at” such premises at any time when the “article”
     has been “on” or “in” such premises.

[6]  Aspects  of  section 25(3)(c) and (d) of the Constitution
     have  already been the subject of enquiry in some of  the
     matters  before  this  Court in  which  their  impact  on
     statutory   presumptions  in   our   criminal   law   was
     considered. The relevant part of the section reads:

          Every accused person shall have the right to  a
          fair trial, which shall include the right .....
          (c)  to  be  presumed innocent  and  to  remain
               silent  during plea proceedings  or  trial
               and not to testify during trial;
          (d)  to  adduce and challenge evidence, and not
               to   be   a  compellable  witness  against
               himself or herself ...

[7]    In S v Zuma and Others 1995(2) SA 642(CC); 1995(4) BCLR
     401(CC), the issue was the constitutionality of  a  legal
     provision  contained  in  section  217(1)(b)(ii)  of  the
     Criminal  Procedure Act 51 of 1977 which placed a  burden
     on  the accused to rebut a presumed fact, namely, that  a
     confession  had  been made freely and  voluntarily.   The
     phrase “unless the contrary is proved” which was used  in
     the  provision  meant, in effect,  that  if  the  accused
     failed  to discharge the burden of proof, that is,  on  a
     balance   of  probabilities,  the  confession  would   be
     admitted  notwithstanding the existence of  a  reasonable
     doubt that it had been made freely and voluntarily.  (See
     Ex  Parte  Minister of Justice: In re: R v  Jacobson  and
     Levy 1931 AD 466 at 471; Ex parte Minister of Justice: In
     re: R v Bolon 1941 AD 345 at 360 - 361; S v Mphahlele and
     Another 1982 (4) SA 505 (A) at 512C).  Sections 25(2) and
     25(3)(c)  and  (d)  of  the Constitution  entrench  as  a
     fundamental constitutional value the fact that it is  the
     duty  of the prosecution to prove the guilt of an accused
     person  in a criminal case.  As Kentridge AJ at paragraph
     25  pointed out, “the presumption of innocence is derived
     from   the   centuries-old  principle  of  English   law,
     forcefully  restated by Viscount Sankey in his celebrated
     speech  in  Woolmington v Director of Public Prosecutions
     (1935)  AC  462  (HL) at 481, that it is always  for  the
     prosecution to prove the guilt of the accused person, and
     that  the proof must be proof beyond a reasonable doubt.”
     The  rights  to  be presumed innocent, to  remain  silent
     during  trial and not to be a compellable witness against
     oneself  are  entrenched in sections  25(3)(c)  and  (d).
     Constitutional  recognition of these rights  in  criminal
     trials  means that statutory erosion of these rights  and
     principles can no longer be accepted without question  as
     they  were  before  this Constitution  came  into  force;
     statutory   presumptions  and  other  legislation   which
     adversely  affect the rights entrenched in Chapter  3  of
     the  Constitution will now have to meet  the  limitations
     criteria of section 33(1) of the Constitution.  (See S  v
     Makwanyane  and Another 1995(3) SA 391 (CC);1995(6)  BCLR
     665  (CC)  at  paragraphs 100 and 156;  S v Williams  and
     Others  1995(3)  SA 632 (CC); 1995(7) BCLR  861  (CC)  at
     paragraphs  8  and 54; S v Bhulwana; S v Gwadiso  1996(1)
     SALR  388 (CC); 1995(12) BCLR 1579 (CC) at paragraph 16.)
     This  Court  held in Zuma’s case that the presumption  of
     innocence was infringed by the provision which imposed an
     onus on the accused to disprove the voluntariness of  the
     confession.

[8]  In  S  v  Bhulwana;  S  v Gwadiso supra  this  Court  was
     concerned with a provision in  Section 21(1)(a)(i) of the
     Drugs and Drug Trafficking Act 140 of 1992 which required
     that  an  accused  who  was  proved  to  be  in  unlawful
     possession  of dagga in excess of 115 grams be  presumed,
     “until  the  contrary is proved,” to be dealing  in  such
     dagga.  The  effect of the presumption was  that  if  the
     accused   failed   to   prove  on  a   preponderance   of
     probabilities  that  he  or  she  was  not   dealing   or
     trafficking  in  dagga, a conviction  for  dealing  would
     result, even if the evidence raised a reasonable doubt as
     to  the  innocence of such accused.  O’Regan J (paragraph
     15)  pointed out on behalf of a unanimous court that  the
     presumption of innocence was not new to our legal  system
     but  was in fact an established principle of our law. She
     referred, inter alia, to the general rule restated by the
     Appellate Division in R v Ndhlovu 1945 AD 369 at 386 that
     “[i]n all criminal cases it is for the Crown to establish
     the  guilt  of  the  accused,  not  for  the  accused  to
     establish  his innocence.  The onus is on  the  Crown  to
     prove  all  averments to establish his guilt.”  The  only
     common law exception recognised was a defence of insanity
     which had to be proved by the accused.

[9]  It  is  now  well established that the enquiry  into  the
     constitutionality  of the impugned section  involves  two
     stages. Firstly, whether the section is inconsistent with
     a  fundamental  right  contained  in  Chapter  3  of  the
     Constitution;   if  it  is, then  secondly,  whether  the
     inconsistency is saved in terms of section 33(1)  of  the
     Constitution. In argument before us, the State was unable
     to  indicate any reason for departing from the principles
     expressed in the first stage of the enquiry in S v  Zuma.
     It was common cause that the provision amounts to a legal
     presumption;  it  is   a reverse onus  provision.   As  a
     presumption, it has similar features to that discussed in
     Bhulwana’s  case.   The effect of  the  provision  is  to
     relieve  the  prosecution of  the burden  of  proof  with
     regard  to  an  essential  element  of  the  offence.  It
     requires that the presumed fact must be disproved by  the
     accused  on a balance of probabilities. (See  R  v  Bolon
     supra  at  360-1;   S v Nene and Others  (2)  1979(2)  SA
     521(D)  at 523H; S v Mkanzi en ‘n Ander 1979(2) SA 757(T)
     at  758H;  S v Mphahlele supra 512B;  S v  Zuma supra  at
     paragraph  4).  As pointed out by O’Regan J in Bhulwana’s
     case  (paragraph 15), a presumption of this nature is  in
     breach  of  the presumption of innocence since  it  could
     result in the conviction of an accused person despite the
     existence of a reasonable doubt as to his or her guilt.

[10] No legal system can guarantee that no innocent person can
     ever  be  convicted.  Indeed, the provision of corrective
     action  by  way  of  appeal and review procedures  is  an
     acknowledgement  of  the  ever-present   possibility   of
     judicial fallibility.  Yet it is one thing for the law to
     acknowledge  the  possibility  of  wrongly  but  honestly
     convicting  the  innocent  and then  provide  appropriate
     measures  to reduce the possibility of this happening  as
     far  as  is practicable; it is another for the law itself
     to  heighten the possibility of a miscarriage of  justice
     by  compelling  the  trial  court  to  convict  where  it
     entertains  real  doubts as to culpability  and  then  to
     prevent  the reviewing court from altering the conviction
     even if it shares in the doubts.

[11] Counsel   for  the  applicants  also  argued   that   the
     presumption violated the privilege or rule against  self-
     incrimination.   This was disputed by the  State  on  the
     basis  that  the  accused  was  not  compelled  to   give
     evidence,    self-incriminatory   or   otherwise.     The
     Constitution  does  not  mention  a  right  or  privilege
     against self-incrimination expressly, but the cluster  of
     ‘fair  trial’  rights guaranteed in section 25(3)(c)  and
     (d) of the Constitution includes the right of the accused
     “to  remain silent during plea proceedings or  trial  and
     not  to testify during trial ... [and] ...  not to  be  a
     compellable  witness  against himself  or  herself.”   In
     Ferreira and Others v Levin and Others CCT/5/95 (judgment
     delivered  on 6 December 1995), this Court (per Ackermann
     J at paragraph 79 and Chaskalson P at paragraph 159) held
     that  a  right against self-incrimination is implicit  in
     the  provisions  of  section 25(3) of  the  Constitution.
     However,  because of the view I take with regard  to  the
     decisiveness  of  the presumption of innocence  for  this
     enquiry,  it  is  unnecessary,  for  purposes   of   this
     judgment, to canvass the precise scope of  such right  or
     privilege  or  its  applicability to  the  facts  of  the
     present case.

[12] The  conclusion  I come to, therefore,  is  that  section
     40(1)  of the Act offends against the right of an accused
     person  to  be  presumed innocent, in terms  of   section
     25(3)(c)   of   the  Constitution.   The  provision   can
     accordingly   only be permissible if it is saved  by  the
     provisions of section 33(1) of the Constitution.

[13] Section  33(1)  of the Constitution,  in  so  far  as  it
     applies to section 25(3),  provides as follows:

          The  rights entrenched in this Chapter  may  be
          limited by law of general application, provided
          that such limitation  -
               (a)  shall  be permissible only to  the  extent
that it is  -
                    (i) reasonable; and
                    (ii)justifiable  in   an   open   and
                    democratic  society based on  freedom
                    and equality; and
               (b)   shall   not   negate   the
               essential  content of the  right
               in question,
          and ... shall ... also be necessary.

[14] In  S v Makwanyane supra, Chaskalson P (at paragraph 104)
     stated  that  the  enquiry involves the  weighing  up  of
     competing  values and ultimately an assessment  based  on
     proportionality. He named the factors to be considered in
     this  process as including: the wider implications  which
     the  right  has for our society (‘an open and  democratic
     society based on freedom and equality’); the purpose  for
     which  the  right  is  limited; the  importance  of  that
     purpose to our society; the extent of the limitation  and
     its efficacy and, in cases where the limitation has to be
     necessary, whether the objectives of the limitation could
     reasonably  be  achieved by means less  damaging  to  the
     right.

[15] The  State  argued that  the inroads which section  40(1)
     of  the  Act   makes on the presumption of innocence  are
     reasonable,  justifiable and necessary and that  they  do
     not  negate the essential content of the right.   Relying
     on  remarks in S v Zuma supra (at paragraph 41),  it  was
     argued  that  the reverse onus provisions in the  present
     case   are  justifiable  and  therefore  constitutionally
     permissible.   In the passage referred to,  Kentridge  AJ
     pointed out that the effect of the judgment in that  case
     was  not  to invalidate every legal presumption reversing
     the   onus  of  proof  as  some  presumptions   “may   be
     justifiable  as  being rational in themselves,  requiring
     an  accused person to prove only facts to which he or she
     has  easy  access, and which it would be unreasonable  to
     expect  the prosecution to disprove ... Or there  may  be
     presumptions which are necessary if certain offences  are
     to  be  effectively prosecuted, and the State is able  to
     show  that  for  good  reason it cannot  be  expected  to
     produce  the  evidence itself ...”  The State   contended
     that   circumstances existed which rendered section 40(1)
     of  the  Act justifiable, regard being had to the context
     and the manner in which its provisions were implemented.

[16] The  State characterised the objective of the presumption
     in  the present case as being to assist in combating  the
     escalating  levels of crime as part of  the  government’s
     duty  to  protect society generally.  The contention  was
     that  the  provision  is  intended  to  ensure  effective
     policing   and  to  facilitate  the  investigation    and
     prosecution of crime as well as to ease the prosecution’s
     task of securing convictions for contraventions under the
     Act.   Such  an  objective  is  truly  laudable  and  its
     importance, in the current climate of very high levels of
     violent  crime,  cannot  be overstated.   Information  in
     papers  submitted  to us reveals that during  the  period
     1990  to 1994, there was a distressing increase in crimes
     of  violence.  The common denominator in most of them  is
     the  involvement  of firearms.  In a discussion  document
     titled:  Recent Crime Trends, Dr Lorraine  Glanz  of  the
     Human  Sciences Research Council observed that “the  face
     of  crime  is  becoming  increasingly  violent  and  more
     serious,” and that the rampant crime levels must have  “a
     profound  negative  effect on  the  quality  of  life  in
     communities. If left unchecked, a protracted increase  in
     violent  crime  in  particular  is  a  threat  to  social
     stability.”  I  could  not agree  more.  A  further  ugly
     feature  allied  to the actual deeds of violence  is  the
     incidence  of  illegal smuggling, sale and possession  of
     arms.  We  were told that trafficking in arms  and  drugs
     from  neighbouring countries into South Africa is  taking
     place on a significant scale. There is a proliferation of
     illegal  firearms  throughout the country  and  this,  no
     doubt,  contributes  in  no small  measure  to  the  high
     incidence  of  violent crime. This state  of  affairs  is
     obviously a matter of serious concern, not only  for  the
     courts,  but  for  the legislature, the  police  and  the
     entire population which is affected by it.  There  is  no
     doubt  that,  whatever  the causes,  crimes  of  violence
     particularly  those involving firearms  have  reached  an
     intolerably   high  level  and  that  urgent   corrective
     measures are warranted.

[17] The problems which the government has to contend with  in
     fulfilling its duty to protect society were given  to  us
     in  some  detail. We were informed that the detection  of
     people  in  possession of illegal arms and ammunition  is
     often very difficult.  Police have to depend on informers
     or  pure chance to trace offenders.  The use of informers
     who  infiltrate gun-smuggling networks is a  helpful  but
     often   time-consuming and dangerous process.  Gunrunners
     make extensive use of couriers to transport arms; some of
     the  couriers,  especially women and children,  are  used
     without their knowledge. Even vehicles such as ambulances
     and  official government cars are sometimes used, without
     the  people  in  control  of  the  vehicles  knowing  it.
     Sometimes aircraft and motor vehicles equipped with false
     panels  and  compartments for storage  are  used  in  the
     illegal  transportation of arms. The problem of  policing
     is  compounded  by geographical factors; the  borders  of
     South  Africa  are  extensive and  impossible  to  patrol
     effectively 24 hours a day, making it easier  for  cross-
     border  dealers and smugglers of arms to ply their  trade
     and  evade  detection.  The severe  shortage  of  trained
     personnel  has  adverse effects on the  capacity  of  the
     police  to  conduct  raids and searches  in  places  like
     hostels and informal settlements, to look for places used
     for  concealment  of  illegal  arms  and  to  trap  motor
     vehicles  used  in illegal conveyance of  arms.  Ordinary
     members  of  the  community  often  withhold  information
     because  they are too terrified and intimidated by  armed
     gangsters  and traffickers in narcotic drugs and  illegal
     arms.

[18] It  is difficult not to have sympathy for representations
     of  this nature, coming as they do from officials of  the
     State  whose  task it is to deal with what has  become  a
     truly serious problem. These are real and pressing social
     concerns  and  it  is  imperative that  proper  attention
     should   be   given  to  finding  urgent  and   effective
     solutions.  The issue before us, however, is  not  simply
     whether  there  is a pressing social need to  combat  the
     crimes  of violence - there clearly is - but also whether
     the  instrument to be used in meeting this need is itself
     fashioned in accordance with specifications permitted  by
     the  Constitution.   Although the   relevant  legislative
     provision  was enacted before the Constitution came  into
     force,  the enquiry is whether the limitation it  imposes
     on  constitutionally protected rights is consistent  with
     the  provisions  of  the Constitution.  This  involves  a
     consideration  of  the  other  factors  referred  to   in
     Makwanyane’s  case, and in particular, the importance  of
     the impugned right in an open and democratic society, and
     the  extent  to  which that right has  been  limited.  As
     O’Regan  J said in S v Bhulwana supra (at paragraph  18),
     “the more substantial the inroad into fundamental rights,
     the more persuasive the ground of justification must be.”

[19] The   presumption  of  innocence  is  clearly  of   vital
     importance  in  the establishment and maintenance  of  an
     open   and  democratic  society  based  on  freedom   and
     equality.  If, in particular cases, what is effectively a
     presumption  of  guilt  is  to  be  substituted  for  the
     presumption of innocence, the justification for doing  so
     must be established clearly and convincingly.

[20] It  was  argued that without the presumption it would  be
     almost  impossible for the prosecution to prove both  the
     mental  and physical elements of possession.   I  do  not
     agree.   The  circumstances of each case  will  determine
     whether  or  not  the  elements of possession  have  been
     established  beyond reasonable doubt.  The evidence  need
     not  necessarily  be direct.  It may be,  and  often  is,
     circumstantial and will often be sufficient to  secure  a
     conviction  without  the assistance of  the  presumption.
     There  will  no  doubt  be cases  in  which  it  will  be
     difficult to prove that a particular person against  whom
     the  presumption  would have operated,  was  in  fact  in
     possession of the prohibited article.  If that person was
     in  fact  guilty,  the absence of the  presumption  might
     enable  him  or  her to escape conviction.  But  this  is
     inevitably a consequence of the presumption of innocence;
     this  must  be  weighed against the danger that  innocent
     people may be convicted if the presumption were to apply.
     In  that  process the rights of innocent persons must  be
     given precedence.  After all, the consequences of a wrong
     conviction  are  not  trivial.   Apart  from  the  social
     disapprobation  attached  to  it,  heavy  penalties   are
     attached  to  contraventions of the Act.   In  the  cases
     before  us,  the sentence prescribed by the Act  for  the
     illegal  possession  of a firearm is imprisonment  for  a
     period  not  exceeding 25 years with a  minimum  of  five
     years.   Illegal  possession  of  ammunition  attracts  a
     sentence  of  imprisonment for a period not exceeding  25
     years.

[21] The  presumption is couched in wide terms and no  attempt
     has been made to
     tune  its provisions finely so as to make them consistent
     with  the  Constitution and to avoid  the  real  risk  of
     convicting  innocent persons, who happen  to  be  in  the
     wrong  place  at the wrong time. It may be invoked  in  a
     wide  range  of circumstances and against any  number  of
     categories of persons, as long as they have been  in,  on
     or  at  a  particular  place at the relevant  time.   The
     presumption  becomes  operative without  the  prosecution
     being required to show any connection between the accused
     and  the prohibited article, and between such accused and
     the place where the article was. “Premises” is defined in
     the  section as including “any building, dwelling,  flat,
     room,  office,  shop,  structure,  vessel,  aircraft   or
     vehicle or any part thereof”.  The provision targets “any
     person” who was in, on or at the premises at the relevant
     time, regardless of that person’s possible connection (or
     lack  of  it)  with  such premises. It also  targets  any
     person  in  charge of or occupying the premises,  however
     remote  his  or  her connection with the particular  part
     thereof  where  the offending article is proved  to  have
     been. Indeed, it very much looks as if the intention  was
     to  override  the restrictions read into  that  section’s
     forerunner in cases like S v Mnguni supra.

[22] The  application of the presumption does  not  depend  on
     there being a logical or rational connection between  the
     presumed fact and the basic facts proved, nor can  it  be
     claimed that in all cases covered by the presumption, the
     presumed fact is something which is more likely than  not
     to  arise from the basic facts proved.  The mere presence
     of the accused in, on or at the premises at the same time
     as  the  prohibited  article does not,  as  a  matter  of
     course,  give rise to the inference of possession.  There
     are  clearly circumstances where this connection  can  be
     reasonably sustained.  Circumstances may even arise where
     such an adverse inference would be warranted without  the
     accused  having been present in, on or at the  particular
     premises when the firearm was found. An example is a case
     where  it  is  proved beyond a reasonable  doubt  that  a
     firemarm  was found in the glove compartment of a  locked
     car which had been driven by its owner and in which there
     had  been  no  passengers.  If the accused’s  exculpatory
     version  is  found to be false (also beyond a  reasonable
     doubt),  the conviction would be defensible.  That  would
     be  so, not because of the presumption created by section
     40(1)  of  the Act, but as a matter of logical inference.
     The  problem  with the provision is that it  contains  no
     inherent mechanism to exclude those who are innocent  and
     who  would  otherwise be included within its reach.   If,
     for  example,  a single firearm were to  be  found  on  a
     crowded bus, each passenger on the bus would be liable to
     be  arrested and prosecuted, and would be presumed guilty
     unless he or she were able to establish innocence.

[23] Counsel  for the State claimed that in practice,  use  of
     the  presumption does not lead to absurd results  because
     it  is  applied with circumspection by prosecutors.   The
     contention  is not convincing  for a number  of  reasons.
     First,  there  is nothing to suggest that prosecutors  in
     general and around the country agree with the view or, if
     they do, that it is invariably implemented.  If a general
     directive to that effect has been issued, it has not been
     mentioned in argument.  In the second instance,  even  if
     one  were  to accept that prosecutors adhere  to  such  a
     policy  there is no evidence that the police do  so.   On
     the  contrary, counsel for the State submitted  that  the
     breadth  of  the presumption was a valuable investigative
     tool because it enabled the police to detain anyone found
     in the vicinity of an unlicensed firearm for questioning.
     Quite  apart from the fact that the legality of detention
     for questioning may be suspect, and its constitutionality
     the more so, the submission underscores the fact that the
     very breadth of the presumption is regarded by the police
     as  warranting  the blanket arrest of groups  of  persons
     without any suspicion that each of them has committed any
     offence.  In  S v Shange and Others 1994(1) SACR  621(N),
     for  instance, the police actually arrested  and  charged
     the  eight  appellants who were passengers in  a  vehicle
     from which a firearm and ammunition were thrown out as it
     approached a police roadblock. The prosecution  proceeded
     against them and they were all convicted, on the basis of
     the  presumption,  notwithstanding the fact that each one
     of  them   gave  evidence denying any  knowledge  of  the
     articles  in question.  Apart from having been  attending
     the  same tribal celebration at a certain kraal  and  the
     fact that they had all spontaneously clambered on to  the
     vehicle  simply because it was going in their  direction,
     there  was nothing  connecting them with each other,  nor
     was  there any evidence of any link between each  one  of
     them  and  the articles concerned. It was only  when  the
     appeal  was  heard by the  Provincial Division  that  the
     convictions   were  reversed  on  the  basis   that   the
     appellants had, in fact, discharged the onus cast on them
     by  virtue  of  the presumption.  One can readily  accept
     that  police  conducting a raid of  a  hostel  are  in  a
     quandary  when  they find a firearm in a  place  with  no
     apparent link with any of the hostel-dwellers; or as  the
     State suggested  in argument, when a firearm was found in
     a  vehicle wreck in the courtyard.  One must also accept,
     as  has been done in paragraphs 16 to 18 above, that  the
     eradication  of  the  cancer of  illegal  firearms  is  a
     pressing   public  concern  calling  for   vigorous   and
     concerted  effort.   Nevertheless  such  concern   cannot
     render the wholesale arrest of ostensibly innocent people
     either   reasonable  or  justifiable  in  an   open   and
     democratic   society  based  on  freedom  and   equality.
     Thirdly, and in itself conclusively, it is clear that the
     presumption  could  lead  to the conviction  of  innocent
     persons.  Their rights are enshrined in the  Constitution
     and  do not depend on the discretion of the police or the
     attorney-general  to prosecute only in  cases  where  the
     accused  are  in  fact guilty.  If  the  police  and  the
     attorney-general  are  satisfied  of  the  guilt  of  the
     accused,  they should be able to establish  this  in  the
     ordinary way.

[24] If  the  purpose  of  the provision  is  to  promote  the
     legitimate   law  enforcement  objective  of   separating
     innocent bystanders from genuine suspects, then it should
     be cast in terms limited to serving that function only. A
     legislative limitation motivated by strong societal  need
     should  not  be  disproportionate in its  impact  to  the
     purpose for which that right is limited.  If restrictions
     are  warranted  by  such societal need,  they  should  be
     properly   focused  and  appropriately   balanced.    The
     foundations  of  effective  law  enforcement   procedures
     should always be the thorough collection of evidence  and
     the  careful  presentation of a  prosecution  case.   The
     sweeping  terms  of  the presumption, however,  encourage
     dragnet  searches  followed by  dragnet  prosecutions  in
     which  innocent bystanders, occupants and travellers  can
     be  required  to  prove their innocence  and  the  normal
     checks  and  balances  operating at the  pre-trial  stage
     cease  to operate.  Immense discretionary power is  given
     to   the  police,  in  the  first  instance  and  to  the
     prosecuting authorities thereafter, as to whether or  not
     to  proceed with arrest and indictment.  From a practical
     point  of  view, the focus of crucial decision-making  on
     guilt  or innocence thus shifts from the constitutionally
     controlled   context  of  a  trial  to  the  unrestrained
     discretion  of  police and prosecutor.   The  possibility
     cannot be excluded that overworked police and prosecuting
     authorities would understandably be tempted to  focus  on
     merely   getting  sufficient  evidence   to   raise   the
     presumption of possession; they can then rely on  a  poor
     showing  by  the accused in the witness box to  secure  a
     conviction.    Yet   the  law  gives   no   guidance   to
     investigators   and  prosecutors  as  to   when   it   is
     appropriate to rely on the presumption to proceed with  a
     case  and when not.  Innocent persons may be put  to  the
     inconvenience,  indignity and expense of a  trial  simply
     because  they  were in a bus, on a ship, or  in  a  taxi,
     restaurant  or  house  where  weapons  happened   to   be
     discovered.   At  the  same  time,  the  objectivity  and
     professionalism   of  the  police  and  prosecution   are
     undermined  by the lack of principled criteria  governing
     their  actions.  In my view, in order to catch  offenders
     and  secure  their convictions, it is not reasonable  and
     justifiable either to expose honest citizens to such open-
     ended    jeopardy   or   to   impose   such   ill-defined
     responsibility upon those charged with law enforcement.

[25] The  presumption is not only too wide in its  application
     with  regard to persons, it also casts a heavy burden  on
     those  who are caught by it to disprove guilt. The  facts
     in  the case of S v Mtshemla and Others 1994(1) SACR  518
     (A)  give some indication of the seriousness of the  task
     facing an accused person if he or she is to discharge the
     burden  of  proof.   Of  the  three  persons  accused  of
     possession of one firearm, in that matter, two elected to
     give  evidence to rebut the presumption.  They were  both
     convicted, the magistrate ruling that their evidence  was
     insufficient to dislodge the presumption. The third,  who
     had  decided  to remain silent was also convicted,  there
     being nothing in his case to gainsay the presumption.  In
     another  case, that of S v Makunga and Others 1977(1)  SA
     685   AD,  the  remarks  of  Wessels  JA  (at  699A)  are
     illustrative  of  some of the problems  inherent  in  the
     practical application of the presumption:
     
          ...  [T]here  was an onus on each  one  of  the
          seven  accused  to establish by a preponderance
          of  probabilities that he was not in possession
          of  any  one of the six firearms found  in  the
          hut.  In  my  opinion, no one  of  the  accused
          succeeded in discharging that onus.   The  mere
          fact  that on the evidence it was probable that
          one  unidentified accused was in possession  of
          the  toy  pistol  is  wholly  insufficient   to
          discharge the onus which rested on each one  of
          the seven accused.

[26] Based  on the assessment of the potential effect  of  the
     provision on innocent people, I am not persuaded that the
     presumption, as it stands, satisfies the requirements  of
     reasonableness  and justifiability.  I  am  fortified  in
     this  conclusion by the fact that it has  also  not  been
     demonstrated  that its objective, that  is,  facilitating
     the  conviction  of offenders, could not reasonably  have
     been   achieved   by   other  means  less   damaging   to
     constitutionally entrenched rights.  Although the  choice
     of  the appropriate measures to address the need is  that
     of  the  legislature,  it  has not  been  shown  that  an
     evidentiary  burden,  for  example,  would  not   be   as
     effective.  I should not be understood as suggesting that
     any    provision   imposing   an   evidentiary    burden,
     particularly   if  it  is  framed  as  broadly   as   the
     presumption  in  the present case, would be  immune  from
     constitutional  attack. But by requiring the  accused  to
     provide evidence sufficient to raise a reasonable  doubt,
     such   a   provision  would  be  of  assistance  to   the
     prosecution  whilst at the same time being less  invasive
     of  section  25(3) rights. That it might  impact  on  the
     right of an accused person to remain silent is true;  but
     on  the  assumption  that the rampant criminal  abuse  of
     lethal weapons in many parts of our country would justify
     some  measured re-thinking about time-honoured rules  and
     procedures, some limitation on the right to silence might
     be   more  defensible  than  the  present  one   on   the
     presumption of innocence.  The accused could of course be
     exposed to the risk of being convicted if he or she fails
     to  offer  an explanation which could reasonably possibly
     be true, regarding physical association with the weapons;
     there  would  however be no legal presumption  overriding
     any  doubts that the court might have.  At the end of the
     day  and taking into account all the evidence, the  court
     would  still  have  to be convinced beyond  a  reasonable
     doubt that the accused was indeed guilty.

[27] I   accordingly  find  that  although  the  provision  in
     question is a law of general application, it has not been
     shown  to  be reasonable as required by section 33(1)  of
     the Constitution.  It is furthermore so inconsistent with
     the  values which underlie an open and democratic society
     based  on freedom and equality that it cannot be said  to
     be  justifiable.   In  view of this finding,  it  is  not
     necessary  to canvass the question whether the  essential
     content of the right is negated, nor whether the limiting
     provision  is  necessary within the  meaning  of  section
     33(1)  of the Constitution.  Section 40(1) of the Act  is
     unconstitutional  inasmuch as it is an  unreasonable  and
     unjustifiable violation of the presumption of innocence.

[28] During argument, some time was devoted to a question that
     keeps  cropping up in matters before us and that  is  the
     problem  of improper referrals.  This Court has expressed
     itself  on  a  number of occasions on the correctness  or
     otherwise of  referrals made under section 102(1) of  the
     Constitution. Some of the remarks need to be repeated. In
     Zuma’s case at paragraph 10, Kentridge AJ points out that
     “[e]ven  if a rapid resort to this Court were convenient,
     that  would  not  relieve the Judge from making  his  own
     decision   on   a   constitutional   issue   within   his
     jurisdiction.”  In S v Mhlungu and Others 1995(3) SA  867
     (CC); 1995(7) BCLR 793(CC) at paragraph 59, Kentridge  AJ
     cautioned  against premature referrals to this Court  and
     observed:
          The   fact   that  an  issue  within   the
          exclusive   jurisdiction  of  this   court
          arises  in a provincial or local  division
          does not necessitate an immediate referral
          to  this court.  Even if the issue appears
          to be a substantial one, the court hearing
          the case is required to refer it only

          (i)  if  the issue is one which may be decisive  for
               the case; and
          (ii) if  it  considers it to be in the  interest  of
               justice to do so ...

          ...  I would lay it down as a general principle
          that  where it is possible to decide any  case,
          civil   or   criminal,   without   reaching   a
          constitutional issue, that is the course  which
          should be followed.

[29] It  is by no means clear whether or not the conviction of
     Mbatha  was  on the basis of the presumption  in  section
     40(1)  of the Act; nor is it clear that this is a  matter
     which  could  not have been disposed of without  reaching
     the constitutional issue.  The referral was therefore not
     a proper one. During argument, counsel for this applicant
     made an oral request from the bar for “direct access”  in
     terms  of  Rule 17 of the Rules of this Court, read  with
     section 100(2) of the Constitution.  The application  was
     not  opposed.   “Direct access” provisions have  received
     their fair share of attention in this Court. As stated in
     Zuma’s case at paragraph 11, what is contemplated is that
     direct  access  should  be  allowed  “in  only  the  most
     exceptional cases, and it is certainly not intended to be
     used to legitimate an incompetent reference.” In terms of
     Rule  17(1),  the special circumstances envisaged   “will
     ordinarily  exist  only  where  the  matter  is  of  such
     urgency, or otherwise of such public importance, that the
     delay  necessitated by the use of the ordinary procedures
     would prejudice the public interest or prejudice the ends
     of  justice and good government.”  Clarity with regard to
     the  presumption is of immense public importance.   There
     are any number of trials either pending or proceeding, in
     which  the presumption is liable to be invoked.    It  is
     therefore  necessary  that  legal  certainty  should   be
     achieved as soon as possible.   I am accordingly  of  the
     view  that this is a matter in which direct access should
     be  granted.   Because Prinsloo's case was concerned with
     an identical issue, the two matters were set down for one
     date.   Both sets of counsel prepared exhaustive and very
     helpful argument and the two matters were argued together
     before  us.  The  issue  in Prinsloo’s  case  is  clearly
     decisive for the case with regard to some of the accused.
     Flemming  DJP  considered it to be in  the  interests  of
     justice  for the issue to be referred and cogent  reasons
     have been furnished to support the referral. The issue in
     Prinsloo’s  case  was,   in  the circumstances,  properly
     before this Court.

[30] I  now  turn to consider the appropriate order.   Section
     98(5)  of the Constitution empowers this Court to suspend
     a  declaration of invalidity “in the interests of justice
     and good government” until Parliament corrects the defect
     in  the  legislation  concerned. The  effect  of  such  a
     suspension  would be to prolong the risk  inherent  in  a
     reverse  onus provision until the legislature intervenes.
     What  this amounts to is that an unsatisfactory state  of
     affairs, where accused persons could be convicted despite
     the existence of a reasonable doubt, would be allowed  to
     continue  until new legislation is enacted to  deal  with
     the  issue.  There  is no knowing when  this  legislative
     intervention  might come. On the other hand,  should  the
     declaration of invalidity operate with immediate  effect,
     the prosecution would be able to deal with contraventions
     of  the  Act  in  the  normal manner,  as  in  all  other
     prosecutions where there is no reliance on a presumption.
     There  do  not appear to be any compelling considerations
     of   “justice  and  good government” requiring  that  the
     infringement  of  this constitutionally  protected  right
     should  continue beyond the date of this  order.  On  the
     contrary,  it  would be undesirable  for  the  courts  to
     continue   applying  a  provision  which  is   not   only
     manifestly  unconstitutional, but which also  results  in
     grave  consequences for potentially innocent  persons  in
     view of the serious penalties prescribed.

[31] Section  98(6)(a)  of  the Constitution  prescribes  that
     unless  this Court orders otherwise, in the interests  of
     justice  and  good  government, the order  of  invalidity
     shall  not invalidate anything done or permitted in terms
     of the unconstitutional provision.  In Mbatha’s case, the
     matter  is on appeal to the Witwatersrand Local  Division
     and  that  court will be able to take this  judgment  and
     order into account when it proceeds with the matter.   In
     Prinsloo’s  case,  the  trial is still  in  progress  and
     giving  effect to the order should present  no  problems.
     The order made should, however, be operative in the cases
     of  any  other  litigants who might be similarly  placed.
     The general considerations set out above were present  in
     Bhulwana’s case supra and I see no reason to depart  from
     the  approach adopted by this Court in that matter.   The
     order  that I propose to make will protect not  only  the
     rights  of accused persons in pending cases (S v  Mhlungu
     supra  at  paragraph  48), but also  the  rights  of  the
     persons referred to in paragraph two of the Order.

[32] Flemming  DJP  has  pointed out  that  a  declaration  of
     invalidity by this Court would not,  in itself,   entitle
     the  trial  Judge to immediately discharge those  accused
     who  would have been acquitted at the end of the case for
     the prosecution but for the operation of the presumption.
     His  view is that he is functus officio and cannot recall
     his  judgment; consequently, the applicant  Prinsloo  and
     the  relevant  co-accused would be forced to  endure  the
     unsatisfactory prospect of continuing to be  part of  the
     trial which still has a long way to go before conclusion.
     The Judge therefore proposed that if the presumption were
     found  to be unconstitutional, this Court should make  an
     appropriate order to enable the trial court  to  end  the
     proceedings   against   those  who   should   have   been
     discharged. I express no opinion on whether  or  not  the
     trial  Judge is functus officio as regards the particular
     issue.  This is a matter entirely within his jurisdiction
     which  he must determine on a proper construction of  the
     relevant provisions.  It was not argued before us that we
     had  the  jurisdiction to set aside the judgment  of  the
     trial court refusing to discharge Prinsloo. The Attorney-
     General   of   the  Transvaal,  however,  gave   a   firm
     undertaking  during argument that should the  presumption
     be   declared   unconstitutional  he   would   stop   the
     prosecution  against the relevant accused.  It  therefore
     becomes unnecessary to take this matter any further.

[33] Finally, I wish to express the Court's appreciation to Mr
     M  R  Hellens  SC and Mr P R Jammy who assisted  him  for
     preparing  and  presenting  argument  on  behalf  of  the
     applicant in the first case at the request of the Court.

[34] The following order is accordingly made:

     1.    Section 40(1) of the Arms and Ammunition Act 75  of
     1969  is  inconsistent with the Republic of South  Africa
     Constitution Act 200 of 1993 and is, with effect from the
     date of this judgment, invalid and of no force or effect.

     2.    In terms of section 98(6) of the Constitution, this
     declaration   of   invalidity   shall   invalidate    any
     application  of section 40(1) of the Arms and  Ammunition
     Act 75 of 1969 in any criminal trial in which the verdict
     of  the  trial  court was or will be  entered  after  the
     Constitution  came into force, and in which,  as  at  the
     date  of  this  judgment, either an appeal or  review  is
     pending  or the time for noting such appeal has  not  yet
     expired.

     3.    The  matters  of S v Mbatha and S  v  Prinsloo  are
     referred back to the Witwatersrand Local Division of  the
     Supreme  Court to be dealt with in accordance  with  this
     judgment.

PN Langa, Judge of the Constitutional Court

Chaskalson  P, Mahomed DP, Ackermann J, Didcott  J,  Kentridge
AJ,  Kriegler J, Madala J, Mokgoro J, O’Regan J  and  Sachs  J
concur in the judgment of Langa J.

COUNSEL FOR APPLICANT:             M R Hellens SC
                              P  R Jammy    At the request  of
                              the court

COUNSEL FOR RESPONDENT:            J A van S D’Oliviera
                              E Leonard
                              E Erasmus

INSTRUCTED BY: Attorney- General of the Witwatersrand

CASE NO:                                          CCT 35/95

COUNSEL FOR APPLICANT:             L van der Walt

INSTRUCTED BY:                  Odendal    and
                              Kruger, Delmas

COUNSEL FOR RESPONDENT:            R J Chinner
                              J A L Pretorius
                         
DATE OF HEARING: 16 November 1996

DATE OF JUDGMENT: 9 February 1996