CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 25/99
THE STATE
versus
SAMUEL
MANAMELA First Appellant
JABULANI MDLALOSE Second Appellant
THE
DIRECTOR-GENERAL OF JUSTICE Intervening Party
Heard on : 4 November
1999
Decided on : 14 April
2000
JUDGMENT
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
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.
|
| [2] | This case comes to us as a
referral for confirmation in terms of section
172(2)(a)[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 section 37(1) of the General Law Amendment
Act[2](the Act) to be unconstitutional
and invalid.[3] In terms of section
172(2)(a) of the Constitution, the order has no force, unless 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 section one of the Stock Theft Act, 1959, without
having 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 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
compulsory.” (Emphasis added.)
The relevant terms of
the order are:
“2. That the words ‘proof of which shall be on such first mentioned
person’ in section 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 section 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:
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 Constitutional
Court pursuant to the
provisions of section 172(2)(a), read with section 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.
| [4] | The crux of the issue which
falls to be determined is whether the reverse onus provision contained in
section 37(1) is consistent
with the constitutionally entrenched right to a fair
trial and, in particular, section 35(3)(h) of the Constitution which guarantees
the right “to be presumed innocent, to remain silent, and not to testify
during the proceedings.” |
| [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
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 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 section 37 into play.
He rejected the evidence
adduced by the appellants in support of their belief that the goods had not been
stolen, and convicted
them on a competent verdict of having contravened section
37.[4] Neither of the appellants was
a first offender and they were sentenced to seven and six years imprisonment
respectively. |
| [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 section 37(1)
which had been
material to the conviction of the appellants. The hearing on
appeal was postponed for the purpose of appointing counsel to represent
them.
At the request of the court, the Legal Resources Centre (LRC) undertook 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 section
37(1) was inconsistent with the Constitution. It invited 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. |
| [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 section 37(1). 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 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 section
37(1). |
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. |
| [10] | Mr D’Oliviera and Mr
Patel proceeded to argue that the question of the validity of section 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
have considered the constitutionality of section
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 judicial policy,
constitutional issues are generally to be considered
only if and when it is
necessary to do
so”.[6] |
| [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 section 37(1) reverse onus and found on the facts 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 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 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 the merits if the
state bore the conventional
onus. In our view therefore, the determination of the validity of the reverse
onus in section 37(1)
was essential to an acquittal on the merits in the case
before the High Court. It follows that the contention that the matter had
become moot has no basis and must fail. |
| [12] | In our view, there is a
compelling public interest that the constitutionality of section 37(1) be
determined. Continuing uncertainty
in this regard may well prejudice the
general administration of justice as well as the interests of the accused
persons affected.
As Langa J stated in S v Mbatha;S v
Prinsloo: |
“. . . 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.”[7]
Mr
D’Oliviera advised us that there are any number of trials, either pending
or proceeding, in which the reverse onus provision
is liable to be invoked, so
that it is necessary that legal certainty be achieved as soon as possible.
In S v Hoosen,[8]
Niles-Dunér J (with Pillay J concurring) held that the reverse onus
provision contained in section 37(1) was an impermissible
infringement of the
guarantee contained in section 25(3)(c) of the interim
Constitution.[9] She stated
that:
“the burden upon the State of proving mens rea in the present
circumstances is not so onerous or difficult to discharge that the State
requires assistance by way of legislative
intervention.”[10]
The
conviction was set aside on that basis. Under the interim Constitution however,
that court would not have had jurisdiction to
make such a finding in the absence
of agreement[11] of the parties. It
is not clear from the judgment whether there was such an agreement.
| [13] | The question whether the
reverse onus provision in section 37(1) infringes section 35(3)(h) of the
Constitution must therefore be
determined. Before doing so however, it is
useful for a proper understanding of the issues to outline the history and
effect of
the impugned provision. |
History and
Effect of Section 37(1)
| [14] | Section 37 establishes the
statutory offence of being found in possession of stolen goods. It had its
genesis in pre-Union legislation
which applied in the various provinces of South
Africa[12] where the legislation
sought to employ evidential devices which would alleviate the
prosecution’s burden of proof in the common
law crimes of theft and of
receiving stolen goods. This was achieved by placing the burden of proof on an
accused person as to the
circumstances in which stolen goods were received or
acquired, and the bona fide nature of his or her belief at the time of
acquisition
or receipt, that the goods had not been stolen. Similar legislation
existed in British Bechuanaland
(Botswana).[13] |
| [15] | Section 37(1) was also
enacted in response to difficulties experienced by the state in proving two of
the elements of the common law
offence of
receiving.[14] Section 37 operates
in tandem with section 36 of the Act to alleviate the usual burden of proof
resting on the state in criminal
trials. In circumstances where the state is
unable to prove that the goods in question had been stolen, section 36 requires
the
prosecution simply to prove that there was a reasonable suspicion that the
goods had been stolen, and that the accused was unable
to give a satisfactory
account of his or her possession of the
goods.[15] Conversely, in
circumstances where the state can prove that the goods had been stolen, but is
unable to prove that the accused had
known that they were stolen, section 37
places the onus of disproving the requisite mens rea on the
accused.[16] |
| [16] | Section 37(1) requires the
prosecution to establish the following three elements of the offence beyond a
reasonable doubt: that the
accused was found in possession of goods, other than
stock or produce, which were acquired otherwise than at a public sale, and that
the goods had been stolen. |
| [17] | The first and second of
these elements require some elaboration. The phrase “receives or acquires
into his possession”
bears the same meaning in this provision as it does
in relation to the common law offence of
receiving.[17] In S v Zungu,
Henning J held that this requirement meant
that: |
“. . . in order to obtain a conviction in terms of sec. 37 . . . it is
incumbent upon the State to prove that the accused received
stolen property into
his possession in the sense that he had detentio thereof as well as
physical control, where there is no proof, as in this case, of acquisition of
the property. “Physical control”
has not been defined in any of the
cases referred to, but it seems clear that for physical control to exist it is
not essential that
the receiver should intend to, or in fact exercise control on
his own behalf or on behalf of someone other than the person who delivered
the
property. If the receiver has detentio of stolen property in
circumstances where he has either expressly or by necessary implication
undertaken to safeguard it on behalf
of the person from whom it was received, it
appears to me that he has, in fact, physical control of it. The measure of such
control
may be limited, but once it exists, there is a receiving into possession
within the contemplation of sec. 37(1) of Act 62 of 1955.
Indeed, I venture to
suggest that, although exceptions are conceivable, detentio would
generally be accompanied by physical
control.”[18]
Although
different views had been expressed on the meaning of possession as contemplated
by the section,[19] it is now clear
from the Appellate Division decision in S v
Moller[20] that the
approach adopted in the Zungu case is the correct one, so that
detentio coupled with physical possession will establish possession for
the purposes of section 37(1). Such an interpretation has widened
the ambit of
section 37(1) and has led some to the view that every hotel porter or cloakroom
attendant who takes property on behalf
of another could conceivably risk
conviction.[21] These fears were
dismissed by the Appellate Division in the Moller case on the basis that,
in the absence of special circumstances, there would be reasonable grounds for
such a person to assume that
the goods handed to him or her were not
stolen.[22]
| [18] | The prosecution must also
establish that the accused acquired the stolen goods other than at a public
sale. Section 37(2) of the
Act defines “public sale” as
follows: |
“For the purposes of subsection (1) ‘public sale’ means a sale
effected —
(a) at any public market; or
(b) by any shopkeeper during the hours when his shop may in terms of any law
remain open for the transaction of business; or
(c) by a duly licensed auctioneer at a public auction; or
(d) in pursuance of an order of a competent
court.”
The state must establish that the
acquisition of goods was neither in the form of a purchase from a shopkeeper or
trader in a public
market, nor a sale at a public auction. This requirement
narrows the scope of section 37(1), although it does not qualify the numerous
situations in which persons might receive property on behalf of others.
| [19] | Once the prosecution has
established these three elements, the accused will be required to establish the
further two elements of the
offence: that the accused believed, at the time of
acquiring the goods, that the person from whom he or she received them was
indeed
the owner of such goods, or was duly authorised by the owner to dispose
of them; and that the accused’s belief was
reasonable.[23] The accused must
discharge this onus on a balance of probabilities. Early decisions of our
courts interpreted the section as much.
In R v Mdhletshe, Broome JP
stated: |
“In the first instance, it is only necessary for the Crown to establish
that the property was stolen and that it was received
by the accused. The
accused is thereupon liable to be convicted unless he proves that he had
reasonable cause for believing that the property belonged to the person from
whom he received it.”[24]
(Emphasis added.)
The Appellate Division confirmed this
position in two cardinal decisions, S v
Ghoor[25] and S v
Moller.[26] It is, therefore,
insufficient for acquittal merely to raise a reasonable doubt.
| [20] | Section 37(1) therefore,
not only places on the accused the burden of proving the requisite mens rea on a
balance of probabilities,
but introduces 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 introduces statutory liability for the negligent,
albeit innocent,
acquisition or receipt of stolen goods. As argued by Mr D’Oliviera and Mr
Patel, the inclusion of reasonableness
in the subsection extends 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. What is
“reasonable” will depend on the circumstances. In
many cases, an
explanation by the accused of the manner in which the goods were acquired will
be sufficient to meet the burden.
Our courts approach the question whether an
excuse is reasonable in the context of the character and background of the
accused, the
nature of the goods found in his or her possession, and the manner
in which they were
acquired.[27] |
| [21] | Bearing in mind the effect
of section 37(1) we turn to the question whether the reverse onus provision in
section 37(1) infringes
the rights of an accused person to be presumed innocent,
to remain silent, and not to testify during the proceedings. And if so,
whether
such an infringement can be said to be reasonable and justifiable in terms of
section 36 of the Constitution. |
Validity of
Section 37(1) in the context of the rights to silence and to be presumed
innocent
| [22] | In this Court, Mr Trengove,
together with Mr Hulley, appeared on behalf of the appellants. We are indebted
to them for their assistance.
They argued that the imposition of a full burden
of proof upon the accused infringes the right to be presumed innocent, since it
creates the risk and indeed the inevitability of a conviction, despite the
existence of a reasonable doubt as to the guilt of the
accused. It was on this
basis that Tip AJ found the phrase “proof of which shall be such
first-mentioned person” unconstitutional
and invalid. Counsel made no
reference to the breach of the right to silence. This issue, however, was
canvassed during the hearing
and needs to be
addressed. |
| [23] | In our view, the challenged
phrase directly implicates the right to silence as well as the presumption of
innocence, and the key to
the solution of the problems raised in this matter
lies in unravelling the connections between them. Both are procedural rights
which are central to the adversarial criminal process which was developed under
the common law and subsumed into the Bill of
Rights.[28] We have concluded that,
viewed in its context, and balancing all the competing factors against the
background of the values of the
Constitution, the challenged provision can be
justified only to the extent that it infringes the right to silence. Once the
objective
of the statute can be met by limiting the right to silence, the core
reason for breaching the presumption of innocence falls away.
Our reasons for
this approach and conclusion are set out below. |
| [24] | The right to silence, seen
broadly as an aspect of the adversarial trial, is clearly infringed. The
inevitable effect of the challenged
phrase is that the accused is obliged to
produce evidence of reasonable cause to avoid conviction even if the prosecution
leads no
evidence regarding reasonable cause. 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 is not simply to make a hard choice which increases the risk of
an inference
of culpability.[29] It
is to surrender to the prosecution’s case and provoke the certainty of
conviction. |
| [25] | Similarly the presumption
of innocence is manifestly
transgressed.[30] This Court has
frequently held that reverse onuses of this kind impose a full legal burden of
proof on the accused.[31]
Accordingly, if after hearing all the evidence, the court is of two minds as to
where the truth lies, the constitutional presumption
of innocence is replaced by
a statutory presumption of guilt. By virtue of the same logic, a conviction
must follow if the court
concludes that the accused’s version, even though
improbable, might reasonably be true. |
| [26] | The purpose of the
presumption of innocence is to minimise the risk that innocent persons may be
convicted and imprisoned. It does
so by imposing on the prosecution the burden
of proving the essential elements of the offence charged beyond a reasonable
doubt,[32] thereby reducing to an
acceptable level the risk of error in a court’s overall assessment of
evidence tendered in the course
of a trial. The reverse onus provision relieves
the prosecution of the burden of proving all the elements of the section 37
offence
by effectively presuming that any person, proven by the state to be in
possession of stolen property, acquired otherwise than at
a public sale, did not
have reasonable cause for believing at the time of acquisition or receipt that
the goods had not been stolen.
Where the accused is unable to persuade the
court on a balance of probabilities that reasonable cause exists, which would be
the
case even where the probabilities are evenly balanced, he or she must be
found guilty, despite a reasonable doubt in the mind of
the judicial officer as
to whether or not the accused is
innocent.[33] The presumption of
innocence is manifestly infringed by section
37(1).[34] Unless saved as a
permissible limitation, it is unconstitutional and
invalid. |
Justification
| [27] | It was argued by Mr
Trengove, as a precursor to the limitation inquiry, that a statutory provision
which introduces the certainty
that innocent persons will be convicted is
ethically offensive and can never be
justified.[35] However, it is clear
from the wording of section 36(1) that no right enshrined in Chapter 2 of the
Constitution is absolute. Although
this Court has so far not found an impugned
reverse onus provision to pass constitutional muster, it has been at pains to
articulate
that there are circumstances in which such measures may be
justifiable.[36] The effective
prosecution of crime is a societal objective of great significance which could,
where appropriate, justify the infringement
of fundamental
rights. |
| [28] | This Court has expressly
kept open the possibility of reverse onus provisions being justifiable in
certain circumstances.[37]
Ordinarily, a reverse onus could be justifiable only if the risk and
consequences of erroneous conviction produced by a statutory
presumption against
the accused are outweighed by the risk and consequences of guilty persons
escaping conviction simply because
of categorical adherence to an impervious
presumption of
innocence.[38] |
| [29] | A broad context in which
the use of reverse onus provisions might be justified concerns “regulatory
offences”, as opposed
to “pure criminal offences”. Thus,
regulatory statutes dealing with licensed activity in the public domain, the
handling
of hazardous products, or the supervision of dangerous activities,
frequently impose duties on responsible persons, and then require
them to prove
that they have fulfilled their
responsibilities.[39] The objective
of such laws is to put pressure on the persons responsible to take pre-emptive
action to prevent harm to the
public.[40] Although censure might
be acute, there is generally not the same stigma or the severe penalties as for
common law offences. Similarly,
there are cases involving the existence or
authenticity of public documents or
licences,[41] where practicalities
and common sense dictate that, bearing in mind the reduced risk of error
involved, it would be disproportionately
onerous for the state to be obliged to
discharge its normal burden in order to secure a conviction. Traffic regulation
provides
a further example,[42] such
as when a statute states that the owner of a car is presumed to be the person
who parked it illegally; in the great majority
of cases, there is simply no way
in which the state could prove who parked the
car. |
| [30] | There is also an important
area in which the common law imposes an onus on the accused, namely, in relation
to proof of insanity.
The long-standing practice has been to require the
defence to prove insanity on a balance of
probabilities.[43] Here the
consequences of an erroneous finding of guilt can be severe, for instance, a
finding of guilt on a charge of murder or
other serious crime. Balanced against
this is the ease with which, it is contended, an accused could otherwise escape
conviction
by feigning insanity. |
| [31] | It is not necessary in this
case to decide whether the onus in each of the above situations would survive
scrutiny under section 36.
It is clear however that open and democratic
societies permit the shifting of the burden of proof to the accused when it
would not
be disproportionately invasive of the right to silence and the
presumption of innocence to do so. We now consider whether the section
37(1)
reverse onus is justifiable. |
| [32] | Section 36(1) of the
Constitution provides: |
“The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors, including
—
(a) the nature of the right;
(b) the importance of the
purpose of the limitation;
(c) the nature and extent of the
limitation;
(d) the relation between the limitation and its purpose;
and
(e) less restrictive means to achieve the purpose.”
It
should be noted that the five factors expressly itemised in section 36 are not
presented as an exhaustive list. They are included
in the section as key
factors that have to be considered in an overall assessment as to whether or not
the limitation is reasonable
and justifiable in an open and democratic society.
In essence, the Court must engage in a balancing exercise and arrive at a global
judgment on proportionality and not adhere mechanically to a sequential
check-list.[44] As a general rule,
the more serious the impact of the measure on the right, the more persuasive or
compelling the justification
must be. Ultimately, the question is one of degree
to be assessed in the concrete legislative and social setting of the measure,
paying due regard to the means which are realistically available in our country
at this stage, but without losing sight of the ultimate
values to be protected.
| [33] | Although section 36(1)
differs in various respects from section 33 of the interim Constitution, its
application continues to involve
the weighing up of competing values on a
case-by-case basis to reach an assessment founded on
proportionality.[45] Each
particular infringement of a right has different implications in an open and
democratic society based on dignity, equality
and freedom. There can
accordingly be no absolute standard for determining reasonableness. This is
inherent in the requirement
of proportionality, which calls for the balancing of
different interests. The proportionality of a limitation must be assessed in
the context of its legislative and social
setting.[46] Accordingly, the
factors mentioned in section 36(1) are not exhaustive. They are key
considerations, to be used in conjunction
with any other relevant factors, in
the overall determination whether or not the limitation of a right is
justifiable. |
| [34] | These themes are eloquently
dealt with in the judgment of O’Regan J and Cameron AJ (the minority
judgment). We agree with their
approach and also agree that there is a pressing
social need for legislation to address the evil they identify. Section 36,
however,
does not permit a sledgehammer to be used to crack a nut. Nor does it
allow for means that are legitimate for one purpose to be
used for another
purpose where their employment would not be
legitimate.[47] The duty of a court
is to decide whether or not the legislature has overreached itself in
responding, as it must, to matters of
great social concern. As the minority
judgment points out, when giving appropriate effect to the factor of “less
restrictive
means”, the court must not limit the range of legitimate
legislative choice in a specific area. The minority judgment also
states that
such legislative choice is influenced by considerations of cost, implementation,
priorities of social demands, and the
need to reconcile conflicting interests.
These are manifestly sensible considerations that do not provoke disagreement.
Our difference
with the minority judgment is not over how the principles should
be articulated, but rather as to how they should be applied in the
circumstances
of this case. |
| [35] | We deal first with the
right to silence. This Court has said that “[t]he right to silence, like
the presumption of innocence,
is firmly rooted in both our common law and
statute”[48] and is
“inextricably linked to the right against self-incrimination and the
principle of non-compellability of an accused person
as a witness at his or her
trial”.[49] |
[36] Pitted against this time-honoured right is the consideration that dealing
in stolen property is a scourge in our society. The
practice involves massive
corruption and immorality that can permeate and perversely normalise itself in
every area of society.
The public perception that stolen goods are easily
disposed of in our country, insidiously encourages serious and often violent
crimes
including car-jacking, mugging, robbery and
theft.[50] These are indeed weighty
considerations. Yet as this Court pointed out in Dlamini:
“Although the level of criminal activity is clearly a relevant and
important factor in the limitations exercise undertaken
in respect of [section]
36, it is not the only factor relevant to that exercise. One must be careful to
ensure that the alarming
level of crime is not used to justify extensive and
inappropriate invasions of individual rights. It is well established that
[section]
36 requires a court to counterpoise the purpose, effects and
importance of the infringing legislation on the one hand against the
nature and
importance of the right limited on the
other.”[51]
| [37] | The prevalence of serious
crime calls for government action, but does not provide a blank cheque for the
legislature to erase all
procedural safeguards. Indeed, it is precisely when
public emotion is at its highest that procedural protection against possible
miscarriage of justice is most
necessary[52]. Something
case-specific and contextualised is required to bring the scales down on the
side of limitation. In the present case,
there are convincing reasons for an
incursion into the right to silence, but not for a reverse onus which would
unduly increase the
risk of innocent persons being
convicted. |
| [38] | Mr D’Oliveira argued
persuasively that in the vast majority of cases the state has no information or
evidence concerning the
circumstances in which, and the persons from whom, the
accused acquired the goods in question. Almost always all the information
relevant to the determination of reasonable cause is peculiarly within the
knowledge of the accused. This makes it extremely difficult
for the state to
demonstrate the absence of reasonable cause unless there is evidence emanating
from the accused. The appellants
correctly did not dispute this. In the
circumstances, there is nothing unreasonable, oppressive or unduly intrusive in
asking an
accused who has already been shown to be in possession of stolen
goods, acquired otherwise than at a public sale, to produce the
requisite
evidence, namely, that he or she had reasonable cause for believing that the
goods were acquired from the owner or from
some other person who had the
authority of the owner to dispose of them. For these reasons, then, the
limitation on the right to
silence contained in the challenged phrase is
justified. |
| [39] | The question that remains,
however, is the standard by which that evidence must be evaluated. The reverse
onus requires the accused
to establish on a balance of probabilities reasonable
cause for the requisite belief. As has been pointed out, this means that the
court is obliged to convict even if it entertains a reasonable doubt as to the
guilt of the accused. Indeed, the reverse onus goes
further. It obliges the
court to convict if the version of the accused is as likely to be as true as
not. We have to decide, then,
whether this limitation of the presumption of
innocence can be justified. |
| [40] | The presumption of
innocence protects the fundamental liberty and human dignity of every person
accused of criminal conduct. It ensures
that until the state proves an
accused’s guilt beyond a reasonable doubt, he or she cannot be convicted.
The right is vital
to an open and democratic society committed to fairness and
social justice.[53] Where a
presumption of guilt is substituted for the presumption of innocence, the
limitation of the right is extensive and “the
justification for doing so
must be established clearly and
convincingly”.[54]
|
| [41] | The primary ground for the
justification of the section 37(1) reverse onus is the ongoing legislative
endeavour to put in place effective
means to eradicate the market in stolen
property which has a devastating effect on the maintenance of law and order.
The crimes
targeted range from highly organised syndicate- and gang-related
activities through corruption at various levels to those committed
by people
tempted by a windfall who participate, sometimes unwittingly, in the chain of
disposal of stolen goods. |
| [42] | There is little doubt that
the effective prosecution of thieves and receivers dealing in stolen goods is a
pressing social need.
We equally accept that there are important reasons of
public policy for a statutory offence that penalises those who are not dealers,
but who form a link in the chain of disposal of stolen goods by deliberately or
negligently failing to establish the provenance of
goods they acquire outside of
ordinary commercial channels. Nonetheless, the level of crime does not on its
own justify any infringement
of the Bill of Rights, no matter how
invasive. |
| [43] | Indeed, there are a variety
of factors that point away from the conclusion that a reverse onus in this case
is reasonable and justifiable.
The relation between the reverse onus and the
state purpose is not proportionate. Although it has been accepted that the
efficacy
of the section 37 offence requires it to target a wide range of people
exercising physical control over stolen goods, regardless
of the fact that their
connection with the goods might be remote, the impugned provision is nonetheless
too broadly formulated.
A reverse onus proposing to criminalise the deliberate
or negligent dealing in stolen goods would be easier to justify if the goods
in
question were confined to motor cars or expensive equipment, where members of
the public could reasonably be required to document
provenance, ownership and
transfer. The purpose of the reverse onus in such cases would be to oblige
purchasers, on pain of conviction,
to keep and produce records. Yet the section
37 reverse onus applies to all kinds of goods acquired in a multitude of
different
circumstances and is not exclusively attracted by people and
transactions where its use could most easily be justified.
|
| [44] | Because of this and also
because of the manner in which “possession” has been interpreted by
our courts,[55] the section 37 net
extends to a wide range of people, many of whom are poor, unskilled and
illiterate. It includes persons acquiring
ordinary household necessities, such
as clothing, food, cooking utensils and other goods from door-to-door vendors.
The practical
implications of this cannot be ignored. Many of these people are
not likely to keep records of the wide variety of informal transactions
that
they conclude daily. They, and not the professional receivers, are the persons
least in a position to discharge the onus and
hence become the class most
vulnerable to erroneous conviction precisely because of their disadvantaged
position in society. Furthermore,
because of their inability to afford legal
representation, they will not be well prepared either to present their case to
best advantage
or to meet the cross-examination to come. The risk of people
being erroneously convicted, subjected to the social stigma of conviction
and
unjustly sent to jail, is unacceptably high. |
| [45] | It is true that judicial
officers can be expected to appreciate South Africa’s social reality when
applying the section. This
could curtail any promiscuous recourse to the
reverse onus. Similarly, temporary custodians may have little difficulty in
discharging
the onus. Furthermore, when passing sentence, judicial officers
should distinguish between those who know full well the implications
of their
action, those who deliberately turn a blind eye, and those who simply do not
bother to make sufficient inquiries. |
| [46] | The presumption, however,
does not entail only an assessment of whether a particular belief was reasonable
in all the circumstances.
Rather, and of greater significance, it obliges the
accused to establish the circumstances or the factual foundation from which
a
conclusion as to reasonableness or otherwise may be drawn. It accordingly
covers matters where the case turns substantially on
the credibility of evidence
given at the trial. If the accused fails to establish on a balance of
probabilities the circumstances
in which he or she claims to have acquired the
goods (the factual foundation) a conviction will follow without the need for any
further
inquiry into reasonableness. That inquiry would arise only if the
relevant factual foundation had first been established in favour
of the accused
on a balance of probabilities. Everything therefore would depend in the first
place on such a credibility finding.
It must be borne in mind that the
probability of the accused’s version being true will be determined after
cross-examination
by the state which, if reasonably effected, could leave the
judicial officer in a state of uncertainty as to where the truth
lay. |
| [47] | The present case
illustrates the kinds of dilemmas which would face a judicial officer. It
appears from rather cryptic findings that
the magistrate relied heavily on the
fact that the accused had failed to discharge the onus on them on a balance of
probabilities.
Because of the presumption, therefore, the magistrate found the
accused guilty as charged and sentenced them to seven and six years’
imprisonment respectively. The situation that faced the magistrate was no
different from that confronting the trier of fact in any
ordinary criminal trial
- was the accused telling the truth or not? There was nothing specific either
in the nature of the goods
or in the circumstances in which they were acquired
that took the matter out of the normal forensic situation where a finding of
credibility had to be made. Indeed, a reverse onus might well be easier to
justify when it relates to the inference to be drawn
from certain established
facts than when it forces the judicial officer effectively to reject the
accused’s version even if
it was as probable as not. This intrudes
severely on the balance between the prosecution and the accused implicit in what
our Constitution
regards as a fair trial. |
| [48] | The risk that innocent
persons might be convicted is aggravated by the fact that section 37 permits
sentences of long terms of imprisonment
and it is not open to the trier of fact
to attenuate the sentences on the basis that he or she might still have had a
doubt as to
the guilt of the accused. Even more disturbing, the judicial
officer would have to convict and impose such sentence where the accused’s
story was just as likely to be true as not. |
| [49] | In assessing whether the
section 37(1) limitation of the right to be presumed innocent is reasonable and
justifiable the state in
this case has established the importance of the
objectives sought to be attained by the impugned provision. Nonetheless,
considering
that the grounds of justification must be more persuasive where the
infringement of the rights in question is extensive, the state
has failed, in
our view, to discharge the onus of establishing that the extent of the
limitation is reasonable and justifiable and
that the relation between the
limitation and its purpose is proportional. It equally failed to establish that
no less restrictive
means were available to Parliament in order to achieve the
purpose. The imposition of an evidential burden on the accused would
equally
serve to furnish the prosecution with details of the transaction at the time of
acquisition or receipt. Accordingly, there
is a less invasive means of
achieving the legislative purpose which serves to a significant degree to
reconcile the conflicting interests
present in this case and which does not
raise concerns relating to additional cost, the prioritisation of social demands
and practical
implementation.[56]
|
| [50] | In the light of the vital
importance to our criminal justice system of the right to be presumed innocent
and the cluster of fair trial
rights which accompany it, the imposition of a
full burden of proof in the circumstances has a disproportionate impact on the
right
in question. Had the reverse onus been wrought in a more focussed and
nuanced way so as to eliminate or diminish these concerns,
it might have passed
scrutiny. Yet as it stands, its sweep is too great. The risk of people being
erroneously convicted and unjustly
sent to jail is too high. We acknowledge
that ours is an open and democratic society facing many challenges with limited
means,
and that it is in this setting that the question of proportionality must
be determined. Yet, the very circumstances that have made
the challenge so
great and left us with means so stretched, place those least capable of
defending their rights in the greatest jeopardy
of being victims of miscarriages
of justice. We therefore cannot agree with the view expressed in the minority
judgment that the
limitation on the presumption of innocence is sufficiently
focussed to be justifiable. |
| [51] | In the present matter, we
conclude that the main problem facing the prosecution will be met by requiring
the accused to furnish evidence
as to the reasonableness of her or his belief.
We do not see any persuasive or compelling reason for reversing the usual onus
of
proof as well. The challenged phrase accordingly passes the test of section
36 insofar as it limits the right to silence, but not
to the extent that it
limits the presumption of innocence. |
The
Appropriate Remedy
| [52] | In a series of cases
decided under the interim Constitution, this Court held that reverse onus
provisions were inconsistent with that
Constitution, that they could not
ordinarily be read down to be evidential presumptions, and that they had
accordingly to be declared
to be invalid and of no force and
effect.[57] This is the first case
concerning a reverse onus provision to come before this Court since the Gay
and Lesbian Immigration case[58]
in which it was held that courts have the power to read words into a statute to
remedy the unconstitutionality of a provision under
the 1996 Constitution.
|
| [53] | The interim Constitution
provided that a person whose rights under the Bill of Rights had been infringed
or threatened could “apply
to a competent court of law for appropriate
relief, which may include a declaration of rights”. Sections
35(2)[59],
232(3)[60] and
98(5)(6)(7)[61] of the interim
Constitution provided specifically for the types of orders that courts could
make and for the reading down of a statutory
provision in specified
circumstances. It was in the light of these provisions that O’Regan J
declined to read down the relevant
provision and declared it to be invalid in
Bhulwana.[62] That decision
was followed by this Court in all subsequent reverse onus
cases.[63] The appropriateness of
conjoining the remedy of striking out the offending portions of a statute with
that of reading words into
the provision in order to ameliorate the consequences
of such striking out is not dealt with in these
judgements. |
| [54] | The 1996 Constitution is
different. It also makes provision for a competent court to “grant
appropriate relief, including a
declaration of rights” to anyone whose
rights under the Bill of Rights have been infringed or threatened. It does not,
however,
contain specific provisions equivalent to sections 98(5), (6) and (7)
which dealt with the Court’s powers in cases where laws
or executive or
administrative acts or conduct were found to be inconsistent with the interim
Constitution. Nor are there provisions
in the 1996 Constitution similar to
sections 35(2) and 235(3) of the interim Constitution. Instead section 172(1)
of the 1996 Constitution
now affords the courts greater flexibility. It
empowers and obliges a court in broad terms to make any order that is
“just
and equitable” if any law or conduct is declared inconsistent
with the Constitution. The section provides: |
“Powers of courts in constitutional
matters
172(1) When deciding a constitutional matter within its power, a
court-
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b) may make any order that is just and equitable,
including-
(i) an order limiting the
retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct
the
defect.”
| [55] | In the Gay and Lesbian
Immigration case[64] Ackermann J
held that |
“The Court’s obligation to provide appropriate relief must be read
together with section 172(1)(b) which requires the
Court to make an order which
is just and
equitable.”[65]
He
went on to hold that, depending on the circumstances, reading in could be an
appropriate form of relief, and that
“The real question is whether, in the circumstances of the present matter,
reading in would be just and equitable and an appropriate
remedy.”[66]
The
reference to “just and equitable” in this passage is clearly a
reference to the court’s powers under section
172(1)(b) to which he had
previously referred.
| [56] | The principles applicable
to “reading in” as a remedy for unconstitutionality are set out in
the Gay and Lesbian Immigration judgment. They
are: |
“[74] The severance of words from a statutory provision and reading words
into the provision are closely related remedial powers
of the Court. In
deciding whether words should be severed from a provision or whether words
should be read into one, a court pays
careful attention first, to the need to
ensure that the provision which results from severance or reading words into a
statute is
consistent with the Constitution and its fundamental values and
secondly, that the result achieved would interfere with the laws
adopted by the
legislature as little as possible. In our society where the statute books still
contain many provisions enacted by
a Parliament not concerned with the
protection of human rights, the first consideration will in those cases often
weigh more heavily
than the second.
[75] In deciding to read words into a statute, a court should also bear in mind
that it will not be appropriate to read words in,
unless in so doing a court can
define with sufficient precision how the statute ought to be extended in order
to comply with the
Constitution. Moreover, when reading-in (as when severing) a
court should endeavour to be as faithful as possible to the legislative
scheme
within the constraints of the Constitution. Even where the remedy of reading-
in is otherwise justified, it ought not to
be granted where it would result in
an unsupportable budgetary intrusion. In determining the scope of the budgetary
intrusion, it
will be necessary to consider the relative size of the group which
the reading in would add to the group already enjoying the benefits.
Where
reading-in would, by expanding the group of persons protected, sustain a policy
of long standing or one that is constitutionally
encouraged, it should be
preferred to one removing the protection
completely.
[76] It should also be borne in mind that whether the remedy a court grants is
one striking down, wholly or in part; or reading into
or extending the text, its
choice is not final. Legislatures are able, within constitutional limits, to
amend the remedy, whether
by re-enacting equal benefits, further extending
benefits, reducing them, amending them, ‘fine-tuning’ them or
abolishing
them. Thus they can exercise final control over the nature and
extent of the benefits.”
| [57] | We would add that reading
in is not necessarily confined to cases in which it is necessary to remedy a
provision that is under-inclusive.
There is no reason in principle why it
should not also be used as part of the process of narrowing the reach of a
provision that
is unduly invasive of a protected right. Reading down, reading
in, severance and notional severance are all tools that can be used
either by
themselves or in conjunction with striking out words in a statute for the
purpose of bringing an unconstitutional provision
into conformity with the
Constitution, and doing so carefully, sensitively and in a manner that
interferes with the legislative
scheme as little as possible and only to the
extent that is essential. There is no single formula. In appropriate cases it
may
be necessary to delete words from a provision and read in other words to
make the provision consistent with the Constitution, where
the deletion of the
words alone would result in the declaration of invalidity to an extent greater
than that required by the Constitution.
The considerations referred to in the
Gay and Lesbian Immigration case would then have to be borne in mind.
But if they are met there is no reason why this should not be done.
|
| [58] | The striking down of the
reverse onus in section 37, without more, would leave a vacuum in the present
legislative structure designed
to deal with “fencing” which is a
pervasive evil in our society. Parliament could remedy the situation, but that
takes
time, and in the interim that gap would remain. To read in the words
necessary to establish an evidential presumption is less invasive
of the
legislative purpose of section 37 than simply striking down the presumption, and
goes as far as is permissible in the context
of section 37 to place a burden on
possessors of stolen property to account for their possession. We therefore
consider that an
order in such terms would be competent and appropriate.
|
| [59] | In the result the following
order is substituted for the order made by the High
Court: |
1. The phrase “proof of which shall be on such first-mentioned
person” in section 37(1) of the General Law Amendment
Act, 62 of 1955, is
declared to be inconsistent with the Constitution and
invalid.
1.
2. Section 37(1) should be read so as to have as 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”.
3. The orders in paragraphs 1 and 2 above shall not invalidate any application
of the reverse onus created by the words declared
therein to be unconstitutional
and invalid
unless:
3.1 The verdict of the trial court was entered after 27 April 1994; and
3.2 Either an appeal against or review of that verdict is pending or the time
for noting of such appeal or review has not yet
expired.
Chaskalson P, Langa
DP, Ackermann J, Mokgoro J and Ngcobo J concur in the judgment of Madala, Sachs
and Yacoob JJ.
O’REGAN J AND CAMERON AJ:
| [60] | This case is about the
circumstances in which persons found in possession of stolen goods acquired
otherwise than at a public sale
should be held criminally liable. The majority
concludes that it is impermissible for the Legislature to require such persons,
to
avoid conviction, to prove that they had reasonable cause for believing at
the time of acquiring the goods that they were not stolen.
We disagree. In our
view, it is constitutionally permissible that an accused found in possession of
stolen goods so acquired be
obliged to persuade a court that he or she had
reasonable cause for believing at the time of acquisition that the goods were
not
stolen. The debate about the permissibility of imposing a burden of proof
upon the accused should not shroud the real issue in this
case, which in our
view concerns the constitutional legitimacy of using a reverse onus to place
obligations upon members of our society
to ensure that they act vigilantly to
inhibit the market in stolen goods. |
| [61] | Where, as in our country,
the market in stolen goods is extensive and the pattern of theft and robbery
feeding that market is excessively
violent, we consider that society has the
right to oblige citizens to act vigilantly to ensure that they can prove that
they have
reason to believe that the goods are not stolen. This obligation has
been imposed by the Legislature through the creation of a special
offence which
is tailored to capture the extent of culpability appropriate in these
circumstances. The impact of the offence is
that an accused, found in
possession of stolen goods obtained otherwise than at a public sale and who is
unable to establish reasonable
cause for possessing such goods, is convicted,
not of theft or common law receiving, but of a special statutory offence. In
our
view, there can be no constitutional complaint about this
offence. |
| [62] | Accordingly, we cannot
agree with the majority that the reverse onus should be declared invalid. In
our view, although the criminal
offence established in section 37(1) of the
General Law Amendment Act, 62 of 1955 not only trenches upon the right to
silence, but also upon the presumption of innocence, it does so in a
justifiable manner. We do not differ from the majority on how the matter
should
be approached in relation to the justifiability of the infringements in
question. Where we differ is in what answer the approach
should yield. We
accept, for the reasons given by the majority, that to the extent that section
37 breaches the right to silence,
it is justifiable. However, we disagree with
the majority in that, in our view, the section’s infringement of the
presumption
of innocence is also justifiable. In this judgment, therefore, we
consider only the latter issue — the justifiability of the
breach of the
presumption of innocence. |
| [63] | Section 37(1), the terms of
which for ease of reading we repeat, creates a statutory offence of being found
in possession of stolen
goods: |
“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 section one of the Stock Theft Act, 1959, without
having 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 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
compulsory.” (emphasis added)
It is clear from the
terms of this provision that the prosecution is required to establish beyond
reasonable doubt the following three
elements: that the accused has been found
in possession of goods other than stock or
produce,[1] that the goods had been
stolen and that the accused acquired the goods otherwise than at a public sale.
Only if the state has proved
these elements does the accused attract the burden
of establishing that he or she had reasonable cause for believing at the time
of
the acquisition that the person from whom the goods were received was the owner,
or authorised by the owner, to dispose of
them.[2]
| [64] | It is clear that section 37
creates a reverse onus in terms of which the accused is required to establish,
on a balance of probabilities,
that he or she had reasonable grounds for
believing that the goods were not stolen. If the accused is unable to do so, he
or she
will be convicted. Even if he or she raises a reasonable possibility
that such grounds existed, this will not suffice to avoid conviction.
The
provision may therefore result in a conviction despite the existence of
reasonable doubt in the mind of the judicial officer
as to whether the accused
had such grounds. The provision therefore conflicts with the presumption of
innocence entrenched in section
35(3) of the Constitution which
reads: |
“Every accused person has a right to a fair trial, which includes the
right—
. . . .
(h) to be presumed innocent, to remain silent, and not to testify during the
proceedings”.[3]
| [65] | Once it has been
established that section 37 is in conflict with one of the rights entrenched in
the Bill of Rights, the question
arises whether it may be justified in
terms of section 36(1) of the Constitution which
provides: |
“The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors,
including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the
purpose.”
The approach in
deciding whether a limitation is justifiable was set out in S v Makwanyane
and Another as follows:
“The limitation of constitutional rights for a purpose that is reasonable
and necessary in a democratic society involves the
weighing up of competing
values, and ultimately an assessment based on proportionality. This is implicit
in the provisions of s
33(1). The fact that different rights have different
implications for democracy and, in the case of our Constitution, for ‘an
open and democratic society based on freedom and equality’, means that
there is no absolute standard which can be laid down
for determining
reasonableness and necessity. Principles can be established, but the
application of those principles to particular
circumstances can only be done on
a case-by-case basis. This is inherent in the requirement of proportionality,
which calls for
the balancing of different interests. In the balancing process
the relevant considerations will include the nature of the right
that is limited
and its importance to an open and democratic society based on freedom and
equality; the purpose for which the right
is limited and the importance of that
purpose to such a society; the extent of the limitation, its efficacy and,
particularly where
the limitation has to be necessary, whether the desired ends
could reasonably be achieved through other means less damaging to the
right in
question.”[4] (footnote
omitted)
In National Coalition for Gay and Lesbian
Equality and Another v Minister of Justice and
Others,[5] this Court held that
the approach to limitations established by Chaskalson P in
Makwanyane’s case applies to cases heard under the 1996
Constitution, notwithstanding the changed language of the limitation clause.
| [66] | The approach to limitation
is, therefore, to determine the proportionality between the extent of the
limitation of the right considering
the nature and importance of the infringed
right, on the one hand, and the purpose, importance and effect of the infringing
provision,
taking into account the availability of less restrictive means
available to achieve that purpose. The limitation analysis that follows
will
therefore first consider the extent of the limitation of the right caused by
section 37, and will then turn to the purpose,
importance and effect of section
37. These are the two issues whose relative weight determines the outcome of
the limitation analysis.
That analysis therefore concludes by comparing the
relative weight. As stated above, our difference with the majority lies not
in
the approach to the limitation analysis, but in its application in the current
case. |
The scope of the infringement and the
nature of the presumption of innocence
| [67] | We now consider the first
aspect. It is clear from the above analysis that section 37 infringes the right
to be presumed innocent.
The risk that an accused person will be convicted
despite the existence of a reasonable doubt is clearly an infringement of the
presumption of innocence which is a fundamental principle of our criminal
justice
system.[6] |
| [68] | The presumption of
innocence and, in particular, rules concerning the burden of proof (both its
incidence and the standard required)
exist because fact-finding by a court can
never be without the risk of
error[7] and because, at times,
courts cannot determine the facts at all. Rules regulating the burden of proof
seek to determine the acceptable
level of risk and who should bear it in each
case. Because our Constitution and criminal justice system seek to avoid the
conviction
of the innocent, we observe and defend the presumption of innocence
which requires that guilt be established beyond reasonable doubt
before the
accused can be convicted. We entrench the presumption of innocence in our
Constitution to remind us that we wish to minimise
as much as is reasonably
possible the risk of error in the proceedings that determine whether a person is
to be punished by the state
for criminal conduct and to ensure that an accused
is reasonably protected from the risk of error. However, like other rights, the
presumption of innocence is not absolute. Once it is infringed, the question
arises whether there are important reasons, outweighing
the importance of the
presumption, for increasing the risk of error through varying the burden or
incidence of proof. This Court
has always acknowledged that there are
circumstances in which a burden of proof may be imposed upon an accused.
Whether such circumstances
have arisen is a matter to be determined under
section 36 of the
Constitution.[8] |
| [69] | The level of justification
required to warrant a limitation upon a right depends on the extent of the
limitation. The more invasive
the infringement, the more powerful the
justification must be.[9] It is
important to recognise that not every reverse onus offends the presumption of
innocence in the same manner or to the same
extent. To assess the extent of the
limitation it is necessary to examine carefully the legislative provision in
question. |
| [70] | The presumption in this
case affects only those who have obtained stolen goods but who did not buy
them at a public market or
from a shopkeeper or at an auction. Section 37(2)
provides as follows: |
“For the purposes of sub-section (1) ‘public sale’ means a
sale effected—
(a) at any public market; or
(b) by any shopkeeper during the hours when his shop may in terms of any law
remain open for the transaction of business; or
(c) by a duly licensed auctioneer at a public auction; or
(d) in pursuance of an order of a competent
court.”
| [71] | People who acquire goods in
the circumstances in section 37(2) will not be required to provide cause
for believing that the goods
were not stolen. Those circumstances are widely
defined to include all conceivable occasions where the public can without
anxiety
or suspicion purchase items in common commercial traffic. The state
retains the burden of proving this element beyond reasonable
doubt. Only once
it has done this is the accused put on risk of criminal conviction in the
absence of an account establishing that
there was probably reasonable cause for
believing that the disposer of the goods had lawful power to pass them
on. |
| [72] | On whether the accused had
reasonable grounds for believing the goods not to be stolen the state will
rarely be able to lead evidence
in contradiction. The effect of section 37 is
that the accused will need to establish first that the explanation is true and
second
that it is reasonable.1[0]
In relation to the first issue, the accused will be convicted where the court
disbelieves the version advanced, even though accepting
that it may reasonably
possibly be true, or where the court cannot decide whether the version is true
or not. In relation to the
second issue, the court will convict the accused
even where it accepts that the explanation is true if it is not satisfied that
the
explanation is reasonable. Because the state will rarely lead evidence in
contradiction, in the great majority of section 37 cases
the key issue will be
whether the accused is found to be credible or not. In this it is hard to
envisage many cases where the difference
between raising a reasonable doubt and
establishing a reasonable probability will be of significant
moment. |
| [73] | The concept of
“reasonableness” moreover bears upon the question whether the
reverse onus in section 37 creates an unacceptable
risk of convicting innocent
persons. In considering the justification for the infringement the reverse onus
entails, a telling consideration
mentioned by the majority is that many of those
who are most prone to fall within its net are poor. Two considerations in our
view
suggest however that concern in this regard should not be
overstated. |
| [74] | The first is that prudent
application of section 37’s requirement of “reasonable cause”
appreciably reduces the
risk of unfair convictions. The requirement of
reasonable cause introduces an objective element into the analysis. An accused
is
required to establish that the grounds proffered for believing the goods were
not stolen would have been accepted by a reasonable
person as grounds for that
belief. The difficulties of applying a purely objective test in a diverse
society have been acknowledged
by our
courts1[1] and have led some
commentators to suggest that the test for culpa in our law should be
subjective.1[2] Whatever the merits
of this suggestion, it is clear that in applying the “objective”
element in the determination of
reasonable cause, the court does not ignore the
material circumstances in which the accused found himself or
herself.1[3] In R v
Mbombela, one of the early authoritative cases establishing the objective
criterion, the court held that — |
“[a] reasonable belief, in my opinion is such as would be formed by a
reasonable man in the circumstances in which the accused was placed in a
given case”.1[4] (emphasis
added)
| [75] | The approach in
Mbombela’s case has been followed
repeatedly.1[5] In S v Van
As, Rumpff CJ explained the origin and application of the frequently-invoked
standard of the “careful head of a family”,
the diligens
paterfamilias. He stated: |
“In our law since time immemorial we have used the diligens
paterfamilias as someone who in specified circumstances would behave in a
certain way. What he would do is regarded as reasonable. We do not
use the
diligentissimus [excessively careful] paterfamilias, and what the
diligens paterfamilias would have done in a particular case must be
determined by the judicial officer to the best of his ability. This diligens
paterfamilias is of course a fiction and is also, all too often, not a
pater [father]. In the application of the law he is viewed
‘objectively’, but in essence he must apparently be viewed both
‘objectively’ and ‘subjectively’ because he represents a
particular group or type of persons who are in the
same circumstances as he is,
with the same ability and knowledge. If a person therefore does not foresee
what the other people in
his group in fact could and would have foreseen, then
that element of culpa, that is failure to foresee, is
present.”1[6] (our
translation)
| [76] | The test for
reasonableness, of course, remains objective. But what is reasonable will be
construed in the circumstances in which
the accused in a particular case finds
himself or herself. The courts will therefore take into account the
circumstances in which
the accused acted in determining whether it was
reasonable to believe that the goods were not stolen.
“Reasonableness”
is a legal commonplace in the courts which are
required to apply it daily in determining the standard of care exacted of
persons
in ordinary life. Whether on the facts established an accused had
“reasonable cause” will depend upon the presiding
officer exercising
a sound and fair judgment in regard to a number of factors including —
|
• the nature and value of the goods acquired;
• how they were acquired and the price, if any, that was paid for
them;
• the person from whom they were acquired;
• the manner in which trade in such goods normally occurs;
• the volume in which the goods in question are traded; and
• the social context in which the acquisition
occurs.
| [77] | The question that divides
this Court is whether the test for acquittal should be a reasonable possibility
— as opposed to a
probability — that the accused had reasonable
cause for believing the goods were not stolen. This in our view depends less
on
the elucidation of sophisticated legal formulae than on the practical employment
of good sense in the lower courts, where prosecutions
under section 37 are
generally brought. If an insufficiency of good sense there leads to imprudent
convictions, this is a matter
for correction in the appellate courts, which can
be relied upon to establish sensible guidelines for when it can be concluded
that
accused persons had “reasonable cause” for believing goods they
acquired were not stolen. |
| [78] | A second important
consideration in determining the justifiability of section 37’s
infringement of the presumption of innocence
is the seriousness of the offence
it creates and the accompanying question of sentence. In this regard we differ
from the majority,
whose analysis in our view tends to overstate the seriousness
of the offence. Section 37 does not render a convicted accused guilty
of common
law theft, nor even of common law receiving. That the legislature considered a
contravention of this section as being
less serious than either is spelt out in
the provision itself, which renders an accused
— |
“liable on conviction to the penalties which may be imposed on a
conviction of receiving stolen property knowing it to have
been stolen except
insofar as the imposition of any such penalty may be compulsory.”
(emphasis added)
| [79] | Recognising this, the
courts have already established a realm of negligent as opposed to dishonest
contravention of section 37, and
marked that out as deserving special
consideration in regard to punishment. In S v Ghoor, Holmes JA held that
where an accused subjectively believed that the goods were not stolen, but was
unable to prove that reasonable
grounds existed for this belief, the crime
committed was “not a question of dishonesty, but more a matter of
negligence”.1[7] The prison
sentence imposed by the trial court was set aside on appeal and replaced with a
fine and a suspended term of imprisonment.
The basis upon which an accused is
convicted is thus determinative, as in Ghoor, of the question of
sentence. In the present case, the long prison sentences imposed were the
result of the previous convictions
of the two
accused. |
| [80] | The legal implications of
section 37 are complex. A court is, of course, obliged to explain those
implications fully to an unrepresented
accused and a failure to do so may, as
the High Court held in this case, vitiate a conviction. Section 35(3)(g) of the
Constitution
requires that if substantive injustice would otherwise result, an
accused person is entitled to legal representation at state expense.
It is the
task of the judicial officer presiding at the trial to ensure that this right is
not breached. |
| [81] | All these considerations
lead us to conclude that the risk of unfair convictions under section 37’s
reverse onus should not
be overstated. In this regard, the character and effect
of the onus is somewhat different from an onus on a factual matter
on
which the state may have access to conflicting evidence. In some of
the cases in which this Court has considered the
constitutionality of provisions
imposing an onus upon the accused, the character of the onus has related
directly to factual matters
where it could be expected of the state, if it
wished to secure a conviction, to adduce evidence of its own, and where the
imposition
upon the accused of the burden of proof implausibly and unjustly
stretched the bounds of inference. For example, in
Bhulwana,1[8] once the
accused was shown to have been found in possession of a specified (small)
quantity of marijuana, the accused bore the onus
of establishing that he or she
was not dealing in that substance. The inference was not only lacking in logic,
but the state could,
if it wanted to convict the accused as a dealer, have been
expected to produce evidence of dealing. Similarly, in
Mbatha,1[9] once an accused
was shown to be in the vicinity of firearms, the accused was required to
establish that he or she was not in possession
of the firearms. Again, the
inference of possession was strained, and the state could have been expected to
produce evidence of
possession itself. In these cases, the onus relates to a
factual matter on which the state could be expected to lead evidence
contradicting
the accused’s denial of dealing or possession. In
the present case, not only is the manner in which the accused came into
possession of the stolen goods uniquely within the accused’s
knowledge,
but in the absence of explanation the inference that a culpable connection
exists between the accused and the criminal
conduct that deprived the rightful
owner of the goods will generally follow. It is against this background that
the constitutional
legitimacy of section 37 must be
assessed. |
| [82] | It is important to
appreciate the specific character of the offence section 37 creates. In effect,
the legislature has criminalised
possession of stolen goods where an accused
cannot establish reasonable cause for possessing them. The purpose of the
offence is
clear: it is to regulate the market in stolen goods by imposing
obligations upon members of the public to act diligently by avoiding
participation in that market. The method section 37 uses to achieve this
objective is to oblige someone caught in possession of
stolen goods, acquired
otherwise than at a public sale, upon pain of criminal punishment to advance a
reasonable and probable explanation
for their possession. In doing so, the
state imposes a burden on that person in the sense that a reasonably possible
explanation
— in other words, a reasonable possibility of having
reasonable cause — will not suffice to escape criminal conviction.
The
explanation must also be probable. The statutory offence of which the accused
is convicted is, in effect, that of being unable
so to satisfy a
court. |
| [83] | The infringement of the
presumption of innocence lies in the fact that, once the state has proved
possession of stolen goods acquired
otherwise than at a public sale, the offence
requires the accused to establish probable and reasonable cause, rather than
requiring
the state to prove its absence. But the accused is convicted not of
theft or of knowing receiving but of a lesser offence. It was
not argued, nor
could it have been, that the creation of such an offence gave rise to a conflict
with other provisions of the Bill
of Rights (such as the right to
liberty).2[0] The only issue before
us is whether the form of the offence, to the extent that it contains a reverse
onus provision, is constitutionally
repugnant. In contrast with the reverse
onuses this Court rejected as unconstitutional in Bhulwana and
Mbatha, the special statutory offence created seems to us neither
inherently illogical nor inherently unjust. |
| [84] | At the first step in the
proportionality test we therefore conclude that although section 37 does
infringe the presumption of innocence,
the infringement is materially different
from, and appreciably less invasive than, the infringement caused in many of the
earlier
cases concerning reverse onuses heard by this
Court. |
The Purpose
and Effect of Section 37
| [85] | We turn now to the second
stage of the limitation analysis in which we focus upon the purpose and effect
of section 37 and the existence
of less restrictive
means. |
| [86] | It is important in this
regard to denote precisely the area in which the presumption in section 37
operates to assist the state.
Where an accused is caught in possession of
stolen goods, their mere possession may, by itself, give rise to an inference
that the
accused is criminally connected with the unlawful removal or receipt of
the goods. If the accused is caught soon after the goods
are stolen, common
sense may lead to the conclusion that the only reasonable inference is that he
or she stole them or participated
in their
theft.2[1] If the period between
theft and apprehension is longer, in the absence of a satisfactory explanation
the appropriate inference may
be that the accused is guilty of the common law
offence of receiving stolen property knowing it to be
stolen.2[2] The closer the
proximity in time between theft and possession, the more easily the state will
be able to rely upon an inference
of criminal conduct on the part of the
accused. In all these cases, however, the conviction of theft or criminal
receiving depends
upon the state being able to establish the requisites of the
crime beyond reasonable doubt: an inferential probability does not suffice.
Where the time lapse is so great that an inference of theft or related criminal
conduct or knowing receipt cannot be drawn at all,
the state’s predicament
is great. The accused can in these cases with relative ease advance a
trumped-up story relating to
the acquisition of the goods with little risk that
the state will be able to rebut it to the requisite degree of
proof. |
| [87] | It is for this reason that
the legislature chose to enact section 37, which, as we have sought to show, is
closely tailored to meet
the state’s difficulties without unduly menacing
the public with criminal consequences. Mr D’Oliveira argued on behalf
of
the National Director of Public Prosecutions that the underlying purpose of
section 37 was to eradicate the trade in stolen goods
and to deter people from
being willing to safeguard stolen goods on behalf of thieves or other persons.
If the market for stolen
goods were to be destroyed, and if people were to
refuse to safeguard stolen goods, he argued, the primary crimes of robbery and
theft would significantly be reduced. He relied on the following statement by
Kriegler J in S v Bequinot: |
“The receipt of stolen goods is a vital link in the chain of gainful
disposal of the spoils of criminality. It is, of course,
also a powerful
incentive to such criminality and statutory devices aimed at facilitating the
successful apprehension and prosecution
of receivers of stolen property, such as
s 37 clearly is, cannot lightly be
invalidated.”2[3]
| [88] | We agree with Mr
D’Oliveira that the primary purpose of section 37 is to discourage people
from acquiring goods, otherwise than
at a public sale, without first
ascertaining satisfactorily that the goods have not been stolen. The brute and
obvious corollary
is that if the public undertakes such inquiries as the
provision reasonably seeks to impose, traffic in stolen goods will diminish.
Nor is it by any means fanciful to suppose that if the traffic in stolen goods
is arrested, the instigating sources of that traffic
— including the
violent depredations through armed robbery and hijacking that have become the
bane of too many South Africans’
lives — will also be inhibited.
The importance of the purpose section 37 avows is therefore beyond
dispute. |
| [89] | The means chosen by section
37 is, as explained above, to require accused persons found in possession of
stolen property acquired
otherwise than at a public sale to persuade a court
that at the time they acquired the property they had reasonable grounds for
believing
the goods were not stolen. The effect of the presumption is to
require members of the public to take care when purchasing or acquiring
goods
otherwise than at a public sale to ensure that they take steps that will enable
them to establish that they had reasonable
cause to believe that the goods are
not stolen. This is the very purpose of section 37 and it is precisely what the
section achieves.
It requires all of us not to turn a blind eye to the dubious
origin of goods proffered for sale. Instead we must act diligently
to ensure
that in purchasing or acquiring goods otherwise than at a public sale we are not
contributing to the market for sale of
stolen goods which is a primary cause of
crime nor are we assisting criminals by negligently safeguarding goods that are
the proceeds
of crime. The section was enacted in recognition of the fact that
it is not only the state that must seek to combat crime. All
law-abiding
citizens must take the necessary steps to discourage criminal conduct and to
refrain from implicating themselves in its
ambit. The legislative purpose
underlying section 37 is achieved precisely by imposing a burden of proof upon
the accused. |
| [90] | The majority concludes that
the presumption imposed by section 37 is not justifiable because it captures
within its ambit a wide range
of innocent people as well as a wide range of
stolen goods. All of the people who fall within the terms of the section are
people
who have been proved to have been in possession of stolen goods. The
category of persons targeted by the provision is thus precisely
defined. They
are moreover the people best placed to explain the manner of their acquisition.
There is therefore a close rational
connection between those targeted by the
section and the substance of the reverse onus
provision.2[4] What section 37
requires accused people to establish is that when they took possession of the
goods it was reasonable to believe
the goods were not stolen. In S v
Moller, the Appellate Division held that a porter or cloakroom attendant who
takes possession of goods will, in the absence of special circumstances,
act
reasonably in believing that the goods are not
stolen.2[5] There will be many
other cases where it will be easy to establish that it was reasonable to assume
that the goods were not stolen.
In such cases, the account of the accused
person concerning the circumstances of acquisition of the goods will be
sufficient to
discharge the burden that the statute
imposes. |
| [91] | In any event, there seems
to be no reason why the Legislature should be required to limit the scope of the
provision only to those
persons who obtained the stolen goods for gain. As the
purpose is to reduce the number of property offences, it is necessary to
target
all persons who may take the goods to keep them safe, whether knowingly or
unknowingly, on behalf of the thief or thieves,
and not only those who purchase
the goods subsequently. It is necessary not only to punish the improvident
purchase of stolen goods,
but also those who improvidently safeguard such goods.
We are not persuaded that it is necessarily more culpable for a person to
purchase stolen goods without due circumspection than to take them into
safekeeping without due circumspection. Similarly, it is our view that
the section’s unlimited application to all kinds of stolen goods serves an
important purpose.
If the provision were to have the narrower effect proposed
by the majority it would not achieve the broader purpose sought by the
legislature. In our view that purpose is
legitimate. |
| [92] | The presumption in this
case also requires an accused to give evidence of a matter which it would be
unreasonable to expect the state
to be able to prove. As Mr D’Oliveira
contended, when a person is found in possession of stolen goods the state
usually has
no way of determining how that person came into possession of such
goods. Indeed this is an example of a matter where the state
is generally not
in a position to produce evidence unless the accused speaks. It was in respect
of precisely such circumstances
that Kentridge AJ in S v Zuma reasoned as
follows: |
“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.
”2[6]
| [93] | The effect of requiring the
state to bear the burden may mean that the offence would only be effectively
prosecuted in extremely rare
circumstances, if at all. For that reason, it falls
as well within a class of exception identified by Kentridge AJ in
Zuma: |
“[T]here 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 presumption that a
person who habitually
consorts with prostitutes is living off the proceeds of
prostitution was upheld on that basis in R v Downey . . . by the Supreme
Court of Canada. A similar presumption in a United Kingdom statute was upheld
by the European Court of Human Rights
in X v United
Kingdom”.2[7] (footnote
omitted)
| [94] | The majority considers that
the purpose and effect of section 37 could be achieved by less restrictive means
and proposes accordingly
to cure the provision by reading in words that would
impose an evidential burden upon the accused. It is clear that the question
whether there are less restrictive means to achieve the government’s
purpose is an important part of the limitation analysis.
However, it is as
important to realise that this is only one of the considerations relevant to
that analysis. It cannot be the
only consideration. It will often be possible
for a court to conceive of less restrictive means, as Blackmun J has tellingly
observed: |
“And, for me, ‘least drastic means’ is a slippery slope . . .
A judge would be unimaginative indeed if he could
not come up with something a
little less ‘drastic’ or a little less ‘restrictive’ in
almost any situation,
and thereby enable himself to vote to strike legislation
down.”2[8]
| [95] | The problem for the Court
is to give meaning and effect to the factor of less restrictive means without
unduly narrowing the range
of policy choices available to the Legislature in a
specific area. The Legislature when it chooses a particular provision does so
not only with regard to constitutional rights, but also in the light of concerns
relating to cost, practical implementation, the
prioritisation of certain social
demands and needs and the need to reconcile conflicting interests. The
Constitution entrusts the
task of legislation to the Legislature because it is
the appropriate institution to make these difficult policy choices. When a
court seeks to attribute weight to the factor of “less restrictive
means” it should take care to avoid a result that
annihilates the range of
choice available to the Legislature. In particular, it should take care not to
dictate to the Legislature
unless it is satisfied that the mechanism chosen by
the Legislature is incompatible with the
Constitution. |
| [96] | In our view, the question
whether the purpose of a specific legislative provision can be achieved through
less restrictive means requires
a careful analysis of the purpose of the
provision. As we have reasoned above, section 37 seeks to weaken the market for
stolen
goods by imposing an obligation upon members of the public. In effect,
it requires them to be sure when they acquire goods in the
circumstances broadly
defined in section 37(2) that the provenance of the goods is sound; and it
achieves this goal by the threat
of criminal conviction and punishment in the
absence of reasonable and probable cause to that effect. To the extent that
section
37 imposes this obligation upon the public, it deters improvident
acquisition of goods other than at a public sale by compelling
members of the
public to satisfy themselves in a manner that they consider will subsequently
satisfy a court that it is reasonable
to believe that the goods are not stolen.
The reverse onus imposed by section 37 seeks to compel members of the public not
to turn
a blind eye to the possibility that goods they acquire may be stolen.
In effect, section 37 imposes an obligation of due diligence
upon all members of
our community to take care to avoid participating in a market for stolen
goods.2[9] |
| [97] | The majority proposes that
an evidential burden would be less invasive of the accused person’s rights
while still achieving
the purpose of section 37. We cannot agree that it will
still fully achieve that purpose. Requiring the accused to bear only the
evidential burden would have the effect of requiring the accused merely to raise
a reasonable doubt as to whether there were reasonable
grounds for believing the
goods were not stolen. Unlike the reverse onus, this does not require the
accused to establish that there
were such reasonable grounds. In our view, this
expedient is not a fully adequate alternative to the reverse onus for it falls
short
of achieving the important legislative purpose. That purpose seeks to
impose an obligation upon members of the public, where stolen
goods are acquired
otherwise than at a public sale, to produce probable proof to escape criminal
conviction. If the public realise
that they bear this obligation, it is not
unrealistic to expect that the traffic in stolen goods can be diminished. A
requirement
that mere reasonable doubt suffices constitutes a far weaker message
to the public. An evidential burden, therefore, diminishes
the obligation upon
members of the public to act vigilantly to avoid furthering traffic in stolen
goods, and thus thwarts the legitimate
purpose of section
37.3[0] |
| [98] | Where an accused has to
prove on a balance of probabilities that it was reasonable to assume that the
goods were not stolen, and not
merely raise a reasonable doubt in that regard,
there will be occasions where an accused may have to produce documentary or
other
real evidence to meet that burden. An accused found in possession of a
stolen motor vehicle may have to do more than state when
and where he or she
purchased the vehicle. For example, it may be necessary to disclose the
documentation for re-registration of
the vehicle. In many situations,
therefore, the presumption section 37 creates will require people to take steps
to show that the
belief they held was reasonable. This seems to be an entirely
legitimate state objective, pursued by reasonable
means. |
Proportionality analysis
| [99] | If we then weigh the scope
of the infringement of the presumption of innocence against the purpose,
importance and effect of section
37, it is our view that the scale is tilted in
favour of the constitutionality of section 37. The need to discourage
improvident
acquisition of stolen goods by imposing an obligation upon members
of the public to take diligent care when acquiring goods and to
satisfy
themselves that reasonable grounds for believing that the goods are not stolen
can later be shown, is of cardinal importance
in a society like ours, racked as
it is by high levels of property-related crime often accompanied by horrifying
violence. We acknowledge
that section 37 does infringe the presumption of
innocence and does impose an obligation upon an accused to establish that he or
she had reasonable grounds for believing goods not to be stolen. There can be
no doubt that, as a general rule, it is inappropriate
for an obligation to be
placed upon an accused to establish innocence. However, it is our view that a
limitation on the presumption
of innocence that results in a duty of vigilance,
coupled with an obligation to persuade a court that in acquiring goods one has
acted responsibly, in order to achieve the overall purpose of smothering the
market in stolen goods, is justifiable. |
| [100] | In a society beset by
robbery and theft, in which there is an active market for stolen goods, it is
not unjustifiable for the legislature
to say to citizens: take care not to
encourage this market in stolen goods since it is the very existence of this
market that gives
rise to crime — if you are found in possession of stolen
goods obtained otherwise than at a public sale, you will be guilty
of a
statutory offence unless you can show that you had reasonable grounds to believe
at the time you obtained the goods that they
were not stolen. Such an
exhortation recognises that the protection of individual rights depends not only
on the actions of the
state, but on the actions of fellow citizens. The conduct
of each individual can and will contribute to a climate in which the rights
of
others are respected. Our society asserts individual moral agency and it does
not flinch from recognising the responsibilities
that flow from it. It is upon
this principle that democracy and respect for human rights are built. As
Honoré has recently
observed: |
“[W]e do well, indeed we are impelled . . . to treat ourselves and others
as responsible agents. But the argument for welcoming
this conclusion is not
that our behaviour is uncaused — something that we cannot know and which,
if true, would be a surprise
— but that to treat people as responsible
promotes individual and social well-being. It does this in two ways. It helps
to
preserve social order by encouraging good and discouraging bad behaviour. At
the same time, it makes possible a sense of personal
character and identity that
is valuable for its own
sake.”3[1]
The
employment of a criminal sanction as an adjunct to the assertion of these values
as in this case is not in our view constitutionally
illegitimate.
| [101] | As stated above, the
purpose of the presumption of innocence is to minimise the risk of the
conviction of persons who are not guilty.
Section 37 does mean that in some
cases members of our society who obtained stolen goods believing that they were
of pure provenance,
but could not establish that this was reasonable, will be
convicted of a statutory offence. But after careful analysis of section
37 and
its purpose, we are not persuaded that the risk of error it introduces is
inappropriate in the light of the purpose it serves.
Given the flexible mould
of reasonableness in which the offence is cast, the experience which our courts
have in applying the concept
of reasonableness, the diminished opprobrium that a
conviction of the statutory offence as opposed to the common law crimes of theft
and receiving attracts and the concomitantly lessened penalties, we consider
that the means employed, of reversing the onus, is legislatively
well warranted.
|
| [102] | For these reasons, we
conclude that section 37 is not unconstitutional and we would decline therefore
to confirm the order of the
High Court. |
For the
appellants : W Trengove SC and G Hulley instructed by the Legal Resources
Centre.
For the state : JA van S d’Oliveira SC, P Louw and E Matzke
instructed by the State Attorney, Pretoria.
For the intervening party : EM Patel SC and P Dhlamini instructed by the
State Attorney, Johannesburg.
[1] Section 172(2)(a)
provides:
“The Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act of
Parliament, a provincial Act or any conduct of the President, but an order of
constitutional invalidity has no force
unless it is confirmed by the
Constitutional Court.”
[2] Act 62 of 1955.
[3] This judgment is reported as S
v Manamela and another 1999 (9) BCLR 994 (W).
[4] Compare sections 260(f) and 264 of
the Criminal Procedure Act 51 of 1977.
[5] Act 57 of 1959.
[6] S v Dlamini; S v Dladla and
others; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (4) SA 623 (CC), 1999 (7) BCLR 771
(CC) at para 27 (footnote omitted).
[7] [1996] ZACC 1; 1996 (2) SA 464 (CC), 1996 (3)
BCLR 293 (CC) at para 30.
[8] 1999 (9) BCLR 987 (N).
[9] The Constitution of the Republic
of South Africa, Act 200 of 1993.
[10] S v Hoosen above n 8 at
992E-F.
[11] See section 101(6) of the
interim Constitution.
[12] See Stock Theft Act 57 of 1959;
Stock Theft Act 26 of 1923; Ordinance 6 of 1904 - Transvaal; Ordinance 52 of
1903 - Orange River
Colony; Cattle Stealing Act 1 of 1899 - Natal; Theft of
Stock and Produce Act 35 of 1893 - Cape of Good Hope.
[13] Proclamation 141 BB, 15 March
1872 - British Bechuanaland.
[14] Someone who acquires or
receives stolen property, knowing it to be stolen, is guilty of the common law
offence of receiving. To
secure a conviction, the prosecution has to prove,
amongst other things, that the property in question had been stolen and that the
accused knew, at the time of taking receipt of the property, that it had been
stolen (Milton South African Criminal Law and Procedure 3 ed vol II
Common-Law Crimes (Juta, Cape Town 1996) at 664-6; Snyman
Strafreg 4 ed (Butterworths, Durban 1997) at 525-6).
[15] See S v Osman and another v
Attorney-General, Transvaal 1998 (4) SA 1224 (CC), 1998 (11) BCLR 1362 (CC).
Section 36 of the Act reads:
“Any person who is found in possession of any goods, other than stock or
produce as defined in section one of the Stock Theft
Act, 1959 (Act 57 of 1959),
in regard to which there is a reasonable suspicion that they have been stolen
and is unable to give a
satisfactory account of such possession, shall be guilty
of an offence and liable on conviction to the penalties which may be imposed
on
a conviction of theft.”
[16] In S v Zungu 1972 (3) SA
44 (N) at 50A, Henning J stated:
“I also associate myself with the view . . . that the Legislature seems to
have intended by sec. 37 ‘not to change the
common law on “receiving
possession” but only on mens rea and
onus’.”
[17] S v Moller [1990] ZASCA 62; 1990 (3) SA
876 (A) at 884 I-J; R v Von Elling 1945 AD 234 at 251.
[18] Above n 16 at 49E-H. Approved
in S v Moller above n 17 at 887D. See also S v Moniz 1982 (1) SA
41 (C) at 47G - 48C.
[19] See, for example, S v
Mtolo 1963 (3) SA 676 (T) at 679B-C; S v Nel 1963 (1) SA 383 (T) at
385A-C.
[20] Above n 17 at 887E.
[21] S v Mtolo above n 19 at
679C-D.
[22] Above n 17 at 886F-G.
[23] Some academic commentators have
pointed to a lack of clarity in the case law as to whether an accused person has
to show both that
he or she believed that the goods were not stolen and that
such belief was reasonable, or that the accused merely has to show that
there
were reasonable grounds for believing that the goods were not stolen. They are
inclined, however, to the view that, once an
accused has succeeded in
establishing that there were reasonable grounds for believing that the goods
were not stolen, it will not
be difficult for the same accused to establish his
or her subjective belief in that regard (Hiemstra Suid-Afrikaanse
Strafproses 4ed (Butterworths, Durban 1987) at 824 -5; Snyman
Strafreg 3 ed (Butterworths, Durban 1992) at 527, Milton above n 14 at
677-8). Little turns on this dispute for current purposes.
[24] 1957 (3) SA 291 (N) at 292A-B.
See also S v Mtolo above n 19 at 678A-B.
[25] 1969 (2) SA 555 (A) at 557F:
“En die las het op die appellant gerus om beide van hierdie faktore op
’n oorwig van waarskynlikhede te
bewys.”
[26] Above n 17 at
888A-B:
“Die applikant was dus beswaar met ’n bewyslas om te bewys dat hy
redelike gronde gehad het om ten tyde van verkryging
of ontvangs aan te neem dat
die goed die eiendom was van Heyns (van wie hy gesê het dat hy dit ontvang
het) of dat Heyns gemagtig
was om daaroor te beskik of om dit van die hand te
sit.”
[27] See, for instance, the approach
taken by the Appellate Division in the Moller case above n 17 at
886F-G.
[28] Section 35(3) of the
Constitution. See S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4)
BCLR 401 (SA) at para 33 and S v Baloyi (CC) Case CCT 29/99, 3 December
1999, as yet unreported at para 15.
[29] In contrast with Dlamini
above n 6 and Osman above n 15.
[30] See Zuma above n 28;
S v Bhulwana; S v Gwadiso [1995] ZACC 11; 1996 (1) SA 388 (CC), 1995 (12) BCLR
1579 (CC); Mbatha above n 7; S v Julies [1996] ZACC 14; 1996 (4) SA 313 (CC); 1996
(7) BCLR 899 (CC); Scagell and others v Attorney-General, Western Cape
and others [1996] ZACC 18; 1997 (2) SA 368 (CC), 1996 (11) BCLR 1446 (CC); S v Ntsele
[1997] ZACC 14; 1997 (2) SACR 740 (CC), 1997 (11) BCLR 1543 (CC); S v Mello and another
1998 (3) SA 712 (CC), 1998 (7) BCLR 908 (CC).
[31] See Zuma above n 28 at
para 19; Bhulwana above n 30; Julies above n 30; Mbatha
above n 7.
[32] Compare the decision of the
Supreme Court of Canada in R v Oakes (1986) 26 DLR (4th) 200 at 214 in
which it was held that the presumption of innocence contains three fundamental
components: the
onus of proof lies with the prosecution; the standard of proof
is beyond a reasonable doubt; and the method of proof must accord
with
fairness.
[33] S v Ghoor above n 25 at
557; S v Hoosen above n 8; S v Kaplin and others 1964 (4) SA 355
(T) 357-8.
[34] See Mello above n 30;
S v Coetzee and others [1997] ZACC 2; 1997 (3) SA 527 (CC), 1997 (4) BCLR 437 (CC);
Ntsele above n 30; Scagell above n 30 ; Julies above n
30; Mbatha above n 7; Bhulwana above n 30 at para 16; Zuma
above n 28.
[35] See also Paizes “A closer
look at the presumption of innocence in our Constitution: what is an accused
presumed innocent of ?” (1998) 11 SA Journal of Criminal
Justice 409; “Chasing shadows: exploring the meaning, function and
incidence of the onus of proof in the South African law” (1999)
116 SA
Law Journal 531.
[36] Zuma above n 28 at paras
19 and 41; see also S v Meaker 1998 (2) SACR 73 (W), 1998 (8) BCLR 1038
(W). As was stated by the European Court of Human Rights in Salabiaku v
France [1988] ECHR 19; 13 EHRR 379 at 388: “Presumptions of fact or of law operate in
every legal system. Clearly, the Convention does not prohibit such presumptions
in principle. It does, however, require the Contracting States to remain within
certain limits in this respect as regards criminal
law.”
[37] In Zuma above n 28 at
para 41, Kentridge AJ emphasised that the effect of his judgment was not to
invalidate every legal presumption reversing
the onus of proof, since 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.”
This statement was cited in Mbatha above n 7 at para 15 and
Coetzee above n 34 at para 13. In Coetzee, Langa J noted at para
13 that,
“[t]here is no doubt a pressing social need for the effective prosecution
of crime. Kentridge AJ, speaking for the Court in
Zuma, noted that
reasonable presumptions may be required by the prosecution, in relation to
certain categories of offences, to assist
in this task.” (Footnote
omitted)
[38] The approach developed in the
concurring judgment of Harlan J in In re Winship [1970] USSC 77; 397 US 358 (1970) is
instructive. He noted that the standard of proof in judicial proceedings
represented an attempt to instruct the fact-finder
concerning the degree of
confidence society thought should be had in the correctness of the factual
conclusions for a particular
type of adjudication. In criminal cases, the
social disutility of convicting an innocent person was not viewed as equivalent
to
the disutility of convicting someone who was innocent. He adopted the
following observation by Brennan J in Speiser v Randall [1958] USSC 154; 357 US 513 (1958)
at 525-6:
“There is always in litigation a margin of error, representing error in
factfinding, which both parties must take into account.
Where one party has at
stake an interest of transcending value - as a criminal defendant his liberty -
this margin of error is reduced
as to him by the process of placing on the other
party the burden of producing a sufficiency of proof in the first instance, and
of persuading the factfinder at the conclusion of the trial of his guilt beyond
a reasonable doubt.”
Although Winship dealt with the question whether guilt at juvenile
delinquency proceedings should be proved beyond a reasonable doubt or merely on
a balance of probabilities, the balancing approach adopted by Harlan J is
helpful in applying limitations analysis to a reverse onus.
The issue is
essentially the same: the degree of risk of erroneous conviction considered to
be acceptable in an open and democratic
society, bearing in mind all the
circumstances.
[39] See the foreign cases referred
to by Kentridge AJ in Coetzee above n 34 at para 96.
[40] Coetzee above n 34 at
para 217-8.
[41] For example, the provisions of
section 237 of the Criminal Procedure Act with regard to evidence on a charge of
bigamy.
[42] In Meaker above n 36 at
1057J, Cameron J concluded that section 130(1) of the Road Traffic Act, 29 of
1989, which provided:
“Where in any prosecution under the common law relating to the driving of
a vehicle on a public road, or under this Act, it
is material to prove who was
the driver of a vehicle, it shall be presumed, until the contrary is proved,
that such vehicle was driven
by the owner thereof”,
was not unconstitutional, since the presumption created by the section was
“ . . . an eminently reasonable device, which accords with practical
common sense and in its application produces equitable
results.”
[43] S v Mahlinza 1967 (1) SA
408 (A) at 419; S v Trickett 1973 (3) SA 526 (T) at 532. For a critical
view see Paizes above n 35 SA Journal of Criminal Justice at 412 at
footnote 3. In Canadian law, a provision of the Criminal Code which enacted a
presumption of sanity and required insanity
to be proved by the accused was held
to infringe section 11(d) of the Charter, but was upheld under the limitation
inquiry in section
1; R v Chaulk (1990) 1 CRR (2d) 1, followed in R v
Ratti (1991) 1 SCR 68 and R v Romeo (1991) 1 SCR 86. In R v
Chaulk, Lamer CJC noted that an accommodation of three important societal
interests was involved: avoiding a virtually impossible burden
on the Crown;
convicting the guilty; and acquitting those who truly lacked the capacity for
criminal intent.
[44] S v Makwanyane and
another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 104.
[45] Id.
[46] See Dlamini above n 6 at
para 68.
[47] See Mistry v Interim Medical
and Dental Council of South Africa and Others [1998] ZACC 10; 1998 (4) SA 1127 (CC); 1998
(7) BCLR 880 (CC) at para 30.
[48] Osman above n 15 at para
17.
[49] Id.
[50] See S v Bequinot [1996] ZACC 21; 1997
(2) SA 887 (CC), 1996 (12) BCLR 1588 (CC) at para
12:
“The receipt of stolen goods is a vital link in the chain of gainful
disposal of the spoils of criminality. It is, of course,
also a powerful
incentive to such criminality and statutory devices aimed at facilitating the
successful apprehension and prosecution
of receivers of stolen property, such as
section 37 clearly is, cannot lightly be invalidated”.
[51] Above n 6 at para 68.
[52] Coetzee above n 34 at
para 220.
[53] Mbatha above n 7 at para
19.
[54] Mello above n 30 at para
9; Ntsele above n 30 at para 4; Mbatha above n 7 at para 19;
Bhulwana above n 30 at para 18.
[55] See discussion above at para
17.
[56] See National Coalition for
Gay and Lesbian Equality and others v Minister of Home Affairs and others
[1999] ZACC 17; 2000 (1) BCLR 39 (CC) at para 75.
[57] Above n 30.
[58] Above n 56.
[59] Section 35 (2)
states,
“No law which limits any of the rights entrenched in this Chapter, shall
be constitutionally invalid solely by reason of the
fact that the wording used
prima facie exceeds the limits imposed in this Chapter, provided such a
law is reasonably capable of a more restricted interpretation which does
not
exceed such limits, in which event such law shall be construed as having a
meaning in accordance with the said more restricted
interpretation.”
[60] Section 232(3)
states,
“No law shall be constitutionally invalid solely by reason of the fact
that the wording used is prima facie capable of an interpretation which
is inconsistent with a provision of this Constitution, provided such a law is
reasonably capable
of a more restricted interpretation which is not inconsistent
with any such provision, in which event such law shall be construed
as having a
meaning in accordance with the said more restricted
interpretation.”
[61] Section 98
states,
“(5) In the event of the Constitutional Court finding that any law or any
provision thereof is inconsistent with this Constitution,
it shall declare such
law or provision invalid to the extent of its inconsistency: Provided that the
Constitutional Court may, in
the interests of justice and good government,
require Parliament or any other competent authority, within a period specified
by the
Court, to correct the defect in the law or provision, which shall then
remain in force pending correction or the expiry of the period
so
specified.”
(6) Unless the Constitutional Court in the interests of justice and good
government orders otherwise, and save to the extent that
it so orders, the
declaration of invalidity of a law or a provision
thereof—
(a) existing at the commencement of this Constitution, shall not invalidate
anything done or permitted in terms thereof before the
coming into effect of
such declaration of invalidity; or
(b) passed after such commencement, shall invalidate everything done or
permitted in terms thereof.
(7) In the event of the Constitutional Court declaring an executive or
administrative act or conduct or threatened executive or administrative
act or
conduct of an organ of state to be unconstitutional, it may order the relevant
organ of state to refrain from such act or
conduct, or, subject to such
conditions and within such time as may be specified by it, to correct such act
or conduct in accordance
with this
Constitution.
[62] Above n 30 at paras 26 -
28.
[63] Above n 30.
[64] Above n 56.
[65] Id at para 65.
[66] Id at para 70.
[1] Section 3 of the Stock Theft
Act, 57 of 1959, contains a similar provision to section 37 but relates only to
possession of stolen
stock or produce. Section 37, read with that section,
makes it clear that possession of stock or produce is governed by the provisions
of the Stock Theft Act and not by section 37.
[2] See S v Moller [1990] ZASCA 62; 1990 (3)
SA 876 (A) at 888 A - B; S v Ghoor 1969 (2) SA 555 (A) at 557.
[3] See S v Zuma and Others
[1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) at para 33; S v Bhulwana; S v
Gwadiso [1995] ZACC 11; 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC) at para 15; S v
Mbatha; S v Prinsloo [1996] ZACC 1; 1996 (2) SA 464 (CC); 1996 (3) BCLR 293 (CC) at paras 9
- 12; S v Julies [1996] ZACC 14; 1996 (4) SA 313 (CC); 1996 (7) BCLR 899 (CC) at para 3;
Scagell and Others v Attorney-General, Western Cape, and Others [1996] ZACC 18; 1997 (2)
SA 368 (CC); 1996 (11) BCLR 1446 (CC) at para 7; S v Coetzee and Others
[1997] ZACC 2; 1997 (3) SA 527 (CC); 1997 (4) BCLR 437 (CC) at para 8; S v Ntsele [1997] ZACC 14; 1997
(2) SACR 740 (CC); 1997 (11) BCLR 1543 (CC) at para 3; S v Mello and
Another [1998] ZACC 7; 1998 (3) SA 712 (CC); 1998 (7) BCLR 908 (CC) at paras 4 - 6; S v
Manyonyo 1999 (12) BCLR 1438 (CC) at para 11.
[4] [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6)
BCLR 665 (CC) at para 104.
[5] 1999 (1) SA 6 (CC); 1998 (12)
BCLR 1517 (CC) at paras 33 - 5.
[6] S v Zuma above n 3 at
para 33; S v Bhulwana; S v Gwadiso above n 3 at paras 10, 15 - 6.
[7] See for example, In re
Winship [1970] USSC 77; 397 US 358 (1970) at 363 - 4.
[8] In this regard, it is of
significance that the Canadian Supreme Court has on several occasions held
reverse onuses to be justified
limitations of the presumption of innocence. See
for example, R v Whyte [1989] 51 DLR (4th) 481; R v
Chaulk [1991] 1 CRR (2d) 1; R v Wholesale Travel Group Inc [1992] 84
DLR (4th) 161; and R v Downey [1992] 90 DLR (4th)
449.
[9] See for example, S v
Bhulwana; S v Gwadiso above n 3 at para 18.
1[0] S v Ghoor above n 2 at
557, citing with approval Trollip J in S v Kaplin and Others 1964 (4) SA
355 (T) at 358.
[1]1 See for example, Demmers v
Wyllie and Others 1978 (4) SA 619 (D) at 629 per Didcott J; S v Robson; S
v Hattingh 1991 (3) SA 322 (W) per Kriegler J at 333; S v Ngema 1992
(2) SACR 651 (D) per Hugo J at 655 - 7.
1[2] See for example, De Wet and
Swanepoel Strafreg 4 ed (Butterworth, Durban 1985) at 156 - 63. Others
have noted the difficulties but have not suggested an abandonment of the
objective
test. See Snyman Criminal Law 2 ed (Butterworths, Durban 1989)
at 230 - 5; Milton South African Criminal Law and Procedure Vol II 3 ed
(Juta, Cape Town 1996) at 385 - 90.
1[3] For a philosophical
justification of the legal requirement of objectively reasonable conduct,
tempered by the particular circumstances
in which the accused found himself or
herself, see Honoré Responsibility and Fault (Hart, Oxford -
Portland 1999) at 34 - 7 and 122.
1[4] 1933 AD 269 at 272.
1[5] See for example, S v
Mini 1963 (3) SA 188 (A) at 196 G - H; S v Bernardus 1965 (3) SA 287
(A) at 300 E - F; S v Burger 1975 (4) SA 877 (A) at 879 D; S v Bochris
Investments (Pty) Ltd and Another 1988 (1) SA 861 (A) at 865 G - I.
1[6] 1976 (2) SA 921 (A) at 928 C -
E.
1[7] Above n 2 at 559 C. (our
translation)
1[8] Above n 3.
1[9] Above n 3.
2[0] Compare the discussion in
Coetzee above n 3 at paras 86 and 93 per Kentridge AJ and paras 159 - 60 per
O’Regan J.
2[1] S v Parrow 1973 (1) SA
603 (A) at 604 B - F; S v Skweyiya [1984] ZASCA 96; 1984 (4) SA 712 (A) at 715 -
6.
[2]2 As the court inferred in S v
Skweyiya above n 21.
2[3] [1996] ZACC 21; 1997 (2) SA 887 (CC); 1996 (12)
BCLR 1588 (CC) at para 12.
2[4] See S v Meaker 1998 (2)
SACR 73 (W); 1998 (8) BCLR 1038 (W). This was manifestly not the case in many
of the earlier cases concerning reverse onuses considered by this Court. See
for
example, S v Bhulwana; S v Gwadiso above n 3 at para 23; S v
Mbatha; S v Prinsloo above n 3 at para 22.
2[5] Above n 2 at 886 F - G.
2[6] Above n 3 at para 41.
2[7] Id.
2[8] Illinois State Board of
Elections v Socialist Workers Party et al [1979] USSC 27; 440 US 173 (1979) at 188 - 9.
2[9] See S v Coetzee above n
3 at para 195.
3[0] Id. See also R v Wholesale
Travel Group Inc above n 8 at 234 - 5 per Iacobucci J.
3[1] Honoré above n 13 at
125.
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