About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
1995
>>
[1995] ZACC 1
|

|

Zuma and Others v S (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995)

Links to summary

IN
THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO : CCT/5/94
In the matter of :
ZUMA
AND TWO
OTHERS
Applicants
and
THE
STATE
Respondent
HEARD
ON

23 February 1995
DELIVERED
ON

5 April 1995
JUDGMENT
[1]
KENTRIDGE AJ:
This case arises from a criminal trial
before Hugo J in the Natal Provincial Division.  In this Court
it was heard together
with the case of
Mhlungu and Four Others v
The State
(Case No CCT/25/94) which also arose from a criminal
trial in the Natal Provincial Division.  Each of them has come
to this
Court by way of a referral by the judge presiding over the
trial.  In each case the judge referred to this Court for
decision
the question whether
section 217(1)(b)(ii)
of the
Criminal
Procedure Act No 51 of 1977
is inconsistent with the provisions of
the Republic of South Africa Constitution, 1993.  If we so find
it will be our duty
under section 98(5) of the Constitution to
declare the provision invalid.  In the
Mhlungu
case the
judge also referred to us the question whether, having regard to
section 241(8) of the Constitution, the provisions of
Chapter 3 of
the Constitution apply to the proceedings before him.  Section
241(8) raises important issues which do not directly
touch the
Zuma
case.  Consequently, we propose to give judgment at this stage
only in the
Zuma
case, and to deal with the
Mhlungu
case in due course in a separate judgment.
[2]
In this case (as in the
Mhlungu
case) this Court itself has
raised the issue whether the referral was competent. It is necessary
to set out in some detail the
circumstances of the criminal trial
which led to the referral to this Court.  Before doing so,
however, I must outline the
history and effect of the challenged
sub-paragraph of
section 217
of the
Criminal Procedure Act.
[3
]
The section deals with the admissibility in evidence of a confession
made by an accused person before
trial.  Sub-section (1) and
proviso (a) thereto read as follows -
"(1)
Evidence of any confession made by any person in relation to the
commission of any offence shall,
if such confession is proved to have
been freely and voluntarily made by such person in his sound and
sober senses and without
having been unduly influenced thereto, be
admissible in evidence against such person at criminal proceedings
relating to such offence
:
Provided -
(a)
that a confession made to a peace officer, other than a magistrate or
justice, or, in the case
of a peace officer referred to in
section
334
, a confession made to such peace officer which relates to an
offence with reference to which such peace officer is authorized to

exercise any power conferred upon him under that section, shall not
be admissible in evidence unless confirmed and reduced to writing
in
the presence of a magistrate or justice;..."
It will be seen that this
sub-section requires the prosecution, if it wishes to put the
confession in evidence, to prove that it
was freely and voluntarily
made, and was not unduly influenced.  This means, at the least,
proof that it was not induced by
violence, or by threats or promises
made by a person in authority.
R v Barlin
1926 AD 459
,
462;
R v Nhleko
1960(4) SA 712(A);
S v Mpetha and
others (2)
1983(1) SA 576(C).  This rule, which reflects a
long-standing principle of the English law of criminal procedure and
evidence,
was embodied in the Evidence Ordinance of the Cape Colony
in 1830.  The rationale of the rule excluding involuntary
confessions
(or admissions) has been much discussed. See Hoffmann and
Zeffertt,
South African Law of Evidence
, 4
th
ed. pp
205, 216-7 ;
Cross on Evidence
, 6
th
ed pp
601-3.   I shall return in due course to the historical
development of the rule.  At this stage it is sufficient
to say
that before the Union of the four provinces in 1910 it was well
established in all parts of South Africa that it was for
the
prosecution to prove that any confession on which it wished to rely
was freely and voluntarily made.
[4]
Proviso (a), on the other hand, has no counterpart in English law.
It was introduced into
South African law by the Criminal Procedure
and Evidence Act, 1917.  Its general effect is that confessions
made to members
of the police force who are not justices of the peace
are inadmissible.  An accused person who has confessed, or
expressed
a wish to confess, to a police officer who is not a justice
of the peace should be taken to a magistrate or justice of the peace

who may take down the confession in writing.  Even where the
police officer is a justice of the peace the accused person may
be
taken to a magistrate who may take down the confession in writing.
The magistrate ought, of course, to be satisfied that
the confession
is freely and voluntarily made, and should record that fact in the
document containing the confession.  It
is at that stage that
proviso (b) to section 217(1) becomes relevant.  That proviso
reads -
"Provided-
...
"(b)
that where the confession is made to a magistrate and reduced to
writing by him, or is confirmed
and reduced to writing in the
presence of a magistrate, the confession shall, upon the mere
production thereof at the proceedings
in question-
(i)
be admissible in evidence against such person if it appears from the
document in which the
confession is contained that the confession was
made by a person whose name corresponds to that of such person and,
in the case
of a confession made to a magistrate or confirmed in the
presence of a magistrate through an interpreter, if a certificate by
the
interpreter appears on such document to the effect that he
interpreted truly and correctly and to the best of his ability with
regard to the contents of the confession and any question put to such
person by the magistrate;  and
(ii)
be presumed, unless the contrary is proved, to have been freely and
voluntarily made by such
person in his sound and sober senses and
without having been unduly influenced thereto, if it appears from the
document in which
the confession is contained that the confession was
made freely and voluntarily by such person in his sound and sober
senses and
without having been unduly influenced thereto.
It is sub-paragraph (ii)
of this proviso that is under attack in the present case.  It
was introduced into the criminal procedure
code in 1977.  In the
circumstances set out in the sub-paragraph it places on the accused
the burden of proving that the confession
recorded by the magistrate
was
not
free and voluntary.  The words "unless the
contrary is proved" place an onus on the accused which must be
discharged
on a balance of probabilities. He does not discharge the
onus merely by raising a doubt.  If, at the end of the
voir
dire
(or trial-within-a-trial) the probabilities are evenly
balanced the presumption prevails.  See
Ex parte Minister of
Justice:  in re R v Bolon
1941 AD 345
, 360-1;
S v
Nene and Others
(2) 1979(2) SA 521(D);
S v Mkanzi and
Another
1979(2) SA 757(T);
S v Mphahlele and Another
1982(4) SA 505(A) 512.
[5]
I add, by way of completeness, that sub-section (2) of section 217
provides that the prosecution
may lead evidence in rebuttal of
evidence advanced by an accused in rebuttal of the presumption under
proviso (b).
[6]
In the case before us the prosecution tendered confessions which had
been made by two of the accused
before a magistrate and reduced to
writing, and invoked the presumption in proviso (b).
[7]
The accused were indicted on two counts of murder and one of
robbery.  At their trial before
Hugo J and assessors they
pleaded not guilty.  Two of the accused had made statements
before a magistrate which counsel for
the state tendered as
admissible confessions. Admissibility was contested by counsel for
the accused and a trial-within-a-trial
ensued.  At the outset
defence counsel raised the issue of the constitutionality of
section
217(1)(b)(ii)
of the
Criminal Procedure Act, and
counsel for both the
defence and the prosecution consented (in terms of section 101(6) of
the Constitution) to the trial judge's
deciding that issue.  The
trial-within-a-trial nonetheless proceeded.  The accused
testified that they had made their
statements by reason of assaults
on them by the police and the threat of further assaults.  The
policemen concerned denied
this, but two women called as witnesses by
the defence said that they had seen the police assaulting the
accused.  At the
end of the evidence the court concluded
unanimously that while they were not satisfied beyond a reasonable
doubt that the statements
had been freely and voluntarily made, the
accused had failed to discharge the onus upon them under proviso (b)
on a balance of
probabilities.  In his judgment, given on 10
th
August, 1994 and reported as
S v Zuma and Others
1995(1) BCLR
49 (N), Hugo J said –
"Had we been
convinced that
section 217(1)(b)
of the
Criminal Procedure Act was
still valid and constitutional we would therefore have had little
hesitation in accepting that the accused had not discharged the
onus
placed upon them by that section.  The constitutionality
therefore of
section 217(1)(b)
of the
Criminal Procedure Act is
therefore crucial to the decision of this case."
Later in his judgment he
said -
"It is quite clear
from what I have said that the site of the
onus
will be
decisive in this case, at least in so far as the admissibility of
this evidence is concerned.  If it is held by the
constitutional
court that
section 217(1)(b)(ii)
is unconstitutional it will lead to
the most unfortunate result that two persons who have in effect
admitted under oath in this
Court that they indeed committed these
offences may be acquitted but that may well be the effect of the
constitution or the provisions
of the constitution upon matters of
this nature.  It is also the effect of the hearing of matters of
this nature in a separate
trial-within-a-trial, the evidence of which
is not admissible in deciding the merits of the conviction."
The reference to the
admissions of the two accused that they had committed the offences
arose from the evidence which they had given
in the course of the
trial-within-a-trial.  As Hugo J fully appreciated, that
evidence was given only in the context of the
trial-within-a-trial,
where the only issue was admissibility.  To that issue the truth
of the confession was irrelevant.
Thus, in
S v Radebe and
Another
, 1968(4) SA 410(A) 419 Ogilvie Thompson J A said-
"It not infrequently
occurs that, although the presiding Judge may think that the contents
of a tendered confession are true,
the circumstances whereunder the
confession was made compel its exclusion".
See also
S v Gaba
1985(4) SA 734(A) 749;
S v Talane
1986(3) SA 196(A)
205;
S v de Vries
1989(1) SA 228(A), 233-4.
[8]
In the event, notwithstanding the consent given by the parties under
section 101(6)
Hugo J refrained from giving a decision on the
validity of the proviso, but referred the question to this court, and
adjourned
the trial
sine die.
[9]
The question of the competence of Hugo J's referral arises, and has
been argued before us by counsel
for the accused and for the State.
In addition we have received a Notice of Motion under the hand of Mr.
T P McNally SC,
Attorney-General for Natal, seeking direct access to
the Court in terms of section 100(2) of the Constitution on the
grounds that
it is in the interests of justice that a binding
decision be given as soon as possible on the validity of section
217(1)(b)(ii).
[10]    By
reason of the consent of the parties under section 101(6) the issue
of the constitutionality  of
section 217(1)(b)(ii)
of the
Criminal Procedure Act no longer
remained within the exclusive
jurisdiction of this Court, and fell within the jurisdiction of Hugo
J.  For reasons which will
be given in detail in the
Mhlungu
case the referral by Hugo J was wholly incompetent.  That was
indeed the submission of the State in its written argument,
and the
point was rightly conceded by counsel for the accused.  Even if
a rapid resort to this Court were convenient that
would not relieve
the judge from making his own decision on a constitutional issue
within his jurisdiction.  The jurisdiction
conferred on judges
of the Provincial and Local Divisions of the Supreme Court under
section 101(3)
is not an optional jurisdiction.  The
jurisdiction was conferred in order to be exercised. It was in these
circumstances that
the Attorney-General of Natal applied under
section 100(2) of the Constitution for direct access to the Court.
Section 100(2)
reads -
"(2)
The rules of the Constitutional Court may make provision for direct
access to the Court where
it is in the interest of justice to do so
in respect of any matter over which it has jurisdiction."
Rule 17, subrules (1) and
(2) of the Rules of this Court provide-
(1)
The Court shall allow direct access in terms
of section 100(2) of the Constitution in exceptional circumstances

only, which will ordinarily exist only where the matter is of such
urgency, or otherwise of such public importance, that the delay

necessitated by the use of the ordinary procedures would prejudice
the public interest or prejudice the ends of justice and good

government.
(2)
The special procedure referred to in subrule (1) may be sanctioned by
the Court on application
made to it in terms of these rules.
[11]
The Attorney-General of Natal submits in his supporting affidavit
that if the matter is sent back to the
trial court without our
deciding the issue it would have to be referred again to this Court
at the end of the trial.  More
important, he informs us that
prevailing uncertainty as to the constitutionality of section
217(1)(b)(ii) has resulted in inconsistency
in practice in Natal and
elsewhere in the Republic.  That uncertainty would remain
unresolved until a suitable case came properly
before this Court.
We agree with the Attorney-General of Natal and with Mr d'Oliviera
SC, the Attorney-General of the Transvaal,
who appeared for the State
that this state of affairs must seriously prejudice the general
administration of justice as well as
the interests of the numerous
accused persons affected.  The admissibility of confessions is a
question which arises daily
in our criminal courts and prolonged
uncertainty would be quite unacceptable.  As appears from the
terms of Rule 17, direct
access is contemplated in only the most
exceptional cases, and it is certainly not intended to be used to
legitimate an incompetent
reference.  But in the special
circumstances set out in the affidavit the application under rule 17
was fully justified.
Mr. McNally's application is accordingly
granted, so that the question of the validity of section
217(1)(b)(ii) is properly before
this Court.
[12]
Counsel for the accused has attacked section 217(1)(b)(ii) as being
in conflict with section 25 of the Constitution.
The particular
provisions of section 25  relied on individually or cumulatively
are the following -
"25 (2)
Every person arrested for the alleged commission of an offence
shall
... have the right -
(a)
promptly to be informed, in a language which he or she

understands, that he or she has the right to remain silent and to be
warned of the consequences of making any statement;
...
(c)
not to be compelled to make a confession or admission which could be
used in evidence against
him or her ; and
...
(3)
Every accused person shall have the right to a fair trial,
which
shall include the right -
...
(c)
to be presumed innocent and to remain silent during plea proceedings
or trial and not to testify
during trial ;
(d)
to adduce and challenge evidence, and not to be a compellable witness
against himself or herself;
The concepts embodied in
these provisions are by no means an entirely new departure in South
African criminal procedure.  The
presumption of innocence, the
right of silence and the proscription of compelled confessions have
for 150 years or more been recognised
as basic principles of our law,
although all of them have to a greater or lesser degree been eroded
by statute and in some cases
by judicial decision.  The
resulting body of common law and statute law forms part of the
background to section 25.
The provisions of section 25 are more
specific than many of the other provisions of Chapter 3.  They
do nonetheless give rise
to problems of interpretation.
[13]
The principles upon which a constitutional bill of fundamental rights
should be interpreted have been the
subject of numerous judicial
dicta
, in jurisdictions abroad and in Southern Africa.
Many of these principles have been re-stated and applied in the
judgments
of Provincial and Local Divisions interpreting our own
Constitution, and in judgments of other Southern African courts.
The
judgment of Friedman J in
Nyamakazi v President of
Bophututswana
, 1994(1) BCLR 92(B) is a veritable thesaurus of
international authority.
Khala v The Minister of Safety &
Security
1994(2) BCLR 89(W), 92-4;
1994 (4) SA 218(W)
, 222-4 per
Myburgh J also contains a useful collection of citations.  It is
not necessary to traverse all the relevant dicta
but some of them
bear repeating.
[14]
The first of these is the much-quoted passage from the judgment of
Lord Wilberforce in the Privy Council
in
Minister of Home Affairs
(Bermuda) v Fisher
[1980] AC 319
(PC), 328-9.  After
referring to the influence of certain international conventions on
the constitutions of former colonies
of the British Commonwealth, he
said that these called for
"a generous
interpretation ... suitable to give to individuals the full measure
of the fundamental rights and freedoms referred
to,"
and that the constitution
called for "principles of interpretation of its own".
He went on to say -
"This is in no way
to say that there are no rules of law which should apply to the
interpretation of a constitution. A constitution
is a legal
instrument giving rise, amongst other things, to individual rights
capable of enforcement in a court of law.  Respect
must be paid
to the language which has been used and to the traditions and the
usages which have given meaning to that language.
It is quite
consistent with this, and with the recognition that rules of
interpretation may apply, to take as a point of departure
for the
process of interpretation a recognition of the character and origin
of the instrument, and to be guided by the principle
of giving full
recognition and effect to those fundamental rights and freedoms with
a statement of which the constitution commences."
This judgment was cited
with approval by the Appellate Division in
S v Marwane
1982(3)
SA 717(A), 748-9.  See also the judgment of the Full Bench of
the Supreme Court of Namibia in
Minister of Defence, Namibia v
Mwandinghi
1992(2) SA 355 (Nm SC), 362.
[15]    In
R v Big M Drug Mart Ltd
(1985)18 DLR (4
th
)
321,395-6, Dickson J (later Chief Justice of Canada) said, with
reference to the Canadian Charter of Rights -
"The meaning of a
right or freedom guaranteed by the Charter was to be ascertained by
an analysis of the purpose of such a
guarantee ;  it was to be
understood, in other words, in the light of the interests it was
meant to protect.  In my view
this analysis is to be undertaken,
and the purpose of the right or freedom in question is to be sought
by reference to the character
and larger objects of the Charter
itself, to the language chosen to articulate the specific right or
freedom, to the historical
origins of the concept enshrined, and
where applicable, to the meaning and purpose of the other specific
rights and freedoms with
which it is associated within the text of
the Charter.  The interpretation should be .... a generous
rather than legalistic
one, aimed at fulfilling the purpose of a
guarantee and the securing for individuals the full benefit of the
Charter's protection."
Both Lord Wilberforce and
Dickson J emphasised that regard must be paid to the legal history,
traditions and usages of the country
concerned, if the purposes of
its constitution are be fully understood.  This must be right.
I may nonetheless be permitted
to refer to what I said in another
court of another constitution albeit in a dissenting judgment -
"Constitutional
rights conferred without express limitation should not be cut down by
reading implicit restrictions into them,
so as to bring them into
line with the common law.
Attorney-General
v Moagi
1982(2) Botswana LR 124,184
[16]
That
caveat
is of particular importance in interpreting
section 25(3) of the Constitution. The right to a fair trial
conferred by that
provision is broader than the list of
specific rights set out in paragraphs (a) to (j) of the sub-section.
It embraces a
concept of substantive fairness which is not to be
equated with what might have passed muster in our criminal courts
before the
Constitution came into force. In
S v Rudman and
Another; S v Mthwana
1992(1) SA 343(A), the Appellate Division,
while not decrying the importance of fairness in criminal
proceedings, held that the
function of a court of criminal appeal in
South Africa was to enquire
"whether there has
been an irregularity or  illegality, that is a departure from
the formalities, rules and principles
of procedure according to which
our law requires a criminal trial to be initiated or conducted".
A court of appeal, it was
said, (at 377)
"does
not enquire whether the trial was fair in accordance with 'notions of
basic fairness and justice', or with the 'ideas
underlying the
concept of justice which are the basis of all civilised systems of
criminal administration'."
That was an authoritative
statement of the law before 27th April 1994. Since that date section
25(3) has required criminal trials
to be conducted in accordance with
just those "notions of basic fairness and justice".
It is now for all courts
hearing criminal trials or criminal appeals
to give content to those  notions.
[17]    I
must also refer to
Qozoleni v Minister of Law and Order
1994(1)
BCLR 75(E); 1994(3) SA 625(E).  The judgment of Froneman J.
contains much of value in its approach to constitutional

interpretation.  The learned judge says (at 81) that the
previous constitutional system of this country was the fundamental

"mischief" to be remedied by the new Constitution.  He
says (at 80) that because the Constitution is the supreme
law against
which all law is to be tested,
"it must be examined
with a view to extracting from it those principles or values against
which such law ... can be measured."
He adds on the same page
that the Constitution must be interpreted so as "to give clear
expression to the values it seeks to
nurture for a future South
Africa."  This is undoubtedly true.  South African
Courts are indeed enjoined by section
35 of the Constitution to
interpret Chapter 3 so as  "to promote the values which
underlie an open and democratic society
based on freedom and
equality", and, where applicable, to have regard to relevant
public international law.  That section
also permits our courts
to have regard to comparable foreign case law.
I am, however, sure that
Froneman J, in his reference to the fundamental "mischief"
to be remedied, did not intend to
say that all the principles of law
which have hitherto governed our courts are to be ignored.
Those principles obviously
contain much of lasting value.  Nor,
I am equally sure, did the learned judge intend to suggest that we
should neglect the
language of the Constitution.  While we must
always be conscious of the values underlying the Constitution, it is
nonetheless
our task to interpret a written instrument.   I
am well aware of the fallacy of supposing that general language must
have a single "objective" meaning.  Nor is it easy to
avoid the influence of one's personal intellectual and moral

preconceptions.  But it cannot be too strongly stressed that the
Constitution does not mean whatever we might wish it to mean.
[18]    We
must heed Lord Wilberforce's reminder that even a constitution is a
legal instrument, the language of
which must be respected.  If
the language used by the lawgiver is ignored in favour of a general
resort to "values"
the result is not interpretation but
divination.  If I may again quote
S v Moagi
,
supra
,
at 184, I would say that a constitution
"embodying
fundamental rights should
as far as its language permits
be
given a broad construction"
(My emphasis),
[19]    As
pointed out above, section 217(1)(b)(ii) creates a legal presumption,
with the legal burden of rebuttal
on the accused - what has been
called a "reverse onus".  The legitimacy of such
provisions has been considered by
courts as varied as the United
States Supreme Court, The Canadian Supreme Court, the Privy Council
and the European Court of Human
Rights (and doubtless others) in the
light of provisions entrenching, in varying language, the presumption
of innocence, the right
to silence and the privilege against
self-incrimination - a privilege not expressly referred to in section
25.   The
case law of these courts - which are undoubtedly
courts of open and democratic societies - indicates that reverse onus
provisions
are by no means uncommon and are not necessarily
unconstitutional.  Reverse onus provisions in our own statute
law are also
not uncommon.  To go no further than the
Criminal
Procedure Act one
finds, for example, the presumptions arising from
entries in marriage registers on charges of bigamy
(section 237)
, the
presumption of knowledge of falsity arising from proof of a factually
false representation
(section 245)
and the presumption of having
failed to pay tax arising merely from an allegation in a charge sheet
(section 249).
Foreign courts have grappled with the problem of
reconciling presumptions reversing the onus of proof with the
constitutional
presumption of innocence.  The different
solutions which they have suggested are illuminating.
[20]
The courts of the United States have over many years attempted to
enunciate a governing principle.
Tot v The United States
[1943] USSC 123
;
319 US 463
(1943) concerned a federal statute making it an offence
for a person convicted of violence to receive any firearm or
ammunition
which had been shipped or transported in interstate or
foreign commerce.   The statute provided that "the
possession
of a firearm or ammunition by any such person shall be
presumptive evidence that such firearm or ammunition was shipped
transported
or received as the case may be, by such person ... in
violation of this Act".   The Supreme Court held that
while
Congress and state legislatures had "power to prescribe
what evidence is to be received in the courts of the United States",

the due process clauses of the Constitution
"set limits upon the
power of Congress or that of a state legislature to make the proof of
one fact or group of facts evidence
of the existence of the ultimate
fact on which guilt is predicated." (per Roberts J at 467)
The test of the validity
of such a presumption, the Court said, was that there be a
"rational connection
between the facts proved and the fact presumed ... .  But where
the inference is so strained as not
to have a reasonable relation to
the circumstances of life as we know them it is not competent for the
legislature to create it
as a rule governing the procedure of the
courts.  (467-8)
On this test the
presumption was struck down.  Twenty-five years later a somewhat
stricter test was formulated.  In
Leary v United States
395 US 6(1969)
the Supreme Court had to consider a statute under
which possession of marihuana was deemed to be sufficient evidence of
the offence
of illegal importation, unless the defendant explained
his possession to the satisfaction of the jury.   The
presumption
was held to be a denial of due process of law.
Having considered
Tot
and some later cases, Harlan J, speaking
for the Court, said that
"a criminal
statutory presumption must be regarded as 'irrational' or 'arbitrary'
and hence unconstitutional, unless it can
at least be said with
substantial assurance that the presumed fact is more likely than not
to flow from the proved fact on which
it is made to depend."
(page 36)
(Harlan J added the rider
that in this assessment the Congressional determination favouring the
presumption must weigh heavily.)
[21]
"Rational connection" is a useful screening test, but not a
conclusive one.   This was
acknowledged in
County Court
of Ulster County, New York, et al v Allen et al
[1979] USSC 102
;
442 US 140
(1979).  In relation to a mandatory (i.e. legal) presumption
Stevens J giving judgment for the majority of the Supreme Court,

said, at 167, that
"since the
prosecution bears the burden of establishing guilt, it may not rest
its case entirely on a presumption unless the
fact proved is
sufficient to support the inference of guilt beyond a reasonable
doubt."
The "rational
connection" test has been considered in the substantial
jurisprudence which the Canadian courts have developed
in construing
their Charter of Rights.  The Canadian cases on reverse onus
provisions seem to me to be particularly helpful,
not only because of
their persuasive reasoning, but because section 1 of the Charter has
a limitation clause analogous to section
33 of the South African
Constitution.  This calls for a "two-stage" approach.
First, has there been a contravention
of a guaranteed right?  If
so, is it justified under the limitation clause?   The
single stage approach (as in the
US Constitution or the Hong Kong
Bill of Rights) may call for a more flexible approach to the
construction of the fundamental right,
whereas the two-stage approach
may call for a broader interpretation of the fundamental right,
qualified only at the second stage.
In
Attorney-General
of Hong Kong v Lee Kwong-kut
,
[1993] AC 951
(PC), an appeal to
the Privy Council from Hong Kong, Lord Woolf, while noting that the
results of the two approaches often tend
to be similar, observed (at
967 H) that the two-stage approach, in laying down specific criteria
of justification, had important
practical consequences.  See
also Cachalia & others,
Fundamental Rights in the New
Constitution
, pp5-7.
[22]
There are numerous Canadian cases dealing with the constitutionality
of reverse onus provisions.  I
shall refer only to three of
them.  In
R v Oakes
(1986) 26 DLR (4
th
) 200
the Supreme Court of Canada had before it an Act of Parliament which
provided that if a person was proved to be in unlawful
possession of
a narcotic he was presumed to be in possession of it for the purposes
of trafficking (a more serious offence) unless
he proved the
contrary.   This proof, the Court held, had to be on a
balance of probabilities.  This presumption
was held to be
inconsistent with the presumption of innocence guaranteed by section
11(d) of the Canadian Charter of Rights and
Freedoms.  Dickson
CJC said at 212-3 -
"The presumption of
innocence protects the fundamental liberty and human dignity of any
and every person accused by the State
of criminal conduct.  An
individual charged with a criminal offence faces grave social and
personal consequences, including
potential loss of physical liberty,
subjection to social stigma and ostracism from the community, as well
as other social, psychological
and economic harms.  In light of
the gravity of these consequences, the presumption of innocence is
crucial.  It ensures
that until the State proves an accused's
guilt beyond all reasonable doubt, he or she is innocent.  This
is essential in a
society committed to fairness and social justice."
And, at 222,
"If an accused bears
the burden of disproving on a balance of probabilities an essential
element of an offence, it would be
possible for a conviction to occur
despite the existence of a reasonable doubt.  This would arise
if the accused adduced sufficient
evidence to raise a reasonable
doubt as to his or her innocence but did not convince the jury on a
balance of probabilities that
the presumed fact was untrue."
He held further that the
"rational connection" test, while possibly useful at the
stage when the State sought to justify
an infringement of a
guaranteed right in terms of section 1 of the Charter, was not in
itself an adequate protection for the constitutional
presumption of
innocence.
"A basic fact may
rationally tend to prove a presumed fact, but not prove its existence
beyond a reasonable doubt.  An
accused person could thereby be
convicted despite the presence of a reasonable doubt.  This
would violate the presumption
of innocence."
[23]
R v Whyte
(1988) 51 DLR (4
th
)
481 concerned a statute creating the offence of having care or
control of a motor vehicle while one's ability to drive was impaired

by alcohol.  Under the statute, upon proof that the accused
occupied the driver's seat he was deemed to have the care and
control
of the vehicle unless he established that he did not enter the
vehicle for the purpose of setting it in motion.  This

presumption, too, was held to be a violation of the right to the
presumption of innocence.  The Supreme Court, again speaking

through Dickson CJC, held that it was irrelevant that the presumption
did not relate to an "essential element" in the
offence (cf
R v Oakes, supra
at 222).  The Chief Justice, at 493, said -
"In the case at bar,
the Attorney-General of Canada argued that since the intention to set
the vehicle in motion is not an
element of the offence, s. 237(1)(a)
does not infringe the presumption of innocence.  Counsel relied
on the passage from
Oakes
quoted above, with its reference to
an "essential element", to support this argument.  The
accused here is required
to disprove a fact collateral to the
substantive offence, unlike
Oakes
where the accused was
required to disprove an element of the offence.
The short answer to this
argument is that the distinction between elements of the offence and
other aspects of the charge is irrelevant
to the s. 11(d) inquiry.
The real concern is not whether the accused must disprove an element
or prove an excuse, but that
an accused may be convicted while a
reasonable doubt exists.  When that possibility exists, there is
a breach of the presumption
of innocence.
The exact
characterization of a factor as an essential element, a collateral
factor, an excuse, or a defence should not affect the
analysis of the
presumption of innocence.  It is the final effect of a provision
on the verdict that is decisive.  If
an accused is required to
prove some fact on the balance of probabilities to avoid conviction,
the provision violates the presumption
of innocence because it
permits a conviction in spite of a reasonable doubt in the mind of
the trier of fact as to the guilt of
the accused."
[24]    In
1992, in
R v Downey
90 DLR (4
th
) 449, the Supreme
Court of Canada dealt with a statutory presumption that a person who
lives with or is habitually in the company
of prostitutes, is, in the
absence of evidence to the contrary, committing the offence of
"living on the avails [i.e. proceeds]
of another person's
prostitution".   This presumption was also held to
infringe the presumption of innocence (although
it was held by a
majority to be in all the circumstances a justifiable infringement.)
The judgment of Cory J at 456 contains
a useful analysis of different
types of presumption.   The type with which we are
concerned in section 217(1)(b)(ii)
is described as a legal
presumption "where the presumed fact must be disproved on a
balance of probabilities instead of by
the mere raising of evidence
to the contrary".   This is what the Canadian courts
refer to as a "reverse onus"
clause, as I do in this
judgment.
[25]
Cory J at 461 summarised the principles derived from the authorities
in seven propositions.  I shall
quote the first three-
"I.
The presumption of innocence is infringed whenever the accused is
liable to be convicted
despite the existence of a reasonable doubt.
II.
If by the provisions of a statutory presumption, an accused is
required to establish, that
is to say to prove or disprove, on a
balance of probabilities either an element of an offence or an
excuse, then it contravenes
s. 11(d).  Such a provision would
permit a conviction in spite of a reasonable doubt.
III.
Even if a rational connection exists between the established fact and
the fact to be presumed,
this would be insufficient to make valid a
presumption requiring the accused to disprove an element of the
offence."
Section 11(d) of the
Canadian Charter provides that any person charged with an offence has
the right
"(d)
to be presumed innocent until proven guilty according to law in a
fair and public hearing by an
independent and impartial tribunal".
This bears a close
relationship to section 25(3)(a) and (c) of our Constitution.
In both Canada and South Africa the presumption
of innocence is
derived from the centuries-old principle of English law, forcefully
restated by Viscount Sankey in his celebrated
speech in
Woolmington
v Director of Public Prosecutions
[1935] UKHL 1
;
[1935] AC 462
(HL), 481, that
it is always for the prosecution to prove the guilt of the accused
person, and that the proof must be proof beyond
a reasonable doubt.
Accordingly, I consider that we may appropriately apply the
principles worked out by the Canadian Supreme
Court in particular the
first two principles stated by Cory J,
supra.
[26]
Does the application of these principles in itself demonstrate a
violation of the presumption of innocence
in section 217(1)(b)(ii)?
Mr d'Oliviera for the State contended that it did not.  The
admission of a confession,
he said, did not conclude the prosecution
in favour of the State.  Thus in the present case further
evidence might entitle
the trial court in this case to review its
finding that the accused had not discharged the onus on them.
There might also
be evidence which would lead a court to find that a
confession, although admissible, was untrue.  Moreover, the
presumption
did not relate to any element of the offence charged, but
merely to the voluntary character of the confession.  This was
no
more than a question of admissibility of evidence.
[27]
These arguments were persuasively presented, but in my view they
cannot be accepted.  A confession by
definition is an admission
of all the elements of the offence charged, a full acknowledgment of
guilt.
R v Becker
1929 AD 167.
No doubt in some
cases additional evidence (for example, that the confession is false)
will lead to an acquittal notwithstanding
the admission of the
confession.  But the validity of the presumption is not to be
tested on a case by case basis.  In
the absence of other
evidence the presumption, unrebutted, stands throughout the trial.
It could therefore happen that, given
proof
aliunde
of the
crime itself
(section 209
of the
Criminal Procedure Act), a
conviction could follow from an admissible confession,
notwithstanding the court's reasonable doubt that it was freely and
voluntarily
made.  The practical effect of the presumption is
that the accused may be required to prove a fact on the balance of

probabilities in order to avoid conviction.
Cf. R v Whyte,
supra, loc. cit. (
last paragraph).
[28]
In the course of argument I asked Mr d'Oliviera whether, if there
were no further evidence, the trial court
in this case could properly
give expression to its doubts as to the voluntariness of the
confession by acquitting the accused.
Mr d'Oliviera submitted
that it could do so - as I understood him, by the judge's exercising
a judicial discretion to reject admissible
but unfairly prejudicial
evidence.   The authority for the existence of such a
discretion is conflicting. See
R
v Roets and Another
1954(3)
SA 512(A), 520;
S
v Mkanzi and Another
1979(2) SA 757(T);
S
v Mphahlele supra
.
Even if there is such a discretion and even if it could be exercised
so as to overcome a statutory presumption (surely
a doubtful
proposition)
[1]
that gives rise to no more than a possibility of an acquittal; the
possibility of a conviction remains.  The presumption of

innocence cannot depend on the exercise of discretion.
[29]
The suggestion that the common law rule placing the onus of proving
voluntariness on the prosecution is merely
a rule of evidence and can
therefore be freely altered by the legislature deserves and requires
fuller consideration. In part it
is answered by the quotation from
Tot v United States of America, supra.
In
Tregea
and Another v Godart and Another
1939 AD 16
, 32 Stratford CJ said
that if a rebuttable presumption of law shifts the burden of proof it
is not a mere rule of evidence but
a matter of substantive law.
But even if the common law rule governing the admissibility of
confessions is a rule of evidence,
it is, as I shall show, a rule
which lies at the heart of important rights embodied in
section 25
,
including the right to remain silent after arrest, the right not be
compelled to make a confession which can be used in evidence,
the
right to be presumed innocent and the right not to be a compellable
witness against oneself.
[30]
The rule itself derives from more than 300 years of English legal
history.  By the latter half of the
18th century the  rule
was clearly stated in its modern form-
"A confession forced
from the mind by the flattery of hope or by the torture of fear comes
in so questionable a shape, when
it is to be considered as evidence
of guilt, that no credit ought to be given to it" -
R v
Warwickshall (1783) 1
Leach, 263.
In I
brahim v R
[1914]
AC 599
(PC)
at 610 Lord Sumner said that this was a rule of
policy. It would appear that the rule derived from a determination to
eradicate
the oppressive and often barbaric methods of interrogation
employed by the Star Chamber in 17th century England to extract
confessions
from accused persons.  From the abhorrence of those
methods there developed the privilege against self-incrimination, and
the right of silence, one aspect of which is the exclusion of
compelled confessions, with the onus placed on the prosecution to

prove beyond reasonable doubt that any confession relied on  was
voluntary.  In
Smith v Director of Serious Fraud Office
[1993] AC 1
(HL) Lord Mustill distinguished the "disparate
group of immunities" denoted by the expression "the right
to silence".
At 32 Lord Mustill observed that the law
relating to proof of the voluntariness of confessions was
particularly important at a
time when an accused was not entitled to
give evidence on his own behalf - a disability removed in England
only in 1898.
Nonetheless, Lord Mustill said,
"Even now, nearly
hundred years after that disability has been removed, the imprint of
the old law is still clearly to be seen."
It is indeed.
[31]    In
Lam Chi-Ming v R,
[1991]
2 AC 212
(PC), 220, an appeal to the
Privy Council from Hong Kong, Lord Griffiths said-
"Their lordships are
of the view that the more recent English cases established that the
rejection of an improperly obtained
confession is not dependent only
upon possible unreliability but also upon the principle that a man
cannot be compelled to incriminate
himself and upon the importance
that attaches in a civilised society to proper behaviour by the
police towards those in their custody.
All three of these factors
have combined to produce the rule of law applicable in Hong Kong as
well as in England that a confession
is not admissible in evidence
unless the prosecution establish that it was voluntary. This, perhaps
the most fundamental rule of
the English criminal law, now finds
expression in England in section 76 of the Police and Criminal
Evidence Act 1984."
In
Wong Kam-ming v R
[1980]
AC 247
(PC), 261, Lord Hailsham stated the underlying
principle in memorable words-
"any civilised
system of criminal jurisprudence must accord to the judiciary some
means of excluding confessions or admissions
obtained by improper
methods. This is not only because of the potential unreliability of
such statements, but also, and perhaps
mainly, because in a
civilised society it is vital that persons in custody or charged with
offences should not be subjected to
ill treatment or improper
pressure in order to extract confessions. It is therefore of very
great importance that the courts should
continue to insist that
before extra-judicial statements can be admitted  in evidence
the prosecution must be made to prove
beyond reasonable doubt that
the statement was not obtained in a manner which should be reprobated
and was therefore in the truest
sense voluntary."
In South Africa, too,
courts have over the years recognised the origins and the importance
of the common law rule. In
R v Camane and Others
1925 AD
570
, 575 Innes CJ said-
"Now, it is an
established principle of our law that no one can be compelled to give
evidence incriminating himself.
He cannot be forced to do that
either before the trial, or during the trial.  The principle
comes to us through the English
law, and its roots go far back in
history.  Wigmore, in his book on
Evidence
(vol IV, sec.
2250) traces very accurately the genesis, and indicates the limits of
the privilege. And he shows that, however important
the doctrine may
be, it is necessary to confine it within its proper limits.
What the rule forbids is compelling a man to
give evidence which
incriminates himself."
[32]    In
R v Gumede and Another
1942 AD 398
, 412-4, Feetham JA referred
to the embodiment of the rule in the Criminal Procedure and Evidence
Act 1917, and  noted that
its first appearance in South Africa
was in Ordinance No 72 of 1830 of the Cape of Good Hope. There was no
doubt, he said, that
the Ordinance was intended to apply to the Cape
Colony the common law of England in regard to the  burden of
proof resting
on the prosecution when asking a criminal court to
admit a confession alleged to have been made by an accused person. He
cited
the cases of
R v Warwickshall, supra
and
Ibrahim v R,
supra,
as did Nicholas AJA, in his detailed examination of
the rule in
S v de Vries, supra,
232-4.
[33]
The conclusion which I reach, as a result of this survey, is that the
common law rule in regard to the burden
of proving that a confession
was voluntary has been not a fortuitous but an integral and essential
part of the right to remain
silent after arrest, the right not to be
compelled to make a confession, and the right not to be a compellable
witness against
oneself.  These rights, in turn, are the
necessary reinforcement of Viscount Sankey's "golden thread"
- that it
is for the prosecution to prove the guilt of the accused
beyond reasonable doubt (
Woolmington's case, supra)
.
Reverse the burden of proof and all these rights are seriously
compromised and undermined.  I therefore consider that
the
common law rule on the burden of proof is inherent in the rights
specifically mentioned in section 25(2) and (3)(c) and (d),
and forms
part of the right to a fair trial.   In so interpreting
these provisions of the Constitution I have taken account
of the
historical background, and comparable  foreign case law.  I
believe too that this interpretation promotes the
values which
underlie an open and democratic society and is entirely consistent
with the language of section 25.  It follows
that section
217(1)(b)(ii) violates these provisions of the Constitution.
[34]    I
should add that I prefer not to consider in this judgment the meaning
and scope of the right to silence
during trial. It is unnecessary to
decide whether section 217(1)(b)(ii) violates that right.
[35]
The State submitted, in the alternative, that if the proviso in
question is a violation of fundamental rights,
it is one which is
saved by section 33(1) of the Constitution.  The proviso, it was
argued, was a law of general application
which was (i) reasonable,
(ii) justifiable in an open and democratic society based on freedom
and equality, under paragraph (a)
of the sub-section and was also
"necessary" in terms of paragraph (b).  Much written
and oral argument was addressed
to us on the Canadian approach to the
broadly  analogous provision in section 1 of the Canadian
Charter, which guarantees
the rights and freedoms set out in that
document
"subject only to
such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society".
The Canadian courts have
evolved certain criteria, in applying this section, such as the
existence of substantial and pressing public
needs which are met by
the impugned statute. There, if the statutory violation is to be
justified it must also pass a "proportionality"
test, which
the courts dissect into several components.   See, e.g.
R
v Chaulk
(1991) 1 CRR (2d) 1.   These criteria may well
be of assistance to our courts in cases where a delicate balancing of
individual
rights against social interests is required.
But section 33(1) itself sets out the criteria which we are to apply,
and I see no reason, in this case at least, to attempt to fit our
analysis into the Canadian pattern.
[36]    As
to reasonableness I am prepared to assume that the presumption passes
the "rational connection"
test, although I am not convinced
of this.  But that does not in itself explain why it should be
thought reasonable to undermine
a long-established and now entrenched
right.  The tests of reasonableness, justifiability and
necessity are not identical,
and in applying each of them
individually one will not always get the same result.  But in
this particular instance reasonableness,
justification and necessity
may be looked at and assessed together.  The State's problems
here are manifold.  The rights
interfered with are fundamental
to our concepts of justice and forensic fairness.  They have
existed in this country for over
150 years.  A drastic
consequence of the alteration to the law brought about by section
217(1)(b)(ii) is the possibility that
an accused may be convicted
over the reasonable doubt of the court.  Nor has it been shown
that it is in practice impossible
or unduly burdensome for the State
to discharge its onus; it has done so successfully in innumerable
trials under the common law
rule.  The circumstances in which an
accused person agreed to make a confession are not peculiarly within
his or her own knowledge.
What then is the rationale of the
proviso?  The answer, it seems (and we have been given no other)
lies in the Report of the
Botha Commission into criminal procedure
and evidence (RP 78/1971).   The extract I quote here is
taken from the written
submissions on behalf of the accused in this
case.
"5.31.3. It is
however a disquieting phenomenon that accused persons, after having
made a confession to a magistrate which
was confirmed and reduced to
writing in the presence of a magistrate or justice, far too
frequently and sometimes under the influence
of others and in spite
of their contrary allegations to the magistrate or justice, allege at
their trial that the confession was
in fact improperly obtained from
them and is therefore inadmissible in evidence with the result that,
notwithstanding the accused's
erstwhile allegations, the
admissibility thereof has, far too frequently, to be determined at an
extended hearing where the onus
rests upon the State throughout.
As a judicial officer a magistrate is peculiarly equipped and able,
with the aid of his
personal observation and preceding interrogation
of the person who makes the confession, to come to a
prima facie
conclusion in regard to the question whether the confession was or is
being made freely and voluntarily by such person in his sound
and
sober senses without having been unduly influenced thereto, and it is
highly improbable that a magistrate would take a confession
from
someone unless he is convinced of the existence of the prescribed
requirements for the admissibility thereof.  In view
of these
considerations, and to give meaning to the making or confirmation of
a confession to or in the presence of a magistrate,
the Commission is
of the opinion that, where a confession was made to a magistrate and
reduced to writing, or confirmed and reduced
to writing in the
presence of a magistrate, it should at the trial of that person for
an offence to which the confession relates,
be presumed, unless that
person proved the contrary (that is to say, on a balance of
probabilities) that the confession was made
freely and voluntarily by
such person in his sound and sober senses without having been unduly
influenced thereto.  The Commission
therefore recommends that a
further proviso to this effect be added to section 244(1) with
reference to a confession made to a
magistrate or confirmed and
reduced to writing in the presence of a magistrate.  Such a
provision would considerably shorten
and may eliminate the extent of
the so called trials within a trial."
It appears from this
passage that the harm which the new proviso was intended to overcome
was twofold.  First, some accused
attempt dishonestly to retract
confessions which they have made before a magistrate.  Second,
this leads to unduly long trials
within trials.  The
justification of the amendment, therefore, was that it would make it
more difficult for the dishonest
accused to make false allegations of
duress, and that this would shorten trials.
[37]    As
to the first head of justification, the objective is laudable.
But the reasoning of the Commission
seems to overlook the interests
of an accused who has in fact been subject to duress.  The
Commission itself, in para 5.23
of its Report, recognised that an
apparently voluntary confirmation of a confession before a magistrate
"may be misleading,
where the confession was in fact forced
beforehand by improper interrogation or inducement by the police."
There is
nothing before this Court to show that the common law rule
caused substantial harm to the administration of justice.  The
Commission points to the improbability of a magistrate taking a
confession unless convinced of its voluntariness.   That

may well be an improbability in most cases, but why that should
justify placing a burden of proof on the accused I am unable to

follow.  That improbability has always weighed  against an
accused and will continue to do so, without resort to the
proviso.
In any event there is nothing in the
Criminal Procedure Act which
obliges a magistrate to conduct any particular preliminary enquiry
into voluntariness.  Some Attorneys-General and magistrates
have
drafted helpful questionnaires for the use of magistrates or justices
of the peace before recording a confession.  But
there is no
standard form and none with statutory provenance.
[38]
The reverse onus may in some cases obviate or shorten the trial
within a trial.  Those of my colleagues
on the Court who have
had  considerable experience of criminal trials doubt that is
so.  Even if it were the case, and
even if it did release police
or prosecution from the inconvenience of marshalling and calling
their witnesses before the accused
gave evidence, I cannot regard
those inconveniences as outweighing and justifying the substantial
infringement of the important
rights which I have identified.
The argument from convenience would only have merit in situations
where accused persons plainly
have more convenient access to proof,
and where the reversed burden does not create undue hardship or
unfairness.
Cf R v Oakes
(1983) 3 CRR  289,
304, per Martin JA in the Ontario Court of Appeal.  That is not
the case here.
[39]
Accordingly,
section 217(b)(ii)
does not meet the criteria laid down
in section 33(1) of the Constitution.  It is inconsistent with
the Constitution and in
terms of section 98(5) of the Constitution,
it must be declared invalid.
[40]    It
follows that in my opinion the ruling given by Levinsohn J in
S v
Shangase and Another
1994(2) BCLR 42(D); 1995(1) SA 425(D) was
correct.
[41]    It
is important, I believe, to emphasise what this judgment does
not
decide.  It does not decide that all statutory provisions which
create presumptions in criminal cases are invalid.  This
Court
recognises the pressing social need for the effective prosecution of
crime, and that in some cases the prosecution may require
reasonable
presumptions to assist it in this task.  Presumptions are of
different types.  Some are no more than evidential
presumptions,
which give certain prosecution evidence the status of
prima facie
proof, requiring the accused to do no more than produce credible
evidence which casts doubt on the
prima facie
proof.  See
e.g. the presumptions in
section 212
of the
Criminal Procedure Act.
This
judgment does not relate to such presumptions.   Nor
does it seek to invalidate every legal presumption reversing the
onus
of proof.  Some 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.   The provisions
in
section 237 of the Act (evidence on charge of bigamy) may be of this
type.  Or there may be presumptions which are necessary
if
certain offences are to be effectively prosecuted, and the State is
able to show that for good reason it cannot be expected
to produce
the evidence itself.  The 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 supra
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
(Application No  5124/71, Collection of
Decisions, ECHR 135).  This is not such a case.  Nor does
this judgment
deal with statutory provisions which are in form
presumptions but which in effect create new offences.   See
Attorney-General v Odendaal
1982 Botswana LR 194
, 226-7.
[42]    I
would also make clear that this judgment does not purport to apply to
exceptions, exemptions or provisos
to statutory offences, referred to
in
section 90
of the
Criminal Procedure Act and
in the extensive case
law on that section and its predecessors.  Nor, of course, does
it deal with the factors governing the
creation of offences of strict
liability, discussed in
Amalgamated Beverage Industries Natal
(Pty) Ltd v Durban City Council
1994(3) SA 170 and 646(A),
although the considerations weighed in that case may not be
irrelevant to the constitutional validity
of  certain statutory
presumptions.
[43]    It
is necessary, finally, to consider what order, if any, should be made
under section 98(6) of the Constitution
consequent upon the finding
of invalidity.  The terms of that sub-section are as follows -
"(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.
Paragraph (a) of the
sub-section applies in this case.  Absent a specific order by
this Court, any decision by a trial court
admitting a confession in
reliance on section 217(1)(b)(ii), given before the date of the
declaration of its invalidity, would
stand.  This would be
unfortunate for some accused persons.  But if we were to give
our declaration full retrospective
effect in terms of section 98(6)
so as to invalidate such earlier rulings on admissibility the likely
result of such order would
be numerous appeals with the possibility
of proceedings
de novo
under
sections 313
or
324
of the
Criminal Procedure Act. In
proceedings
de novo
the necessary
evidence of voluntariness may no longer be available.  Paragraph
(a) of
section 98(6)
is intended to ensure that the invalidation of a
statute existing at the date of commencement of the Constitution
should not ordinarily
have any retrospective effect, so as to avoid
the dislocation and inconvenience of undoing transactions, decisions
or actions taken
under that statute.  This Court's power to
order otherwise in the interests of justice and good government
should be exercised
circumspectly.  In some cases (and I believe
that this is one of them) the interests of individuals must be
weighed against
the interest of avoiding dislocation to the
administration of justice and the desirability of a smooth transition
from the old
to the new. We should also take into account the fact
that hitherto the police and prosecution have legitimately relied on
section
217(1)(b)(ii).  Cf. the approach of the United States
Supreme Court in such cases as
Linkletter v Walker
[1965] USSC 125
;
381 US 618
(1965) and
Stovall v Denno
[1967] USSC 177
;
388 US 293
(1967).
[44]
The application of section 217(1)(b)(ii) since 27
th
April,
1994 may well have caused injustice to accused persons, but we cannot
repair all past injustice by a simple stroke of the
pen.
Weighing all the relevant considerations it seems to me that the
proper balance can be struck by invalidating the admission
of any
confession in reliance on section 217(1)(b)(ii) before the date of
our declaration, but in respect only of trials begun
on or after 27
th
April, 1994, and not completed at the date of delivery of this
judgment.  The effect might be in those trials to require
reconsideration
of the admissibility of confessions already admitted,
including the hearing of further evidence.   Whether an
order under
section 98(6) may or should encompass proceedings which
were pending before 27th April, 1994, depends on the proper
interpretation
of section 241(8) of the Constitution.  As
indicated at the beginning of the judgment, that issue is deferred
for determination
in the
Mhlungu
case.
[45]    In
the present case the trial judge has given no decision on the
admissibility of the confessions, so that
no special order need be
made in respect of it.
[46]    In
conclusion, we should like to express our indebtedness to Mr A
Findlay S.C. and his colleagues, of the
Durban Bar, who appeared for
the accused persons at the request of the Court.
The following order is
accordingly made :-
1
It is declared that
section 217(1)(b)(ii)
of the
Criminal Procedure
Act, 1977
, is invalid.
2
In terms of sub-section (6) of section 98 of the Constitution it is
ordered that this
declaration shall invalidate any application of the
said section 217(1)(b)(ii) in any criminal trial which commenced on
or after
27
th
April, 1994, and in which the verdict has
not at the date of this order been given.
S.KENTRIDGE
ACTING JUDGE OF THE
CONSTITUTIONAL COURT
We concur in the
judgement of Kentridge AJ:
Chaskalson P
Ackermann
J
Didcott J
Kriegler J
Langa J
Madala J
Mahomed J
Mokgoro J
O'Regan J
Sachs J
CASE NO:
CCT/5/94
COUNSEL FOR APPLICANT
:
A. Findlay SC
MJD
Wallis SC
PJ
Olsen
M.
Mkize
K
Govender
INSTRUCTED BY:
COUNSEL FOR
RESPONDENT  :
JA van S d'Oliveira SC
JWS
de Villiers
I
Stretch
EA
Erasmus
SM
Galloway
INSTRUCTED BY :
DATE OF HEARING :
23 February 1995
DATE OF JUDGMENT:
5 April 1995
[1]
In
England there appears to be a judicial discretion to exclude an
admissible confession, for example because the methods used
to
obtain it, while not unlawful, were unfair.
R
v Sang
[1979] UKHL 3
;
[1980]
A.C. 402
(HL), 437
.