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[1995] ZACC 11
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S v Bhulwana, S v Gwadiso (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579 (29 November 1995)

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IN THE CONSTITUTIONAL COURT OF
SOUTH AFRICA
                                                                                                                Â
CASE
NO: CCT12/95
In the matter between:
THE STATE
and
BHULWANA
                                                                                                               Â
CASE
NO: CCT 11/95
And in the matter between:
THE STATE
and
GWADISO
Heard on:  12 September 1995
Delivered on: 29 November 1995
JUDGMENT
[
1
]        O'REGAN
J: The question referred to this court in both these cases was whether the
provisions of section 21(1)(a)(i)
of the Drugs and Drug Trafficking Act, 140 of
1992 ('the Act') are in conflict with the provisions of the Republic of South
Africa
Constitution Act, 200 of 1993 ('the Constitution'). Section 21(1)(a)(i)
of the Act provides that
'If in the prosecution of any person for an offence referred to -
(a) in section 13(f) it is proved that the accused -
(i) was  found in possession of dagga exceeding 115 grams;
...
it shall be presumed, until the contrary is proved, that the
accused dealt in such dagga or substance;'
Section 13(f) refers to offences mentioned in section 5(b), which,
in turn, relates to the offence of dealing in certain substances,
including
dagga.
[
2
]        The
basis of the attack on section 21(1)(a)(i) of the Act is that the section
imposes a burden of proof on the accused,
a so-called 'reverse onus' provision,
which is contrary to the provisions of section 25(3) of the Constitution.
Section 25(3) provides
that:    Â
'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 a trial;'
[
3
]        Mr
Bhulwana was found in possession of 850g of dagga (cannabis)  near Kleinmond on
20 May 1994. He was convicted
of dealing in dagga on 8 September 1994 and was
fined R500,00 with the alternative of six months' imprisonment and, in
addition,
a twelve month prison sentence was suspended for a period of five
years on condition that he was not found guilty of dealing in drugs
during that
period. The matter then came before the Cape Provincial Division of the Supreme
Court on automatic review. Marais J (in
whose judgment Brand J concurred) held
that the evidence before the magistrate's court would not have been sufficient
to convict
Mr Bhulwana of dealing in dagga, absent a reliance on the
presumption contained in section 21(1)(a)(i) of the Act. Accordingly, the
correctness of the conviction depended on the constitutionality of the
presumption. Marais J was of the view that there were good
grounds for
concluding that the presumption was not constitutional.  In terms of section
102(1) of the Constitution, therefore,
the court referred the question of the
constitutionality of the presumption contained in section 21(1)(a)(i) of the
Act to this court
for determination and suspended the review proceedings before
it.
[
4
]        In
the other case before us, the accused, Mr Gwadiso, was found in possession of
444,7g of dagga on Main Street, Grabouw
on 26 August 1994. In convicting him of
dealing in dagga, the magistrate in the Caledon Magistrates' Court expressly
relied upon
the presumption contained in section 21(1)(a)(i) of the Act. Mr
Gwadiso was fined R600,00 with the alternative of a six month prison
sentence
and in addition a further twelve month prison sentence was suspended for four
years on condition that he not be found guilty
of dealing in drugs during that
period. The matter came before the Cape Provincial Division of the Supreme Court
on automatic review.
Traverso J (in whose judgment Conradie J concurred)  held
that it was clear that Mr Gwadiso's conviction for dealing could not have
been
sustained but for the existence of the presumption. She agreed with Marais J's
conclusion in
S v Bhulwana
that the  presumption was
prima facie
unconstitutional.
The court accordingly also referred the issue of the constitutionality of the
presumption to this court.
[
5
]        At
the request of this court, the Cape Bar Council requested Mr Josman SC and Mr
Butler to prepare heads of argument
on behalf of Mr Bhulwana and Mr Gwadiso. Mr
Josman was not available for the hearing and the Cape Bar Council arranged for
its chairman,
Mr Blignault SC and Mr Butler to appear on their behalf at the
hearing. Mr Slabbert of the office of the Western Cape Attorney-General
argued
on behalf of the State. The court wishes to express its appreciation to the
Cape Bar Council and to these counsel for their
assistance.
[
6
]        Section
21(1)(a)(i) is a provision which has existed in our law since 1954. It was
first introduced as section 90
bis
of the Medical Dental and Pharmacy
Act, 13 of 1928 by section 31 of Act 29 of 1954. As both possession of dagga
and dealing in dagga
are offences in our law, the effect of the presumption is
that, once the offence of possession has been proved, and the amount of
dagga
in question is shown to have exceeded 115g, the offence of dealing is presumed
to have been committed. The Act provides for
more substantial penalties for the
offence of dealing than it does for the offence of possession and there is no
doubt that a conviction
for dealing is altogether a graver matter than a
conviction for possession.
[7]        Mr Slabbert submitted that section
21(1)(a)(i) was not a true reverse onus provision, in that it imposed on the
accused not a legal burden, but merely an evidential burden.  An evidential
burden would require the accused, once possession in
excess of 115g dagga has
been shown, to adduce evidence which raises a reasonable doubt as to whether he
or she was guilty of dealing
in order to be acquitted of the offence of
dealing. A legal burden, on the other hand, would require the accused to demonstrate
on
a balance of probabilities that he or she was not guilty of dealing in order
to be acquitted of that offence. It cannot be accepted
that the subsection
imposes an evidential, not a legal, burden. Section 21(1)(a)(i) provides that,
where an accused is found in possession
of a quantity of dagga in excess of
115g, it shall be presumed,
until the contrary is proved
, that the
accused was guilty of dealing in dagga. The clear language of the text suggests
that the presumption will stand unless
proof to the contrary is produced.
Presumptions phrased in such a way have consistently been held to give rise to
a legal burden
since the judgment of the Appellate Division  in
Ex parte
Minister of Justice: in re R v Jacobson and Levy
1931 AD 466.Â
On several occasions
the  Appellate Division has held that provisions in the legislation antecedent
to this Act which gave rise
to the presumption of facts 'unless the contrary is
proved' imposed a legal burden upon accused persons.  (See
S v Guess
1976 (4) SA 715
(A) at 719 B - C;
S v Radloff
1978 (4) SA 66
(A) at
71H.)  There is no significant difference between the formulation of the
earlier presumptions considered in these cases and
section 21(1)(a)(i),
although the formulation in the earlier legislation was 'unless' rather than
'until'  the contrary is proved.
In the court
a quo
in
Bhulwana
's
case Marais J was of the view that  section 21(1)(a)(i) plainly gave rise
to a legal burden.  (See
S v Bhulwana
1995 (1) SA 509
(C) at 510 I - J;
1995 (5) BCLR 566
(C) at 567 H - I.)  I agree that there can be no doubt that
section 21(1)(a)(i) is a reverse onus provision which imposes a burden
of proof
on the accused.
[8]        The effect of the provision is that,
once the state has proved that the accused was found in possession of an amount
of dagga in excess of 115g, the accused will, on a balance of probabilities,
have to show that such possession did not constitute
dealing as defined in the
Act. Even if the accused raises a reasonable doubt as to whether he or she was
dealing in the drug, but
fails to show it on a balance of probabilities, he or
she must nevertheless be convicted. The effect of imposing the legal burden
on
the accused may therefore result in a conviction for dealing despite the
existence of a reasonable doubt as to  his or her guilt.
[9]        Is the imposition of this burden a
breach of the presumption of innocence as enshrined in section 25(3)(c)?  As
this court held in
S v Zuma
1995(2) SA 642 (CC); 1995(4) BCLR 401 (CC)
at  para 33, the presumption of innocence is not new to our legal system. As
early as
1883, in
 R v Benjamin
3 EDC 337
at 338, Buchanan J noted that:
'But in a criminal trial there is a presumption of innocence in
favour of the accused, which must be rebutted. Therefore there should
not be a
conviction unless the crime charged has been clearly proved to have been
committed by the accused. Where the evidence is
not reasonably inconsistent
with the prisoner's innocence, or where a reasonable doubt as to his guilt
exists, there should be an
acquittal.'
[10]      Authoritative support for the rule as a
fundamental principle of our law was given by the Appellate Division in
R v
Ndhlovu
1945 AD 369.
Davis AJA held that the presumption of innocence which
had been endorsed by  the House of Lords in
Woolmington v DPP
[1935] UKHL 1
;
[1935] AC
462
(HL) was not inconsistent with Roman-Dutch law, but was indeed a
fundamental principle of our law. He held accordingly that:
'In all criminal cases it is for the Crown to establish the guilt
of the accused, not for the accused to establish his innocence.
The
onus
is on the Crown to prove all averments necessary to establish his guilt.' (At
386)
In
Ndhlovu
, the court went on to hold that the only common
law exception to this principle is  that where an accused raises a defence of
insanity,
he or she bears the burden of proving insanity.  A similar exception
had been upheld in
Woolmington
's case.
[11]      In
 S v Zuma, supra
,  this court
was concerned with the constitutionality of
section 217(1)(b)(ii)
of the
Criminal Procedure Act, 51 of 1977
which also contained a reverse onus
provision. In interpreting section 25(3)(c) of the Constitution, Kentridge AJ,
speaking for the
court, considered the history of the presumption of innocence,
as well as the approach adopted by courts in other jurisdictionsÂ
to the
presumption of innocence and to reverse onus provisions.
[12]      Kentridge AJ found the Canadian cases to
be of particular assistance since the Canadian Charter of Rights and Freedoms
is similarly structured to chapter 3 of our Constitution.(At paragraphs 21 -
25) Both require, as a general rule, a preliminaryÂ
or threshold enquiry into
whether a breach of a constitutional right has occurred and thereafter a
consideration of whether that
breach may nevertheless be justifiable in terms
of a limitations clause.
[13]      Section 11(d) of the Canadian Charter of
Rights and Freedoms provides that an accused person has the right
'to be presumed innocent until proven guilty according to law in a
fair and public hearing by an independent and impartial tribunal;'.
            The Canadian Supreme Court has on
numerous occasions held that section 11(d) will be breached where a presumption
has the effect that an accused person may be convicted while a reasonable doubt
exists as to his or her guilt. (See, for example,
R v Oakes
26 DLR (4th)
200 (1986) at 222;
R v Vaillancourt
47 DLR (4th) 399 (1988) at 417;
R
v Whyte
51 DLR (4th) 481 (1989) at 493;Â
R v Keegstra
Â
(1989) 39 CRR
5
at 13;
Downey v The Queen
90 DLR (4th) 449 (1992) at 461;
R v Laba
120 DLR (4th) 175 (1995) at 201.)
[14]      According to the Canadian jurisprudence,
once it is shown that a statutory presumption is in breach of section 11(d),
the court must consider whether the presumption is nevertheless justifiable in
terms of section 1 of the Charter, which provides
that the rights are 'subject
only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic
society'. The Canadian Supreme Court has
held that, in particular cases,  reverse onus provisions may be justifiable in
terms of
section 1.  (See, for example,
Downey
v The Queen, supra
;
R v Whyte
51 DLR (4th) 481 (1988);
R v Chaulk
(1990) 1 CRR (2d) 1.)
[15]      As was held in
Zuma
's case,
supra,
at para 33, the presumption of innocence is  an established principle of South
African law which places the burden of proof squarely
on the prosecution.  The
entrenchment of the presumption of innocence in section 25(3)(c) must be
interpreted in this context. It
requires that the prosecution bear the burden
of proving all the elements of a criminal charge. A presumption which relieves
the
prosecution of part of that burden could result in the conviction of an accused
person despite the existence of a reasonable doubt
as  to his or her guilt.
Such a presumption is in breach of the presumption of innocence and therefore
offends section 25(3)(c).
Section 21(1)(a)(i) is such a presumption. The answer
to the threshold enquiry is  therefore that section 21(1)(a)(i) clearly gives
rise to a breach of section 25(3)(c) of the Constitution.
[16]      Under the old constitutional order, it
was clear that the legislature could  depart from the principle of the
presumption
of innocence and impose on an accused the burden of proving the
absence of some element of an offence. (See, for example,
R v Ndhlovu,
supra,
at 386 - 7;
R v Britz
1949 (3) SA 293
(A) at 302.)  Statutes
contain many examples of such reverse onus provisions. Under the new
constitutional order, the effect of
the entrenchment of the presumption of
innocence is to require that, where a presumption may give rise to the
conviction of an accused
despite the existence of a reasonable doubt as to his
or her guilt, it must be justified in terms of section 33.
Â
[17]      Section 33(1) provides that:
'The rights entrenched in this Chapter may be limited by law of
general application, provided that such limitation -
(a) shall be permissible only to the extent that it is -
(i) reasonable; and
(ii) justifiable in an open and democratic society based on freedom
and equality; and
(b) shall not negate the essential content of the right in
question,
and provided further that any limitation to -
(aa) a right entrenched in section ... 25 ...
shall, in addition to being reasonable as required in paragraph
(a)(i), also be necessary.'
Section 33 (1) requires us to consider whether section 21(1)(a)(i)
is a reasonable, necessary and justifiable limitation in an open
and democratic
society based on freedom and equality. If it is held to be so, then section 33
requires us to consider whether the
limitation of the right occasioned by
section 21(1)(a)(i) negates the essential content of that right.
In
S
v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at paragraph
104,  Chaskalson P held that section 33 required a proportionality assessment:
`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 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.' (see also
 S v Williams
[1995] ZACC 6
;
1995 (3) SA 632
(CC);
1995 (7) BCLR 861
(CC) at paragraphs 58 - 60).
[18]      In sum, therefore, the court places the
purpose, effects and importance of the infringing legislation on one side of
the scales and the nature and effect of the infringement caused by the
legislation on the other. The more substantial the inroad
into fundamental
rights, the more persuasive the grounds of justification must be.
[19]      In this case, the infringement of the
presumption of innocence may result in an accused person being convicted of the
offence of dealing in dagga despite a reasonable doubt as to whether he or she
was in fact dealing.  It may be that the infringement
is less invasive because
the presumption only comes into operation when a person has already been shown
prima
facie
to have committed an offence: in effect, it only serves to aggravate
the offence.  Nevertheless, the offence of dealing in dagga
carries heavier
penalties than the offence of possession; and the offence of dealing is viewed
with much greater censure by society
at large. To be convicted of dealing where
a doubt exists as to guilt of that offence is therefore no less an infringement
of the
presumption of innocence.
[20]      Mr Slabbert argued that the purpose of
the presumption was to assist in controlling the illegal drug trade. It
assisted
in that it ensured that heavier sentences could be imposed upon drug
offenders, and offenders would be convicted who would otherwise
not be
convicted. There can be little doubt that the effective prohibition of the
abuse of illegal drugs, particularly those which
result in severe damage to the
user, is a pressing social purpose. There is also little doubt that it is
important for the government
to take active steps to suppress trafficking in
illicit drugs.  It is not clear, however, that either of these purposes is
substantially
furthered by the presumption provided for in section 21(1)(a)(i).
Â
[21]      It cannot be said that the greater
sentencing discretion provided to the court in respect of dealing is necessary
to
further the identified legislative objective. In terms of section 17(d) of
the Act, where a court finds a person guilty of possession,
the court may
impose any fine it deems fit and alternatively, or in addition, it may impose a
prison sentence not exceeding 15 years.Â
Section 17(e) provides that where a
person is convicted of dealing in dagga, a prison sentence not exceeding 25
years may be imposed
and the court may, in the alternative or in addition,
impose any fine it considers appropriate. Although the sentencing discretion
granted to a court where a person has been convicted of dealing in dagga is
greater than that for offences of possession, the possible
penalties for
possession are extremely severe. In both cases before this court, for example,
in which the accused persons were convicted
of dealing, the magistrates imposed
far less stringent penalties than they were empowered to do even in respect of
the offence of
possession. It is unlikely that sentences in excess of fifteen
years' imprisonment (the limit for possession) would ever be imposed
in cases
where the presumption would be a material factor in finding guilt. If an
accused is found to have been in possession of
a large quantity of dagga, it
might, depending on all the circumstances and in the absence of an explanation
giving rise to a reasonable
doubt, be sufficient circumstantial evidence of
dealing and a justification for the imposition of a higher penalty (see
S v
Sixaxeni
1994(3) SA 733 (C)). I am not persuaded therefore that the
presumption is  needed to ensure adequate sentencing discretion. Even
apart
from that, it is not clear to me that the need for greater sentencing
discretion would  be sufficient to meet the requirements
of reasonableness,
necessity and justifiability stipulated in section 33. If there is indeed doubt
that the accused is a dealer,
he or she is entitled, according to our law, to
the benefit of that doubt.
[22]      Nor can it be said that the presumption
facilitates the prosecution and conviction of drug offenders who would
otherwise
not be convicted. The presumption only arises once a person has in
fact been proved to have committed the offence contained in subsection
4(b) of
the Act, the possession of dagga. The presumption cannot operate where the
possession is itself presumed; the possession
must, in fact,  have been proved.
(See
S v Majola
1975 (2) SA 727
(A ) at 735A - B.) A person to whom the
presumption applies will therefore be convicted of and sentenced for
possession, even if
the presumption is not relied upon. There can be no
question therefore that the presumption is necessary to convict offenders.Â
It
may be necessary to secure a conviction for the more serious offence of
dealing, but that is not sufficient to justify the infringement
of section 25.
[23]      It does  not appear to be logical to
presume that a person found in possession of 115g of dagga is more likely than
not to have been dealing in dagga. From the evidence placed before us, it
appears that 115g of dagga is equal to between 50 and 100
cigarettes. Mr
Slabbert conceded that it would not be unreasonable for a regular user of dagga
to possess that quantity of dagga.
Indeed, the criminalisation of dagga
possession may make it more likely that ordinary users will purchase large
quantities because
of the risks associated with purchase.  The quantity
stipulated in the legislation (115g) has remained constant since the
presumption
was first introduced in 1954, when it was expressed as 4 ounces. No
explanation was proffered by the State as to why this particular
quantity was
selected. It appears to be an arbitrary figure, nowadays, whatever sense, if
any, it may have made in the socio-economic
environment that prevailed when it
was originally introduced.
Â
[24]      In my view, section 21(1)(a)(i) of the
Act cannot be justified in terms of section 33(1) of the Constitution. Although
the need to suppress illicit drug trafficking is an urgent and pressing one,Â
it is not clear how, if at all, the presumption furthers
such an objective.  In
addition, there appears to be no logical connection between the fact proved
(possession of 115g) and the
fact presumed (dealing). On the other hand, the
presumption gives rise to an infringement of the right entrenched in section
25(3)(c),
which is a pillar of our system of criminal justice. Section
21(1)(a)(i) of the Act is an unconstitutional infringement of the right
entrenched in section 25(3)(c) which is not reasonable, justifiable or
necessary as contemplated by section 33.
[25]      Mr Slabbert argued that, if this court
found section 21(1)(a)(i) to be unconstitutional, the court should 'read down'
the section and rule that it should be interpreted as imposing not a legal
burden but an evidential one. He relied for support upon
the Canadian case of
R
v Ellis-Don Ltd
76 DLR(4th) 347 (Ont CA) (1990) where the Ontario Court of
Appeal read an industrial safety statute that imposed a burden of proof
on the
accused to show due diligence as imposing only an evidential burden.
[26]      The Canadian courts' remedial powers are
not directly comparable to ours. The key provisions in our Constitution dealing
with reading down are sections 35(2) and 232(3) which are similarly phrased.
The key provisions regarding the court's remedial powers
with relation to
unconstitutional legislative provisions are sections 98(5) and (6). In
determining whether it is appropriate to
read down a particular legislative
provision, the court must primarily be guided by those provisions and not by
the approach in a
foreign jurisdiction.
[27]      Section 35(2) of the constitution
provides that:
'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.'
Sections 98(5) and (6) of the Constitution provide as follows:
'(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.'
[28]      It is clear from sections 35(2) and
232(3) that the court must read down a provision which is  'reasonably capable'
of a more restricted and constitutional interpretation.  If  the provision is
'reasonably capable' of being read down in a way
which would be consistent with
the Constitution, the Constitution requires that it shall be read in such a
way. If the provision
is not reasonably capable of such an interpretation, then
section 98(5) requires the court to hold the provision invalid. Thereafter
the
court may exercise the discretion conferred upon it by the proviso to section
98(5) or the discretion conferred by section 98(6).
(For a discussion of these
powers, see
Executive Council of the Western Cape and others v The President
of the Republic of South Africa and others
CCT  27/95 unreported judgment
of the Constitutional Court delivered on 22 September 1995, at paragraphs 102 -
108.)
[29]      To read section 21(1)(a)(i)  as imposing
an evidential burden upon the accused rather than a legal burden would require
reading the words in section 21(1)(a)(i) 'until the contrary is proved' as
meaning 'unless the evidence raises a reasonable doubt'.
I do not think that
these words are reasonably capable of such an interpretation, both in the light
of the unambiguous language of
the phrase 'until the contrary is proved' and
the considerable and consistent judicial
dicta
interpreting that phrase.
Accordingly, the submission that section 21(1)(a)(i) be read down to give rise
to an evidential and not
a legal burden cannot be accepted.  This suggestion
was premised upon the proposition that imposing an evidential burden upon the
accused would give rise to no constitutional complaint.  In the light of our rejection
of the  suggestion, it is not necessary
for the purposes of this case to decide
on the constitutional validity of the premise.
[30]      In the alternative, the State also
argued that this court should exercise its power under the proviso to section
98(5),
in the interests of justice and good government, to suspend the effect
of the order of invalidity and require Parliament to remedy
the defect in the
legislation. However, Mr Slabbert could identify no compelling interest of good
government which would require
that the presumption remain in force pending
parliamentary attention. He conceded that it was not necessary for the
conviction of
offenders, or for the furthering of the objects of the
legislation. On the other hand, it is clear that, while the presumption exists,
there is a risk that a person may be convicted of dealing in dagga despite the
existence of a reasonable doubt as to his or her guilt.
In the absence of
persuasive reasons to exercise our power in terms of section 98(5), the effect
of our finding, that section 21(1)(a)(i)
is inconsistent with the Constitution,
must be the invalidity of that section.
[31]      The effect of an order declaring invalid
a legislative provision, such as section 21(1)(a)(i) of the Act, which existed
when the Constitution came into force shall not, according to section
98(6)(a),  invalidate anything done or permitted in terms
of that provision
unless the court, in the interests of justice and good government, orders
otherwise. In both the cases before us,
the conviction of the accused persons
arose from a reliance on the presumption contained in section 21(1)(a)(i) of
the Act. As the
convictions took place before this court made its order of
invalidity, the effect of the declaration of invalidity will not apply
to it unless
this court orders otherwise. In
S v Zuma, supra,
the provision under
challenge had been referred to this court by the trial court before the trial
had been completed. We ordered
that the effect of invalidity should extend only
to cases in which a verdict had not yet been reached. Such an order in this
matter
would not assist the applicants. In
S v Mhlungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC), we  extended the effect of the order of
invalidity made in
Zuma's
case to cases in which a verdict had been
reached after the 27 April 1994. In the judgment of the majority, Mahomed DP
held that:
'Appeals arising from proceedings which were commenced and
concluded after the Constitution came into operation should, in principle,
be
determined in the ordinary course on the basis that Chapter 3 of the
Constitution was clearly of application and if the protection
of that chapter
had wrongly been denied to the appellant, the Court on appeal would then take
that into account in making its order.'
(At para 41.)
[32]      Central to a consideration of the
interests of justice in a particular case is that successful litigants should
obtain
the relief they seek. It is only when the interests of good government
outweigh the interests of the individual litigants that the
court will not
grant relief to successful litigants. In principle too, the litigants before
the court should not be singled out for
the grant of relief, but relief should
be afforded to all people who are in the same situation as the litigants (see
US
v Johnson
[1982] USSC 132
;
457 US 537
(1982);
Teague v Lane
[1989] USSC 69
;
489 US 288
(1989)). On
the other hand, as we stated in
S v Zuma
 (at para 43), we should be
circumspect in exercising our powers under section 98(6)(a) so as to avoid
unnecessary dislocation and
uncertainty in the criminal justice process. As
Harlan J stated in
Mackey v US
[1971] USSC 61
;
401 US 667
(1971) at  691:
'No one, not criminal defendants, not the judicial system, not
society as a whole is benefited by a judgment providing a man shall
tentatively
go to jail today, but tomorrow and every day thereafter his continued
incarceration shall be subject to fresh litigation
on issues already resolved.'
As a general principle, therefore, an order of invalidity should
have no effect on cases which have been finalised prior to the date
of the
order of invalidity.
[33]      In the light of all these
considerations, it is my view that the proper order to be made in terms of
section 98(6)(a)
is that the order invalidating section 21(1)(a)(i) shall also
invalidate any application of the presumption contained in the section
in any
criminal trial in which an appeal or review is pending as at the date of this
judgment, or in which an appeal may yet be timeously
noted.Â
 [34]     The following order is accordingly made:
1. The following provisions of the
Drugs and Drug Trafficking Act,
140 of 1992
are declared to be inconsistent with the Republic of South Africa
Constitution Act 200 of 1993 and are, with effect from the date
of this
judgment, declared to be invalid and of no force and effect:
(a) section 21(1)(a)(i);
(b) the words 'dagga or' in section 21(1)(a).
2. In terms of section 98(6) of the Constitution, it is ordered
that the declaration of invalidity in paragraph 1 shall invalidate
any
application of
section 21(1)(a)(i)
of the
Drugs and Drug Trafficking Act, 140
of 1992
in any criminal trial in which the verdict of the trial court was
entered after the Constitution came into force, and in which, as
at the date of
this judgment, either an appeal or review is pending or the time for the noting
of an appeal  has not yet expired.
3. The matters of
S v Bhulwana
 and
 S v Gwadiso
are
referred back to the Cape Provincial Division to be dealt with in accordance
with this judgment.
C.M.E.
O'REGAN
Judge
of the Constitutional Court
(Chaskalson
P, Ackermann J, Didcott J, Kriegler J, Langa J,Madala J, Mokgoro J, Ngoepe J
and Sachs J concur in the judgment of O'Regan
J)
Â
CASE
NUMBERS:  CCT 11/95
 CCT 12/95
PRO
AMICO COUNSEL ON BEHALF OF ACCUSED:Â
(PREPARATION
OF HEADS)  G JOSMAN SC
                                        J BUTLER
(APPEARANCE
IN COURT)   A BLIGNAULT SC
                                              Â
J BUTLER
COUNSEL
FOF THE STATE:  J SLABBERT
DATE
OF HEARING: 12 SEPTEMBER 1995
DATE
OF JUDGMENT: 29 NOVEMBER 1995
Â