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[1996] ZACC 21
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S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12) BCLR 1588; 1997 (2) SA 887 (18 November 1996)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
24/95
THE STATE
versus
WALTER
BEQUINOT
Heard on: 25 September 1996
Decided on: 18 November
1996
JUDGMENT
KRIEGLER
J:
[1] The substantive and procedural requirements for a referral under
section 102(1) of the interim
Constitution
[1]
have been discussed in
several judgments of this Court. Most of them are reported in both the South
African Law Reports and Butterworths
Constitutional Law
Reports.
[2]
Yet, as this case
demonstrates, the proper application of the subsection continues to cause
problems.
[2] The appellant was one of eight accused charged in the
Regional Court on fourteen counts, including robbery of 7 000 pounds sterling
in
traveller’s cheques. The appellant received all but two of the cheques at
his pawnbroker’s shop shortly after the
robbery. The trial court, holding
that the appellant could not be linked to the robbery, focused on his admitted
receipt of the
stolen cheques. That, so it reasoned, brought into play the
provisions of section 37 of the General Law Amendment Act 62 of
1955,
[3]
a conviction of which is a
competent verdict on a charge of
robbery.
[4]
The regional magistrate
did not consider a verdict of knowingly receiving stolen property, likewise a
competent verdict.
[5]
He analysed
section 37 in the light of the applicable
authorities
[6]
and concluded that its
effect was that the appellant had to establish on a balance of probabilities
that, at the time he received
the cheques, he reasonably believed that the
person who gave them to him was legally entitled to do so. The regional
magistrate
rejected the evidence proffered by the appellant in exculpation of
such receipt and found that he could not possibly have believed
that the cheques
being offered to him had been obtained honestly:
“[He] had no reasonable belief that the person who handed cheques over was
the owner or was authorized by the owner thereof.
There is no doubt about
that.”
[7]
It
is more than arguable that such finding was tantamount to concluding that the
appellant had received the cheques knowing them to
have been stolen. The
magistrate did not reason along such lines, however, but found that the
prosecution had proved all the elements
of section 37 on which it bore the onus
and that the appellant had not established the genuineness or reasonableness of
his alleged
belief. The appellant’s conviction of a contravention of that
section followed. The sentence was a fine of R4 000 plus a
wholly suspended
period of imprisonment. An appeal against the conviction only was noted to the
Witwatersrand Local Division of
the Supreme Court (the
“WLD”).
[3] Counsel for the appellant lodged heads of
argument in the WLD challenging the trial court’s findings on a variety of
grounds.
In particular it was contended that the prosecution had not discharged
the onus it bore under section 37 and that the appellant,
for his part, had
established what the section demanded of him. No word was said about
unconstitutionality. On the contrary, the
case was premised on the presumed
constitutional validity of section 37. The heads of argument lodged by the
attorney-general’s
representative in the WLD were likewise directed
towards the facts, viewed in the framework of section 37 as it
stood.
[4] When the appeal was called in the WLD the learned judge
presiding, of his own volition, raised the question whether the constitutional
validity of section 37 ought not there and then to be referred to this Court for
its decision. After a brief debate with counsel,
who had not been forewarned of
the constitutional question and could understandably make little meaningful
contribution, the learned
judges made an order, the transcript of which
reads:
“... [O]n the question as to whether Section 37 of the General Law
Amendment Act No. 62 of 1955 is in conflict with Section
3(c) [sic] of the
Constitution Act No. 200 of 1993. The terms of reference are to be settled by
counsel and an order will be made
in due course.”
The
formal order of court supplements the transcription by commencing with the words
“[t]hat this matter be referred to the
Constitutional Court” and the
section of the Constitution targeted is said to be 23(3)(c). Neither section is
of course relevant,
the provision intended being section 25(3)(c) of the
Constitution.
[5] It took some considerable time for counsel to
“settle” the “terms of reference”and for the learned
judges
to consider them. A document (styled “Referral of Issue to
Constitutional Court Pursuant to Rule 22(2)”) was apparently
typed some
time in March 1996
[8]
but was only
issued by the WLD on 9 May 1996. It was lodged with the registrar of this Court
the following day under cover of a
document purporting to be a notice in terms
of Rule 22(1) (read with Form 3) of the Constitutional Court Rules, 1995. It
bears no
date, no signature, no intimation of the applicable section of the
Constitution; there are no names or addresses of the legal representatives
of
the parties and the notice purports to emanate from the registrar of the
“Johannesburg Local Division of the Supreme Court
of South Africa”.
Be that as it may, the document signed by the learned judges reads as
follows:
“1. The Appellant was convicted of the offence of contravening Section 37
of the General Law Amendment Act, 62 or 1955.
2. As a result of the ‘reverse onus’ contained in the aforementioned
provision, it was necessary for the Appellant to
prove on a balance of
probabilities that he had reasonable cause for believing at the time of the
acquisition or receipt that the
goods were the property of the person from whom
he received them or that such person had been duly authorised by the owner
thereof
to deal with or to dispose of them.
3. Section 25(3)(c) of Act 200 of 1993 provides
that:
‘
Every accused person shall have the right to a fair trial .... which
shall include the right to be presumed innocent and to remain
silent during plea
proceedings or trial and not to testify during
trial.
’
4. The ruling required from the Court is whether Section 37 of the General Law
Amendment Act, No. 62 of 1955, is in conflict with
Section 25(3)(c) of Act 200
of 1993.
5. It is in the interests of justice that the matter be referred so that the
apparent conflict between the Constitution and Section
37 of the General Law
Amendment Act, 62 of 1995 may be resolved.
6. The issue of the constitutionality of Section 37 of the General Law Amendment
Act, 62 of 1955 is decisive for the determination
of this
case.
7. This issue falls within the exclusive jurisdiction of the Constitutional
Court.
8. The record to be transmitted to the Constitutional Court shall consist
of:
8.1 a complete transcript of the proceedings in the Magistrate’s
Court;
8.2 the heads of argument of both parties in the Supreme Court of South Africa,
Witwatersrand Local Division; and
8.3 the order of the Supreme Court of South Africa, Witwatersrand Local
Division.
[6] Quite apart from the
procedural deficiencies mentioned, there are a number of substantive features of
the course adopted in the
court
a quo
that call for comment. The most
important is that there is no identifiable ratio for the referral. Neither the
cryptic transcription
of the order issued in court nor the document
“settled” by counsel indicates (a) why the court
a quo
regarded the constitutionality of section 37 of Act 62 of 1955 to be potentially
decisive of the case before it; (b) why it was considered
to be in the interest
of justice to order referral of that issue; and in that context, (c) why the
referral was made at that juncture,
before considering the appeal on
non-constitutional grounds. As this Court has tried to make plain, a positive
finding on each
of those considerations is a prerequisite for a
referral.
[9]
[7] Indeed, in the
very first reported judgment of this Court, in
Zuma
,
[10]
Kentridge AJ
mentioned, and in the associated case of
Mhlungu
,
[11]
Kentridge AJ
discussed the procedure under section 102(1) of the Constitution. Thereafter
the Court considered and explained not
only the statutory requirements of that
subsection and associated provisions of the Constitution, but identified
additional questions
of judicial policy that come into play when referral of a
constitutional issue is being considered by a provincial or local division.
Thus:
Χ “[T]he power and duty to refer only arises when
...
(a) there is an issue in the matter before the Court in question which may be
decisive for the case;
(b) such issue falls within the exclusive jurisdiction of the Constitutional
Court; and
(c) the Court in question considers it to be in the interests of justice to
refer such issue to the Constitutional
Court.
....
These conditions are conjunctive and all have to be fulfilled before the Court
has the power to refer an issue to the Constitutional
Court in terms of section
102(1).”
[12]
Χ “[T]he subsection requires the Provincial or Local Division of the
Supreme Court to be of the opinion ‘that there
is a reasonable prospect
that the relevant law or provision will be held to be
invalid.’”
[13]
Χ “[T]he judge or judges referring to the Constitutional Court the
issue of the constitutionality of an Act of Parliament
are obliged to furnish
written reasons why it is considered
that:
(a) there is a reasonable prospect that the Act of Parliament in question will
be held to be invalid; and
(b) the interest of justice requires this issue to be referred at this
particular
stage.”
[14]
Χ “It is only where it is necessary for the purpose of disposing of
the appeal, or where it is in the interest of justice
to do so, that the
constitutional issue should be dealt with first by this Court. It will only be
necessary
for this to be done where the appeal cannot be disposed of
without the constitutional issue being decided; and it will only be in
the
interest of justice
for a constitutional issue to be decided first, where
there are compelling reasons that this should be done.
This rule allows the law to develop incrementally. In view of the far-reaching
implications attaching to constitutional decisions,
it is a rule which should
ordinarily be adhered to by this and all other South African Courts before whom
constitutional issues are
raised.”
[15]
Χ “[C]onstitutional issues within the exclusive jurisdiction of the
Constitutional Court will be raised formally in proceedings
before the Supreme
Court or other courts, and will only be referred to the Constitutional Court for
its decision in circumstances
where it would be appropriate to do so. It is in
the first instance the responsibility of the Supreme Court to decide whether or
not the circumstances are
appropriate.”
[16]
Χ “[I]t is not ordinarily in the interest of justice for cases to be
heard piecemeal, and ... as a general rule if it
is possible to decide a case
without deciding a constitutional issue this should be
done.”
[17]
[8] The
circumstances of the present case demonstrate the advisability of adhering to
those principles. The record of the trial proceedings
exceeds 300 pages; there
were eight accused charged on fourteen counts and a number of state witnesses
who testified to four distinct
facets of the case. The trial court’s
judgment on the merits runs to over 40 pages and not only analyses the evidence
in detail,
but also deals with the legal issues raised by the provisions of
section 37 of Act 62 of 1955 read with section 260(f) of Act 51
of 1977. The
judgment contains fairly extensive factual and legal reasoning, the crucial
elements of which were canvassed in the
heads of argument filed by the parties
in the WLD. But, because of the course adopted in the latter court, none of
those issues
was debated there and no views thereon were formulated - or at
least expressed - by the learned judges
a quo.
Nor was any view
expressed on the severability of the reverse onus provision from the remainder
of section 37 and whether there
was any prospect of the appeal being upheld if
such provision were to be severed.
[9] In the result this Court is in the
dark as to whether the learned judges endorsed the trial court’s rejection
of the appellant’s
evidence as false beyond reasonable doubt. Nor do we
know if they considered whether, upon an endorsement of the trial court’s
credibility finding and its analysis of the probabilities, a conviction under
section 37 was not warranted without applying the reverse
onus. This was a
crucial issue to resolve before a referral was warranted. It depended upon
forming a view as to whether there
was any reasonable prospect that the
Constitutional Court, if it held the reverse onus provision to be
unconstitutional, would find
that such provision was not severable from the
remainder of section 37. If there was no such prospect, a conviction under
section
37, after severance, might well be justified, if the trial court’s
credibility finding and its analysis of the probabilities
were accepted.
Without deciding these issues it was not possible for the court
a quo
to
determine whether the constitutionality of the reverse onus provision had any
relevance at all to the conviction in
question.
[18]
A further possibility
to which the court
a quo
did not advert is whether there was scope for
substituting on appeal a conviction of the common law crime of receiving stolen
property
knowing it to have been stolen, a verdict unaffected by the statutory
reversal of onus giving rise to the constitutional issue referred
to this Court.
There is yet another possibility not addressed by the court
a quo
. That
is that the trial court should have found that the appellant had indeed
discharged the onus cast on him by section 37.
[10] Obviously any of
those conclusions would preclude a positive finding as to the first requirement
for a referral under section
102(1) of the Constitution, namely, that resolution
of the constitutional question may be decisive for the case. As Didcott J
pointed
out in
Luitingh
,
[19]
that requirement entails a finding that the constitutional ruling “may
have a crucial bearing on the eventual outcome of the
case as a whole or on any
significant aspect of the way in which its remaining parts ought to be
handled.” The prospects of
successfully upsetting the trial court’s
factual findings on appeal constituted an essential factor in evaluating the
potential
materiality of the incidence of the onus. Yet there is no indication
on the record that the court
a quo
applied its mind to that factor and it
is clear that the parties were afforded little if any opportunity to be heard on
the point.
[11] There is, moreover, no indication that the desirability
of interrupting the ordinary course of the criminal justice system was
considered. Section 102(1) of the Constitution, as this Court has pointed
out,
[20]
obliges a provincial or
local division of the Supreme Court to consider under the rubric of interests of
justice not only the whether
but also the when of a referral. In a case such as
this, where the appeal court’s evaluation of the trial court’s
findings
of fact may well dispose of the matter, there is no warrant for a
referral at the outset. In the event of the incidence of the onus
eventually
proving decisive, and the constitutional validity of the provisions of section
37 of Act 62 of 1955 affecting the onus
becoming crucial, a referral would be
both necessary and timely. At this stage it is neither. Consequently the
statement of the
court
a
quo
[21]
as to the interest of
justice cannot be supported. On the contrary, the interest of justice is not
served by the interruption of
a criminal appeal for the determination of a
constitutional question which is not - and may well never become - necessary for
the
decision of the case.
[12] There are sound policy reasons why
constitutional questions should not be anticipated. The judgment of Chaskalson
P in
Zantsi’s
case,
[22]
which all the members of this Court endorsed, was dedicated to a discussion and
explanation of those reasons. The instant case illustrates
the wisdom of
adhering to the policy of deciding cases on constitutional grounds only if and
when it is necessary to do so. The
receipt of stolen goods is a vital link in
the chain of gainful disposal of the spoils of criminality. It is, of course,
also a
powerful incentive to such criminality and statutory devices aimed at
facilitating the successful apprehension and prosecution of
receivers of stolen
property, such as section 37 clearly is, cannot lightly be invalidated. Serious
consideration will still have
to be given whether such a provision, which is
found to offend some or other provision of the Bill of Rights, is not saved
either
under section 33(1) of the Constitution or by severing the reverse onus
provision from the rest of the section.
[13] A referral at the
appropriate juncture, where the constitutional issue is vital to the
determination of the case and has been
thoroughly canvassed in one or more other
courts, serves to define the constitutional issues and focus the development of
our constitutional
jurisprudence.
[23]
But a case such
as this, where the parties did not raise the issue themselves and the
constitutional point may well prove peripheral,
is inappropriate for grappling
with the difficult legal and policy issues involved in invalidating a
long-standing weapon in society’s
war against crime.
[14] The
court
a quo
, which has to deal daily with the hard realities of the
criminal justice system, is better placed than this Court to evaluate not
only
the effect of the reversal of the onus under section 37 on the essential
fairness of a criminal trial, but also of the likely
consequences of striking
that provision or the reverse onus it contains from the statute book. The
considered views of experienced
trial and appeal court judges on such matters
are valuable when this Court has to perform the difficult balancing exercise
demanded
of it by section 33(1) of the Constitution.
[15] Nevertheless
the Court intimated to counsel that it might be prepared to entertain an
application for determination of the constitutional
question under section
100(2) of the Constitution, read with rule 17 of the Constitutional Court Rules.
In the past the Court has
on occasion acceded to such applications where there
was a pressing public need to do
so.
[24]
The hearing was adjourned
to allow counsel to take instructions on the incidence of pending cases in which
section 37 figured.
In the event neither side was able to advance any cogent
reason for affording direct access in this case and made no corresponding
application. Nor, upon reflection, is it likely that such an application would
have succeeded. Apart from the lack of any apparent
urgency this Court would
have had to decide the issue without the benefit of the wisdom of the court
below. It has been said before
[25]
but needs to be restated that this Court is placed at a grave disadvantage if it
is required to deal with difficult questions of
law, constitutional or
otherwise, and has to perform the balancing exercise demanded by section 33(1)
of the Constitution virtually
as a court of first instance. It certainly should
not do so in circumstances in which a decision on the constitutional issue might
not be decisive for the case.
[16] In drafting section 102(1) of the
Constitution the lawgiver wisely made provision for the referring court to act
judicially before
ordering referral. Concomitantly rule 22(2) requires the
judge or judges concerned to formulate both the issues on which a ruling
is
sought, and also the reason why the referral is considered to be in the interest
of justice. Of course a court is entitled to
rely - and often does - on the
professional skill of those who have the privilege of appearing before it. That
is an inherent component
of our judicial system. But that is not what happened
here. The possible unconstitutionality of the section formed part of neither
party’s case but was raised by the court
mero motu
. The
formulation of the reasons for the referral of an issue to this Court is a
judicial function to be exercised judicially. It
cannot be delegated to
counsel, as was done here.
[17] The case is remitted to the Witwatersrand
Local Division of the Supreme Court to be dealt with in accordance with what is
said
above.
Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Langa
J, Madala J, Mokgoro J, O’Regan J and Sachs J concur in the judgment
of
Kriegler J.
[1]
Section 102(1) of the Constitution
of the Republic of South Africa Act 200 of 1993 in substance
provides:
If, in any matter before a provincial or local division of the Supreme
Court, there is an issue which may be decisive for
the case, and which falls
within the exclusive jurisdiction of the Constitutional Court in terms of
section 98(2) and (3), the provincial
or local division concerned shall, if it
considers it to be in the interest of justice to do so, refer such matter to the
Constitutional
Court for its decision
....
[2]
See
S v Zuma and Others
1995(2) SA 642 (CC); 1995(4) BCLR 401 (SA) at para 10;
S v Vermaas; S v Du
Plessis
1995(3) SA 292 (CC); 1995(7) BCLR 851 (CC) at paras 12-3:
S v
Mhlungu and Others
1995(3) SA 867 (CC); 1995(7) BCLR 793 (CC) at para 59;
Zantsi v Council of State, Ciskei, and Others
1995(4) SA 615 (CC);
1995(10) BCLR 1424 (CC) at paras 1-8;
Ferreira v Levin NO and Others
;
Vryenhoek and Others v Powell NO and Others
1996(1) SA 984 (CC); 1996(1)
BCLR 1 (CC) at paras 6-8;
Bernstein and Others v Bester and Others NNO
1996(2) SA 751 (CC); 1996(4) BCLR 449 (CC) at para 2;
Luitingh v Minister of
Defence
1996(2) SA 909 (CC); 1996(4) BCLR 581 (CC) at para 2;
Brink v
Kitshoff NO
1996(4) SA 197 (CC); 1996(6) BCLR 752 (CC) at paras 1-8.
[3]
Subsection (1) thereof
reads:
Any person who in any manner, otherwise than at a public sale, acquires
or receives into his possession from any other person
stolen goods, other than
stock or produce as defined in section
thirteen
of the Stock Theft Act,
1923, without having reasonable cause, proof of which shall be on such
first-mentioned person, for believing
at the time of such acquisition or receipt
that such goods are the property of the person from whom he receives them or
that such
person has been duly authorized by the owner thereof to deal with or
to dispose of them, shall be guilty of an offence and liable
on conviction to
the penalties which may be imposed on a conviction of receiving stolen property
knowing it to have been stolen except
in so far as the imposition of any such
penalty may be compulsory.
[4]
See
section 260(f)
of the
Criminal
Procedure Act 51 of 1977
.
[5]
See
section 260(e)
of the
Criminal
Procedure Act 51 of 1977
.
[6]
See Hunt
South African Criminal
Law and Procedure,
2 ed, Vol 2 at 742;
S v Kaplin and Others
1964(4)
SA 355 (T);
S v Moller
1990(3) SA 876 (A).
[7]
Record at 301.
[8]
The appeal was heard on 9 February
1996 while Rule 22(1) of the Constitutional Court Rules, 1995 requires referral
documents to be
lodged with the registrar of this Court within 15 days.
[9]
See the judgments cited in n 2
above.
[10]
Cited in n 2 above, at para
10.
[11]
Cited in n 2 above, at para
59.
[12]
Per Ackermann J in
Ferreiras
case, cited in n 2 above, at para 6.
[13]
Id at para 7.
[14]
Id at para 8.
[15]
Per Chaskalson P in
Zantsis
case, cited in n 2 above, at paras 4 and 5 (footnotes
omitted). Although dealing with the provisions of section 102(8) of the
Constitution,
the judgment was expressly directed at the principle that
constitutional questions should be determined only as a last resort.
[16]
Per Chaskalson P in
Brink
, cited in n 2 above, at para 4.
[17]
Id at para 9.
[18]
The reasoning of Howard JP in
Schinkel v Minister of Justice and Another
1996(6) BCLR 872 (N) at 874F-G
illustrates how, in practice, deferring the determination of constitutional
issues until they prove
decisive, promotes the interests of justice.
[19]
Cited in n 2 above, at paras 9
and 10.
[20]
See especially
Mhlungu
and
Brink
at the passages cited in n 2 above.
[21]
See para 5 of the
referral quoted in para 5 above.
[22]
See n 15 above.
[23]
See
Bernsteins
case, cited in n 2 above, at para 2.
[24]
See, eg,
Zumas
case, cited in n 2 above, where the conduct of many part heard and pending
criminal cases depended upon the validity of a reversal
of the onus under
section 217(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
[25]
See, eg,
Luitinghs
case, cited in n 2 above, at para 6.