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[1998] ZACC 14
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Osman and Another v Attorney-General for the Transvaal (CCT37/97) [1998] ZACC 14; 1998 (4) SA 1224; 1998 (11) BCLR 1362 (23 September 1998)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 37/97
MOOSA OSMAN                                                                                             Â
First
Appellant
MOHAMED SHIRAZ
OSMAN                                                                  Â
Second
Appellant
versus
THE
ATTORNEY-GENERAL FOR THE TRANSVAAL                                      Respondent
Heard on         :           7 May 1998
Decided on     :           23 September
1998
JUDGMENT
MADALA J:
[1]
       This matter comes
to us by way of appeal from the judgment and order of McCreath J, with Van Dyk
J concurring, in the
Transvaal High Court,
1
dismissing the
appellants’ application challenging the constitutionality of section 36 of the
General Law Amendment Act 62 of 1955
(the Act).
[2]
       The appellants were
charged in the Regional Court for the North West Province sitting at Rustenburg
with a contravention
of section 36 of the Act.  It was alleged that they were
found in possession of tyres, which were reasonably suspected to have been
stolen.Â
The appellants were allegedly unable to give a satisfactory account of such
possession.
[3]
       At the commencement
of the trial the appellants objected to the charge, contending that section 36
was in conflict with
sections 25(2)(c) and 25(3)(c) of the interim
Constitution.
2
  Section 25(2)(c) affords an arrested person the right :
“
(c)
      not to be compelled to make a confession or admission
which could be used in evidence against him or her . . . .”
 In respect of trial
rights, section 25(3) guarantees an accused person :
“(3)      . .
.  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 . . .
.”
[4]
       The appellants
requested that the proceedings in the regional court be stayed to enable them
to pursue their challenge.Â
However, the need to refer the matter to this Court
fell away when the appellants and the respondent agreed in terms of section
101(6)
of the interim Constitution
3
to the jurisdiction of the Transvaal
High Court.
[5]
       The High Court
ruled against the appellants.  It held that the impugned section was not in
conflict with the constitutional
provisions which enshrine the right to a fair
trial and in particular it held that the section was not in conflict with the
right
of an accused person to remain silent at all stages of the trial and not
to be compelled to testify or to become a witness against
himself or herself.Â
Following the issue of a positive certificate in terms of Constitutional Court
Rule 18(e), the appellants proceeded
to seek and were granted leave to appeal
by this Court.
[6]
       Although the
alleged offence occurred during August 1993, the appellants were summoned to
appear in court only on 30
August 1994.  In the light of
Mhlungu
4
and
Du Plessis v De
Klerk
,
5
both parties correctly accepted that the appellants were
entitled to rely on the provisions of section 25(3)(c) of the interim
Constitution.Â
The question before us is whether section 36 of the Act is
inconsistent with those provisions.
[7]
       By the time the
matter was heard in the High Court, the 1996 Constitution
6
had come into force.Â
Item 17 of schedule 6 of the 1996 Constitution, dealing with transitional
arrangements, reads as follows:
“All
proceedings which were pending before a court when the new Constitution took
effect, must be disposed of as if the new Constitution
had not been enacted,
unless the interests of justice require otherwise.”
Regarding this item, this
Court in
S v Pennington and Another
7
held:
“The wording
of this provision is different to that of the comparable transitional provision
of the interim Constitution considered
by this Court in
S v Mhlungu and
Others
.  It was correctly accepted by both counsel that in terms of item 17
of Schedule 6 the 1996 Constitution would not be applicable
to pending
proceedings unless it is ‘in the interests of justice’ that its provisions
should be applied.”  [footnotes omitted]
From this it is quite
apparent that the interim Constitution applies unless it can be shown that, in
the interests of justice, the
1996 Constitution should displace it.  No
evidence was presented to this Court as to why the ‘interests of justice’
warranted
the application of the 1996 Constitution in preference to the interim
Constitution.  In my view, to the extent that the court a
quo entertained the
possibility of the 1996 Constitution being applicable, it was incorrect.  The
validity of section 36 is to be
evaluated only against the yardstick of the
interim Constitution.
[8]
       The impugned
provision of the Act, section 36,
8
states:
“Any person
who is found in possession of any goods, other than stock or produce as defined
in section
one
of the Stock Theft Act, 1959 (Act  57 of 1959), in regard
to which there is a reasonable suspicion that they have been stolen and
is
unable to give a satisfactory account of such possession, shall be guilty of an
offence and liable on conviction to the penalties
which may be imposed on a
conviction of theft.”
The elements of the
offence are that : (a) the accused person must actually be found in possession
of goods; (b) a suspicion founded
on reasonable grounds must exist in the mind
of the finder (or possibly some other person) that the goods had been stolen;
and (c)
there must be an inability on the part of the person found in
possession to give a satisfactory account of such possession.  It
is the last
requirement - the inability to give a satisfactory explanation - which raises
the challenge to section 36 in the case
before us.
[9]
       It was contended on
behalf of the appellants that section 36 requires a person suspected of,
detained or arrested for
theft or for being in possession of stolen property to
give an explanation which may amount to a confession of the crime charged
or of
another crime, and that such confession would at all relevant times be
admissible against the accused.  The accused, it was
submitted, is put under
pressure to react to a request to provide an explanation for the possession of
goods and faces the danger,
if not the probability, of a conviction should he
or she fail to so react.  This compulsion was said to violate the accused’s
rights contained in section 25(2)(c).  The respondent’s answer to this was that
a suspect who is asked for an explanation is not
“under arrest” and that
section 25(2)(c) is accordingly not applicable.
[10]
     The right entrenched
in section 25(2)(c) protects an arrested or detained person against
incriminating himself or herself
or against being compelled to make a
confession or admission which could be used in evidence against him or her.Â
The right is of
particular significance having regard to our recent history
when, during the apartheid era, the fundamental rights of  many  citizens
were
violated.  It is in that context that the right of arrested persons was
progressively eroded.  The right was honoured more
in the breach than in its
observance, and our courts found themselves having to adjudicate an ever
increasing number of cases where
coerced confessions had become the order of
the day.  Police interrogations were often accompanied by physical brutality
and by
holding arrested persons in solitary confinement without access to the
outside world -  all in an effort to extract confessions
from them.  Our
painful history should make us especially sensitive to unacceptable methods of
extracting confessions.  It is in
the context of this history that the
principle that the state should always prove its case and not rely on
statements extracted from
the accused by inhuman methods should be adhered to.
[11]
     Section 36 neither
compels an arrested or detained person to do anything, nor does it constitute
pressure being applied
on such person to make a statement.  It must be
emphasised that such persons have a choice as to whether or not to provide an
explanation
for the possession of the goods.  Arrested or detained persons
suffer no prejudice at trial stage in the absence of an explanation,
because
they retain the express right to furnish an explanation at the trial if no
explanation has previously been given.  In the
circumstances the attack on this
ground must fail.
9
[12]
     Section 25(3)(c)
enshrines both the right to be presumed innocent and the right to remain silent
during plea proceedings
or trial.  The rights contained in the subsection are
both integral to the right to a fair trial.  That these rights stand side
by side
in section 25(3)(c) is not accidental; the framers of the interim Constitution
sought to demonstrate that these rights reinforce
each other.
[13]
     This Court has dealt
with the presumption of innocence at length in
Zuma
[10]
and in
Bhulwana;
Gwadiso
,
[11]
and consequently I do not propose to examine the concept in any further detail
in this judgment.  The principles that may be distilled
from the jurisprudence
set out in those cases which are of particular relevance to the case at hand
are: (a) that the state bears
the burden of proving each of the essential
elements of the offence charged and there is no onus on the accused to disprove
any of
them; and (b) that the standard of proof is one of proof beyond
reasonable doubt.  The question that must be answered in this case
is whether
section 36 falls foul of these principles.
[14]
     Counsel for the
appellant argued that the inability to give a satisfactory account is
punishable in itself, and an accused
runs the danger of conviction from his or
her ineptitude in defending himself or herself.  It was also submitted that an
unwillingness
to give an explanation would lead to a finding that the accused
was unable to give an explanation if the other elements of the offence
were
established.
[15]
     As correctly pointed
out in the court a quo, it is the inability and not the failure or
unwillingness to give a satisfactory
account of possession that constitutes the
offence.
[12]
The point at which the account is given is of minor importance;
[13]
as long as the account is
given to the satisfaction of the court at any time prior to or during the
trial,
[14]
the accused is entitled to an acquittal.
[15]
[16]
     The plain language of
section 36 does not suggest that the inability to give a satisfactory account
of possession is anything
other than an element of the offence, and thus the
burden of proving such element still rests squarely on the state throughout the
trial.
[16]
Â
The consequences of a failure to give evidence depend upon the strength of the
state case.   If the prosecution fails to discharge
its onus, the accused is
entitled to be acquitted. If the case is strong enough to warrant a conviction
in the absence of any countervailing
evidence by or on behalf of the accused,
the accused cannot be heard to say that a conviction in such circumstances
infringes her
or his right to silence.  At no point does the onus of proof
shift, nor does the accused ever lose the protection of the presumption
of
innocence.  Appellants’ contention that the practical effect of section 36 is
similar to that of a reverse onus provision is
therefore without merit.  In the
light of the aforegoing analysis, I am of the view that section 36 does not
violate the right to
be presumed innocent.
[17]
     The right to silence,
like the presumption of innocence, is firmly rooted in both our common law and
statute.
[17]
Â
It is also inextricably linked to the right against self-incrimination and the
principle of non-compellability of an accused person
as a witness at his or her
own trial.  As Innes CJ put it in
R v Camane and Others
:
[18]
“[I]t 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.”
[18]
[    The right to silence
has many facets, as pointed out by Lord Mustill, in
R v Director of Serious
Fraud Office, Ex Parte Smith
[19]
in the following helpful passage:
“This
expression arouses strong but unfocused feelings.  In truth it does not denote
any single right, but rather refers to a disparate
group of immunities, which
differ in nature, origin, incidence and importance, and also as to the extent
to which they have already
been encroached upon by statute.  Amongst these may
be identified: (1) A general immunity, possessed by all persons and bodies,
from being compelled on pain of punishment to answer questions posed by other
persons or bodies.  (2) A general immunity, possessed
by all persons and
bodies, from being compelled on pain of punishment to answer questions the
answers to which may incriminate them.
(3) A specific immunity, possessed by
all persons under suspicion of criminal responsibility whilst being interviewed
by police officers
or others in similar positions of authority, from being
compelled on pain of punishment to answer questions of any kind. (4) A specific
immunity, possessed by accused persons undergoing trial, from being compelled
to give evidence, and from being compelled to answer
questions put to them in
the dock.  (5) A specific immunity, possessed by persons who have been charged
with a criminal offence,
from having questions material to the offence
addressed to them by police officers or persons in a similar position of
authority.Â
(6) A specific immunity (at least in certain circumstances, which
it is unnecessary to explore), possessed by accused persons undergoing
trial,
from having adverse comment made on any failure (a) to answer questions before
the trial, or (b) to give evidence at the trial.”
[19]
     McCreath J was of the
view that the entrenchment of the right to silence in section 25(3)(c) should
not detract from the
meaning of the right as it has been understood hitherto.Â
His reasoning stood on two legs.  Firstly, that “[s]ection 36 does
not . . .
per
se
cast a duty on a person suspected of contravening the section to make
any statement at all.”
[20]
Â
Secondly, that:
[21]
“[t]he
circumstances of a particular case may of course be such that an explanation
will be required of the person’s possession
of the goods in order to avoid a
conviction under the section and that that explanation can only be given by
that person himself
or herself.  Such person still has an election whether to
give an explanation or to risk the consequences.  The necessity to give
a
satisfactory account to avoid conviction is in that event not created by
section 36 itself but by the circumstances of the particular
case.  Section 36
compels nothing.  It is a misfortune inherent in the case.  So also if the
account required to be given involves
an admission or confession to a crime on
the part of that person.  The situation is analogous to that which may arise in
any criminal
case at the end of the State case.  Sufficient evidence may have
been advanced by the prosecution at that stage to require a satisfactory
explanation from the accused, which is reasonably possibly true, if he is to
avoid conviction.  His right to remain silent has not
been impinged upon by any
statutory provision in conflict with the Constitution.  The circumstances of
the case against him are
such that he exercises his right to silence at his
peril . . . ”
[20]
     Similarly, in
S v
Sidziya and Others
,
[22]
the court effectively held that the constitutional right to silence does not
preclude the presiding officer from considering as part
of the overall
assessment of the case, the accused’s silence in the face of a prima facie case
established by the prosecution.Â
As was so aptly put by Naidu AJ in
Sidziya
:
[23]
“The right
entrenched in section 25(3)(c) means no more than that an accused person has a
right of election whether or not to say
anything during the plea proceedings or
during the stage when he may testify in his defence.  The exercise of this
right like the
exercise of any other must involve the appreciation of the risks
which may confront any person who has to make an election.  Inasmuch
as skilful
cross-examination could present obvious dangers to an accused should he elect
to testify, there is no sound basis for
reasoning that, if he elects to remain
silent, no inferences can be drawn against him.”
[21]
     This issue was also
dealt with by the Botswana Court of Appeal in
Attorney General v Moagi
.
[24]
  The court there had to
interpret the meaning of section 10(7) of the Botswana Constitution which
provides that “[n]o person who
is tried for a criminal offence shall be
compelled to give evidence at the trial.”  Maisels JP, delivering the majority
judgment,
held that where the prosecution had established a prima facie case,
“[u]nless the accused’s silence is reasonably explicable
on other grounds, it
may point to his guilt.”
[25]
[22]
     Our legal system is
an adversarial one.  Once the prosecution has produced evidence sufficient to
establish a prima facie
case, an accused who fails to produce evidence to rebut
that case is at risk.  The failure to testify does not relieve the prosecution
of its duty to prove guilt beyond reasonable doubt.  An accused, however,
always runs the risk that absent any rebuttal, the prosecution’s
case may be
sufficient to prove the elements of the offence.  The fact that an accused has
to make such an election is not a breach
of the right to silence.  If the right
to silence were to be so interpreted, it would destroy the fundamental nature
of our adversarial
system of criminal justice.  The circumstances in which it
would be constitutionally permissible for a court to draw an adverse
inference
from the failure of an accused person to testify personally is not a matter
which we are called upon to decide in this
case and therefore I expressly
refrain from doing so.
[23]
     Where the prosecution
has proved a reasonable suspicion that the goods are stolen,  that they were
found in possession of
the accused, and that the accused has not satisfactorily
accounted for such possession or led evidence to the contrary, this will
ordinarily establish a prima facie case of a contravention of the section.Â
Absent any evidence to the contrary, it may be possible
to infer that the
accused is unable to give a satisfactory account.  An accused, when faced with
the assembled evidence of his or
her  possession may find it wise to furnish a
defence with or without his or her own testimony at any stage of the trial, but
that
is a practical impetus and not one imposed by the law.  The election to
testify or to lead evidence remains that of the accused.Â
The impugned section
imposes no legal compulsion on the accused.  The choice to testify or not is
left entirely to the accused.Â
He or she need not testify but may call the
evidence of other witnesses in his or her defence.  The accused may be content
to defend
himself or herself by exploration of some technical defect within the
indictment alone.  The choice remains that of the accused.Â
The important point
is that the choice cannot be forced upon him or her.
[24]
     I come to the
conclusion that the provisions of section 36 do not violate any of the rights
contained in section 25(2)(c)
and 25(3)(c) of the interim Constitution.  In the
result the justification enquiry is not reached and the appeal fails.
[25]
     This matter was
argued before ten judges of this Court, but at the time of the preparation of
this judgment, my brother Didcott
J had taken ill and was unfortunately unable
to take part in further deliberations on the case.  He has thus not been in a
position
to express his views, one way or the other, with regard to the
judgment.  The other judges concur in the judgment and order.  The
question
that arises is whether, in the absence of Didcott J, the Court is properly
constituted to deliver judgment.
[26]
     In terms of section
167(2) of the 1996 Constitution, a matter before the Court must be heard by “at
least eight judges”.Â
In
Green v Fitzgerald and Others
,
[26]
an appeal had been heard by a
bare quorum.  After the case had been argued and after the Court had intimated
that it required further
argument on an exception, one of the members died,
leaving his final conclusions unformulated.  Innes CJ held that, as the
remaining
members of the Court did not constitute a quorum, it was not
competent for the remaining members of the Court to deal further with
the
matter, save after fresh argument before a quorum.  Innes CJ’s reasoning was
reaffirmed by the Appellate Division in
R v Price
.
[27]
In the present matter, the
judges who remain constitute a quorum.  I am satisfied that it is competent for
the available judges
to dispose of the appeal.
[27]
     The appeal is
dismissed.
Chaskalson P, Langa DP,
Goldstone J, Kriegler J, Mokgoro J, O’Regan J, Sachs J and Yacoob J concur in
the judgment of Madala J.
For the Appellants:                Mr E Bertelsmann SC and Mr K T Jordt,
instructed by Werner Moolman
For the Respondents:            Advocate J A van S d’Oliviera SC,
Attorney-General:Transvaal and Advocate E Leonard
1
               The
matter is reported as
Osman and Another v Attorney-General of Transvaal
1998 (1) SACR 28
(T).
2
               The Constitution of the Republic of South Africa Act
200 of 1993.
It was suggested during argument that the appellants might go the
route of section 11 of the interim Constitution.  Counsel for the
appellants
conceded however that this route was not open to the appellants as it had not
been raised in the High Court, no notice
had been given that section 11 would
be raised and neither party was prepared for it.  In the result, nothing
further need be said
about this line of attack.
3
               Section 101(6) reads as follows:
“If the parties to a matter falling outside the additional
jurisdiction of a provincial or local division of the Supreme Court in
terms of
subsection (3), agree thereto, a provincial or local division shall,
notwithstanding any provision to the contrary, have
jurisdiction to determine
such matter . . . .”
4
             Â
S
v Mhlungu and Others
,
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC).
5
             Â
Du
Plessis and Others v De Klerk and Another
,
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5)
BCLR 658
(CC).
6
               The
Constitution of the Republic of South Africa, 1996.
7
            Â
1997 (4) SA 1076(CC)
;
1997 (10) BCLR 1413
(CC) at para 29.
8
               Section
36 can be traced back to the Stock Theft Act 26 of 1923, which has been
replaced by the Stock
Theft Act 57 of 1959.  Section 36 almost replicates the
wording of this latter Stock Theft Act.  The only material difference between
the two is that section 36 makes reference to goods, other than stock or
produce as defined and exclusively dealt with in the Stock
Theft Act.
9
               In
the present case we do not know from the record when the appellants were
arrested, or indeed whether
they were arrested at all.  It is certain however,
that the interim Constitution was not in force at the time the offence was
committed.Â
The appellants, nevertheless, rely on an alleged infringement of
section 25(2)(c), contending that section 36 put them under pressure
to answer
questions concerning the provenance of the goods.
[10]
S v Zuma and Others
,
[1995] ZACC 1
;
1995 (2)
SA 642
(CC);
1995 (4) BCLR 401
SA.
[11]
S v Bhulwana; S v Gwadiso
,
[1995] ZACC 11
;
1996
(1) SA 388
(CC);
1995 (12) BCLR 1579
(CC).
[12]
Osman
above n 1 at 30 G.
[13]
R v May
1924 OPD 274
at 281.
[14]
R v Ismail and Another
1958 (1)
SA 206
(A) at 209 H - 210 B.
[15]
Id at 209 H - 210 B;
May
above n 13 at 281.
[16]
S v Khumalo
1964 (1) SA 498
(N)
at 500 H - 501 E;
S v Kajee
1965 (4) SA 274
(T) at 275 F - 276 D.
[17]
Section 196(1)(a)
of the
Criminal Procedure Act 51 of 1977
.
[18]
1925 AD 570
at 575.
[19]
[1993] AC 1
[HL] at 30 E - 31 A.
[20]
Osman
above n 1 at 31 G - H;
168 D - G.
[21]
Id at 31 H - 32 A; 168 D - G.
[22]
1995 (12) BCLR 1626
(Tk).
[23]
Id at 1648 I - 1649 B.
[24]
1981
Botswana LR
1.Â
The right to silence can also be
read into section 18(8) of the Zimbabwe Constitution which provides:
“No person who is tried for a criminal offence shall be compelled to
give evidence at the trial.”
However, this has to be read in conjunction with section 18(13)(e)
of that same Constitution which provides that:
“Nothing contained in or done under the authority of any law shall
be held to be in contravention of . . . subsection (8) to the
extent that the
law in question authorizes a court, where the person who is being tried refuses
without just cause to answer any
question put to him, to draw such inferences
from that refusal as are proper and to treat that refusal, on the basis of such
inferences,
as evidence corroborating any other evidence given against that
person.”
[25]
Id at 8.
[26]
1914 AD 652.
[27]
1955 (1) SA 219
(A) at 223.