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1999
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[1999] ZACC 19
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S v Baloyi and Others (CCT29/99) [1999] ZACC 19; 2000 (1) BCLR 86 (CC); 2000 (2) SA 425 (CC); 2000 (1) SACR 81 (CC) (3 December 1999)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 29/99
THE STATE
versus
GODFREY BALOYI Appellant
THE
MINISTER OF JUSTICE First Intervening Party
THE COMMISSION ON GENDER
EQUALITY Second Intervening Party
Heard on : 9 November 1999
Decided on : 3 December
1999
JUDGMENT
SACHS J:
Introduction
[1] The Transvaal
High Court declared invalid section 3(5) of the Prevention of Family Violence
Act 133 of 1993 (“the Act”),
and referred its declaration to this
Court for confirmation.
[1]
It based
its order of invalidity on three findings: first, that the section
[1]
places a reverse onus of
proving absence of guilt on a person charged with breach of a family violence
interdict, secondly, that in
so doing it conflicts with the presumption of
innocence,
[2]
and thirdly, that such
limitation of the right to be presumed innocent cannot be constitutionally
justified.
[3]
In dealing with the
matter, this Court faces the novel and complex task of establishing the
appropriate balance between the state’s
constitutional duty to provide
effective remedies against domestic violence, and its simultaneous obligation to
respect the constitutional
rights to a fair trial of those who might be affected
by the measures taken.
[2] Even though all the
relevant provisions of the Act are about to be replaced by the
Domestic Violence
Act 116 of 1998
, which comes into force on 15 December
1999,
[4]
a decision on the
constitutional validity of the present Act is necessary, since it continues to
affect the appellant and others
in a similar position.
The factual
background
[3] The dispute is between the appellant, an army
officer, and his wife, the complainant. The complainant laid a charge of
assault
against the appellant with the police and was advised by them to obtain
an interdict in terms of the Act.
[5]
The interdict was granted by a magistrate in Pretoria, who ordered the appellant
not to assault the complainant and their child
and not to prevent them from
leaving or entering their joint home. A warrant for the arrest of the appellant
was simultaneously
granted but suspended in terms of the
Act.
[6]
The appellant then allegedly
assaulted the complainant again and threatened to kill her. The complainant
reported this to the police
and was requested to make an affidavit in terms of
the Act setting out the alleged
facts.
[7]
The police then arrested
the appellant
[8]
and brought him
before a magistrate for an enquiry into the alleged breach of the
interdict.
[4] The Act provides that a person so arrested must be
brought before a judge or magistrate as soon as
possible
[9]
and:
“3(4) The judge or magistrate before whom a respondent is brought in terms
of subsection (2) shall enquire into the respondent’s
alleged breach of
the conditions of the order made in terms of section 2 (2) and may at the
conclusion of such enquiry—
(a) order the release of the respondent from custody; or
(b) convict the respondent of the offence contemplated in section
6.”
1
[0]
[5] It
was at this stage that the provision under review in the present matter became
operative. Section 3(5) of the Act reads:
“The provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977),
relating to the procedure which shall be followed
in respect of an enquiry
referred to in section 170 of that Act, shall apply
mutatis mutandis
in
respect of an enquiry under subsection
(4).”
[6] Section 170 of the Criminal Procedure Act 51
of 1977 (“CPA”) deals with failure of an accused in a criminal trial
to appear after an adjournment or to remain in attendance. It reads as follows:
“(1) An accused at criminal proceedings who is not in custody and who has
not been released on bail, and who fails to appear
at the place and on the date
and at the time to which such proceedings may be adjourned or who fails to
remain in attendance at such
proceedings as so adjourned, shall be guilty of an
offence and liable to the punishment prescribed under subsection
(2).
(2) The court may, if satisfied that an accused referred to in subsection (1)
has failed to appear at the place and on the date and
at the time to which the
proceedings in question were adjourned or has failed ro remain in attendance at
such proceedings as so adjourned,
issue a warrant for his arrest and, when he is
brought before the court, in a summary manner enquire into his failure so to
appear
or so to remain in attendance and,
unless the accused satisfies the
court that his failure was not due to fault on his part
, convict him of the
offence referred to in subsection (1) and sentence him to a fine not exceeding
R300 or to imprisonment for a
period not exceeding three months.” [My
emphasis.]
[7] At the enquiry the complainant
and her brother testified first. Her story was that he had kicked her heavily
on the buttocks
and pushed her roughly. Thereafter the appellant, who was
represented by an attorney, elected to testify. His story was that she
had
thrown something at him while her brother had tried to throttle him. Stating
that the matter had to be judged “on the
basis of the onus being on a
balance of probabilities”, the magistrate decided that the
appellant’s version was improbable
and untrue. She convicted the
appellant of violating the interdict, and sentenced him to twelve months
imprisonment, six suspended.
[8] The appellant appealed to the Transvaal
High Court, contending that the section in terms of which he was convicted
imposed an
onus on him to prove that he had not wilfully violated the interdict.
This, he submitted, was unconstitutional because it infringed
his right under
section 35(3)(h) of the Constitution to be presumed innocent and to have his
guilt proved beyond reasonable doubt
by the state. As already mentioned, the
High Court upheld this contention. The High Court went on to state that the
limitation
of the right to be presumed innocent could not be justified under
section 36 of the Constitution inasmuch as the injustice of sending
an innocent
person to jail outweighed the evil flowing from the difficulties encountered by
the state in establishing proof beyond
a reasonable doubt. The High Court
further indicated, with little elaboration, that it was essentially a case of
the appellant’s
word against that of the complainant and her brother. If
the reverse onus applied, the conviction must be sustained. If, on the
other
hand, the state had to prove the appellant’s guilt beyond a reasonable
doubt, his appeal should be upheld. After declaring
section 3(5) of the Act to
be invalid, the High Court referred its decision to this Court for
confirmation.
[9] Responding to notice given to various bodies by the
President of the Court, the Minister of Justice and the Commission for Gender
Equality made written and oral submissions on the constitutionality of section
3(5). The Court is indebted to the Commission for
Gender Equality for its
intervention and to Mr Marcus, Mr Chaskalson and Ms Kalla who appeared for the
Commission pro bono.
[10] Counsel for the Minister and for the
Commission, respectively, challenged the decision of the High Court on several
grounds.
There was considerable overlap between them, and for the sake of
convenience I will consolidate their various contentions into three
main
arguments. The first is that alleged violators should not be considered as
“accused persons” entitled to the protection
of the presumption of
innocence. The second is that even if they are to be regarded as accused
persons the sections should not be
interpreted to impose a reverse onus. The
third is that if the proper interpretation of the sections involves the
imposition of
a reverse onus on accused persons, then the limitation of the
presumption of innocence involved can be justified. Before considering
these
three questions I will establish the relevant constitutional and legislative
context.
The constitutional requirement to deal effectively with
domestic violence
[11] All crime has harsh effects on society. What
distinguishes domestic violence is its hidden, repetitive character and its
immeasurable
ripple effects on our society and, in particular, on family
life.
1
[1]
It cuts across class,
race, culture and geography,
1
[2]
and
is all the more pernicious because it is so often concealed and so frequently
goes unpunished. The Law Commission, supporting
the need for appropriate
legislation to reduce and prevent family violence, invoked the following
quotation from a document drafted
by the US National Council of Juvenile and
Family Court Judges:
“Domestic and family violence is a pervasive and frequently lethal problem
that challenges society at every level. Violence
in families is often hidden
from view and devastates its victims physically, emotionally, spiritually and
financially. It threatens
the stability of the family and negatively impacts on
all family members, especially the children who learn from it that violence
is
an acceptable way to cope with stress or problems or to gain control over
another person. It violates our communities’
safety, health, welfare, and
economies by draining billions annually in social costs such as medical
expenses, psychological problems,
lost productivity and intergenerational
violence.”
1
[3]
The
imperative for such legislation, as noted by the Law Commission derives from
section 12(1) of the Constitution, which reads:
“Everyone has the right to freedom and security of the person, which
includes the right—
. . . .
(c) to be free from all forms of violence from either public or private
sources;
. . .”
The specific inclusion of private sources
emphasises that serious threats to security of the person arise from private
sources. Read
with section
7(2),
1
[4]
section 12(1) has to be
understood as obliging the state directly to protect the right of everyone to be
free from private or domestic
violence. Indeed, the state is under a series of
constitutional mandates which include the obligation to deal with domestic
violence:
to protect both the rights of everyone to enjoy freedom and security
of the person
1
[5]
and to bodily and
psychological integrity,
1
[6]
and the
right to have their dignity respected and
protected,
1
[7]
as well as the
defensive rights of everyone not to be subjected to torture in any
way
1
[8]
and not to be treated or
punished in a cruel, inhuman or degrading
way.
1
[9]
[12] In my view,
domestic violence compels constitutional concern in yet another important
respect. To the extent that it is systemic,
pervasive and overwhelmingly
gender-specific,
2
[0]
domestic
violence both reflects and reinforces patriarchal domination, and does so in a
particularly brutal form. As Joanne Fedler
points
out:
2
[1]
“Intrafamily offences include arson, assault, assault with intent to do
grievous bodily harm, threats to do bodily injury,
obstructing justice, cruelty
to children, incest, kidnapping, murder, culpable homicide, rape, forced
prostitution, unlawful entry
on to property, malicious damage to property,
stalking, theft, robbery, unlawful possession of a firearm, involuntary sodomy,
extortion,
blackmail and sexual assault.”
The
non-sexist society promised in the foundational clauses of the
Constitution,
2
[2]
and the right to
equality and non-discrimination guaranteed by section 9, are undermined when
spouse-batterers enjoy impunity. In
the words of White J in
United States v
Dixon et al
:
2
[3]
“Realisation of the scope of domestic violence . . . ‘the single
largest cause of injury to women,’ . . . has come
with difficulty, and it
has come late.”
The ineffectiveness of the criminal
justice system in addressing family violence intensifies the subordination and
helplessness of
the victims. This also sends an unmistakable message to the
whole of society that the daily trauma of vast numbers of women counts
for
little.
2
[4]
The terrorisation of
the individual victims is thus compounded by a sense that domestic violence is
inevitable. Patterns of systemic
sexist behaviour are normalised rather than
combatted. Yet it is precisely the function of constitutional protection to
convert
misfortune to be endured into injustice to be remedied.
[13] In
seeking to remedy the injustice, the legislature was acting in compliance with
South Africa’s international obligations.
Freedom from fear is one of the
fundamental rights identified in the preamble to the Universal Declaration of
Human Rights (1948)
which speaks of:
“. . . the advent of a world in which human beings shall enjoy freedom of
speech and belief and freedom from fear and want
has been proclaimed as the
highest aspiration of the common people.”
The
Declaration on the Elimination of Violence Against
Women
2
[5]
specifically enjoins
member states to pursue policies to eliminate violence against women. In this
regard the member states undertake
to pass legislation to punish violence
against women.
2
[6]
It is
instructive to note that freedom from violence is recognised as fundamental to
the equal enjoyment of human rights and fundamental
freedoms.
2
[7]
The Convention on the
Elimination of Discrimination Against
Women
2
[8]
imposes a positive
obligation on states to pursue policies of eliminating discrimination against
women by, amongst other things,
adopting legislative and other measures which
prohibit such discrimination.
2
[9]
Similarly the African Charter on Human and Peoples’
Rights
3
[0]
obliges signatory states
to ensure the elimination of discrimination against
women.
3
[1]
These injunctions are
directly relevant to the present matter: when interpreting the Act, the Court
must prefer any reasonable interpretation
that is consistent with international
law over any alternative interpretation that is inconsistent with
it.
3
[2]
The presumption of
innocence
[14] The discussion so far has focussed primarily on one side
of the constitutional equation, namely, the need to protect family
members from
violence within the family. The other side is the appropriate level of
protection which the Constitution must afford
to the persons against whom the
domestic violence interdict has been granted. In the present case, a challenge
has been mounted
on the basis of an alleged infringement of the right to a fair
trial, more particularly, of the right to be presumed innocent.
[15] In
open and democratic societies that have adversarial criminal justice systems
similar to ours, the centrality of this right
to a just criminal process has
been strongly emphasised. The requirement that the state must prove guilt
beyond a reasonable doubt
has been called the golden thread running through the
criminal law,
3
[3]
and a prime
instrument for reducing the risk of convictions based on factual
error.
3
[4]
The very first judgment
of this Court affirmed the significance of the principle of not convicting a
person if a reasonable doubt
as to his or her guilt
existed.
3
[5]
In
S v Zuma and
others
Kentridge J pointed out that:
“In . . . South Africa the presumption of innocence is derived from the
centuries-old principle of English law, . . . 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.”
3
[6]
He
went on to adopt the following two principles:
“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 section
11(d).
3
[7]
Such a provision would
permit a conviction in spite of a reasonable
doubt.”
3
[8]
The
principle has been re-affirmed in a number of decisions since
then,
3
[9]
almost invariably in
matters where the imposition of a reverse onus has created the possibility of
someone being convicted even though
the judicial officer had a doubt as to his
or her guilt.
The private/public and civil/criminal character of the
Act
[16] I turn now to the complex private/public character of domestic
violence, which inevitably influences the combination of civil
and criminal
remedies provided and helps explain the manner in which they must be
interpreted. As Jennifer Nedelsky points out,
although women cherish personal
autonomy, in practice the concept of autonomy has been used to protect the
abusive husband from the
actions of the state, but not the abused wife from the
actions of the husband. Similarly, despite the high value set on the privacy
of
the home and the centrality attributed to intimate relations, all too often the
privacy and intimacy end up providing both the
opportunity for violence and the
justification for
non-interference.
4
[0]
This
contributes to the ambivalence and a reluctance on the part of the victims to go
through with criminal
prosecutions.
4
[1]
Reporting on the
first year of the Act’s operation, Joanne Fedler observes that
the:
“. . . strange alchemy of violence within intimacy lends domestic abuse a
unique quality as a legal problem, for there are
no stark realities, no
one-dimensional solutions.
. . . .
[T]he lawyering of domestic abuse [therefore] requires skills and understanding
not commonly required.
. . . .
When domestic violence takes place, the criminal law intrudes into the domain of
family relationships. This unhappy incursion lends
crimes between intimates a
unique and complex quality, importing concomitant difficulties around proof of
the offence and appropriate
sentencing.”
4
[2]
[17] The
ambivalence of the victim and the reluctance of law enforcement officers to
‘take sides’ in family matters,
coupled with the intimate and
potentially repetitive character of the violence, is highly relevant to the
creation of a special process
for the issuing of domestic violence interdicts.
The interdict process is intended to be accessible, speedy, simple and
effective.
4
[3]
The principal
objective of granting an interdict is not to solve domestic problems or impose
punishments, but to provide a breathing-space
to enable solutions to be found;
not to punish past misdeeds, but to prevent future misconduct. At its most
optimistic, it seeks
preventive rather than retributive justice, undertaken with
a view ultimately to promoting restorative
justice.
4
[4]
[18] The
involvement of the courts in this realm represents an extension of the law into
an area where lawlessness has long been
sustained by interlaced notions of
patriarchy and domestic privacy. It encourages recourse to law for spouses who
might otherwise
suffer mutely because of unwillingness to invoke more drastic
criminal proceedings. Although their reluctance to see the person
they married
and the parent of their children going to jail and losing employment is
understandable, the community is affronted by
the violence and neighbours,
hospitals and police are directly
implicated.
4
[5]
Further, it offers
physical protection to the weaker party in the period when other legal
mechanisms, such as divorce proceedings
or criminal charges, are being pursued.
The overall purpose, then, is to protect the victim of domestic violence, uphold
the respect
for the law, and indicate that organised society will not sit idly
by in the face of spousal abuse.
[19] The Act does not purport to oust
existing family and criminal law remedies and penalties, but to supplement and
reinforce them.
It presupposes an interactive relationship between victim and
law enforcement agencies, where
she
4
[6]
initiates and retains some
measure of control over the process, while the state ensures that at the end of
the day the orders of
the court are respected. The form of proceedings is
neither that of a normal civil trial, nor that of an ordinary criminal trial,
but of a special enquiry involving elements of both. Many of the interpretive
problems in the present matter arise from the hybrid
nature of the process and
the role given to the judicial officer, to which I refer later. These are
difficulties inherent in the
situation. Yet, the problems are compounded by the
obscurity of the language used in the section under
scrutiny.
4
[7]
I now turn to
analysing the unfortunately tortuous way in which the offence has been created,
with a view to answering the three
basic questions raised by
counsel.
Is the subject of the enquiry “an accused
person”?
[20] Counsel contended that the enquiry by the judicial
officer into an alleged breach of an interdict should be seen not as
constituting
a criminal trial, but as part and parcel of proceedings that were
essentially civil in character; accordingly, the arrested person
was not an
accused person entitled to the protection of section 35(3)(h). In this respect,
they developed their case on the basis
of certain observations by Ackermann J in
the case of
Nel v Le Roux and Others
.
“The section 25(3) rights to a fair trial accrue only to an accused
person. The recalcitrant examinee who, on refusing or
failing to answer a
question, triggers the possible operation of the imprisonment provisions of
sections 189(1) is not, in my view,
an ‘accused person’ for purposes
of the protection afforded by section 25(3) of the Constitution. Such examinee
is unquestionably
entitled to procedural fairness, a matter which will be dealt
with below, but not directly to the section 25(3) rights, for the simple
reason
that such examinee is not an accused facing criminal
prosecution.”
4
[8]
[21] Attention
must be paid, however, to the words in the judgment which follow immediately
afterwards.
“The s 189(1) proceedings are not regarded as criminal proceedings, do not
result in the examinee being convicted of any offence
and the imprisonment of an
examinee is not regarded as a criminal sentence or treated as such. If, after
being imprisoned, an examinee
becomes willing to testify this would entitle the
examinee to immediate release; in American parlance such examinees ‘carry
the keys of their prison in their own pockets’. The imprisonment
provisions in section 189 constitute nothing more than process
in aid of the
essential objective of compelling witnesses who have a legal duty to testify to
do so; it does not constitute a criminal
trial, nor make an accused of the
examinee.”
4
[9]
[22] The reasons advanced by Ackermann J for regarding the
coercion as amounting merely to process in aid and not criminal punishment
in
that matter, point in precisely the opposite direction in the present case. The
language of the Act is clear. Section 6 is headed
Offences and Penalties
and says that a person who contravenes an interdict
“shall be guilty of
an offence and liable on conviction
” to a fine or imprisonment for a
period not exceeding twelve months. Section 3(4) states that the judicial
officer shall enquire
into the alleged breach and may “(b)
convict
the respondent of the offence contemplated in section 6.” The execution
of the warrant of arrest is effected by a peace officer
as defined in section 1
of the CPA, and the provisions of the CPA are further imported by section 3(5),
the section under scrutiny.
Once the enquiry stage has commenced, it is no
longer the complainant who controls the proceedings on her own behalf, but the
state
which pursues the enquiry in its own interest. To sum up: the objective
is not to coerce the will
5
[0]
to
desist from on-going defiance, but to punish the body for completed violation;
and the convicted person carries no keys in his
pocket - indeed there is nothing
in the Act to suggest that he can be released early if either the complainant so
wishes, or the
judicial officer so
decides.
5
[1]
[23] I
accordingly conclude that an alleged violator of the interdict, who faces
conviction and imprisonment for up to twelve months
(and a fine), is an
“accused person” as contemplated by section 35(3)(h) of the
Constitution, and entitled to the benefit
of the presumption of
innocence.
Do the provisions impose a reverse onus?
[24] The
words used in section 3(5) of the Act and section 170 of the CPA do not lend
themselves to ready interpretation. They are
not so much ambiguous as obscure.
Three possible interpretations have been offered; all have their merits and all
their disadvantages.
I will refer to them as interpretations A, B and
C.
[25] Interpretation A places the emphasis on the word
‘procedure’ in section 3(5) and infers that the section should
be
read as importing only the summary procedure contained in section 170 and not
the reverse onus. Since the procedure is prescribed
in a section of the CPA, it
would carry with it all the protection guaranteed by the CPA, such as the right
to counsel, and the right
to call and challenge testimony. The reverse onus
does not enter the picture, and the intrusion on the presumption of innocence
is
avoided. This, it is contended, is the interpretation most compatible with
liberty.
[26] The appropriate approach to the interpretation is that
commanded by the Constitution itself. Section 39(2) provides:
“When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must
promote the spirit, purport
and objects of the Bill of Rights.”
This involves a single interpretive enquiry. The Constitution
embodies many enduring common law
principles,
5
[2]
especially those
associated with personal freedom. The Constitution also articulates, however,
new values and contains different
emphases. As pointed out above, the
Constitution and South Africa’s international obligations require
effective measures to
deal with the gross denial of human rights resulting from
pervasive domestic violence. At the same time the Constitution insists
that
no-one should be arbitrarily deprived of
freedom
5
[3]
or convicted without a
fair trial.
5
[4]
The problem, then,
is to find the interpretation of the text which best fits the Constitution and
balances the duty of the state
to deal effectively with domestic violence with
its duty to guarantee accused persons the protection involved in a fair
trial.
[27] Interpretation B is to the effect that section 170 of the
CPA provides for a procedure which incorporates a reverse onus as
a central
element. The High Court adopted this
interpretation.
[28] Interpretation C lies between the above two. It
was adopted by the Cape of Good Hope High
Court,
5
[5]
and emphasises disproof
of wilfulness as constituting the heart of section 170 of the CPA. It
presupposes that the judicial officer
must first be satisfied beyond reasonable
doubt that the interdict has in fact been breached and that only then is the
onus placed
on the alleged violator to prove on a balance of probabilities a
lack of wilfulness on his part. There is a reverse onus, but its
reach would be
restricted because it would be triggered only after a breach of the interdict
has been proved beyond a reasonable
doubt. From a textual point of view it is
the most strained. It breaks the offence artificially into two parts, assuming
without
direct textual support that conduct amounting to a breach has first to
be proved beyond reasonable doubt, and then the interdicted
person must
establish that an innocent explanation exists. This interpretation also keeps
alive the possibility of a person being
convicted even though a reasonable doubt
exists as to whether the breach was wilful or not.
[29] In my view,
interpretation A is the correct one. Section 3(5) imports only the provisions
of the CPA relating to “procedure”
at a section 170 enquiry. The
question is what those procedural provisions entail. It is well established in
our law that the question
of who bears the burden of proof is a question of
substantive and not procedural law. In
Tregea and Another v Godart and
Another
1939 AD 16
at 30, Stratford CJ held that:
“[S]ubstantive law lays down
what
has to be proved in any given
issue and by whom, and the rules of evidence relate to the manner of its
proof.”
5
[6]
Section
170(2) of the CPA requires a court to convict an accused of a failure to remain
in attendance at court proceedings “unless
the accused satisfies the court
that this failure was not due to fault on his part.” This clearly places
a burden of proof
on the accused. As such it is a matter of substantive law,
and falls outside of the procedures to be followed under section 170
of the CPA.
These procedures differ from the procedures ordinarily adopted in a criminal
court. It is not necessary in this case
to determine their precise nature nor
the extent to which they differ from those in an ordinary criminal trial. It
was not contended
before this Court that the procedures so imported infringed
the right to a fair trial in any way. In any event, the presiding officer
in
such an enquiry is obliged to ensure that the proceedings afford an accused a
fair trial.
5
[7]
[30] One may
accept that insistence on rigid and inflexible rules would be inappropriate in
this developing area, with its complex
nuances and new
procedures.
5
[8]
Provided it remains
within constitutionally appropriate limits, the legislature must enjoy a
reasonable degree of latitude or margin
of appreciation in choosing appropriate
solutions to a grave social ill, particularly when the need for special law
enforcement procedures
has become manifest. In the present case this requires a
construction of section 3(5) that is sensitive to its context and seeks
to
balance out the interests of all concerned in the fairest manner
possible.
[31] Fairness to the complainant in the special circumstances
of the case necessitates that the proceedings be summary, that is,
that they be
speedy and dispense with the normal process of charge and plea. It also
requires that they be inquisitorial, that is,
that they place the judicial
officer in an active role to get at the truth, which usually will be done
through questioning the accused.
5
[9]
Fairness to the accused, on the other hand, dictates that within this format the
general protection granted by the CPA should apply
in measure similar to that
available to a person charged under section 170. Such a balancing of
constitutional concerns leaves the
presumption of innocence undisturbed. At
most it may affect the right to
silence.
6
[0]
The procedure involved
in the Magistrate’s Court in the present case did not raise this issue,
nor was it an issue before
us in the confirmation. That issue would have to be
resolved when it arises.
[32] The alleged violator might have some
difficult choices to make at the enquiry. If the result involves an intrusion
on the accused’s
right to silence, this limitation of the right to a fair
trial would probably be less severe than a reverse onus affecting the
presumption
of innocence.
6
[1]
It
does not appear to be disproportionately invasive given the special context and
bearing in mind the fact that many of the matters
in issue will be peculiarly
within the knowledge of the alleged violator. In the particular circumstances
of a domestic violence
enquiry, therefore, where the danger of continuing
violence is acute and the immediate issue at stake is upholding respect for the
court’s interdict, invasion of the right to silence may well be justified
under section 36
6
[2]
of the
Constitution. As I have said, the present case does not require us to determine
this issue.
[33] Interpretation A, accordingly, stands as the
interpretation of the text which best fits the Constitution. It most
appropriately
balances optimum protection for the complainant and the
accused’s right to a fair trial. I therefore hold that, properly
construed,
section 3(5) read with section 170 of the CPA does not impose a
reverse onus on the accused. The Transvaal High Court was accordingly
wrong in
declaring section 3(5) of the Act to be unconstitutional to the extent that it
imposed a reverse onus. It is not necessary
to consider whether, if the section
had imposed such an onus, the limitation on the presumption of innocence
involved would have
been justified
.
The order
The
following order is made:
1. This Court declines to confirm the order of the Transvaal High
Court.
2. The matter is remitted to the Transvaal High Court to be dealt with in
accordance with this judgment.
Chaskalson P,
Langa DP, Ackermann J, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Yacoob J
and Cameron AJ concur in the judgment
of Sachs J.
For the first intervening party: H Fabricius SC and S Lebala instructed by
the State Attorney, Pretoria.
For the second intervening party: G Marcus SC, M Chaskalson and A Kalla
instructed by Cheadle Thompson and Haysom.
For the Appellant: J Botha instructed by Marius Coertze Attorneys
[1]
Section 167(5) of the
Constitution reads:
“The Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President
is constitutional, and
must confirm any order of invalidity made by the Supreme Court of Appeal, a High
Court, or a court of similar
status, before that order has any
force.”
See also section 172(2) (a) which
reads:
“The Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act of
Parliament, a provincial Act or any conduct of the President, but an order of
constitutional invalidity has no force
unless it is confirmed by the
Constitutional
Court.”
[2]
Section
35(3)(h) reads:
“Every accused person has a right to a fair trial, which includes the
right—
. . . .
to be presumed innocent, to remain silent, and not to testify during the
proceedings;
. .
.”
[3]
Section 36(1)
reads:
“The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the
purpose.”
[4]
Government
Gazette 20469 No. R 97, 13 September
1999.
[5]
Section 2(1) reads:
“A judge or magistrate in chambers may, on application in the prescribed
manner by a party to a marriage (hereinafter called
the applicant) or by any
other person who has a material interest in the matter on behalf of the
applicant, grant an interdict against
the other party to the marriage
(hereinafter called the respondent) enjoining the respondent—
(a) not to assault or threaten the applicant or a child living with the parties
or with either of them;
(b) not to enter the matrimonial home or other place where the applicant is
resident, or a specified part of such home or place or
a specified area in which
such home or place is situated;
(c) not to prevent the applicant or a child who ordinarily lives in the
matrimonial home from entering and remaining in the matrimonial
home or a
specified part of the matrimonial home; or
(d) not to commit any other act specified in the
interdict.”
[6]
Section
2(2) reads:
“In granting an interdict contemplated in subsection (1) the judge or
magistrate, as the case may be, shall make an order—
(a) authorizing the issue of a warrant for the arrest of the respondent;
(b) suspending the execution of such warrant subject to such conditions
regarding compliance with the interdict as he may deem fit;
and
(c) advising the respondent that he may, after 24 hours’ notice to the
applicant and the court concerned, apply for the amendment
or setting aside of
the interdict contemplated in subsection (1).”
[7]
Section
3(1).
[8]
Section 3(1) reads:
“Subject to the provisions of section 2 (3) a warrant of arrest issued and
suspended in terms of section 2 (2) may be executed
by a peace officer as
defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977),
upon receipt of an affidavit
in which it is stated that the respondent has
breached any of the conditions contained in the order contemplated in section 2
(2).”
[9]
Section
3(2).
1
[0]
Section 6
provides:
“A person who—
(a) contravenes an interdict or other order granted by a judge or magistrate
under section 2 (1) or (2); or
(b) fails to comply with the provisions of section 4,
shall be guilty of an offence and liable on conviction in the case of an offence
referred to in paragraph (a) to a fine or imprisonment
for a period not
exceeding 12 months or to both such fine and such imprisonment and in the case
of an offence referred to in paragraph
(b) to a fine or imprisonment for a
period not exceeding three months or to both such fine and such
imprisonment.”
[1]
1
Speaking
of the analogous situation in the United States, Donna Wills writes:
“Besides being ‘an unacknowledged epidemic in our society,’
domestic violence is the leading cause of injury to
women, a major factor in
female homicide, a contributing factor to female suicide, a major risk for child
abuse, and a major precursor
for future batterers and violent youth offenders.
The State cannot ignore the human tragedies that are caused by domestic
violence.”
[Citations omitted]
“Mandatory Prosecution in Domestic Violence Cases: Domestic Violence: The
Case for Aggressive Prosecution” (1997) 7
UCLA Women’s Law
Journal 173
at 174-5.
1
[2]
Ed
Schollenberg and Betsy Gibbons “Domestic Violence Protection Orders: A
Comparative Review” (1992) 10
Canadian Journal of Family Law
191 at
193-4:
“In virtually all of the jurisdictions reviewed, including Australia, New
Zealand, most American states, and Britain, a novel
remedy - more or less
specific to domestic violence situations - has been provided for in statute.
Civil protection orders or domestic
violence orders all start with the intention
of providing relief, generally beyond the usual scope of existing criminal and
family
law, available to victims of abuse within the family. Generally the
remedy is to be available with less effort on the part of the
victim and with
fewer procedural impediments. In addition, the order is to be officially
sanctioned and to attract varying degrees
of penalty for breach.”
1
[3]
South
African Law Commission Discussion Paper 70 Project 100 ‘Domestic
Violence’ (1997) at 2 - citing the
Model Code on Domestic and Family
Violence
Nevada: 1994, drafted by the National Council of Juvenile and
Family Court Judges.
1
[4]
Section
7(2) reads:
“The state must respect, protect, promote and fulfil the rights in the
Bill of
Rights.”
1
[5]
Section
12(1).
1
[6]
Section 12(2).
1
[7]
Section 10.
1
[8]
Section 12(1)(d).
1
[9]
Section 12(1)(e).
2
[0]
Dorothy Thomas and Michele
Beasley “Domestic Violence as a Human Rights Issue”
(1993) 15
Human Rights Quarterly
36
at 60 underline the fact that both the abuse
and the failure of law enforcement are gender specific.
2
[1]
“Lawyering Domestic
Violence Through the
Prevention of Family Violence Act 1993
- An Evaluation
After a Year In Operation”
(1995) 112
SALJ
231
at
243.
[2]
2
Section 1
provides:
“The Republic of South Africa is . . . founded on the following
values:
(a) Human dignity, the achievement of equality and the advancement of human
rights and freedoms.
(b) Non-racialism and non-sexism.
. .
.”
2
[3]
[1993] USSC 103
;
509 U.S. 688
(1993) at
730.
2
[4]
“Developments -
Domestic Violence” (1993) 106
Part 2
Harvard Law Review
1498 at
1552:
“[S]tereotyped views of the family and of women have historically led
state actors to blame the victim rather than her abuser.
Often police and
judges have refused to intervene, treated the situation lightly, or acted as if
the batterer and the victim were
equally responsible, thus sending signals of
legitimization to the abuser or blame to the victim. . . . [T]he criminal
justice system
was designed when domestic violence was considered off limits to
state intervention. Therefore, its structure is ill-adapted to
confronting this
problem. Together, outdated attitudes and inadequate institutional structures
have prevented the state from effectively
dealing with the crime of domestic
abuse.” [Citation
omitted]
2
[5]
General
Assembly Resolution 48/104 of 1993.
2
[6]
Article 4(d).
2
[7]
To the extent that violence
against women is recognised as a denial of human rights such as the right to
life; the right to equality;
the right to liberty and security of person; the
right to equal protection under the law; the right to be free from all forms of
discrimination; the right to the highest standard attainable to physical and
mental health; and the right not to be subjected to
torture, or other cruel,
inhuman or degrading treatment or punishment (Article 3), South Africa has an
obligation to take measures
to protect those who are most vulnerable. For a
discussion of the relationship between international law and South African
municipal
law, see John Dugard
Public International Law
in Chaskalson
et al
(eds)
Constitutional Law of South Africa
Revision Service 2
(Juta, Cape Town 1996) 13-1.
2
[8]
Commonly known as CEDAW, the
Convention was signed by South Africa on 29 January 1993 and ratified on 15
December 1995.
2
[9]
Article 2.
3
[0]
The Charter was signed by
South Africa in 1995 and ratified in 1996.
3
[1]
Article 18.
3
[2]
Section 233.
[3]
3
See
Woolmington v
Director of Public Prosecutions
[1935] UKHL 1
;
(1935) AC 462
(HL) at
481.
3
[4]
In re Winship
[1970] USSC 77
;
397 US 358
(1970).
“It is critical that the moral force of the criminal law not be diluted by
a standard of proof that leaves people in doubt
whether innocent men are being
condemned. It is also important in our free society that every individual going
about his ordinary
affairs have confidence that his government cannot adjudge
him guilty of a criminal offence without convincing a proper fact finder
of his
guilt with utmost certainty.” Per Brennan J at
364.
3
[5]
S
v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC).
3
[6]
Id at para 25.
3
[7]
This was the precursor in
the interim Constitution to section 35(3).
3
[8]
Above n 36.
3
[9]
See for example,
Osman
and Another v Attorney-General, Transvaal
1998 (4) SA 1224
(CC);
1998 (11)
BCLR 1362
(CC);
Pharbhoo and Others v Getz NO and Another
1997 (4) SA
1095
(CC);
1997 (10) BCLR 1337
(CC);
S v Coetzee and Others
[1997] ZACC 2
;
1997 (3) SA
527
(CC);
1997 (4) BCLR 437
(CC);
S v Mbatha; S v Prinsloo
[1996] ZACC 1
;
1996 (2) SA
464
(CC);
1996 (3) BCLR 293
(CC);
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA
388
(CC);
1995 (12) BCLR 1579
(CC).
4
[0]
Jennifer Nedelsky
“Violence Against Women: Challenges to the Liberal State and Relational
Feminism” in Ian Shapiro and
Russell Hardin (eds)
Political Order
(New York University Press, New York, London 1998) 454 at 473 and
477.
4
[1]
Kathleen Ferraro and
Lucille Pope “Irreconcilable Differences - Battered Women, Police and the
Law” in N. Zoe Hilton
(ed)
Legal Responses to Wife Assault
(Sage
Publications, Newbury Park, London, New Delhi 1993) at 100-1:
“For those immersed in a relational culture, the ability to connect,
nurture, and maintain intimacy is highly valued. Threats
to relationships and
the possibility of alienation are feared and guarded against. [Yet] the male
bias of US jurisprudence produces
a legal structure contradictory to
women’s needs. Androcentric jurisprudence that values autonomy and fears
annihilation collides
with the values of women who seek relationship and fear
separation.
. . . .
For judges . . . a woman’s failure to separate from the relationship once
an OP [Order of Protection] is granted is a demonstration
of her failure to
respect the court and instigation to renewed battering.” [Citations
omitted]
4
[2]
Fedler
above n 21 at 231 and 233.
4
[3]
EM Rutenberg v The
Magistrate
,
Wynberg and R Rutenberg
(Unreported) Case No 912/95 (CPD)
per Thring J as quoted in the South African Law Commission Discussion Paper
above n 13 at 3.
[4]
4
Martha
Minow “Between Vengeance and Forgiveness: Feminist Responses to Violent
Injustice”
(1998) 32
New England Law Review
967
at 969-70 explains
that:
“Under restorative justice, repairing relationships between offenders and
victims and within the community take precedence
over law enforcement.
Forgiveness and reconciliation are central aspirations. Also elevated are the
goals of healing individuals,
human relationships, and even entire societies.
One reason to pursue these aspirations is pragmatic and psychological.
Retributive
approaches may reinforce anger and a sense of victimhood;
reparative approaches instead can help victims move beyond anger and beyond
a
sense of powerlessness.
. . . .
Where victims do forgive, it is as much for their own healing and embrace of a
future without rage as it is for the benefit of the
offender.” [Citations
omitted]
4
[5]
According
to Wills above n 11 at 174:
“Domestic violence is a societal, not merely an individual, problem; it is
not just about two people in a private relationship
working out their
‘family problems’. The harm caused by this violence refuses to be
neatly confined between the abuser
and the victim. Rather, domestic violence
impacts everyone: children, neighbors, extended family, the workplace, hospital
emergency
rooms, good samaritans who are killed while trying to intervene, and
the death row inmates who cite it as a reason not to be killed.
The state has a
legitimate interest in maintaining public safety, especially by ensuring that
domestic violence offenders are not
allowed to flourish
unabated.”
4
[6]
The
Act is expressed in language that is not gender specific. Clearly it applies to
domestic violence of all kinds, whether by husband
to wife, or wife to husband.
Nevertheless in practice the complaints come overwhelmingly from women who are
abused by men. I will
follow international practice of referring to the
complainant as ‘she’ and the alleged violator as ‘he’.

Not only does this correspond to the statistical norm, it also relates to the
primary discriminatory social patterns addressed by
the Act. It should be
understood, however, that the Act protects all victims of domestic violence,
whether male or female. Indeed
the appellant in this case sought and obtained
an interdict against the complainant shortly after she got an interdict against
him.
Fedler points out at 232 (see above n 21) that in the first year of
operation of the Act, People Opposing Women Abuse (POWA), a
non-governmental
organisation specialising in the protection of women’s rights, estimated
that over 4800 women made use of
its services. POWA is only one of a number of
organisations in the Gauteng area that offer such services. Other organisations
include
Women Against Women Abuse (WAWA) in Eldorado Park, the Institute for
Women’s Development NISAA in Lenasia, Agisanang Domestic
Abuse Prevention
and Training (ADAPT) based at Alexandra Health Clinic in Alexandra, and Lungelo
at Chiawelo Clinic, Soweto. All
of these appear to be organisations set up to
protect battered women. I am unaware of a need having been felt for the
creation of
similar organisations for male victims of domestic violence. See
also SA Law Commission Research Paper on ‘Domestic Violence’
April 1999 at 10 n 20; Christopher Frank “Criminal Protection Order in
Domestic Violence Cases: Getting Rid of Rats with Snakes”
(1996) 150
Miami Law Review
919 at 921.
4
[7]
Counsel for the Commission
for Gender Equality claimed that the legislation was rushed through Parliament
prior to the first democratic
elections in 1994. As far as I am aware, the Law
Commission did not do an investigation before the Act was adopted, in contrast
with the new Act which was preceded by a Law Commission report and public
comment.
4
[8]
Nel v Le Roux
and Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR 592
(CC) at para 11. Section
189(1) of the CPA reads:
“If any person present at criminal proceedings is required to give
evidence at such proceedings and refuses to be sworn or
to make an affirmation
as a witness, or, having been sworn or having made an affirmation as a witness,
refuses to answer any question
put to him or refuses or fails to produce any
book, paper or document required to be produced by him, the court may in a
summary
manner enquire into such refusal or failure and, unless the person so
refusing or failing has a just excuse for his refusal or failure,
sentence him
to imprisonment for a period not exceeding two years or, where the criminal
proceedings in question relate to an offence
referred to in Part III of Schedule
2, to imprisonment for a period not exceeding five years.” Section 25(3)
of the interim
Constitution corresponded to section 35(3) of the present
one.
4
[9]
Id
at para 11, see also
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC), Ackermann J at para 36 and 37, Didcott J at para 119
and 122, and Sachs J at para
176.
5
[0]
Commenting on the use
in the United States of injunctive relief as a tool for enforcing health
precautions, Eric Janus writes in
“Preventing Sexual Violence: Setting
Principled Constitutional Boundaries on Sex Offender Commitments”
(1996)
72
Indiana Law Journal
157
at 169:
“Injunctions are not ‘directly’ enforced on the body of the
person. Rather, they are intended to operate on the
person’s will. That
is, persons who violate the injunction are either imprisoned as a means of
coercing compliance, or are
imprisoned (or fined) as punishment for
violation.”
5
[1]
The
rationale for holding that defiance of a court order granted in civil
proceedings constituted criminal contempt has been articulated
by Steyn CJ in
S v Beyers
1968 (3) SA 70
(A) at 80E-F and 81E in the following
terms:
“Die opvatting dat dit inderdaad ↵ misdaad is, blyk ten duidelikste
uit die feit dat ↵ gewone straf opgelΛ
word as die aansoek slaag. . .
Al is afdwinging van ↵ burgerlike verpligting die hoofdoel van die straf,
dan word dit nogtans
nie opgelΛ bloot omdat die verpligting nie nagekom is
nie, maar uit hoofde van misdadige minagting van die Hof wat daarmee gepaard
gegaan het.
. . . .
Dat die gesag en aansien van ons Howe doeltreffend beskerm moet word, is
onontbeerlik vir regsordelike verkeer en ↵ saak van
hoë
Staatsbelang.”
[The view that it is indeed a crime appears most clearly from the fact that
ordinary punishment is imposed if the application succeeds.
. . Even if
enforcement of a civil obligation is the main purpose of the punishment, it is
nevertheless not being imposed simply
because the obligation is not being
fulfilled, but in consequence of the criminal contempt of court that accompanied
it.
. . . .
That the authority and prestige of our courts must be effectively protected, is
indispensable for the proper functioning of the legal
order and a matter of
profound state interest.] [My
translation.]
5
[2]
S
v Zuma
above n 35 at para 33 Kentridge AJ said:
“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 te 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 . . . 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 s 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 s 25. It follows that s
217(1)(b)(ii) violates these provisions
of the
Constitution.”
5
[3]
Section
12(1)(a).
5
[4]
Section 35(3).
[5]
5
In the case of
S v
Chaplin
1996 (1) SA 191
(C). Where a charge is brought under section 170
itself, the breach is established by the fact of non-appearance, something which
will be known to the judicial officer without further proof. The alleged
defaulter will then escape punishment only by offering
an explanation which
satisfies the court as being probably true.
5
[6]
Italics in the original.
See also
Groenendijk v Tractor & Excavator Spares (Pty) Ltd
1978 (1)
SA 815
(A) at 817G. See too the discussion in Hoffmann and Zeffert
The South
African Law of Evidence
4 ed (Butterworths, Durban 1988) at 495-6.
5
[7]
See
Bernstein and Others
v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para
24; see also
S v Bkenlele
1983 (1) SA 515
(O);
S v Du Plessis
1970
(2) SA 562
(E). See the discussion in Du Toit et al
Commentary on the
Criminal Procedure Act
Revision
Service 21 (Juta, Cape Town 1987) at 22-30.
5
[8]
Dealing with the complex
problem of securing convictions of pimps who terrify prostitutes into not
testifying, Cory J in
R v Downey
(1992) 90 DLR (4
th
) 449 (SCC)
at 466 made the following instructive observation:
“Parliament is limited in the options which it has at hand to meet or
address the problem. Rigid and inflexible standards should
not be imposed on
legislators attempting to resolve a difficult and intransigent
problem.”
5
[9]
The
enquiry here has certain features in common with a bail hearing. It is
inherently urgent, and although intended to be formal,
could well be
considerably less formal than a trial. Its function is to provide immediate
relief to the complainant without deciding
on whether or not the accused should
be found guilty of the substantive offence. At the same time, unlike bail
proceedings, it does
lead to a determination of guilt or otherwise and can
result in a conviction. Cf
S v Dlamini
;
S v Dladla and Others
;
S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (7) BCLR 771
(CC) at para
11.
6
[0]
Section 35(3)(h)
reads:
“Every accused person has a right to a fair trial, which includes the
right -
. . . .
to be presumed innocent, to remain silent, and not to testify during the
proceedings;
. .
.”
6
[1]
The possibility of
this Court accepting the constitutionality of an intrusion on the right to
silence in order to promote a compelling
public purpose, was envisaged by this
Court in
S v Mbatha; S v Prinsloo
1996 (2) 464 (CC)
[1996] ZACC 1
; ;
1996 (3) BCLR 293
(CC). In that case the issue was the impact not of an inquisitorial procedure
on the right to silence, but of a requirement on the
accused to provide
sufficient evidence to raise a reasonable doubt as to guilt. The principle,
however, was the same. Langa J,
at para 26, said:
“That it might impact on the right of an accused person to remain silent
is true; but on the assumption that the rampant criminal
abuse of lethal weapons
in many parts of our country would justify some measured re-thinking about
time-honoured rules and procedures,
some limitation on the right to silence
might be more defensible than the present one on the presumption of innocence.
The accused
could of course be exposed to the risk of being convicted if he or
she fails to offer an explanation which could reasonably possibly
be true,
regarding physical association with the weapons; there would however be no legal
presumption overriding any doubts that
the court might have. At the end of the
day and taking into account all the evidence, the court would still have to be
convinced
beyond a reasonable doubt that the accused was indeed guilty.”
6
[2]
See
above n 3.