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Sibeko v S and Another (A839/2016) [2025] ZAGPPHC 811 (29 July 2025)

75 Reportability
Criminal Law
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Brief Summary

Criminal Law — Appeal against conviction and sentence — Appellant convicted of dealing in drugs under the Drugs and Drug Trafficking Act 140 of 1992 — Appellant challenges constitutionality of presumption in Section 19(2) of the Act — Appellant argues presumption imposes legal burden on accused, violating the presumption of innocence — Court to determine validity of presumption and whether guilty plea should be corrected under Section 113 of the Criminal Procedure Act 51 of 1977 — Appeal granted, presumption declared unconstitutional, and conviction set aside.

Comprehensive Summary

Case Note


Phumlani Sibeko v The State and Minister of Justice and Correctional Services

Case Number: A839/2016

Date: 11 April 2022


Reportability


This case is reportable due to its examination of the constitutionality of a statutory presumption in the Drugs and Drug Trafficking Act 140 of 1992, specifically Section 19(2). The significance lies in its implications for the presumption of innocence and the legal burdens placed on accused individuals in drug-related offenses. The court's decision could influence future cases involving similar statutory presumptions and the rights of defendants under the South African Constitution.


Cases Cited



  • S v Zuma and Others 1995 (2) SA 642 (CC)

  • S v Mhlongo 1997 (1) SACR 495 (W)

  • S v Mthembu 2008 (1) SACR 1 (SCA)


Legislation Cited



  • Drugs and Drug Trafficking Act 140 of 1992

  • Criminal Procedure Act 51 of 1977


Rules of Court Cited



  • Rule 16A of the Uniform Rules of Court


HEADNOTE


Summary


The case of Phumlani Sibeko v The State and Minister of Justice and Correctional Services addresses the appeal of an inmate convicted of drug-related offenses. The appellant challenged the constitutionality of a presumption in the Drugs and Drug Trafficking Act that shifts the burden of proof onto the accused. The court ultimately considered whether this presumption violated the constitutional right to a fair trial and the presumption of innocence.


Key Issues


The key legal issues in this case include the constitutionality of the presumption in Section 19(2) of the Drugs and Drug Trafficking Act and whether the trial court erred in not correcting the appellant's guilty plea to not guilty under Section 113 of the Criminal Procedure Act.


Held


The court held that the presumption in Section 19(2) of the Drugs and Drug Trafficking Act is unconstitutional as it infringes upon the presumption of innocence. Furthermore, the court found that the trial court misdirected itself by not exercising its discretion to correct the guilty plea.


THE FACTS


Phumlani Sibeko, a thirty-year-old inmate at Zonderwater Correctional Centre, was convicted of drug possession after being caught with heroin and methaqualone. The conviction was based on a guilty plea made under the assumption that the presumption in Section 19(2) of the Drugs and Drug Trafficking Act applied. The appellant later sought to appeal the conviction and sentence, arguing that the presumption was unconstitutional and that he had a valid defense regarding his intent to use the drugs.


THE ISSUES


The court needed to determine whether the presumption in Section 19(2) of the Drugs and Drug Trafficking Act should be declared unconstitutional and whether the trial court should have corrected the appellant's guilty plea to not guilty based on the appellant's assertion of a valid defense.


ANALYSIS


The court analyzed the implications of the presumption in Section 19(2), noting that it imposes a legal burden on the accused, which contradicts the principle of the presumption of innocence. The court emphasized that a presumption that requires an accused to prove their innocence undermines the foundational legal principle that the prosecution must prove guilt beyond a reasonable doubt. The court also considered the procedural missteps of the trial court in failing to correct the guilty plea, which could have allowed for a more just outcome.


REMEDY


The court declared the presumption in Section 19(2) of the Drugs and Drug Trafficking Act unconstitutional and ordered that the appellant's guilty plea be corrected to not guilty. This decision allows for a retrial of the appellant without the unconstitutional presumption affecting the proceedings.


LEGAL PRINCIPLES


The case establishes that statutory presumptions that impose a legal burden on the accused are unconstitutional if they infringe upon the presumption of innocence. It also reinforces the importance of trial courts exercising their discretion to correct pleas when a valid defense is presented, ensuring that justice is served in accordance with constitutional rights.

[Nas aaL_|
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

CASE NUMBER: A839/2016
In the matter between:
PHUMLANI SIBEKO APPLICANT
versus
THE STATE 18T RESPONDENT
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES 2N° RESPONDENT

JUDGMENT .

MNCUBE, AJ (MBONGWE, J Concurring):
(1] The Appellant was convicted in the Regional Court Cullinan on 5 August
2015 for the offence of contravention of section 5 (b) of the Drugs and Drug
Trafficking Act 140 of 1992 (DDTA).’ The trial court sentenced the Appellant to six
years imprisonment and declared the drugs forfeited to the State. On the 9
September 2015 the Appellant lodged an application for leave to appeal against the
‘ Dealing in drugs.

2
sentence which was denied. The Appellant then petitioned the Judge President in
terms of section 309C of the Criminal Procedure Act 51 of 1977 (the CPA) as
amended and was granted for leave to appeal against the sentence on 31 October
2016. On the 11 April 2022, the Court a quo granted condonation and leave to
appeal against the conviction. The First Respondent is the State and the Second
Respondent is Minister of Justice and Correctional Services.

[2] Following the granting of leave to appeal, the Appellant then gave notice to
the State and Minister of Justice and Correctional Services as Respondents in terms
of Rule 16A of the Uniform Rules of his intention to challenge the constitutionality of
the presumption contained in Section 19(2) of the DDTA?

(3] The factual background is that the Appellant is a thirty year old inmate at
Zonderwater Correctional Centre. On a certain day presumably 11 October 2014 the
Appellant was visited by his girlfriend Ms Phulani Sileteng who handed him the
drugs which he attempted to hide. The drugs fell on the floor which was noticed by a
prison official. This led to the Appellant being charged for possession of 0,41 grams
of diacetylmorphine (heroin) and 18 tablets of methaqualone (madrax). He appeared
in court on 22 January 2015. With the assistance of his legal representative, the
Appellant pleaded guilty in terms of section 112 (2) of the CPA the offence of dealing
in drugs and was convicted on the basis of his statement. The Court a quo applied
the presumption contained in Section 19 (2) of the DDTA in convicting the Appellant
who was subsequently sentenced to six years imprisonment.

[4] The Appellant has raised two grounds of appeal. The first ground is that the
presumption contained in Section 19 (2) of the DDTA is unconstitutional for the
following reasons-

1 The presumption is phrased in the manner which imposes a legal burden

upon an accused person. The effect of the legal burden is that if an accused

2 Section 19(2) provides —'If in the prosecution of any person for an offence referred to in section 13
ee re ae conned could ave noquived of Gough for medicinal purposes in
terms of a particular oral instruction or a particular prescription in writing of a medical practitioner,
veterinarian, dentist or practitioner, it shall be presumed, until the contrary is proved, that the accused
dealt in such drugs.’

3
raises a reasonable doubt but fails to do so on a balance of probabilities, he
must be convicted for dealing in drugs.

2. The presumption relieves the prosecution of the burden of proving one
element of the offence (to wit intention to deal in drugs) which could result in
the conviction despite the existence of a reasonable doubt. This is in breach
of the presumption of innocence which offends the provisions of section 35
(3) (h) of the Constitution. For these reasons the Court a quo misdirected
itself in finding that the presumption contained in Section 19 (2) of the DDTA
found application by finding that the Appellant admitted all material facts for
the application of the presumption.

[5] The second ground of appeal is that the Court a quo misdirected itself for its

failure to exercise its discretion in applying the provisions of Section 113 of the CPA

to correct the plea of guilty to that of not guilty. This is on the basis that the Appellant
raised a valid defence that he intended to use the drugs.

[6] The issues for determination are whether or not the presumption contained

in section 19(2) of the DDTA should be declared unconstitutional and whether or not

the guilty plea should have been corrected in terms of Section 113 of the CPA by the

Court a quo.

[7] Counsel for Appellant in his written heads of argument contends that it is

apparent that both the Prosecutor and the Appellant's legal representative at the

Court a quo were under the impression that Section 19 (2) of the DDTA presumption

found application. This resulted in the trial court relying on the presumption in

convicting the Appellant. The submission is that such a presumption imposes a legal
burden upon an accused person which has the effect that if an accused fails to raise

a reasonable doubt on a balance of probabilities he or she will be convicted of ;

dealing in drugs. A presumption that puts a legal burden on an accused has been

found to be unconstitutional as it offends the presumption of innocence. The
argument is that the presumption of innocence is an established South African legal
principle.

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