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[1999] ZACC 14
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S v Manyonyo (CCT36/99) [1999] ZACC 14; 1999 (12) BCLR 1438 (4 November 1999)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 36/99
THE
STATE
versus
MANYONYO
Decided on : 4 November 1999
CHASKALSON
P:
Introduction
[1] The accused in this matter was
convicted in the Magistrate’s Court of dealing in dagga in contravention
of section 5(b)
of the Drugs and Drug Trafficking Act 140 of 1992 (“the
Act”) and sentenced, on 20 July 1995, to forty-two months’
imprisonment of which eighteen months was conditionally suspended for five
years. The matter was referred to the Supreme Court (Eastern
Cape Division),
for automatic review under section 302 of the Criminal Procedure Act 51 of
1977.
[2] In convicting the accused the magistrate relied on the
presumptions created by sections 20, 21(1)(a) and 21(1)(c) of the Act.
The
reviewing judges were of the opinion
[2] that the conviction could not be confirmed if the presumption created by section 21(1)(c) was inconsistent with the Constitution and that, as weight had also been attached by the magistrate to the presumption created by section 20, it was in the interests of justice that the constitutionality of both provisions be determined. They held that there was no need to consider the presumption created by section 21(1)(a) as it had already been declared unconstitutional by this Court.[1]
[3] The judgment on review was delivered on 5
February 1996.[2] At the time, the
interim Constitution was still in force, and the court made the following order
in terms of section 102(1) of that
Constitution:
“(a) the issue of whether the provisions of s 21(1)(c) of the Drugs and Drug Trafficking Act 140 of 1992 are inconsistent with the Constitution and are therefore to be declared invalid and of no force and effect is referred to the Constitutional Court for its decision;
and
(b) the issue of whether the provisions of s 20 of the Drugs and Drug Trafficking Act 140 of 1992 are inconsistent with the Constitution and are therefore to be declared invalid and of no force and effect is referred to the Constitutional Court for its decision.”
[4] It appears from the
judgment of the reviewing Court that a five-months’ delay had occurred
before the Magistrate’s
Court record was referred to the Supreme Court for
automatic review. Section 303 of the Criminal Procedure Act requires the clerk
of the Court to forward a copy of the record of proceedings to the registrar
within one week of the determination of the
case. The record reached the
registrar only on 20 December 1995. The reviewing judges commented adversely on
the delay and drew
attention to the need for officials charged with that duty to
ensure that the procedures and time limits prescribed by law for bringing
cases
on review, are observed. I agree with these comments. Delays of this nature
are highly prejudicial to accused in custody
who are entitled to be released if
their convictions are set aside on review. Such delays should be avoided
wherever possible.
[5] In view of a perceived likelihood that this Court
would declare section 21(1)(c) of the Act invalid and that the conviction for
dealing would then not stand, steps were taken by the Attorney-General’s
office at the instance of the reviewing judges to
secure Mr Manyonyo’s
release from custody pending further adjudication of the case. This Court has
been informed by the Director
of Public Prosecutions (Eastern Cape) that Mr
Manyonyo was accordingly released on R10,00 bail on 13 February
1996.
Delays in referral to the Constitutional Court
[6] The
delays in this matter did not end at that point. In terms of the rules of this
Court the registrar of the Supreme Court
was required to lodge the referral
order with the registrar of this Court. The matter would then have been placed
before the President
of this Court to give directions as to how the referral
should be disposed of.[3] For reasons
that are not clear, the Supreme Court order was not lodged with this Court at
the time of the referral. It was only
during October 1999, when an enquiry was
addressed to the Court as to the outcome of the referral, that the matter came
to the attention
of the Director of the Constitutional Court. Steps were
immediately taken by him to secure a copy of the judgment and the order
of the
Supreme Court. Enquiries have also been made, as yet without success, to
establish who was responsible for the omission.
[7] It is fortunate that
steps were taken in this case to secure the release from custody of Mr Manyonyo
at the time the referral
order was made. As a result the harm that would
otherwise have been caused by the further delay has been
avoided.
[8] Although the referral system introduced by the interim
Constitution is no longer applicable, referrals continue to be a feature
of our
practice. The 1996 Constitution makes provision for any order declaring
provisions of an Act of Parliament to be inconsistent
with the Constitution, to
be referred to the Constitutional Court for
confirmation.[4] The Constitutional
Court rules require the registrar of a court which has made an order of
constitutional invalidity to lodge a
copy of the order with the registrar of the
Constitutional Court within 15
days.[5] It is essential that this
rule be complied with and that orders that require to be confirmed are brought
to the attention of this
Court timeously. This is of particular importance in
cases where litigants are not represented. Delays may be highly prejudicial
to
such persons.
[9] High Court registrars are under a duty to ensure that
the rule is observed. The obligation is to lodge the order of referral
with the
registrar of this Court. Lodgement takes place when the order is received by
the registrar. It is therefore the responsibility
of the registrar of the
referring court to satisfy herself or himself that this has happened, and to
secure confirmation of the receipt
of the order from the registrar of this
Court.
The constitutional issue
[10] The Director of Public
Prosecutions (Eastern Cape) has indicated that the State does not intend to
oppose any declaration of
unconstitutionality that may be made by this Court in
the present case. In the circumstances, and in the light of previous decisions
of this Court in comparable cases, the matter can be dealt with summarily
without calling for oral or written argument.
[11] The first issue
relates to the validity of section 21(1)(c) of the Act, which provides as
follows:
“Presumptions relating to dealing in drugs.
(1) If in the prosecution of any person for an offence referred to -
. . . .
(c) in section 13(e) or (f) it is proved that the accused conveyed any drug, it shall be presumed, until the contrary is proved, that the accused dealt in such drug;”[6]
The constitutional validity of this section was
considered by the Northern Cape Division of the High Court in S v
Mjezu[7] under the powers then
vested in that Court by section 101(6) of the interim
Constitution.[8] The Court ruled that
the presumptions contained in section 21(1)(c) and section 21(1)(d) of the Act
were in conflict with the presumption
of innocence in section 25(3)(c) of the
interim Constitution and that they were accordingly unconstitutional and
invalid. The decision
was based on judgments of this Court and is clearly
correct.[9]
[12] The question
which then arises is whether the declaration of invalidity made in S v
Mjezu was binding throughout the country or only in the Northern Cape
Division. If it was binding throughout the country there is no need
for an
order declaring that the section is inconsistent with the interim Constitution
to be made by this Court. But if the order
was binding only in the Northern
Cape, this Court would have to extend the declaration of invalidity to the whole
country. In that
event consideration would have to be given to the conditions
to be attached to the order relating to its retrospective effect. Ordinarily
the retrospective effect of such an order is limited to cases in which judgment
has not yet been given or in which appeals and reviews
are still pending. But
S v Mjezu was decided in 1996. There may be cases that were disposed of
between the date of the judgment in that case, and the decision in
this case, in
which appeals or reviews are not pending, but to which the decision in this case
might be pertinent.
[13] The question whether an order made in terms of
the consent jurisdiction sanctioned by section 101(6) of the interim
Constitution
is binding throughout the country or only within the province (or
between the parties to the litigation) is a question on which argument
may have
to be heard. It may, however, not arise again. The interim Constitution is no
longer in force, and the 1996 Constitution
now requires any order declaring a
provision of an Act of Parliament invalid to be confirmed by this
Court.1[0]
[14] It is not
necessary for the purposes of the present case to decide this question. In the
circumstances no good purpose would
be served by further delaying the decision
in the present matter in order to hear argument on a question which may be
purely academic,
and that question is accordingly left open. For the sake of
clarity, and in order to avoid any uncertainty that might otherwise
exist, I
propose making an order that will have the effect of ensuring that the
declaration of invalidity applies throughout the
whole country. The
retrospective effect of the order will be couched in the usual terms, but this
will not preclude any person who
might possibly be prejudiced thereby if the
decision in S v Mjezu was binding throughout the whole country, from
contending that this was so, and if that should be necessary, from applying to
this
Court to amplify or amend the terms of the order made in the present
case.
[15] The second issue concerns the constitutionality of section 20
of the Act, which provides:
“Presumption relating to possession of drugs.
If in the prosecution of any person for an offence under this Act it is proved that any drug was found in the immediate vicinity of the accused, it shall be presumed, until the contrary is proved, that the accused was found in possession of such drug.”
After the referral in the
present case, this issue was dealt with by this Court in the case of S v
Mello and Another,1[1] in which
section 20 of the Act was declared unconstitutional. Judgment was delivered in
that case on 28 May 1998. The order made
by this Court invalidated any
application of section 20 of the Act in any criminal trial in which the verdict
of the trial court
was entered after the interim Constitution came into force,
and in which, as at the date of that judgment, either an appeal or review
was
pending.1[2] That order is thus
applicable to the present case.
[16] The following order is
accordingly made:
1. Section 21(1)(c) of the Drugs and Drug Trafficking Act 140 of 1992 is declared to be inconsistent with the interim Constitution, and accordingly to be of no force and effect.
2. Subject to paragraph 3 hereof, the declaration of invalidity made in terms of paragraph 1 of this order shall invalidate any application of section 21(1)(c) of the Drugs and Drug Trafficking Act in any criminal trial in which the verdict of the trial court was entered after the interim Constitution came into force, and in which as at the date of this judgment, either an appeal or a review is pending, or the time for noting an appeal has not yet expired.
3. The orders made in paragraphs 1 and 2 hereof shall not preclude any persons who might otherwise be adversely affected thereby, from contending that the order made in the case of S v Mjezu by the Northern Cape Division of the Supreme Court on 6 May 1996 is applicable to them, and in so far as that may be necessary, from applying to this Court to amplify or amend the orders made in paragraphs 1 and 2 hereof.
4. This case is referred back to the Eastern Cape High Court to be dealt with in accordance with this judgment.
Langa DP, Ackermann J,
Goldstone J, Madala J, Mokgoro J, Ngcobo J, O’ Regan J, Sachs J, Yacoob J
and Cameron AJ concur in the
judgment of Chaskalson P.
[1] S v Bhulwana; S v Gwadiso [1995] ZACC 11; 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC).
[2] S v Manyonyo 1997 (1)
SACR 298 (E).
[3] Referrals were
governed at that time by rule 22 of the rules made in terms of section 100 read
with section
102(1) of the interim Constitution.
[4] Section 172.
[5] Rule 15(1).
[6] Section 13(f) refers to section 5(b) of the Act.
[7] 1996 (2) SACR 594
(NC).
[8] Section 101(6) of the
interim Constitution provides:
“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: ...”
[9] S v Bhulwana; S v Gwadiso above n 1; S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401
(CC); S v Mbatha; S v Prinsloo [1996] ZACC 1; 1996 (2) SA 464 (CC); 1996 (3) BCLR 293 (CC).
1[0] Section 172(2)(a).
[1]1 [1998] ZACC 7; 1998 (3) SA 712 (CC); 1998 (7) BCLR 908 (CC).
1[2] S v Mello above n 11, at para 15.