Maluto Singo v The State

On 1 November 1996, Mr Singo was warned by the magistrate in Dzanani to appear in court on 17 January 1997 on charges of common assault and malicious injury to property. He failed to comply with that warning. He was arrested and appeared in court on 4 January 1999 to be dealt with under section 72(4) of the Criminal Procedure Act 51 of 1977. His explanation was that he had settled the dispute with the complainant and they had agreed to appear in court together to have the charges withdrawn, but due to a misunderstanding he went to work instead and was thereafter sent to Namibia. The magistrate rejected his explanation, convicted him and sentenced him to three months imprisonment without an option of a fine. He successfully appealed to the Venda High Court, which set aside the conviction and declared section 72(4) unconstitutional. The matter came before the Constitutional Court for confirmation of the order of invalidity.

• Whether the summary procedure envisaged in section 72(4) of the Criminal Procedure Act limits the right to a fair trial guaranteed in section 35(3) of the Constitution
• Whether the phrase 'unless such accused or such person satisfies the court that his failure was not due to fault on his part' limits the right to be presumed innocent and the right to remain silent
• If the rights are limited, whether such limitation is justifiable under section 36(1) of the Constitution
• What the appropriate remedy is if the limitation is not justifiable

The order of constitutional invalidity made by the Venda High Court was not confirmed. The omission from section 72(4) of the words 'there is a reasonable possibility that' between the words 'that' and 'his failure' was declared to be inconsistent with the Constitution. Section 72(4) is to be read as though the words 'there is a reasonable possibility that' appear therein. The order does not invalidate any application of the reverse onus unless the verdict was entered after 27 April 1994 and either an appeal or review is pending or the time for noting such appeal or review has not yet expired.

A provision that imposes a legal burden on an accused person requiring him or her to disprove an essential element of an offence on a balance of probabilities, thereby permitting conviction despite the existence of reasonable doubt, constitutes an unjustifiable limitation of the right to be presumed innocent under section 35(3)(h) of the Constitution where the State could achieve its objective through the less intrusive means of imposing an evidentiary burden. Where a reverse onus clause is unconstitutional, the appropriate remedy may be to read in words to convert a legal burden into an evidentiary burden rather than to strike down the provision entirely, where this would leave a vacuum in the legislative scheme dealing with conduct that hinders the administration of justice.

The Court provided detailed guidance on the procedural requirements for conducting a fair summary enquiry under section 72(4). It emphasized that presiding officers must inform unrepresented accused persons of: the nature, requirements and effect of the proceedings; their basic procedural rights including the right to legal representation, to be presumed innocent, to remain silent and not to testify, to adduce evidence and challenge the prima facie case, and not to give self-incriminating evidence; and the consequences of remaining silent. The Court noted that fairness requires the presiding officer to assist an undefended accused by putting questions to elicit their explanation, provided this is done in a fair and impartial manner. The Court also observed that the fact that an enquiry is summary does not mean that rights such as the right to adequate time to prepare a defence or to adduce and challenge evidence are limited. The Court distinguished this case from S v Mamabolo on the basis that section 72(4) deals with conduct that disrupts the orderly progress of judicial proceedings requiring swift intervention, unlike contempt that occurs outside court after proceedings have terminated.

This case is significant in South African constitutional law as it demonstrates the Constitutional Court's approach to remedying unconstitutional provisions through reading in rather than striking down. It clarifies the important distinction between legal burdens (which require proof on a balance of probabilities) and evidentiary burdens (which require only raising a reasonable doubt), and establishes that legal burdens that permit conviction despite reasonable doubt violate the presumption of innocence. The judgment also emphasizes the procedural safeguards that must be followed in summary criminal proceedings to ensure they comply with fair trial rights, including the duty of presiding officers to inform unrepresented accused persons of their rights. It balances the need to effectively deal with conduct that hinders the administration of justice against the fundamental rights of accused persons.