Moloi and Others v Minister for Justice and Constitutional Development and Others

The four applicants were convicted in the Kempton Park Magistrate’s Court of dealing in drugs under section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992. The charge sheets expressly relied on statutory presumptions of dealing contained in section 21(1)(a)(i), (b), (c) and (d) of the Act. Those presumptions had previously been declared unconstitutional and invalid by the Constitutional Court and other courts. The applicants were sentenced to lengthy terms of imprisonment ranging from 12 to 25 years. Although the charge sheets were not amended to remove the invalid presumptions, the magistrates later reported that they had not relied on the presumptions in convicting the applicants. The applicants, unrepresented and incarcerated, sought urgent direct access to the Constitutional Court to have their convictions and sentences set aside on the basis that the defective charge sheets violated their right to a fair trial.

Condonation for late filing and non-compliance with procedural rules was granted. The Court found that the matter raised an important constitutional issue and that it was in the interests of justice to entertain the application for direct access. (The judgment ultimately led to the setting aside of the convictions based on defective charge sheets relying on unconstitutional presumptions.)

The case affirms that criminal charges relying on statutory presumptions declared unconstitutional undermine the constitutional right to a fair trial. It clarifies the limits of section 86(4) of the Criminal Procedure Act and underscores the duty of the prosecution to formulate constitutionally valid charge sheets. The judgment has systemic importance in preventing continued reliance on invalid presumptions in drug prosecutions.