The applicants, Fareed Mohammed and Winston Anthony Blaauw, were tried in the Western Cape High Court with several co-accused on multiple serious charges under the Drugs and Drug Trafficking Act 140 of 1992. Mohammed was convicted on one count of dealing in an undesirable dependence-producing substance (100 000 mandrax tablets) and sentenced to ten years’ imprisonment. Blaauw was convicted on two similar counts involving large quantities of mandrax and sentenced to ten years’ imprisonment on each count, partially concurrent. The charge sheet referred to sections of the Drugs Act (ss 20 and 21) containing reverse-onus presumptions that had previously been declared unconstitutional. The State did not rely on those presumptions at trial, and the charges were not amended. Acting on legal advice that the charges were incompetent, the applicants elected not to testify. Their applications for leave to appeal against conviction were refused by the trial court, leading to the present applications before the Supreme Court of Appeal.
The applications for leave to appeal against conviction were refused.
The decision clarifies that criminal charges containing references to unconstitutional provisions are not automatically invalid. It reinforces the approach under s 322 of the Criminal Procedure Act that appellate courts must assess whether an irregularity caused a failure of justice or an unfair trial, rather than treating defects as per se nullities. The case limits the reach of earlier interpretations of S v Tshali and provides guidance on the effect of defective charge sheets in criminal proceedings.