The State v Sipho Zakele Ntsele

The accused was convicted in a magistrates’ court of dealing in dagga under the Drugs and Drug Trafficking Act 140 of 1992. The conviction relied on the statutory presumption in section 21(1)(b), which presumed that a person in charge of cultivated land on which dagga plants were found had dealt in dagga, unless the contrary was proved. On automatic review, the Natal High Court questioned the constitutionality of this presumption, declared it inconsistent with the Constitution for infringing the presumption of innocence, ordered the accused’s release on recognisance pending confirmation, and referred the matter to the Constitutional Court for confirmation.

The declaration of invalidity of section 21(1)(b) of the Drugs and Drug Trafficking Act 140 of 1992 was confirmed. The invalidity was ordered to apply to criminal trials where verdicts were entered after the interim Constitution came into force and where appeals or reviews were pending or still capable of being noted. The matter was referred back to the Natal High Court for further disposal in accordance with the judgment.

The case reaffirmed and extended Constitutional Court jurisprudence invalidating reverse-onus presumptions in criminal law that infringe the presumption of innocence. It clarified the approach to statutory presumptions, transitional constitutional issues between the interim and final Constitutions, and the principles governing retrospective and prospective constitutional invalidity in criminal cases.