The State v Walter Bequinot

The appellant, Walter Bequinot, was one of eight accused charged in the Regional Court on fourteen counts, including robbery of 7,000 pounds sterling in traveller's cheques. Bequinot received all but two of the stolen cheques at his pawnbroker's shop shortly after the robbery. The trial court found that he could not be linked to the robbery itself, but focused on his admitted receipt of the stolen cheques. The Regional Magistrate convicted him under section 37 of the General Law Amendment Act 62 of 1955, which placed a reverse onus on the accused to prove on a balance of probabilities that he had reasonable cause for believing the goods were lawfully obtained. The trial court rejected his evidence and found he could not possibly have believed the cheques were obtained honestly. He was sentenced to a fine of R4,000 plus a wholly suspended term of imprisonment. He appealed the conviction to the Witwatersrand Local Division (WLD). Neither party's heads of argument raised any constitutional challenge to section 37. During the appeal hearing, the presiding judge of his own volition raised whether the constitutional validity of section 37 should be referred to the Constitutional Court. After brief debate with unprepared counsel, the WLD referred the matter to the Constitutional Court to determine whether section 37 conflicted with section 25(3)(c) of the interim Constitution (the right to be presumed innocent).

• Whether the referral to the Constitutional Court under section 102(1) of the interim Constitution was properly made
• Whether the constitutional issue (validity of section 37's reverse onus provision) was decisive for the case
• Whether it was in the interests of justice to refer the constitutional issue at that stage of proceedings
• Whether the WLD provided adequate reasons for the referral
• What are the proper procedural and substantive requirements for referral under section 102(1)

The matter was remitted to the Witwatersrand Local Division of the Supreme Court to deal with the criminal appeal in accordance with the principles outlined in the judgment. The Constitutional Court did not determine the constitutional validity of section 37 of the General Law Amendment Act 62 of 1955.

A referral under section 102(1) of the interim Constitution is only competent when three conjunctive requirements are met: (1) there is an issue that may be decisive for the case; (2) the issue falls within the exclusive jurisdiction of the Constitutional Court; and (3) the court considers it in the interests of justice to refer the issue. Before referring a constitutional issue, a court must: (a) consider whether the case can be disposed of on non-constitutional grounds; (b) determine whether there is a reasonable prospect that the relevant law will be held invalid; (c) provide written reasons explaining why the constitutional issue may be decisive and why referral at that particular stage is in the interests of justice; and (d) exercise the referral power judicially - it cannot be delegated to counsel. Constitutional issues should only be decided when necessary for determining a case, allowing the law to develop incrementally. Courts should not decide cases piecemeal, and if a case can be decided without determining a constitutional issue, this should be done. An issue is only 'decisive' under section 102(1) if it may have a crucial bearing on the eventual outcome of the case or on any significant aspect of how its remaining parts ought to be handled.

The Court made several important observations: (1) The receipt of stolen goods is a vital link in the chain of criminality and statutory provisions facilitating prosecution of receivers, such as section 37, cannot be lightly invalidated. (2) If a reverse onus provision is found to offend the Bill of Rights, serious consideration must be given to whether it is saved under section 33(1) (the limitations clause) or by severance of the offending provision. (3) Trial and appeal courts dealing daily with the realities of the criminal justice system are better placed than the Constitutional Court to evaluate both the effect of reverse onus provisions on trial fairness and the consequences of striking such provisions down. Their considered views are valuable when the Constitutional Court performs the balancing exercise under section 33(1). (4) The Constitutional Court is placed at a grave disadvantage when required to deal with difficult legal questions virtually as a court of first instance, without the benefit of lower court reasoning. (5) This disadvantage is particularly acute where a decision on the constitutional issue might not be decisive for the case. (6) While the Court may entertain applications under section 100(2) for direct access where there is pressing public need, the mere existence of pending cases involving the same statutory provision is insufficient to warrant such access.

This case is of fundamental importance in establishing and clarifying the procedural requirements for referrals to the Constitutional Court under section 102(1) of the interim Constitution. It reinforced the principle of constitutional avoidance - that constitutional issues should only be determined when necessary for deciding a case and as a last resort. The judgment consolidated and restated principles from earlier Constitutional Court decisions regarding referrals, providing clear guidance on: (1) the conjunctive requirements that must be met before referral (decisive issue, exclusive jurisdiction, interests of justice); (2) the need for written reasons explaining why the law may be invalid and why referral at that stage serves the interests of justice; (3) the obligation to consider non-constitutional grounds for disposing of a case first; (4) the importance of incremental development of constitutional law; and (5) the judicial (non-delegable) nature of the referral decision. The case demonstrates the Court's concern with efficient judicial process and avoiding premature constitutional determinations, particularly in the criminal justice context. It remains an important precedent on referral procedure and judicial restraint in constitutional adjudication.