The State v Samuel Manamela and Jabulani Mdlalose

The two appellants were arrested on 13 May 1997 in central Johannesburg while carrying boxes containing goods proven to have been stolen shortly before from a nearby parked vehicle. Two other persons walking ahead of them, including one known as "Shorty", escaped arrest. The appellants claimed Shorty, a hawker who ran a stall in Soweto, had asked them to carry the boxes to a taxi rank, and they had neither stolen the goods nor known they were stolen. The magistrate accepted their evidence could reasonably possibly be true and found them not guilty of theft. However, the magistrate held they had physical possession of stolen goods, bringing section 37 of the General Law Amendment Act 62 of 1955 into play. The magistrate rejected their evidence regarding their belief the goods were not stolen under the reverse onus provision and convicted them of contravening section 37. They were sentenced to seven and six years imprisonment respectively. On appeal, the Witwatersrand High Court declared the reverse onus provision in section 37(1) unconstitutional and set aside the convictions on two grounds: procedural violations of fair trial rights (the unrepresented accused were not warned about section 37's operation) and the unconstitutionality of the reverse onus provision. The matter came to the Constitutional Court for confirmation of the declaration of invalidity.

• Whether the reverse onus provision in section 37(1) of the General Law Amendment Act 62 of 1955 is constitutional
• Whether the reverse onus infringes the right to a fair trial, specifically the right to silence and the presumption of innocence under section 35(3)(h) of the Constitution
• If the reverse onus infringes constitutional rights, whether such infringement can be justified under section 36 of the Constitution
• What is the appropriate remedy if the reverse onus is unconstitutional

The majority order: (1) The phrase "proof of which shall be on such first-mentioned person" in section 37(1) was declared inconsistent with the Constitution and invalid; (2) Section 37(1) was read to include a new last sentence: "In the absence of evidence to the contrary which raises a reasonable doubt, proof of such possession shall be sufficient evidence of the absence of reasonable cause"; (3) The declaration of invalidity was given limited retrospective effect, applying only to verdicts entered after 27 April 1994 where an appeal or review is pending or time for noting same has not expired. This order converted the full reverse onus (requiring proof on a balance of probabilities) into an evidential burden (requiring only that reasonable doubt be raised).

The binding legal principle established by the majority is: A statutory reverse onus provision that requires an accused to prove an element of an offence on a balance of probabilities infringes the presumption of innocence under section 35(3)(h) of the Constitution. Such an infringement can only be justified under section 36 if it is reasonable and justifiable in an open and democratic society based on dignity, equality and freedom. Where the infringement can be justified to the extent it creates an evidential burden (requiring the accused to adduce evidence raising reasonable doubt) but cannot be justified to the extent it imposes a full legal burden of proof (requiring proof on a balance of probabilities), the appropriate remedy is to strike out the offending words and read in language creating only an evidential burden. The infringement of the right to silence may be justified where information relevant to an element of an offence is peculiarly within the knowledge of the accused and it would be unreasonable to expect the prosecution to prove it. However, justifying an infringement of the presumption of innocence requires more compelling reasons, particularly where the provision is broadly formulated and may result in conviction of vulnerable persons who may be unable to discharge the onus despite being innocent.

The majority made several important observations: (1) The Court noted there may be circumstances where reverse onus provisions are justifiable, such as in regulatory offences dealing with licensed activities, handling of hazardous products, or supervision of dangerous activities, where there is reduced stigma and less severe penalties; (2) The Court observed that the common law requirement that an accused prove insanity on a balance of probabilities may be justifiable, though this was not decided; (3) The Court emphasized that courts must give effect to the factor of "less restrictive means" without unduly limiting legitimate legislative choice, taking account of cost, implementation, priorities and reconciliation of conflicting interests; (4) The Court noted that ours is "an open and democratic society facing many challenges with limited means" and proportionality must be determined in this context; (5) The Court observed that the very circumstances making challenges great and means stretched "place those least capable of defending their rights in the greatest jeopardy of being victims of miscarriages of justice." The minority judgment observed: (1) That not every reverse onus offends the presumption of innocence to the same extent, requiring careful examination of each provision; (2) That the concept of "reasonableness" in section 37 must be applied contextually, taking account of the accused's particular circumstances (the diligens paterfamilias test); (3) That section 37 creates a special statutory offence distinct from and less serious than theft or common law receiving; (4) That courts should not employ sophisticated legal formulae but rely on good sense in applying reasonableness tests; (5) That the question of less restrictive means should not result in courts dictating to the Legislature or annihilating the range of legislative choice.

This case is significant in South African jurisprudence for several reasons: (1) It continues the Constitutional Court's careful scrutiny of reverse onus provisions under the constitutional right to a fair trial; (2) It distinguishes between infringement of the right to silence (which may be more easily justified where information is peculiarly within the accused's knowledge) and infringement of the presumption of innocence (which requires more compelling justification); (3) It demonstrates the Court's willingness to use "reading in" as a remedy under section 172(1)(b) of the 1996 Constitution to cure constitutional defects while minimizing interference with legislative schemes; (4) It shows concern for how broadly-cast statutory provisions may disproportionately affect vulnerable and marginalized persons; (5) It illustrates the proportionality analysis required under section 36, balancing the serious social problem of property crime and the market in stolen goods against fundamental fair trial rights; (6) The split judgment reflects ongoing judicial debate about how to balance effective crime prevention with protection of fundamental rights in South Africa's constitutional democracy. The case is part of a series of Constitutional Court decisions examining reverse onus provisions, including S v Bhulwana, S v Mbatha, S v Zuma, and others.