S v Bhulwana and S v Gwadiso

Mr Bhulwana was found in possession of 850g of dagga near Kleinmond on 20 May 1994 and was convicted of dealing in dagga on 8 September 1994. He was fined R500 with an alternative of six months imprisonment, plus a suspended twelve month prison sentence. The conviction was based on the presumption in section 21(1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992. The matter came before the Cape Provincial Division on automatic review, where Marais J held that the evidence would not have been sufficient to convict absent reliance on the presumption. Mr Gwadiso was found in possession of 444.7g of dagga on Main Street, Grabouw on 26 August 1994. The magistrate in the Caledon Magistrates Court expressly relied on the section 21(1)(a)(i) presumption in convicting him of dealing in dagga. He was fined R600 with an alternative of six months imprisonment, plus a suspended twelve month sentence. On automatic review, Traverso J agreed that the conviction could not have been sustained without the presumption. Both cases were referred to the Constitutional Court to determine whether section 21(1)(a)(i), which creates a presumption that possession of dagga exceeding 115 grams constitutes dealing until the contrary is proved, is constitutional.

• Whether section 21(1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 is in conflict with the presumption of innocence in section 25(3)(c) of the interim Constitution
• Whether the provision imposes a legal burden or merely an evidential burden on the accused
• Whether any limitation of the presumption of innocence can be justified under section 33(1) of the interim Constitution
• Whether the provision can be 'read down' to impose only an evidential burden
• Whether the declaration of invalidity should be suspended or its effect limited under section 98(5) and (6) of the Constitution

1. Section 21(1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992, and the words "dagga or" in section 21(1)(a), were declared inconsistent with the Constitution and invalid with effect from the date of judgment. 2. The declaration of invalidity was ordered to apply to any criminal trial in which the verdict was entered after the Constitution came into force (27 April 1994) and in which an appeal or review was pending or could still be noted as at the date of judgment. 3. The matters of S v Bhulwana and S v Gwadiso were referred back to the Cape Provincial Division to be dealt with in accordance with the judgment.

A reverse onus provision that imposes a legal burden of proof on an accused person violates the presumption of innocence in section 25(3)(c) of the Constitution where it may result in conviction despite the existence of a reasonable doubt as to guilt. Such a limitation can only be justified under section 33(1) where it is reasonable, necessary and justifiable in an open and democratic society. To meet this test, there must be a logical connection between the basic fact proved and the presumed fact, and the provision must substantially further a pressing social purpose. A provision worded as requiring proof "until the contrary is proved" imposes a legal burden, not merely an evidential burden, and cannot be "read down" where such an interpretation is not reasonably capable on the wording.

The Court noted that it was not necessary in this case to decide whether a provision imposing only an evidential burden (requiring the accused merely to raise a reasonable doubt rather than prove on a balance of probabilities) would be constitutional, as the reading down argument was rejected on other grounds. The Court observed that possession of 115g of dagga (between 50-100 cigarettes) would not be unreasonable for a regular user, and that criminalisation of possession may actually encourage users to purchase larger quantities to reduce the risks associated with frequent purchases. The Court noted that the 115g threshold had remained constant since 1954 when it was introduced as 4 ounces, with no explanation for why this particular quantity was selected, describing it as "an arbitrary figure" in the current context. The Court emphasized principles regarding the temporal effect of declarations of invalidity, stating that as a general principle, successful litigants should obtain relief and similarly situated persons should not be treated differently, but that the court should be circumspect to avoid unnecessary dislocation and uncertainty in the criminal justice system. The Court endorsed the principle that finalized cases should generally not be reopened.

This was one of the earliest Constitutional Court decisions interpreting the presumption of innocence under the interim Constitution and establishing the framework for analyzing reverse onus provisions. The judgment confirmed that the presumption of innocence, a fundamental common law principle, was now constitutionally entrenched and that reverse onus provisions that could result in conviction despite reasonable doubt violate this right. The case established the test for when reverse onus provisions breach section 25(3)(c): where they may result in conviction despite the existence of reasonable doubt as to guilt. It also established that such provisions must be justified under section 33(1) and that there must be a logical connection between the fact proved and the fact presumed, along with a pressing social purpose that is actually furthered by the provision. The judgment clarified the court's remedial powers under sections 35(2), 98(5) and 98(6) of the interim Constitution, particularly regarding "reading down" provisions and the temporal effect of declarations of invalidity. The decision had significant practical impact on drug prosecutions and influenced subsequent constitutional challenges to presumptions in criminal law.