Joseph Joshua Wilkinson and David Jacobus Steyn v The National Director of Public Prosecutions and Others

The applicants (first applicant as accused number 5 and second applicant as accused number 6) were indicted to stand trial with eight other accused persons on various criminal charges relating to allegedly operating a syndicate dealing with rhinoceros horns, including illegal transportation, sale, and purchase of rhinoceros horns under case number CC132/2014. The criminal trial had not yet commenced. The first applicant faced 13 charges out of 318 total charges, including theft, possession, sale, transport, and other offences relating to rhinoceros horns under various provincial nature conservation ordinances. The second applicant faced 6 charges relating to purchasing, exporting, and possessing rhinoceros horns. Instead of proceeding with their criminal trial, the applicants brought a civil application to the High Court challenging the constitutionality of reverse onus provisions in the Gauteng Nature Conservation Ordinance 12 of 1998, the North-West Nature Conservation Ordinance 19 of 1974, and the Kwa-Zulu Natal Nature Conservation Ordinance 15 of 1974, arguing these provisions infringed their fair trial rights under sections 34 and 35(3) of the Constitution.

• Whether a civil application challenging the constitutionality of criminal legislation is premature when brought before the commencement of the criminal trial
• Whether reverse onus provisions in provincial nature conservation ordinances infringe the constitutional right to a fair trial and the presumption of innocence under sections 34 and 35(3) of the Constitution
• Whether such reverse onus provisions are justifiable limitations under section 36 of the Constitution
• Whether certain criminal charges constitute offences that can be challenged in civil proceedings under section 85 of the Criminal Procedure Act

The application was dismissed. Each party was ordered to bear their own costs, following the principles in Affordable Medicines Trust and Biowatch Trust, though the court expressed displeasure with the route taken by the applicants.

A constitutional challenge to criminal legislation brought by way of civil application before the commencement of the criminal trial is premature where the applicants fail to demonstrate that the constitutional issue is decisive of the case or that it is in the interests of justice to adjudicate the issue before the criminal trial proceeds on non-constitutional grounds. Reverse onus provisions in provincial nature conservation ordinances, while infringing the presumption of innocence under section 35(3) of the Constitution, are justified limitations under section 36 of the Constitution where: (i) they serve the constitutional imperative of environmental protection under section 24; (ii) they address serious harm from rhino poaching and organized crime; (iii) proof would be unduly burdensome for the prosecution without such provisions; (iv) the accused can rebut presumptions on a balance of probabilities; and (v) no less restrictive means exist to achieve the conservation objective. The right to a fair trial, including the presumption of innocence, is not absolute and must be balanced against the public interest in effective prosecution of environmental crimes.

The court expressed displeasure with the procedural route taken by the applicants, noting that departures from the Criminal Procedure Act and removal of criminal proceedings to civil courts should not be encouraged. The court observed that the applicants' argument that trying the first applicant as part of the syndicate would cause financial and emotional hardship due to the lengthy trial, despite facing only 13 of 318 charges, had no merit. The court noted that regarding section 110(1)(a) of the Gauteng Ordinance, counsel for the applicants conceded at the hearing that the reference to this provision was an error, as the applicants were not charged with unlawful hunting or catching of animals. The court cited with approval the principle from S v Coetzee that legislation should not be struck down based on far-fetched possibilities of abuse by prosecuting authorities. The court acknowledged that it is common knowledge that rhino poaching has become a serious problem nationally and internationally in recent decades, with organized crime syndicates involved in the ruthless trade of rhinoceros horns.

This case is significant in South African law for several reasons: (1) It reinforces the principle that constitutional challenges to criminal legislation should ordinarily be brought within criminal proceedings rather than as abstract civil applications before trial commences; (2) It affirms that reverse onus provisions in environmental conservation legislation can be constitutionally justified under section 36, particularly in the context of serious threats to endangered species like rhinoceros; (3) It demonstrates the balancing exercise between fair trial rights and environmental protection obligations under section 24 of the Constitution; (4) It applies the analytical framework from S v Zuma, S v Manamela, and S v Coetzee for determining the constitutionality of reverse onus provisions; (5) It contributes to jurisprudence on when limitations of the presumption of innocence are reasonable and justifiable in an open and democratic society; (6) It emphasizes the importance of following proper criminal procedure rather than forum shopping through civil applications.