S v Mbatha; S v Prinsloo

These were two related matters referred to the Constitutional Court concerning the constitutionality of section 40(1) of the Arms and Ammunition Act 75 of 1969. In the first matter, Wellington Mbatha had been convicted in the Regional Court, Germiston, on counts of unlawful possession of two AK47 rifles and twelve rounds of ammunition under sections 32(1)(a) and 32(1)(e) of the Act, and sentenced to concurrent terms of imprisonment. On appeal, the Witwatersrand Local Division referred the constitutional validity of the statutory presumption in section 40(1) to the Constitutional Court. In the second matter, Nicolaas Marthinus Prinsloo was one of 26 accused standing trial in the Witwatersrand Local Division on numerous charges arising from bomb explosions before the April 1994 national elections. After the close of the State case, the trial judge discharged certain counts but refused to discharge Prinsloo and six others on four remaining counts relating to unlawful possession of machine guns, firearms and ammunition, expressly relying only on section 40(1). The trial was then suspended and the constitutional issue referred. Section 40(1) provided that where a prohibited article was proved to have been on or in any premises, any person who was on, in, in charge of, present at, or occupying those premises at the relevant time was presumed to have been in possession of that article unless the contrary was proved.

• Whether section 40(1) of the Arms and Ammunition Act 75 of 1969 infringed the fair trial rights in section 25(3)(c) and (d) of the interim Constitution, especially the right to be presumed innocent
• Whether the reverse-onus presumption in section 40(1) unconstitutionally shifted the burden of proof from the prosecution to the accused
• Whether, if section 40(1) limited the presumption of innocence, that limitation was saved under section 33(1) of the interim Constitution as reasonable, justifiable and necessary in an open and democratic society
• Whether it was necessary to decide the applicants' argument that the provision also violated the privilege against self-incrimination
• What the appropriate remedy and temporal effect of a declaration of invalidity should be

Section 40(1) of the Arms and Ammunition Act 75 of 1969 was declared inconsistent with the interim Constitution and invalid with effect from the date of judgment. The declaration applied to criminal trials in which verdicts were entered after the Constitution came into force and where, as at the date of judgment, an appeal or review was pending or the time for noting an appeal had not expired. The matters of S v Mbatha and S v Prinsloo were referred back to the Witwatersrand Local Division to be dealt with in accordance with the Constitutional Court's judgment.

A statutory provision that creates a legal presumption or reverse onus requiring an accused to disprove an essential element of a criminal offence on a balance of probabilities infringes the constitutional presumption of innocence because it permits conviction despite the existence of a reasonable doubt. Such an infringement will be invalid unless the State shows under the limitations clause that the measure is reasonable and justifiable in an open and democratic society. A presumption as broad as section 40(1) of the Arms and Ammunition Act, which deems any person merely present at premises where a firearm or ammunition is found to be in possession unless the contrary is proved, is overbroad, insufficiently connected to actual possession, and not justified by law-enforcement objectives where less rights-infringing means are available.

The Court observed that although violent crime and the proliferation of illegal firearms in South Africa were grave social problems requiring urgent corrective measures, constitutional rights could not be sacrificed through overbroad dragnet presumptions. It suggested, without deciding, that a provision imposing merely an evidentiary burden might in some circumstances be easier to justify than a true reverse-onus provision. The Court also repeated cautionary remarks about premature or improper referrals under section 102(1), stressing that lower courts should avoid deciding constitutional issues unnecessarily and should refer matters only when the issue is decisive and referral is in the interests of justice. In addition, the Court noted but did not decide the precise scope of the constitutional privilege against self-incrimination, referring to Ferreira v Levin.

This is an important early Constitutional Court decision on the constitutional invalidity of criminal reverse-onus presumptions. It confirmed and developed the principles in S v Zuma and S v Bhulwana by holding that a statutory presumption of possession that can secure conviction despite reasonable doubt violates the presumption of innocence. The case is significant for South African criminal justice because it subjected firearms-control legislation to constitutional scrutiny, emphasised proportionality under the limitations clause, and made clear that pressing crime-control objectives do not justify overbroad presumptions that expose innocent persons to arrest, prosecution and conviction. It also illustrates the Court's remedial approach to declarations of invalidity and its caution regarding improper constitutional referrals.