The State v Manyonyo

The accused was convicted in the Magistrate's Court on 20 July 1995 of dealing in dagga in contravention of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992. He was sentenced to 42 months' imprisonment, of which 18 months was conditionally suspended for five years. The magistrate relied on presumptions created by sections 20, 21(1)(a) and 21(1)(c) of the Act. The matter was referred to the Eastern Cape Division of the Supreme Court for automatic review under section 302 of the Criminal Procedure Act. The reviewing judges referred the constitutional validity of sections 20 and 21(1)(c) to the Constitutional Court on 5 February 1996. The accused was released on R10 bail on 13 February 1996. Significant delays occurred: a five-month delay before the Magistrate's Court record was sent for review, and the referral order was only lodged with the Constitutional Court in October 1999 when an enquiry was made about the outcome.

• Whether section 21(1)(c) of the Drugs and Drug Trafficking Act 140 of 1992 is inconsistent with the Constitution and invalid
• Whether section 20 of the Drugs and Drug Trafficking Act 140 of 1992 is inconsistent with the Constitution and invalid
• Whether a declaration of invalidity made by a High Court in terms of section 101(6) of the interim Constitution is binding throughout the country or only within the province
• The retrospective effect of declarations of invalidity
• Procedural issues relating to delays in automatic reviews and referrals to the Constitutional Court

1. Section 21(1)(c) of the Drugs and Drug Trafficking Act 140 of 1992 declared inconsistent with the interim Constitution and of no force and effect. 2. The declaration invalidates any application of section 21(1)(c) in criminal trials where the verdict was entered after the interim Constitution came into force and where, as at the date of judgment, an appeal or review is pending or the time for noting an appeal has not expired. 3. The order does not preclude persons adversely affected from contending that the S v Mjezu order applies to them and from applying to the Court to amplify or amend the order if necessary. 4. The case was referred back to the Eastern Cape High Court to be dealt with in accordance with the judgment.

Section 21(1)(c) of the Drugs and Drug Trafficking Act 140 of 1992, which creates a presumption that a person who conveyed drugs dealt in such drugs, is unconstitutional as it violates the presumption of innocence protected by section 25(3)(c) of the interim Constitution. Section 20 of the same Act, which creates a presumption of possession where drugs are found in the immediate vicinity of an accused, is similarly unconstitutional (as established in S v Mello). High Court registrars are under a duty to ensure that orders requiring confirmation by the Constitutional Court are lodged timeously with the Constitutional Court registrar and to secure confirmation of receipt. Lodgement occurs when the order is received by the Constitutional Court registrar.

The Court made important observations about procedural delays: (1) The five-month delay before the Magistrate's Court record was referred for automatic review was highly prejudicial, and officials must observe prescribed procedures and time limits, particularly as delays harm accused persons in custody who may be entitled to release if convictions are set aside. (2) High Court registrars must satisfy themselves that referral orders have been received by the Constitutional Court registrar and secure confirmation of receipt. (3) The question of whether declarations of invalidity made by High Courts under the consent jurisdiction of section 101(6) of the interim Constitution are binding nationally or only provincially was left open as potentially academic, since the interim Constitution is no longer in force and the 1996 Constitution requires all declarations of invalidity of Acts of Parliament to be confirmed by the Constitutional Court. The Court noted it was fortunate that steps were taken to release Mr Manyonyo on bail, which avoided further harm from the delays in lodging the referral.

This case is significant for several reasons: (1) It confirms the unconstitutionality of reverse onus provisions in drug legislation that violate the presumption of innocence; (2) It addresses important procedural issues relating to delays in automatic reviews and referrals to the Constitutional Court, emphasizing the prejudice such delays cause to accused persons; (3) It establishes clear obligations on High Court registrars to ensure timely lodgement of referral orders with the Constitutional Court and to confirm receipt; (4) It leaves open the important question of whether declarations of invalidity made by High Courts under the consent jurisdiction of section 101(6) of the interim Constitution have national or only provincial effect; (5) It demonstrates the Court's flexibility in crafting orders that ensure legal certainty while preserving the rights of potentially affected persons.