The State v Sipho Zakele Ntsele

The accused was convicted by a magistrate of dealing in dagga in contravention of the Drugs and Drug Trafficking Act 140 of 1992. The magistrate relied on the presumption created by section 21(1)(b) of the Act, which provides that if dagga plants are found on cultivated land and the accused was in charge of that land and was aware or could reasonably be expected to have been aware of the plants, it is presumed (until the contrary is proved) that the accused dealt in such plants. On automatic review, the Natal High Court (per Combrinck J, Hurt J concurring) declared section 21(1)(b) unconstitutional and ordered the accused's release on his own recognizance pending confirmation by the Constitutional Court. The offence was committed on 20 January 1997, and the invalidation order was made on 19 June 1997.

• Whether section 21(1)(b) of the Drugs and Drug Trafficking Act 140 of 1992 is inconsistent with the constitutional presumption of innocence
• Whether the interim Constitution or the new Constitution applies to these proceedings
• What ancillary orders should be made regarding retrospectivity and the treatment of pending cases
• Whether the High Court properly exercised jurisdiction in declaring the provision invalid

1. The Natal High Court's order declaring section 21(1)(b) of the Drugs and Drug Trafficking Act 140 of 1992 invalid was confirmed. 2. The declaration of invalidity was given limited retrospective effect to invalidate any application of section 21(1)(b) 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 was pending or time for appeal had not expired. 3. The case was referred back to the Natal High Court to be dealt with in accordance with the Constitutional Court's judgment.

A statutory presumption that requires a trier of fact to infer guilt from circumstances that do not necessarily support such inference violates the constitutional presumption of innocence. Section 21(1)(b) of the Drugs and Drug Trafficking Act 140 of 1992, which presumes that a person in charge of cultivated land on which dagga plants are found dealt in such plants, interferes with ordinary processes of inferential reasoning and creates a risk of conviction despite reasonable doubt. This is the antithesis of the presumption of innocence protected by section 25(3)(c) of the interim Constitution and section 35(3)(h) of the Constitution. No compelling justification exists for such infringement, as the importance of the values at stake and the extent and nature of the risk involved in their erosion outweigh any societal interest likely to be advanced by the presumption. Where interests of justice so require under item 17 of Schedule 6 to the Constitution, proceedings pending when the new Constitution came into effect may be disposed of under the new Constitution rather than as if it had not been enacted.

The Court observed that there is no difference in outcome whether justification is considered under section 33(1) of the interim Constitution or section 36(1) of the new Constitution - the infringement goes beyond justifiability under either provision. The Court commented that it would be "unconscionable" to order rearrest of the accused and "mere pedantry" to insist on technical compliance with interim Constitution referral procedures. The Court provided guidance that where constitutional validity of a statute is in jeopardy, courts should consider giving notice to organs of state and possibly others concerned with administration of the provision or likely to be affected by its invalidation. The Court noted that questions of retrospectivity, prospectivity and conditional suspension often present difficult choices requiring evidence regarding factors such as impact on administration of justice or financial consequences for third parties. The Court emphasized that High Courts should give full reasons regarding ancillary orders (retrospectivity, suspension, etc.) for the benefit of the Constitutional Court in confirmation proceedings. The Court reiterated the general principle from S v Bhulwana that an order of invalidity should have no effect on cases finalized prior to the date of the order, as no one benefits from judgments providing that incarceration shall be subject to fresh litigation on already resolved issues.

This case reinforces the Constitutional Court's protection of the presumption of innocence and its approach to invalidating reverse onus provisions in criminal legislation. It forms part of a line of cases (including S v Bhulwana, S v Julies, and S v Mbatha) establishing that statutory presumptions requiring conviction despite reasonable doubt are unconstitutional. The judgment also provides important guidance on transitional constitutional issues, particularly the application of the flexibility provision in item 17 of Schedule 6 to the Constitution where "interests of justice" favor applying the new Constitution despite proceedings being pending. It clarifies the proper procedure for High Courts making declarations of invalidity subject to Constitutional Court confirmation, and provides guidance on granting interim relief pending confirmation. The case emphasizes the importance of considering retrospectivity, prospectivity and suspension of invalidation orders, and the need for courts to give reasons and receive evidence on such matters.