The State v Sipho Zakele Ntsele

The accused, Sipho Zakele Ntsele, 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 a rebuttable presumption created by section 21(1)(b) of the Act, which presumed that a person in charge of cultivated land on which dagga plants are found has dealt in such plants. On automatic review, the Natal High Court (per Combrinck J, Hurt J concurring) questioned the constitutionality of this presumption and declared section 21(1)(b) invalid as inconsistent with the Constitution. The accused was released on his own recognizance pending confirmation by the Constitutional Court.

• Whether section 21(1)(b) of the Drugs and Drug Trafficking Act 140 of 1992 is inconsistent with the constitutional presumption of innocence
• Which Constitution applies (interim or new Constitution) given the transitional period
• Whether the High Court had proper jurisdiction to declare the provision invalid
• What ancillary orders are appropriate regarding retrospectivity and the remittal of the case

1. The order of the Natal High Court declaring section 21(1)(b) of the Drugs and Drug Trafficking Act 140 of 1992 invalid was confirmed. 2. The declaration of invalidity shall invalidate any application of section 21(1)(b) in any criminal trial where the verdict was entered after the interim Constitution came into force and in which an appeal, review is pending or time for appeal has not expired as at the date of judgment. 3. The case was referred back to the Natal High Court to be dealt with in accordance with the judgment.

A statutory presumption that instructs a court to infer guilt from circumstances that do not necessarily support such inference violates the constitutional presumption of innocence (section 25(3)(c) of the interim Constitution and section 35(3)(h) of the Constitution). Section 21(1)(b) of the Drugs and Drug Trafficking Act 140 of 1992, which creates a rebuttable presumption that a person in charge of cultivated land on which dagga plants are found has dealt in such plants, is unconstitutional because it interferes with ordinary processes of inferential reasoning and entails a risk of conviction despite reasonable doubt. Such interference cannot be justified under the limitations clauses of either Constitution. Where the interests of justice so require, courts may apply the new Constitution rather than the interim Constitution to pending proceedings, notwithstanding transitional provisions.

Kriegler J made several important observations: (1) When High Courts exercise their power under section 172(1)(b) to make orders limiting retrospective effect or suspending declarations of invalidity, they should give full reasons for the benefit of the Constitutional Court in confirmation proceedings. (2) Questions of retrospectivity, prospectivity and conditional suspension often present difficult choices that may depend on evidence regarding factors such as impact on the administration of justice or financial consequences for third parties. Where such evidence is necessary, it should be received and evaluated by the court of first instance. (3) When the constitutionality of a statute is in jeopardy, courts should consider whether to give notice of proposed invalidation to organs of state and possibly others concerned with administration of the provision or likely to be affected by its demise. (4) As a general principle, an order of invalidity should have no effect on cases finalized prior to the date of the order of invalidity, to avoid unnecessary dislocation and uncertainty in the criminal justice process.

This case is significant in South African constitutional jurisprudence as it reinforces the Constitutional Court's commitment to protecting the presumption of innocence as a fundamental right. It forms part of a series of cases (including Bhulwana, Julies, and Mbatha) striking down reverse onus provisions in criminal legislation that impermissibly shift the burden of proof to the accused. The judgment also provides important guidance on transitional constitutional issues between the interim and new Constitutions, particularly the application of the 'interests of justice' proviso in item 17 of Schedule 6. Furthermore, it clarifies procedural matters regarding declarations of invalidity by High Courts subject to Constitutional Court confirmation, the granting of temporary relief pending confirmation, and the considerations relevant to determining the retrospective effect of declarations of invalidity, emphasizing that successful litigants should obtain relief and that similarly situated persons should not be treated differently.