Court name
High Court Main Division
Case name
Gomes v Prosecutor-General of the Republic of Namibia and Others
Media neutral citation
[2013] NAHCMD 240
Judge
Ndauendapo J
Shivute J













REPORTABLE







REPUBLIC OF NAMIBIA



IN THE HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT






CASE NO.: A 61/2012







In the matter between:





JOAO
CARLOS VIDAL GOMES
......................................................................APPLICANT





and





THE
PROSECUTOR-GENERAL OF THE


REPUBLIC
OF NAMIBIA
........................................................................1STRESPONDENT


THE
ATTORNEY-GENERAL OF THE


REPUBLIC
OF NAMIBIA
......................................................................2ND
RESPONDENT


THE
MINISTER OF JUSTICE OF THE


REPUBLIC
OF NAMIBIA
.......................................................................3RD
RESPONDENT


THE
REGIONAL COURT MAGISTRATE: SWAKOPMUND

.................
4THRESPONDENT


MARTIN
NAMBALA
..............................................................................5TH
RESPONDENT


MELGISEDEK
SHEEHAMA
..................................................................6TH
RESPONDENT


SAKARIA
SAKARIA SAPANGE
...........................................................7TH
RESPONDENT














CORAM:
NDAUENDAPO J et SHIVUTE J






Neutral
citation:
Gomes v Prosecutor-General (A 61/2012) [2013]
NAHCMD 240(9 August 2013)






Heard:
22 March 2013


Delivered:
9 August 2013






______________________________________________________________________



ORDER



______________________________________________________________________



1. The phrase ‘proof
of which shall be on such first-mentioned person
’ contained
in s 7 (1) of the General Law Amendment Ordinance, Ordinance 12 of
1956, is declared unconstitutional and is struck down.



2. The first respondent
is ordered to pay the costs of the applicant.



______________________________________________________________________



JUDGMENT



______________________________________________________________________





NDAUENDAPO,
J





[1]
By notice of motion, the applicant seeks an order in the following
terms:





(a)
Declaring section 7(1) of the General Law Amendment Ordinance,
Ordinance No.12 of 1956, and/or the reverse onus provision contained
therein, to be unconstitutional, invalid and of no force and/or
effect.


(b)
Ordering the respondents and/or any other entity opposing this
application to pay the costs of the application.


(c)
Further and/or alternative relief.’



[2] The parties



The applicant is Mr Joao
Carlos Vidal Gomes, a sixty one year old, male of Portuguese national
who is permanently residing at third street west, No.7, Walvis Bay,
Republic of Namibia. He is accused one in the criminal matter under
case number Swakopmund/CRM/1461/2011, Republic of Namibia.



The first respondent is
the Prosecutor-General of the Republic of Namibia.



The second respondent is
the Attorney-General of the Republic of Namibia.



The third respondent is
the Minister of Justice of the Republic of Namibia.



The fourth respondent is
the duly appointed Regional Court Magistrate, Swakopmund who is cited
herein in her official capacity as such for and in respect of any
interest that she may have in this application, as well as the
outcome thereof.



The fifth, sixth and
seventh respondents are indicted together with the applicant as
accused two, three and four in the pending criminal trial in the
regional court, Swakopmund. They are cited herein for any interest
that they may have in this application, as well as the outcome
thereof.







[3] The first to the
fourth respondents initially opposed the application. On 11 September
2012 the second, third and fourth respondents filed a notice of
withdrawal of their original notice of intention to oppose. Only the
first respondent filed an answering and replying affidavits.







[4] Mr Botes appeared on
behalf of the applicant and Mr Small on behalf of the first
respondent. Both counsel filed extensive heads of argument and the
court is indebted to them for their assistance.



[5] Background







The applicant is accused
number one in a criminal case pending in the regional court for the
region of Swakopmund under case no. Swakopmund/CRM/1461/2011. The
fifth, sixth and the seventh respondents are co-accused in that
matter. In the charge sheet the state alleges that the applicant, as
an employee of Aquatic Marine Engineering CC, at Walvisbay, purchased
two of the three welding machines from one of the co-accused, namely
Martin Nambala, and that all three welding machines, allegedly the
property of WESCO, were found in applicant’s possession on the
premises of his employer by members of the Namibian Police Force at
Walvisbay on or about the 9th of August 2010. The
Applicant was originally charged with theft, as main count,
alternatively a charge of a contravention of section 7 (1) of the
General Law Amendment Ordinance 12 of 1956. The applicant intends to
plead not guilty and informed the prosecution accordingly. After
deliberations between defence counsel and the prosecution, the
prosecution decided not to proceed with the charges originally
preferred against applicant. Applicant was however informed that the
state intends to continue with the main charge of theft which
includes all the competent verdicts as provided for in terms of
section 264 of the Criminal Procedure Act 51 of 1977, as amended.



Section 264 of the
Criminal Procedure Act 51 of 1977, as applicable in the Republic of
Namibia, provides as follows:







264 Theft



(1) If the evidence on
a charge of theft does not prove the offence of theft, but-



(a) the offence of
receiving stolen property knowing it to have been stolen;



(b) an offence under
section 36 or 37 of the General Law Amendment Act, 1955 (Act 62 of
1955);



(c ) an offence under
section 1 of the General Law Amendment Act, section of 1956 (Act 50
of 1956); or



(d) in the case of
criminal proceedings in the territory, an offence under section 6,7,
or 8 of the General Law Amendment Ordinance 1956 (Ordinance 12 of
1956),.



the accused may
be found guilty of the offence so proved’.



The application before me
was launched against that background.



[6] Purpose of the
application



The Court is requested to
adjudicate on the constitutionality of section 7 (1) of the General
Law Amendment Ordinance, Ordinance 12 of 1956 and to declare same to
be unconstitutional.







[7] Locus standi



Before dealing with the
constitutionality of s 7 (1) of Ordinance 12 of 1956, the first
respondent denies that applicant is an aggrieved person and has locus
standi to launch the application.



Counsel for applicant
submits that the applicant is an aggrieved person as contemplated and
as provided for in terms of Art 25 (2) of the Constitution and
therefore has locus standi to bring the application. In this regard
he relied on
Alexander
v Minister of Justice & Others
1where
Strydom AJA stated that:







‘….In my
opinion, even where a party attacks an act of Parliament on the basis
that it is unconstitutional and, hence, invalid from its inception,
that party will still have to show that he or she has standing, i.e
that a right of his or hers is infringed by the invalid act or
threatened such right...
2



The fact that a
person is not yet convicted of an offence does not bar such person,
whose rights are threatened by an invalid order, to bring the matter
to court.
In
Transvaal
Coal Owners Association and others v Board of Control 1921 TPD 447

at 452, Gregorowski J
stated as follows:



If they
contravene the order they are liable to fine and imprisonment. If the
order is invalid their rights and freedoms of action are infringed
and it is not at all convincing to say you must first contravene the
order and render yourself liable to fine and imprisonment, and then
only can you test the validity of the order, and have it decided
whether you are liable to the penalty or not’.







As set out
above, the standing of a party to approach a court to protect him/her
against an unlawful interference with his/her rights is dependent on
whether his or her rights are infringed or there is a threat of such
infringement’.







Applying the above
principles to this case, it is clear that the applicant has been
arrested and charged with common law theft and in terms of section
264 of the Criminal



Procedure Act 51 of 1977,
as amended, an offence under s 7 (1) of the General Law Amendment
Ordinance, Ordinance 12 of 1956 is a competent verdict and he may be
found guilty of such an offence. I am satisfied that the applicant’s
right to a fair trial is threatened and he is therefore an aggrieved
person and has locus standi to bring this application.







[8] Applicant’s
case







The impugned provision







Section 7 (1) of
Ordinance 12 of 1956 provides: ‘’7(1) Any person who in
any manner, otherwise than at a public sale, acquires or receives
into his possession from any other person stolen goods, other than or
produce as defined in section one of the stock theft Act, 1990 (Act
12 of 1990) 1935 (ordinance 11 of 1935), without having reasonable
cause,
proof of which shall be on such first mentioned
person
, for believing at the time of such acquisition or
receipt that such goods are the property of the person from whom he
receive them or that such person has been duly authorised by the
owner thereof to deal with or to dispose of them, shall be guilty of
an offence and liable on conviction to the penalties which may be
imposed on a conviction of receiving stolen property knowing it to
have been stolen’’ (emphasis provided)’.







[9] The applicant in his
affidavit contends that the aforesaid section creates a ‘reverse
onus’ relating to the onus of proof in the offence in respect
of which the presumption finds application. Section 7 (1),
alternatively, the reverse onus is unconstitutional as it casts a
‘reverse onus on an accused person by exposing an accused
person to a real risk of being convicted despite the existence of a
reasonable doubt as to his or her guilt.



The presumption therefore
is not consistent with what is clearly a fundamental value in our
criminal system, namely that the burden of proof throughout rests on
the prosecution to proof the guilt of an accused person beyond
reasonable doubt. He further contends that the presumption in section
7 (1) Ordinance 12 of 1956 therefore is not only in direct conflict
with the common law rule that the burden always rests on the
prosecution to prove the guilt of an accused person beyond a
reasonable doubt, but also his right to be presumed innocent until
proven guilty, the privilege against self-incrimination, the right
not to be a compellable witness against oneself and the right to
silence and as such the presumption is also inconsistent with
articles 12 (1) (a), (d), (f) of the Constitution and therefore
invalid. The right to a fair trial conferred by art 12 (a) is broader
than the list of specific rights set out in paragraphs (b) –
(f) of the subsection. These rights are not a closed list.



In the Attorney-General
of Namibia v The Minister of Justice &
others3.
Shivute CJ stated that:







A closer
reading of Art 12 in its entirety makes it clear that its substratum
is the right to a fair trial. The list of specific rights embodied in
art 12 (1) (b) to (f) does not, in my view, purport to be exhaustive
of the requirements of the fair criminal hearing and as such it may
be expanded upon by the courts in their important task to give
substance to the overreaching right to a fair trial. To take but one
example: the right to present written and oral argument during a
hearing or trial is undoubtedly an important component of a fair
trial but one searches in vain for it in article 12.’







Equally the right to
remain silent after arrest and during trial is no where specifically
mentioned in Art 12, but undoubtedly it is an important component of
a fair trial.







Applicant further
contends that section 7 (1) of Ordinance 12 of 1956 does not create a
permissible limitation on his constitutional rights enshrined in Art
12 of the Constitution as same in effect imperil his constitutional
rights referred to hereinbefore.



[10] First
respondent‘s case







In her answering
affidavit, the Prosecutor General, Ms Imalwa states that:



the rationale for
the provision is sound in that it deals with matters which are
peculiarly within the knowledge of the accused. Accordingly, the
accused is in the best position to produce the requisite evidence
that he or she had reasonable cause for believing that the goods were
acquired from the owner or from some other person who had the
authority of the owner to dispose of them. It is self-evident that
proving the state of mind of the accused presents the prosecution
with particular difficulties. In these circumstances the accused is
only required to prove facts to which he or she has easy access, and
which it would be unreasonable to expect the prosecution to disprove.
There is also a logical connection between the fact proved and the
fact presumed. She further submits that the presumption is necessary
if the offence is to be effectively prosecuted, and the state cannot
be expected to produce the evidence itself.







She further contends that
there is nothing unreasonable, oppressive or unduly intrusive in
asking an accused who has already been shown to be in possession of
stolen goods, acquired otherwise than at a public sale, to produce
the requisite evidence that he had reasonable cause for believing
that the goods were acquired from the owner or from some other person
who had the authority of the owner to dispose of them. It does not
compel persons to give testimony against themselves contrary to the
Namibian Constitution.’



She further states that
‘a statutory provision which imposes an evidential burden (a
presumed fact may be rebutted by evidence giving rise to a reasonable
doubt does not violate the presumption of innocence because there is
no possibility of being convicted despite the existence of a
reasonable doubt. The statutory formulation that a proven fact shall
be prima facie evidence of a presumed fact does not impose a legal
burden of proof on an accused but merely gives rise to an evidential
burden’.



In any event, she submits
that the presumption places a permissible limitation on the rights
enshrined in Article 12 (1) (d) of the Namibian Constitution. In the
particular legal and social circumstances in Namibia such limitation
is reasonable or justifiable, is necessary, does not negate the
essential content of the right, and is of general application.’







[11] Applicant’s
submissions against the constitutionality of the impugned provision







Counsel for applicant
submits that s 7 (1) requires the prosecution to establish the
following three elements of the offence beyond reasonable doubt, to
wit:



(a) that the accused was
found in possession of goods, other than stock or produce;



(b) which were acquired
otherwise than at a public sale and



(c) that the goods had
been stolen.



After the Prosecution had
establish the three elements, the accused will be required to
establish two further elements, namely



(a) that the accused
believed that at the time of acquiring the goods, that the persons
from whom he or she received them was indeed the owner of such goods,
or



(b) that such person was
duly authorised by the owner to dispose of the goods; and that the
accused’s belief was reasonable



Counsel further submits
that s 7 (1), apart from placing a burden of proving the required
mens rea on a balance of probabilities furthermore imposes on
an accused the burden of adducing evidence in an effort to establish
the reasonableness of an accused’s subjective belief. As such,
same introduces statutory liability for the negligent, albeit
innocent, acquisition of receipt of stolen goods.



According to counsel, the
effect of the reverse onus is that once the existence of the three
elements have been proved by the state, the presumption of guilty
knowledge comes into operation and the onus of disproving it falls on
the accused.



If at the end of the day
the probabilities are evenly balanced, the court is bound to convict
despite the fact that it is as probable as not, that the accused is
innocent.







Counsel further argues
that the presumption therefore does not only fall into the class of
reverse onus provisions, but also is in conflict with the long
established rule of the common law that it is always for the
prosecution to prove the guilt of the accused person beyond a
reasonable doubt. Once it is established that the effect of a
presumption is such that an accused person is exposed to the real
risk of being convicted despite the existence of a reasonable doubt
as to his/her guilt then it follows that same clearly is
unconstitutionally impermissible as it necessarily negates an
accused’s rights to be presumed innocent as well as the long
established rule of the common law to prove the quilt of an accused
person beyond reasonable doubt



Counsel relies heavily on
the majority judgment of the Constitutional Court in South Africa in
S v
Manamela
&
another
4
where identical reverse
onus provision in s 37 (1) of the General Law Amendment Act 62 of
1955, was declared invalid and inconsistent with the Constitution.
The crux of the issue which the Constitutional Court had to grapple
with in
Manamela
case
was
whether the reverse onus provision contained in section 37 (1) of the
General Law Amendment Act 62 of 1955 is consistent with the
constitutionally entrenched right to a fair trial, and in particular,
s 35 (3) (h) of the Constitution, which guarantees the right to be
‘presumed innocent’, to remain silent, and not to testify
during the proceeding’.



In the Manamela
case
the
majority judgment held
5
that:



16 [24] The
right to silence, seen clearly as an aspect of the adversarial trial,
is clearly infringed.



The inevitable effect
of the challenged phrase is that the accused is obliged to produce
evidence of reasonable cause to avoid conviction even if the
prosecution leads no evidence regarding reasonable cause. Moreover,
the absence of evidence produced by the accused of reasonable cause
in such circumstances would result not in the mere possibility of an
inference of absence of reasonable cause, but in the inevitability of
such a finding. In these circumstance, for the accused to remain
silent is not simply to make a hard choice which increases the risk
of an inference of culpability. It is to surrender to the
prosecution’s case and provoke the certainty of conviction.’



The Court went on and
stated the reasons why the limitation on the right to silence is
justified and held
6
that:



21 [38] Mr
D’Oliveira argued persuasively that in the vast majority of
cases the state has no information or evidence concerning the
circumstances in which, and the persons from whom, the accused
acquired the goods in question. Almost always all the information
relevant to the determination of reasonable cause is peculiarly
within the knowledge of the accused. This makes it extremely
difficult for the state to demonstrate the absence of reasonable
cause unless there is evidence emanating from the accused. The
appellants did not dispute this. In the circumstances, there is
nothing unreasonable, oppressive or unduly intrusive in asking an
accused who has already been shown to be in possession of stolen
goods, acquired otherwise than at a public sale, to produce the
requisite evidence, namely that he or she had reasonable cause for
believing that the goods were acquired from the owner or from some
other person who had the authority of the owner to dispose of them.
For these reasons, then, the limitation on the right to silence
contained in the challenged phrase is justified.’







[12] On the presumption
of innocence,
the
majority judgment stated
7
that:







[25] Similarly the
presumption of innocence is manifestly transgressed. This court has
frequently held that reverse onuses of this kind impose a full legal
burden of proof on the accused. Accordingly, if after hearing all the
evidence, the court is of two minds as to where the truth lays, the
constitutional presumption of innocence is replaced by a statutory
presumption of guilt. By virtue of the same logic, a conviction must
follow if the court concludes that the accused’s version, even
though improbable, might reasonably be true.



The majority judgment
further stated that:



[26] The
purpose of the presumption of innocence is to minimize the risk that
innocent person may be convicted and imprisoned. It does so by
imposing on the prosecution the burden of proving the essential
elements of the offence charged beyond a reasonable doubt, thereby
reducing to an acceptable level the risk of error in a court’s
overall assessment of evidence tendered in the course of a trial. The
reverse onus provision relieves the prosecution of the burden of
proving all the elements of the section 37 offence by effectively
presuming that any person, proven by the State to be in possession of
stolen property, acquired otherwise than at a public sale, did not
have reasonable cause for believing at the time of acquisition or
receipt that the goods had not been stolen. Where the accused is
unable to persuade the court on a balance of probabilities that
reasonable cause exists, which would be the case even where the
probabilities are evenly balanced, he or she must be found guilty,
despite a reasonable doubt in the mind of the judicial officer as to
whether or not the accused is innocent. The presumption of innocence
is manifestly infringed by section 37 (1). Unless saved as a
permissible imitation, it is unconstitutional and invalid.’







[49] In
assessing whether the section 37 (1) limitation of the right to be
presumed innocent is reasonable and justifiable, the state in this
case has established the importance of the objectives sought to be
attained by the impugned provision. Nonetheless, considering that the
grounds of justification must be more persuasive where the
infringement of the right in question is extensive, the state has
failed, in our view, to discharge the onus of establishing that the
extent of the limitation is reasonable and justifiable and that the
relation between the limitation and its purpose is proportional. It
equally failed to establish that no less restrictive means were
available to Parliament in order to achieve the purpose. The
imposition of an evidential burden on the accused would equally serve
to furnish the prosecution with details of the transaction at the
time of acquisition or receipt. Accordingly there is a less invasive
means of achieving the legislative purpose which serves to a
significant degree to reconcile the conflicting interests present in
this case and which does not raise concerns relating to additional
cost, the prioritisation of social demands and practical
implementation
8







The minority judgment in
the Manamela case agreed with the majority judgment that s 37
infringes the right to be presumed innocent. O’Regan J (as she
then was) who wrote the minority judgment stated
9
that:







The risk that
an accused person will be convicted despite the existence of a
reasonable doubt is clearly an infringement of the presumption of
innocence which is a fundamental principle of our criminal justice
system’.







She further stated10
that:



If we then
weigh the scope of the infringement of the presumption of innocence
against the purpose, importance and effect of s 37, it is our view
that the scale is tilted in favour of the constitutionality of s 37.
The need to discourage improvident acquisition of stolen goods by
imposing an obligation upon members of the public to take diligent
care when acquiring goods and to satisfy themselves that reasonable
grounds for believing that the goods are not stolen can later be
shown is of cardinal importance in a society like ours, racked as it
is by high levels of property-related crimes often accompanied by
horrifying violence. We acknowledge that s 37 does infringe the
presumption of innocence and does impose an obligation upon an
accused to establish that he or she had reasonable grounds for
believing goods not to be stolen. There can be no doubt that, as a
general rule, it is inappropriate for an obligation to be placed upon
an accused to establish innocence. However, it is our view that a
limitation on the presumption of innocence that results in a duty of
vigilance, coupled with an obligation to persuade a court that in
acquiring goods one has acted responsibly, in order to achieve the
overall purpose of smothering the market in stolen goods is
justifiable.’







I respectful disagree
with that. It is trite there is no duty upon an accused person, where
the state bears the onus, to persuade the court that one acted
responsibly in acquiring the goods. If the accused version is
reasonably possibly true he is entitled to his acquittal even though
his explanation is improbable. A court is not entitled to convict
unless it is satisfied not only that the explanation is improbable
but that beyond reasonable doubt it is false
11.
In term of s 7 (1) the court is bound to convict despite the fact
that it is probable as not that the accused is innocent.







[13] Submissions by
counsel for first respondent in favour of the constitutionality of
the impugned provision







Counsel for first
respondent submits that a statutory provision which imposes an
evidential burden (a presumed fact may be rebutted by evidence giving
rise to a reasonable doubt), does not violate the presumption of
innocence because there is no possibility of being convicted despite
the existence of a reasonable doubt. The statutory formulation that a
proven fact shall be prima facie evidence of a presumable fact does
not impose a legal burden of proof on an accused but merely gives
rise to an evidential burden.



Counsel submits that the
court should find that section 7 (1) of the General Law Amendment
Ordinance, Ordinance 12 of 1956 creates an evidential burden and that
a presumed fact may be rebutted by evidence giving rise to a
reasonable doubt. Counsel further submits that in the vast majority
of cases the state has no information or evidence concerning the
circumstances in which, and the persons from whom, the accused
acquired the goods in question. Almost always all the information of
reasonable cause is peculiarly within the knowledge of the accused.
This makes it extremely difficult for the state to demonstrate the
absence of reasonable cause unless there is some evidence emanating
from the accused. In the circumstance, there is nothing unreasonable,
oppressive or unduly intrusive in asking an accused who has already
been shown to be in possession of stolen goods, acquired otherwise
than at a public sale to produce the requisite evidence, namely that
he or she had reasonable cause for believing that the goods were
acquired from the owner or from such other person who had the
authority of the owner to dispose of them.







[14] The presumption of
innocence until proven guilty is clearly infringed by s 7 (1) of the
General Law Amendment Ordinance, Ordinance 12 of 1956.



The presumption of
innocence instills confidence in the criminal justice system and also
demonstrates to the accused and others, by placing the burden of
proof on the state, that once an accused’s guilt has been
proven or disproved he or she had a fair trial.



The requirement that an
accused should prove his or her innocence runs counter to the
presumption of innocence, which is a
cornerstone
of our of criminal
justice system. The purpose of the presumption of innocence is to
minimize the risk that innocent person may be convicted and
imprisoned. It does so by imposing on the prosecution the burden of
proving the essential elements of the offence beyond a reasonable
doubt, thereby reducing to an acceptable level the risk of error in a
court’s overall assessment of the evidence tendered in the
course of a trial. Counsel for the applicant submits that no
limitation upon the presumption of innocence is authorized in the
Constitution. That submission is not correct in the light of what was
stated in
12.



In Attorney General v
the Minister of Justice
& Others by Shivute CJ when he
stated that: ‘ the expression ‘according to law’
in Art 12 (1) (d), which for all intents and purpose conveys exactly
the same ordinary meaning as the phrase in accordance with law’
employed in art 13 (1), serves the same purpose: It allows by
implication for the limitation of the right presumption of innocence
and implies a measure of flexibility to allow the legislature to
determine substantive and procedural frameworks in the public
interest in terms of which a person may be proved guilty according to
law. This implicit flexibility is necessary if a balance is to be
struck between the rights of the individual to be presumed innocent
and the state’s obligation to protect the interest of the
public.







I am mindful of the
objectives the impugned provision seek to achieve, but, in my view
there is no reasonable and justifiable limitation on the right to be
presumed innocent. The risk that an accused may be convicted despite
the existence of reasonable doubt clearly infringes the presumption
of innocence. And it was also not shown that the relation between the
limitation and its purpose is proportional. As it was stated in
Manamela
case
13



In the light of
the vital importance to our criminal justice system to be presumed
innocent and the cluster of fair trial rights which accompany it, the
imposition of a full burden of proof in the circumstances has a
disproportionate impact on the right in question.’



I find the reasoning in
the majority judgment in the Manamela case persuasive.



In a society where the
majority of our population is illiterate and engage in informal
trading as a way of making a living on a daily basis, the risk of
innocent people being convicted and sent to jail is too high if the
reverse onus in s 7(1) is to be retained. The reverse onus imposes a
full legal burden of proof on the accused and after hearing all the
evidence, there is doubt in the mind of the judicial officer as to
where the truth lies, the constitutional presumption of innocence is
replaced by a statutory presumption of guilt and a conviction will
follow even though the version of the accused might reasonably be
true. To safeguard against that risk, the presumption of innocence is
crucial. It ensures that until the state proves the guilt of an
accused person beyond reasonable doubt, he or she is innocent and
that is essential in a society committed to fairness and justice. The
presumption of innocence instills confidence in the judicial system
and respect for the rule of law.



In my respectful view
there are less invasive means to strike a balance between the rights
of accused persons to be presumed innocent and the state’s
obligation to protect the interest of the public. In my view the
presumption contained in s 7 (1) of Ordinance 12 of 1956 is
unconstitutional and must be declared as such.







[15] The appropriate
order in terms of Art 25 (1) (b) of the Constitution







Article 25 (1) (b) of the
Constitution provides that , if a court is of the opinion that any
law in force immediately before the date of independence is
unconstitutional, it may either set aside the law or allow Parliament
to cure any defect in such law, in which event the provisions of Art
25 (1) (a) shall apply.







Order







In the result I make the
following order:







1. The phrase ‘proof
of which shall be on such first-mentioned person’
contained
in s 7 (1) of the General Law Amendment Ordinance, Ordinance 12 of
1956, is declared unconstitutional and is struck down.



2. The first respondent
is ordered to pay the costs of the applicant.







































































































________________



NG NDAUENDAPO



JUDGE















________________



N SHIVUTE



JUDGE







APPEARANCE











ON BEHALF OF THE
APPLICANT: ETZOLD-DUVENHANGE ATTORNEY, NOTARIES & CONVEYANCES































ON BEHALF OF THE 1ST
RESPONDENT: GOVERNMENT ATTORNEY






12010
(1) NR 328 (SC)




2At
349




3Case
no P.12/2009 Supreme Court judgment delivered on 4 April 2013 at 17




42000
(3) SA 1 (CC)




5At
16




6At
45




7At
16




8At
24




9At
42




10At
42 para 99




11S
v V 2001 (1) SACR 455 A-C




12Supra
at 29




13Supra
at 25