S v Bhulwana (C1159/94) [1994] ZAWCHC 1 (19 October 1994)

S v Bhulwana (C1159/94) [1994] ZAWCHC 1 (19 October 1994)

The court held that section 21(1)(a)(i) of Act 140 of 1992, which presumes dealing in dagga based solely on possession of more than 115 grams, is in direct conflict with the accused's constitutional right to be presumed innocent. The presumption is neither reasonable nor necessary, as the specified quantity is small enough to be for personal use and the burden of proof imposed on the accused may result in convictions where there is real doubt about intent. This negates the essential content of the right to be presumed innocent and improperly relieves the State of its duty to prove guilt. The matter is referred to the Constitutional Court for determination of the validity of the presumption.

Citation
[1994] ZAWCHC 1
Parties
Applicant: The State; Respondent: Godzana Bhulwana
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 October 1994
Case Number
C1159/94
Procedural Posture
Criminal Law Review / Automatic Review; Referral to Constitutional Court
Outcome
The question of the constitutional validity of the presumption in section 21(1)(a)(i) of Act 140 of 1992 is referred to the Constitutional Court for determination.
Judges
R M Marais, F D J Brand
Legal Topics
Presumption of Innocence, Burden of Proof, Constitutionality of Statutory Presumptions, Fair Trial Rights, Drug Offences
Criminal Law Constitutional Law Presumption of Innocence Burden of Proof Constitutionality of Statutory Presumptions Fair Trial Rights Drug Offences

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

The State

Applicant

Godzana Bhulwana

Respondent

Procedural Posture

Criminal Law Review / Automatic Review; Referral to Constitutional Court

Legal Issues

  1. 1 Whether section 21(1)(a)(i) of Act 140 of 1992, which presumes dealing in dagga based on possession of more than 115 grams, is constitutionally valid.
  2. 2 Whether the statutory presumption infringes the accused's right to be presumed innocent under section 25(3)(c) of the Constitution.
  3. 3 Whether any limitation of the presumption of innocence is reasonable, necessary, and does not negate the essential content of the right.

Ratio Decidendi

The court held that section 21(1)(a)(i) of Act 140 of 1992, which presumes dealing in dagga based solely on possession of more than 115 grams, is in direct conflict with the accused's constitutional right to be presumed innocent. The presumption is neither reasonable nor necessary, as the specified quantity is small enough to be for personal use and the burden of proof imposed on the accused may result in convictions where there is real doubt about intent. This negates the essential content of the right to be presumed innocent and improperly relieves the State of its duty to prove guilt. The matter is referred to the Constitutional Court for determination of the validity of the presumption.

Court Disposition

The question of the constitutional validity of the presumption in section 21(1)(a)(i) of Act 140 of 1992 is referred to the Constitutional Court for determination.

Orders

  • The question of the constitutional validity of section 21(1)(a)(i) of Act 140 of 1992 is referred to the Constitutional Court.
  • If the Constitutional Court finds the presumption invalid, the conviction must be altered to one of unlawful possession and the sentence adjusted accordingly.