S v Gwadiso (1950/94) [1995] ZAWCHC 2 (16 February 1995)

S v Gwadiso (1950/94) [1995] ZAWCHC 2 (16 February 1995)

The court found that the only evidence presented by the State was that the accused was found in possession of dagga, with no direct evidence of intent to deal. The trial magistrate relied on the statutory presumption in section 21(1)(a)(i) of Act 140 of 1992, which places the burden on the accused to prove he did not possess the dagga for dealing. The court agreed with the reasoning in S v Bhulwana that such a presumption is prima facie inconsistent with section 25(3)(c) of the Constitution, which guarantees the right to a fair trial, including the presumption of innocence and the right to remain silent. Given that the quantity of dagga in this case was even less than in Bhulwana, the...

Citation
[1995] ZAWCHC 2
Parties
Applicant: The State; Defendant: Joe Gwadiso
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
16 February 1995
Case Number
1950/94
Procedural Posture
Criminal Review / Referral to Constitutional Court
Outcome
The question of the constitutional validity of the statutory presumption in section 21(1)(a)(i) of Act 140 of 1992 is referred to the Constitutional Court for determination.
Judges
Traverso, Conradie
Legal Topics
Presumption of Intent to Deal, Burden of Proof, Right to Fair Trial, Constitutionality of Statutory Presumptions
Criminal Law Constitutional Law Presumption of Intent to Deal Burden of Proof Right to Fair Trial Constitutionality of Statutory Presumptions

Case Brief

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Parties

The State

Applicant

Joe Gwadiso

Defendant

Procedural Posture

Criminal Review / Referral to Constitutional Court

Legal Issues

  1. 1 Whether the statutory presumption in section 21(1)(a)(i) of Act 140 of 1992 is constitutionally enforceable.
  2. 2 Whether the presumption infringes the accused's right to be presumed innocent under section 25(3)(c) of the Constitution.
  3. 3 Whether the conviction for dealing in dagga can stand in light of the constitutional challenge.

Ratio Decidendi

The court found that the only evidence presented by the State was that the accused was found in possession of dagga, with no direct evidence of intent to deal. The trial magistrate relied on the statutory presumption in section 21(1)(a)(i) of Act 140 of 1992, which places the burden on the accused to prove he did not possess the dagga for dealing. The court agreed with the reasoning in S v Bhulwana that such a presumption is prima facie inconsistent with section 25(3)(c) of the Constitution, which guarantees the right to a fair trial, including the presumption of innocence and the right to remain silent. Given that the quantity of dagga in this case was even less than in Bhulwana, the...

Court Disposition

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

Orders

  • The constitutional validity of the presumption in 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 amended to possession of an undesirable dependence-producing substance.