IN THE HIGH COURT OF SOUTH AFRICA /ES (TRANSVAAL PROVINCIAL DIVISION)
CASE NO:
DATE: ..
DELETE
1) IMPORTABLE: Y E S / 3 *
0) or. :v-HptHST TO OTHER JUDGES:
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IN THE MATTER BETWEEN MOOSA OSMAN
MOHAMMED SHIRAZ OSMAN AND
THE ATTORNEY-GENERAL FOR THE TRANSVAAL RESPONDENT
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FIRST APPLICANT SECOND APPLICANT
JUDGMENT McCREATH, J
The applicants were charged in the regional court of contravening section 36 of the General Lav; Amendment Act 62 of 1955. The applicants objected to the charge on the grounds that section 36 of the said act was in conflict with the provisions of sections 25(2) (c) and 25(3) (c) of the Constitution of the Republic of South Africa Act 200 of 1993.
The criminal trial was postponed to enable the applicants to approach this court for an order that the matter be referred to the constitutional court to determine the validity of the said
section 101(6) of Act 200 of 1993, that the issue be determined by this court.
Since the agreement concluded by the parties the Constitution of the Republic of South Africa Act 108 of 1996 has come into operation. In terms of section 169 of this latter act this court in any event has jurisdiction to hear the matter.
Section 36 of Act 62 of 1955 provides as follows:
"Failure to give a satisfactory account of possession of goods
Any person who is found in possession of any goods, other than stock or produce as defined in section thirteen of the Stock Theft Act, 1923 (Act 26 of 1923), in regard to which there is reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of theft."
Before dealing with the contentions advanced on behalf of the applicants it is desirable that I briefly recount the elements of the offence and the legal principles relating to the proof thereof.
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The elements of the offence created by section 36 are:
a) the accused must be found in possession of goods;
b) the person finding the goods must have a reasonable suspicion that the goods are stolen;
c) there must be an inability on the part of the person found in possession to give a satisfactory account of such possession.
In S v Khumalo 1964 1 SA.498 (N) a full bench of the Natal provincial division of the supreme court had occasion to analyse critically and in detail, with reference to authority, the requisites and onus in respect of the three elements of the offence, and more particularly the latter two elements. It is apparent on the authorities that the onus rests on the state to prove all three elements beyond a reasonable doubt. In judging the question of reasonableness all the information obtained by the finder of the goods is to be taken into consideration.
(Khumalo's case at 506A. ) In regard to the_ 9i^vJ-ng_f)f_a
satisfactory account, that need not be done at the time the goods are found ,^but may be given thereafter, even at the ^accused's trial at any time before judgment [R v Hunt 1957 2 SA 465 (N) 471A-B]. The question of the accused's inability to give a satisfactory account of his possession only arise s_ after the prosecutor establishes the reasonableness of the suspicion
(Khumalo's case at 501C and 505F). There must be proved by the state an inability of the accused, at the time of his being found in possession of goods which are then reasonably suspected of having been stolen, to give a satisfactory account of such possession [Khumalo's case at 500H; S v Kajee 1965 4 SA 274 (T) 276C-D].
Moreover, it is not the failure to give an account which renders the accused liable to conviction. It is his inability to give an account which is punishable. Thus, in Khumalo's case supra MILNE, JP states the following at 501D-F:
"The state must prove that, at the material time, he was actually unable to give a satisfactory account of his possession either at the time or at any time subsequently, whether in court or not. It may be proper to infer, in most cases, that his failure to give an account of his possession is due to his being unable to give a satisfactory account. But there may be cases where, notwithstanding that he has not given any account of his possession, the court might find itself unable to say that his failure to give an account proves beyond reasonable doubt that he was unable to give a satisfactory account:
there might be circumstances connected with the status or the character of the accused which might well make it seem reasonably possible to the court that the accused's refusal to give an account of his possession was due, eg, to
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"stubborness and was at least as consistent with innocence as with guilt."
Finally, the fact that the accused may be able to give a
"satisfactory account" may be gleaned from information not emanating from the accused, but from other sources. Thus, as pointed out in Khumalo's case at 514B, if the evidence before the court is that the accused may have acquired the property in an innocent manner, it cannot be held beyond reasonable doubt that he is not in a position to give a satisfactory account of his possession. In this respect see also 5 v Malefane 1969 3 SA 442 (O).
I turn to the relevant rights in the constitution which the applicants contend are infringed by the provisions of section 36.
In this regard, the relevant provisions of Act 200 of 1993 and of Act 108 of 1996 do not differ in any material respect.
Section 25(2) (c) of Act 200 of 1993 provides that "every person arrested for the alleged commission of an offence shall
... have the right ... not to be compelled to make a confession or admission which could be used in evidence against him or her" . Section 35(1) of Act 108 of 1996 is in similar (albeit not identical) terms.
It is argued on behalf of the applicants that section 36 of Act 62 of 1955 imposes a duty upon any person found in possession
of goods in respect whereof a police officer, or another person in authority, harbours a reasonable suspicion that the goods were stolen, to provide an account of such possession. That duty arises, so it is argued, in view of the fact that the inability to give a satisfactory account, is one of the elements of the offence created by section 36. It is further argued that the explanation or account required to be given may, dependent on the circumstances of the case, be in the nature of an admission or a confession of the crime of which the suspect is to be, or has been, charged and will at any time be admissible against the suspect. Hence, so it is argued, section 36 offends against the rights conferred by section 25(2)(c) of Act 200 of 1993 and its successor, section 35(1) of Act 108 of 1996.
I have already indicated that, in the light of the authorities to which I have referred, even if no account of his or her possession is given by a person charged with a contravention of section 36, a conviction'on such a charge does not necessarily follow. It depends on whether the state has proved beyond a reasonable doubt the finding in possession, the reasonable suspicion and the inability to give a satisfactory account, all in accordance with the principles enunciated in the said authorities. Section 36 does not therefore per se cast a duty on a person suspected of contravening the section to make any statement at all.
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The circumstances of a particular case may of course be such that an explanation will be required of the person's possession of the goods in order to avoid a conviction under the section and that that explanation can only be given by that person himself or herself. Such person still has an election whether to give an explanation or to risk the consequences.) The necessity to give a satisfactory account to avoid conviction is in that event not created by section 36 itself but by the circumstances of the particular case. Section 36 compels nothing. It is a misfortune inherent in the case. So also if the account required to be given involves an admission or confession to a crime on the part of that person. The situation is analogous to that which may arise in any criminal case at the end of the state case.
Sufficient evidence may have been advanced by the prosecution at that stage to require a satisfactory explanation from the accused, which is reasonably possibly true, if he is to avoid conviction. His right to remain silent has not been impinged upon by any statutory provision in , conflict with the constitution. The circumstances of the case against him are such that he exercises his right to silence at his peril [cf S v Sidziya and Others 1995(12) BCLR 1626 (Tk)].
For the same reasons I do not consider that section 36 is in conflict with the other section of Act 200 of 1993 relied upon by the applicants and its counter-part in Act 108 of 1996.
Section 25(3)(c) of Act 200 of 1993 provides that "every accused person shall have the right to a fair trial, which shall include
the right ... to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial".
Section 35(3)(h) of Act 108 of 1996 is in similar, although once again not exactly the same, terms. As already pointed out, section 36 of Act 62 of 1955 does not oblige an accused person to forfeit his right to remain silent. The section does not therefore in any way encroach upon an accused's rights as enunciated in the said sections of the two statutes. The proven facts before the court in which he is being tried may in a particular case demand an explanation by him if he is to avoid a conviction, but that is in consequence of the circumstances of the case and not as a result of any duty placed on the accused in terms of section 36.
In view of the conclusion to which I have come on this aspect of the matter it is not really necessary for me to deal with the alternative argument advanced on behalf of the respondent, namely that any limitation on an accused's rights created by section 36 is in any event reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality and is therefore permissible in terms of section 33(1) of Act 200 of 1993 and its counter-part, section 36(1) of Act 108 of 1996.
In this latter regard I would, however, state the following:
the limitation, if such it be, is in my view and for the reasons already set out in this judgment, not of a material nature. It
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is apparent that there may be instances where it is difficult for the state to prove the ownership of goods found in possession of an accused person in order to establish the common law crime of theft. The report on the incidence of serious crime during 1995 filed by the respondent as an annexure to his supplementary affidavit indicates that theft and crimes of a similar nature thereto have taken on alarming proportions in our society. I am of the view that in these circumstances and in the present climate much is to be said for the argument that the section is required for the proper administration of justice, in order to assist in the combat of serious crime. However, it is not necessary to make a definite finding on this aspect of the matter.
Although the issue of costs was raised at a previous hearing of the matter, I did not understand counsel on either side at the resumed hearing to contest the fact that it was appropriate that the usual order in matters of this nature, namely that each party pay its own costs, should be made.
I would dismiss the application, each party to pay that party's own costs.
S V? McCREATH
JUDGE OF THE HIGH COURT I agree.
H P VAN
JUDGE OF^TH&^ffTGH COURT
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PRETORIA 6 NOVEMBER 1997 CASE NO: 14618/95
BEFORE THE HONOURABLE MR JUSTICE V A N D Y K
BEFORE THE HONOURABLE MR JUSTICE McCREATH In the matter of:
MOOSA OSMAN FIRST APPLICANT MOHAMMED SHIRAZ OSMAN SECOND APPLICANT and
THE ATTORNEY GENERAL FOR THE TRANSVAAL RESPONDENT
HAVING HEARD counsel for the applicant and having read the documents filed of record
IT IS ORDERED
THAT the court certify that the only issue remaining in this matter is of a constitutional nature.
THAT there is reason to believe that the honourable Constitutional Court may give leave to the applicants to note an appeal against the decision on the said issue.
THAT the constitutional issue can be defined as follows, namely: "Whether section 36 of the General Laws Amendment Act, Act 62 of 1955, is in conflict with the provisions of section 25(2)(c) and 25(3)(c) of the Constitution
of the Republic of South Africa, Act 200 of 1993", (the Interim Constitution) THAT the constitutional issue is one of substance on which a ruling by the Constitutional Court is desirable.
THAT the evidence in the proceedings is sufficient to enable the honourable Constitutional Court to deal with and dispose of the matter without having to refer the case back to the above honourable court for further evidence.
THAT there is a reasonable prospect that the honourable Constitutional Court will reverse or materially alter the decision given by the above honourable court if permission to bring the appeal is given.
362 STKYDQM
Mr IJ^^^H^ THE COURT
;GISTRAR
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