Some people are wondering whether an accused person may be identified before he or she has appeared in court and pleaded. The short answer is no – she of he – to the extent to which she or he is an accused – may not be identified.

This follows from reading sub-section 154(2)(b) with sub-section 153(3) – and, if still in doubt, then by reading both with section 84(1).

Section 153(3) governs when a trial may be held “in camera” – excluding the pubic. This subsection is irrelevant for present purposes, except that it contains a list of offences. It is unnecessary to know or understand – save to note the the list of offences.
In this context (for the purposes of section 153(3)) the list identifies the offences in respect of which, if requested to by the relevant person, a court may order all people who are not necessary to the proceedings to leave the trial. It provides as follows:

In criminal proceedings relating to a charge that the accused committed or attempted to commit-
(a) any sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person;
(b) any act for the purpose of furthering the commission of a sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person; or
(c) extortion or any statutory offence of demanding from any other person some advantage which was not due and, by inspiring fear in the mind of such other person, compelling him to render such advantage,

the court before which such proceedings are pending may, at the request of such other person or, if he is a minor, at the request of his parent or guardian, direct that any person whose presence is not necessary at the proceedings or any person or class of persons mentioned in the request, shall not be present at the proceedings: Provided that judgment shall be delivered and sentence shall be passed in open court if the court is of the opinion that the identity of the other person concerned would not be
revealed thereby.

(emphasis added)

The list includes sexual offences (in subsections a & b) and extortion (in subsection c). Section 154(2)(b) of the Criminal Procedure Act (51 of 1977) states:

No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153 (3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question.


Thus, no person may:
• Until an “accused has pleaded to the charge”;
• “publish in any manner whatever any information relating to [a sexual offence or extortion]”.
This is regrettably not as clear as it should be. It seems capable of an interpretation that it only prohibits the publication of special details, or the special or specific circumstances of the offence – allowing, for instance, for the accused to be named and for a crime to be specified – although, somehow in the abstract.
However, I am now sure that, as much as that appealed to me at one stage, it must be wrong. It must be wrong because there can be no way to name a person and a crime “in the abstract” – both names, the name of the person and the name of the crime are full of meaning – and are, “details”. If one is not yet persuaded, one should recall that the prohibition is against the publication of “any information relating to the charge”.

Could one, for instance, publish that Mr Jones is accused of some crime? Usually this would be meaningless, but, lets imagine a scenario where Mr X is famous or infamous – for any of the usual South African reasons. Could this amount to a detail of the charge? I believe even this would.

The argument here is both intuitive and technical. Intuitively, if it carries some meaning it would seem to qualify as a detail of the charge. This would be especially true when it becomes clear that the person who published the name refuses to say more – we would then immediately know that Mr Jones is charged with either a sexual offence or extortion. We would already know more that the section must have been designed to permit.

But if you are not persuaded by that argument, it will be helpful to note that a person’s identity is an essential part of any charge.
Section 84(1) provides:

Subject to the provisions of this Act and of any other law relating to any particular offence, a charge shall set forth the relevant offence in such manner and with such particulars as to the time and place at which the offence is alleged to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.

(emphasis added)

A charge must be directed at an identifiable accused – thus the identity of the accused is an essential part of the charge, and if essential, must certainly qualify as information relating to a charge.

In these circumstances, it must be that the law prohibits the publication of any information regarding an accused or his alleged offence, until he has pleaded, and that the name of the accused, the name of the offence, must qualify as components of the prohibited information.


James Grant[1]

Introduction

The recent decision of the Constitutional Court in Minister of Justice v Prince[2](“MOJ v Prince”)was met with ululation in court. The Court found decisively in favour of the private use, cultivation and possession of cannabis – in private.

The decision went to far for some, and not far enough for others. It is also unclear on some points and in other respects it will be argued that the court is, with respect, wrong. I will argue, for instance that the Court was wrong in attempting to restrict its decision from having a retrospective effect and in leaving the question of what constitutes an amount that one may cultivate or possess for private purposes to the discretion of police officers. These arguments are not appeals to some or other moral judgment, but are based on legal principles. They are also not an attempt to find loopholes in the law so as to permit the unscrupulous entrepreneur to get a head start on everyone else in making money from cannabis.

Indeed, money probably ought to be made from the plant, but in a way that is open to all and does not permit the unscrupulous to get rich by breaking the law or for the rich to get even richer.

What is the law

The order of the Constitutional Court in MOJ v Prince – in relevant part – is to the effect that various statutory provisions unjustifiably infringe the right to privacy and were struck down.

  • The Constitutional Court order permits the use or possession of cannabis in private by an adult person for his or her own consumption in private;[3]
  • One may not purchase cannabis,[4] but one may cultivate it, in a private
  • place, for one’s personal consumption;[5]
  • Privacy was given an expanded meaning – beyond that which Davis J
  • had given the concept – in that the Constitutional Court recognised that it
  • cannot be restricted to one’s home or dwelling;[6]
  • The order as to the invalidity and reading in was made prospective – from the date of the handing down of the order;[7]
  • The orders of Constitutional invalidity were suspended for 24 months to allow for the defects to be remedied;[8]
  • In the interim, the legislation shall be read so as to be consistent with the Constitution;[9]
  • If parliament fails to remedy the legislation, the reading in will become permanent.[10]

In the result, the Court ordered that:

an adult may –

  • cultivate cannabis; and
  • use or possess cannabis –
    • in a private place;
    • for his or her personal consumption;
    • in private.

Several issues demand attention and comment:

  1. On privacy – what is a private place?
  2. On the amount – how much is an amount which is not more than is reasonable for an individual to cultivate or possess for private purposes; and
  3. On retrospectivity – can this hold in the context of the criminal justice system and fair trial rights?

The Statute

It will be helpful to observe what it is that remains prohibited. For the answer to this one must consult the schedules to the Drugs and Drug Trafficking Act 140 of 1992 (the “Drugs Act”). Cannabis is listed in Part III of Schedule 2 as an “Undesirable Dependence producing Substance”, as follows:

Cannabis (dagga), the whole plant or any portion or product thereof, except dronabinol [(-)-transdelta-9-tetrahydrocannabinol].

The section goes on to include virtually any extract or preparation which may be made of the plant.[11]

Cultivation, use and possession of the substance remains prohibited to the extent that it does not fall within the protection provided in MOJ v Prince, as provided in section 4(b) of the Drugs Act:

No person shall use or have in his possession

(a) any dependence producing substance; or

(b) any dangerous dependence producing substance or any undesirable dependence producing substance; (emphasis added)

Dealing in cannabis remains prohibited under s 5(b) of the Drugs Act, as follows:

No person shall deal in[12]

(a) any dependence producing substance; or

(b) any dangerous dependence producing substance or any undesirable dependence producing substance; (emphasis added)

What the Law is not

It seems that already, since this decision (in MOJ v Prince) various attempts have been and are being made to circumvent the prohibition on dealing in cannabis.

Some of these seem to be a variety of the old attempts to circumvent the law that requires that only a liquor licensee can sell liquor, by selling some token, which then entitled the holder of the token to exchange the token for liquor. Our courts saw straight through this sham and we may expect the same of attempts to sell tokens which are then exchanged for cannabis. Besides this, there is the more direct problem that the definition of dealing[13] prohibits this conduct expressly. These definitions remain in force and prohibit the exchange or even donation of cannabis.

An interesting question is whether any sort of criminal liability arises in a scenario where someone purports to sell, say, an energy drink containing cannabis (and so THC), whereas the drink contains no THC. Here, if the seller knows that the drink contains no THC, s/he commits fraud, and if s/he believes that the drink contains THC, then s/he commits an attempt at dealing in cannabis. The buyer – presumably believing the drink to contain cannabis – commits an attempt to deal in cannabis. 

What is perhaps more interesting, because it deserves some serious consideration, is what is a private place, what amount may a person possess or cultivate, and whether any defence is available retrospectively. I will now take each of these in turn.

Privacy

The greatest guidance as to what constitutes “in private” is the apparent endorsement of the US conception of a “reasonable expectation of privacy”. The Court appears to endorse the views of Ackerman J in Bernstein.[14] It quoted extensively from the case, including, with apparent approval, the following:[15]

“The question corresponding to determining the ‘scope of the right to privacy’ in United States’ constitutional inquiry, is whether a search or seizure has occurred. The US Supreme Court has defined ‘search’ to mean a ‘governmental invasion of a person’s privacy’ and it has constructed a two part test to determine whether such an invasion has occurred. The party seeking suppression of the evidence must establish both that he or she has a subjective expectation of privacy and that the society has recognised that expectation as objectively reasonable. In determining whether the individual has lost his / her legitimate expectation of privacy, the Court will consider such factors as whether the item was exposed to the public, abandoned, or obtained by consent. It must of course be remembered that the American constitutional interpretative approach poses only a single inquiry, and does not follow the two stage approach of Canada and South Africa. Nevertheless it seems to be a sensible approach to say that the scope of a person’s privacy extends a fortiori only to those aspects in regard to which a legitimate expectation of privacy can be harboured.”

From this one may discern some sort of distinction between what may be regarded as a private place, as follows: Is it a place which –

  • the individual concerned believed to be private; and
  • society has agreed that this belief is objectively reasonable.

The Court held that the conception of privacy adopted by Davis J in Prince v MOJ[16] had been too restrictive. It reasoned that it could not be correct for one to be entitled to possess marijuana, say, in one’s pocket in one’s home, but that it became unlawful for one to leave one’s home with that marijuana in one’s pocket.[17] The constitutional court appears to be of the view that a person’s pocket is a private place.

On what would constitute a private place for the purposes of cultivation, the Court observed:

An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.[18]

With this – and the principle of “reasonable expectation” in mind – It would seem that the court would unquestionably regard cannabis carried on one’s person, or in a bag in which one carries one’s own belongings to be “in private”.

There can be little suggestion that carrying something inside one’s shirt must be as personal and private as carrying it in one’s pockets, and although carrying it in a bag may be less personal, again there would seem to be little to suggest that this ought not to be regarded as a personal space on the basis that the appropriate question seems to be whether these “spaces” were regarded as private and then, whether society would accept that these are private.

The conclusion would seem inescapable that the inside of one’s shirt, jacket, one’s bag or the inside of one’s own car, must be regarded as private on the basis that there is a reasonable expectation that these places are private.

Amount

As to what amount a person can cultivate, use or possess, the Court declined to specify[19]save to say that it is an amount which is necessary for personal consumption. The court stated:

I think that the references to possession of cannabis, “for personal use,” or “for personal consumption” help to ensure that we do not have to specify the amount or quantity of cannabis that may be possessed. We only need to say that the amount that may be possessed is an amount for personal consumption.[20]

The Court defended its refusal to specify the amount permitted by reference to other provisions under our law where an exercise as to what would amount to reasonable conduct or possession for personal use exists.

However, the court does not observe that the examples relied on offer a reference point – whereas, in respect of cannabis, our law has no frame of reference.

For instance, the court refers to the discretion which an officer must exercise in determining whether a driver is driving negligently.[21] This is the question of whether the driver is driving unreasonably, in the circumstances. Yet the Court fails to observe that the law specifies virtually all aspects of how one must drive- and that otherwise, the officer will have personal experience of “proper” and reasonable driving.

It was, until 18 September 2018, unreasonable to cultivate, possess or use any extent of cannabis. If a police officer attempts to shift his or her paradigm into one where some extent of possession is reasonable, he or she is utterly without any frame of reference.

In addition, he or she will not have been trained in any way as to what may amount to the proper or improper use of marijuana. Arguably there is no such standard which could dictate what may amount to improper use.

In fact, this concept of proper use of marijuana will most likely remain and anathema to police officers. Presumably they will not know what it may be used for and what it may not be used for. This must follow from the fact that there does not seem to be any consensus as to what it may be used for and how it may be used.

There is no consensus that one may only smoke it. Some people eat it. Some people may want to rub it on their skin. Others may want to bath in it. Still others may want to extract oil from it for the purposes of ingestion or for some form of healing or medicinal use.

There is no standard which informs what purpose one may put cannabis to and how it may be used – and because there is no standard, there cannot possibly be a reasonable as opposed to an unreasonable amount of marijuana to possess.

Following on that, there cannot possibly be a proper exercise of discretion as to what amount one may cultivate, possess or use for personal purposes.

The lack of a reference point for the cultivation, possession or use of cannabis – whereas the examples given to justify the refusal to specify an amount presume such a standard – pervades all examples which the Court relies on:

  • Of what would amount to a satisfactory account of possession of something where there is a reasonable suspicion that it is stolen.[22] The methods by which one may acquire property are utterly familiar to a police official.
  • Of how much liquor is more than is reasonably required for one’s

personal use – or for the use of other people residing with one:

“In terms of the Liquor Act the sale of liquor by a person who is not a holder of a liquor licence is a criminal offence. Section 167 of that Act then provides as follows in so far as it is relevant:

“167. Evidence in any criminal proceedings that any person who is not the holder of a licence …

(c) had on his or her premises more liquor than was reasonably required for his or her personal use and for the use of any person residing thereon; or

(d) bought or procured or had in his or her possession or custody or under his or her control more liquor than was reasonably necessary for consumption by himself or herself, his or her family or his or her bona fide employees or guests,

shall be prima facie proof of sale of liquor by the first mentioned person.”

From this it can be seen that the Liquor Act already deals with a situation where, initially a police officer must, in a particular case, take a view whether a person had more of something than is reasonably required for his or her personal use. That is liquor.”[23]

The significance of this example goes beyond the problem with reference points – but that, presumably because of this problem, this law has been repealed. The Liquor Act (59 of 2003) referred to contains no such provision. Instead, its predecessor (the Liquor Act 27 of 1989) did – but it has been repealed by the Liquor Act (59 of 2003).[24]

Thus, there is no such law – except one which has now been rejected. One may only surmise why this provision has been repealed.

  • The Court refers to the distinction which is drawn in the Income Tax Act[25]regarding what may constitute a “personal-use asset”. However, this distinction is one that a police officer will presumably never be required to draw. In addition, the example is self-defeating in that the relevant section goes on to define at some length what is and is not a personal use asset.[26]
  • Finally, the Court refers to a possession permit under the National

Environment Management: Biodoversity Act,[27] which permits as “a permit for keeping or conveying a specimen of a listed threatened or protected species for personal use in a person’s possession without carrying out any other restricted activity”. Yet the example does not in any way purport to require a law enforcement official to discern what may amount to personal use. It would seem that the permit will have been issued once some functionary is satisfied as to what the specimen will be used for and that there must – under law – be criteria for the exercise of this discretion.

In all of this, the most persuasive example is that of the existence of a discretion on an inspector or law enforcement official in respect of whether a person is in possession of more liquor than is reasonable for personal use. The fact that the law has been repealed is both telling and damning for the argument that it is unnecessary to stipulate an amount.

Retrospectivity

The Court was clear that – in virtue of a person’s right to privacy, it found that an adult enjoys the right to cultivate, use and possess cannabis, in a private place, for his or her personal consumption, in private.

It was clear that the legislation in conflict with these rights, was struck down or to be read appropriately, prospectively.

It would seem then that any conduct ostensibly in conflict with the impugned statutory provisions, prior to the Constitutional Court decision, enjoys no protection.

Yet, through the operation of other rights in the Constitution, and principles of Constitutional law and criminal law, it seems that the same protection now enjoyed by anyone, must be afforded everyone going back in time – at least to the date on which the Constitution took effect: 4 February 1997.

No punishment no crime

The first proposition is perhaps the one that would appear most readily. It is based on the notion that a person is entitled to the least punishment available for the offence for which he or she has been convicted in respect of the time period that has passed between when the conduct was committed and when the conviction was handed down.[28]

Under criminal law there can be no crime unless there is punishment for that crime.[29] And so in the absence of any possible punishment, the conduct in question cannot be a criminal offence.

Ground of Justification

It seems that although the Constitutional Court ordered that the striking down of the impugned legislation is not retrospective, the Constitutional Court at the same time recognised an entitlement to cultivate, possess and the use of cannabis that gives rise to what would translate into a justification in criminal law.

The effect in law of a justification is to exclude the unlawfulness of the conduct in question and exclude all possible criminal liability. Furthermore, this entitlement will have arisen at the moment the Constitution came into effect. In what follows, I set out this argument in more detail.

The Constitution requires a court – and ultimately, the Constitutional Court – to strike down any law or conduct inconsistent with the Constitution, to the extent of its inconsistency.[30] Furthermore, it grants the power to limit the retrospective effect of the order. Section 172(1)(b)(i) states:

(1) When deciding a constitutional matter within its power, a court-

(b) may make any order that is just and equitable, including-

(i) an order limiting the retrospective effect of the declaration of invalidity ,..[31]

However, there is a significant difference between the recognition of an unjustifiable infringement of a right and the striking down of a law because of that infringement.

That is, for instance, it is one thing for the Constitutional Court to find that the right to privacy is unjustifiably infringed by a law. It is another to order that, because of that infringement, that law is struck down.

The significance of this is that – although the striking down may be limited in its retrospective effect – there appears to be no question that the right to cultivate, possess and use cannabis in private (as circumscribed in the judgment) would constitute a ground of justification in the face of which – and on the basis of basic principles of criminal law – there can be no criminal liability.

This follows from the fact that the test for unlawfulness is judged by reference to the legal convictions of the community,[32] which are in turn informed, ultimately, by reference to the Constitution.[33]

The justification would have arisen, at least, on the date of the coming into force of the Constitution (4 February 1997).

It is arguable that a Court could make an order that the right is to be regarded as only having become unjustifiably infringed prospectively – because a Court may make any order that is just an equitable[34] – but no authority for this course can be found, nor does it seem to hold in logic.

On a diligent search of the jurisprudence, no case could be found where a court even considered limiting its reasoning or finding regarding the right. A logical inconsistency would arise because a court order can only follow upon the findings and reasons for the judgment.

A judgment must, of necessity, follow a particular logical form. A court can only grant an order once it finds reasons to do so – that exist, at least presently and to some degree retrospectively.[35] A court would render its reasoning null and void if it were to order that its reasons were to be regarded as only taking effect at the same moment as the relief it orders.

For these reasons, a Court decision that a right is being unjustifiably infringed, must relate to the present, and, to an extent, to the past.

Turning to the judgment of the Constitutional Court in the case in question – of MOJ v Prince – it must be observed that there is a recognition that the right to privacy conferred under the Constitution, was unjustifiably infringed by the pre-existing Drugs Act.

The Court then orders that, as a consequence,[36] it must strike down the legislation which is in conflict with the right to privacy. Its relief – of striking down the legislation – will take effect prospectively, but there is no suggestion that it was attempting to order that its reasoning was also somehow suspended in time and also only acted prospectively. That is, there is no trace that the court attempted to order that its recognition that the right to cultivate, use and possess dagga for personal purposes in private, was only prospective. The opposite conclusion is unavoidable, that it recognised – as part of its ratio – that one always enjoyed this right, at least from the coming into force of the Constitution.

The effect of this is that it appears that the Court recognised a justification for the cultivation, possession and use of cannabis, for personal purposes in private, which would exclude criminal liability for all such conduct – back into the past – until, at least, 4 February 1997.

Conclusion

It is necessary to remember that the statute which remains in place is extensive and that the wording adopted has been given extended meanings.

In answer to the questions regarding what constitutes a private place, the answer seems to be whatever place one may legitimately expect to be private: do you think its private; would society agree? As to how much one may possess or cultivate, there seems to be no answer and it appears that the discretion which the Constitutional Court entrusted to law enforcement officials is unjustifiable and even dangerous. Perhaps what we can take from this is the need for the legislature to intervene sooner rather than later. As a matter of practical advice, it would seem that the cultivation and possession of small amounts will be the safest course in the meantime.

Regarding the retrospective effect of the order, there are at least two reasons to think that, in law, while the order may be prospective only, it must have, in virtue of the rights and principles at work in criminal law, a retrospective effect. The first follows from a combination of the principles that an offender is entitled to the least punishment for a crime, and that there is no crime without punishment. Secondly, if, as the constitutional Court has recognised, one’s right to privacy entails the private possession, use, and cultivation of cannabis, then one has been justified in doing so, from the inception of that right. It follows in law then, that where one’s conduct is justified, one cannot incur criminal liability.


[1] BProc LLB, BA Hons (psyc) PhD, Practicing Advocate of the High Court of South Africa. This article was made possible by the support and insightful questions of Fields of Green, Forever. Thank you to Amanda Watson for her careful proof-reading.

[2] The decision of the Constitutional Court was delivered on 18 September 2018, reported as Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30 (“MOJ v Prince”).

[3] Paragraph 10 of the order: “It is declared that, with effect from the date of the handing down of this judgment, the provisions of sections 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 read with Schedule 7 of GN R509 of 2003 published in terms of section 22A(2) of that Act are inconsistent with right to privacy entrenched in section 14 of the Constitution and, therefore, invalid to the extent that they make the use or possession of cannabis in private by an adult person for his or her own consumption in private a criminal offence.”

[4] See paragraph 8 of the order: “To the extent that the order of the Western Cape Division of the High Court purported to declare as constitutionally invalid provisions of sections referred to in that order that prohibit the purchase of cannabis, that part of the order is not confirmed.”

The reason appears at paragraph 88, as follows: “A purchaser of cannabis would be purchasing it from a dealer in cannabis. Therefore, if this Court were to confirm the order declaring invalid provisions that prohibit the purchase of cannabis, it would, in effect, be sanctioning dealing in cannabis. This the Court cannot do. Dealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy. I will, therefore, not confirm that part of the order of the High Court because we have no intention of decriminalising dealing in cannabis.” (emphasis added)

This conclusion is arrived at by a linguistic analysis that purchase would involve sale – and therefore dealing. But that it would qualify as “dealing” was regarded as reason enough to deny purchase, and ultimately to deny dealing. The conclusion that dealing is a serious problem was arrived at without any discussion and as if it were self-evident.

[5] See paragraph 11 of the order: “It is declared that, with effect from the date of the handing down of this judgment, the provisions of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and with the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 are inconsistent with the right to privacy entrenched in section 14 of the Constitution and, are, therefore, constitutionally invalid to the extent that they prohibit the cultivation of cannabis by an adult in a private place for his or her personal consumption in private.”

[6] See paragraph 6 of the order: “The cross-appeal is upheld in part to the extent that the reference in the order of the High Court to “in a private dwelling” or “in private dwellings” is replaced with “in private” or in the case of cultivation, “in a private place”.”

[7] See paragraph 102: “Another issue which must be decided is whether the order of invalidity that we make in this matter should operate with retrospective effect. I think it should not because it could have a disruptive effect on, and, cause uncertainty in, our criminal justice system. Accordingly, the order of invalidity in this case will operate prospectively.”

[8] See paragraph 12 of the order: “The operation of the orders in 10 and 11 above is hereby suspended for a period of 24 months from the date of the handing down of this judgment to enable Parliament to rectify the constitutional defects.”

[9] See paragraph 13 of the order: “During the period of the suspension of the operation of the order of invalidity:

  •  section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 shall be read as if it has sub­paragraph (vii) which reads as follows:

“(vii), in the case of an adult, the substance is cannabis and he or she uses it or is in possession thereof in private for his or her personal consumption in private.”

  •  the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 shall be read as if the words “other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private” appear after the word “cultivation” but before the comma.
  • the following words and commas are to be read into the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 after the word “unless”:

“, in the case of cannabis, he or she, being an adult, uses it or is in possession thereof in private for his or her personal consumption in private or, in any other case,”.”

[10]          See paragraph 15 of the order: “Should Parliament fail to cure the constitutional defects within 24 months from the date of the handing down of this judgment or within an extended period of suspension, the reading-in in this order will become final.”

[11] Unless expressly excluded, all substances or plants included in this Part include the following:

(a) The isomers of the specified substances or plants, where the existence of such isomers is possible;

(b) the esters and ethers of the specified substances or plants and of the isomers referred to in subparagraph (a), as well as the isomers of such esters and ethers, where the existence of such esters, ethers and isomers is possible;

(c) the salts of the specified substances or plants, of the isomers referred to in subparagraph (a) and of the esters, ethers and isomers referred to insubparagraph (b), as well as the isomers of such salts, where the existence of such salts and isomers is possible; and

(d) all preparations and mixtures of the specified substances or plants and of the isomers, esters, ethers and salts referred to in this paragraph.

(e) all homologues of the listed substances (being any chemically related substances that incorporate a structural fragment into their structures that is similar to the structure of a listed substance or exhibit pharmacodynamic properties similar to the listed substances in this Part of the Schedule), unless listed separately in any Part of Schedule 2.

[12] The Drugs Act defines dealing and sale as follows:

‘deal in’, in relation to a drug, includes performing any act in connection with the transhipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug; … and

‘sell’, in relation to a drug, includes to offer, advertise, possess or expose the drug for sale, to dispose of it, whether for consideration or otherwise, or to exchange it; …

[13] See above footnote 11.

[14] Bernstein v Bester [1996] ZACC 2, 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC).

[15] At paragraph 47 (of Prince 4).

[16] Prince v Minister of Justice and Constitutional Development and Others; Rubin v National Director of Public Prosecutions and Others; Acton and Others v National Director of Public Prosecutions and Others (4153/2012) [2017] ZAWCHC 30; [2017] 2 All SA 864 (WCC); 2017 (4) SA 299 (WCC) (31 March 2017) (“Prince v MOJ”)

[17] See paragraph 98ff.

[18] At paragraph 85.

[19] See paragraph 80.

[20] At paragraph 111.

[21] At paragraph 115.

[22]  Under section 36 of the General Law Amendment Act 62 of 1955 – see paragraph 119; or under Sections 2 and 3 of the Stock Theft Act 57 of 1959. – see paragraph 120.

[23] At Paragraph 124.

[24] See schedule 2.

[25] 58 of 1962.

[26] See Section 53 (2) & (3):

(2)        A personal-use asset is an asset of a natural person or a special trust that is used mainly for purposes other than the carrying on of a trade.

(3)        Personal use assets do not include-

(a)        a coin made mainly from gold or platinum of which the market value is mainly attributable to the material from which it is minted or cast;

(b)        immovable property;

(c)        an aircraft, the empty mass of which exceeds 450 kilograms;

(d)        a boat exceeding ten metres in length;

(e)        a financial instrument;

(f)         any fiduciary, usufructuary or other like interest, the value of which decreases over time;

(g)        any contract in terms of which a person, in return for payment of a premium, is entitled to policy benefits upon the happening of a certain event and includes a reinsurance policy in respect of such a contract, but excludes any short-term policy contemplated in the Short-term Insurance Act;

(h)        any short-term policy contemplated in the Short-term Insurance Act to the extent that it relates to any asset which is not a personal-use asset; and

a right or interest of whatever nature to or in an asset envisaged in items (a) to (h).

[27] 10 of 2004 – in turn, in terms of GN R152 of 2007 of Act 10 of 2004.

[28] Section 35(3)(n) of the Constitution.

[29] See Burchell J, Principles of Criminal Law, 5th ed: “Nullem crimen sine poena is distinct from nulla poena sine lege and stresses that punishment is an integral factor in the concept of a crime and serves to distinguish a crime from other forms of wrongdoing.” (at page 40).

[30] Section 172(1)(a) provides: (1) When deciding a constitutional matter within its power, a court-

(a) must declare that any law or conduct that is inconsistent with the Constitution

is invalid to the extent of its inconsistency …

[31] See Ex Parte Women’s Legal Centre: In Re Moise v Greater Germiston Transitional Local Council

2001 (4) SA 1288 (CC) at paragraphs 11-14 for an application of this principle.

[32] Minister van Polisie v Ewels 1975 SA 3 590 A.

[33] Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 SA 4 938 CC.

[34] Under section 172(1)(b) of the Constitution.

[35] Because the problem will have a history and often the law will have been the way it is – as it is impugned before the court – for a considerable time before the hearing. This was recognised in Ferreira v Levin No And Others; Vryenhoek and Others v Powell No and Others 1996 (1) SA 984 (CC)where Kriegler J stated – in relation to the doctrine of “ripeness”: “Suffice it to say that the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with D situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones. Although … our Constitution acknowledges the criteria for hearing a constitutional case are more generous than for ordinary suits, even cases for relief on constitutional grounds are not decided in the air.” (at paragraph 199). In the same case, O’Regan J observed: “As a general rule, private litigation is concerned with the determination of a dispute between two individuals, in which relief will be specific and, often, retrospective, in that it applies to a F set of past events.” (paragraph 229)

[36] See paragraph 101: “Since I have concluded that the limitation is not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, an order will have to be made declaring the relevant provisions constitutionally invalid to the extent that they criminalise the use or possession of cannabis in private by an adult for his or her personal consumption in private.” (emphasis added). See also paragraphs 10 and 11 of the order – where the court uses the word “therefore”.

On Tax Revolts and Timing

Posted: 27th January 2019 by jamesgrantlaw in Criminal Law, Education, Tax, Tax revolts, unlawfulness, Zuma

I take it as uncontroversial that one is entitled to insist that a government which extracts taxes from one, must use it for legitimate government purposes. I expect also that if a government was misappropriating or misapplying those taxes, one would be entitled to, at least, divert your taxes to an entity or trust which applied such controls as are necessary to ensure that it is applied to legitimate government purposes.[1]

This would be contrary to the general rule – which appears in the various tax statutes (such as the Tax Administration Act, and the Vat Act). So, in general, there is a law which makes it illegal to fail to pay one’s taxes to the government. 

The entitlement to, at least, divert one’s taxes, would however, operate on the basis that – in the specific circumstances, prevailing at the time – one is justified in doing so – and as such, one’s conduct would not be unlawful but lawful.

Note the contrast: The law that one must pay one’s taxes creates a general obligation on everyone and it is, ordinarily (generally), illegal to contravene. This is “the law” in its abstract sense. In respect of the crime of murder, it is illegal and known as the crime of murder to: intentionally unlawfully kill another human being. 

However, as may be noted from the above definition of murder, within every law though, is a requirement that the conduct in question, to attract punishment, must be unlawful. This makes it fair to accuse the law of doublespeak and of being unnecessarily complex. But let’s untangle this – what does this mean? It means that within every law – which is only a general abstract statement, there is a requirement that, if anyone is charged with contravening a law, the court must consider the specific circumstances in which the law was allegedly contravened. If, in the specific circumstances prevailing at the time, one was entitled to do what one did, then one’s conduct was justified and not unlawful, but lawful.

So, for example, using the crime of murder, where it is generally illegal to intentionally unlawfully kill another, if, in the specific circumstances prevailing at the time, one was under an unjustified attack against one’s life, one may lawfully intentionally kill the attacker. This is known as self-defence. Thus, the general rule yields to the specific circumstances – where they make it justifiable to break the general rule. Take note though the central role played by the timing – the relevant time is the time of the attack. One may not act in self-defence, for instance, once the attack is over. One may not shoot an erstwhile attacker in the back as s/he flees. This is straightforwardly because one is no longer under attack. 

With this in mind we may now consider whether a tax revolt may be somehow permissible. It would have to be justifiable – and this is the crucial issue – given the prevailing circumstances at the time.

We must therefore consider what these circumstances are. In order to rely on a justification – for one’s conduct to be lawful, it must be true – as a matter of objective fact – that the fiscus is being plundered now. I expect there will be different views on this. What will not qualify is that we may now know that the fiscus has been plundered before.

James Grant

27 January 2019


[1] I have deliberately left out a description of what may amount to legitimate government purposes and how much misappropriation or misapplication would be required to trigger a right to divert one’s funds. I have done so to enable the discussion to progress and because the reader may easily answer these questions for her/himself. Imagine for yourself whatever is necessary to allow you to consider the principle.

It is critical to observe that the Zondo commission of inquiry into allegations of state capture is designed to unearth the truth. But truth alone – as we are learning – is not enough. Some of us want justice. I am with them. Whoever stole the rainbow needs to give it back and be punished.

Here I consider whether the commission will give us a solid foundation on which to pursue justice. The answer lies in understanding the much-neglected law of evidence.

The law of evidence is neglected because it is partly overly complex, an insufferable labyrinth – but it is also a mess, making it virtually, in some respects, impenetrable. This leaves room for the lazy and the very determined – and there are none so determined as those, with endless resources, facing a criminal prosecution.

One has, under our Constitution, the right against self-incrimination – the right not to assist the State in convicting one of an offence. Very early on this right was called upon when under the then prevailing Companies Act (specifically section 417(2)(b) of the Companies Act 61 of 1973), in Ferreira v Levin no and others; Vryenhoek and others v Powell no and others 1996 (1) SA 984 (CC) (“Ferreira v Levin”), the question of whether a director could be compelled to provide information which could incriminate him or her under the threat of punishment arose.

The following legal distinctions must be observed. There are effectively three kinds of law:

  • The Constitution – the supreme law – all other law or conduct inconsistent with it is invalid to the extent of the inconsistency;
  • Statutory law – made by Parliament, such as, for Instance, the Income Tax Act, the Road Traffic Act, the Sexual Offences Act. Statutes, also known as legislation, are often rather abstract and so they often empower some official to make “regulations” to guide in the application of the Statute. Crucially, however, the Statute prevails over the regulation – if there is a conflict, and regulations are invalid and void if they go beyond the scope of the authority granted to the official; and

Common law – the law as declared by judges, based on the facts of actual cases, carried forward by the doctrine of precedence.

There are also different kinds of incriminating evidence – at least two need to be discerned for our purposes:

  • Direct evidence – statements made by a person in testifying, such as: “Yes, I killed John Doe”; and
  • Derivative evidence – such as testimony as to where one discarded the murder weapon. One may say, for instance: “I threw the gun – my gun – into the Jukskei on the road to Haartebeespoort Dam.”

Now, to return to Ferreira v Levin – the court held that one may not be compelled to incriminate oneself by direct evidence. Thus, anything that one says – under compulsion – may not be used in evidence later against one. However, the default will be the opposite for derivative evidence: derivative evidence is admissible – subject to a discretion of the presiding officer – to exclude it if he or she thinks it will render one’s trial unfair. So, if the police went, following on your testimony, and retrieved the murder weapon, which matches ballistically to the murder in question, it is admissible, by default. This is, under our legal system, because of the priority which the Constitutional Court enjoys, the law on self-incrimination.

The significance of this is that section 3 of the Commissions Act authorises a commission to summons witnesses to provide information as it requires – upon threat of punishment of up to six months imprisonment (section 6). Section 3(4) makes the law of witness privilege applicable to witnesses compelled to give information before a commission. This makes the law – declared by our Constitutional Court – applicable to the witness testimony before the State Capture Commission.

One may understand how former President Jacob Zuma would want to have altered this position. Indeed, in his last few days as president, he passed regulations – purportedly under the Commissions Act – making both types of incriminating evidence, inadmissible. There was an outcry, and a change of president. Our new president then – obviously having heard the outcry and having taken advice – passed new regulations that state:

• Direct self-incriminating evidence is inadmissible;

• With regard to derivative evidence: nothing, except to delete the provision under the former regulations making derivative evidence inadmissible.

Is this right? Does it make sense? No. Neither. The right thing to do – from the start – would have been to observe that the Commissions Act makes the law relating to witness privilege applicable so that the entire issue is already governed under Ferreira v Levin. Zuma might have known this and deliberately sought to change it.

Under Cyril Ramaphosa – one may only imagine he was badly advised – indeed, the same team working for Zuma may have advised him. To be clear – it would have been better if there were never any regulations on this point. They are not only unnecessary, but mischievous, or at odds with other law – and that is the true mischief: law at odds with itself.

So, what is the position? I expect the answer is fairly straightforward: to the extent to which the regulations are at odds with either, the Commissions Act, or the Constitution, they are invalid. But then, why were they passed, what is their function? Why was one regulation altered or deleted and not the other – and, after all – this was all done after we escaped the jaws of capture and Zuma and these laws were passed by our new president.

Here is the problem. It is not that this poses an insoluble problem in law. It is that it poses a problem at all. Enough of a problem that anyone who is looking to avoid facing justice may raise – for perhaps 10 years to come – all the way to the Constitutional Court. Worse, don’t mistake any apparent cooperative attitude to anyone freely sharing information. They may know that there is an arguable gap in the law – and while there is, it’s better to throw all the information one can imagine in there – safe, for the next ten years. This is, by all accounts, an unmitigated mess.

James Grant PhD is a former associate professor of law at Wits University and a practicing advocate of the High Court of South Africa. Follow him on Twitter: @JamesGrantZA

This article was first published by EWN: https://ewn.co.za/2018/08/23/opinion-james-grant-the-zondo-commission-and-the-much-neglected-law-of-evidence#

https://ewn.co.za/2018/08/23/opinion-james-grant-the-zondo-commission-and-the-much-neglected-law-of-evidence#

Section 204 (of the criminal Procedure act – below) may be what a witness such as Agrizzi might be hoping to rely on in any criminal trials which follow on the State Capture Commission. It must be read with section 203 (below) which recognises the right of a witness not to answer self-incriminating questions.

Section 204 provides a mechanism by which a prosecutor may compel the witness to testify by offering indemnity for any crime which the witness may incriminate him/herself in. The indemnity is subject then only to the Court being satisfied that the witness has told the truth. 

(See the leading case of S v Kuyler and Others 2016 (2) SACR 563 (FB))

203 Witness excused from answering incriminating question

No witness in criminal proceedings shall, except as provided by this Act or any other law, be compelled to answer any question which he would not on the thirtieth day of May, 1961, have been compelled to answer by reason that the answer may expose him to a criminal charge.

204 Incriminating evidence by witness for prosecution

(1) Whenever the prosecutor at criminal proceedings informs the court that any person called as a witness on behalf of the prosecution will be required by the prosecution to answer questions which may incriminate such witness with regard to an offence specified by the prosecutor­
(a) the court, if satisfied that such witness is otherwise a competent witness for the prosecution, shall inform such witness­
(i) that he is obliged to give evidence at the proceedings in question;
(ii) that questions may be put to him which may incriminate him with regard to the offence specified by the prosecutor;
(iii) that he will be obliged to answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the answer may incriminate him with regard to the offence so specified or with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified;
(iv) that if he answers frankly and honestly all questions put to him, he shall be discharged from prosecution with regard to the offence so specified and with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and
(b) such witness shall thereupon give evidence and answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the reply thereto may incriminate him with regard to the offence so specified by the prosecutor or with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified.
(2) If a witness referred to in subsection (1), in the opinion of the court, answers frankly and honestly all questions put to him­
(a) such witness shall, subject to the provisions of subsection (3), be discharged from prosecution for the offence so specified by the prosecutor and for any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and
(b) the court shall cause such discharge to be entered on the record of the proceedings in question.
(3) The discharge referred to in subsection (2) shall be of no legal force or effect if it is given at preparatory examination proceedings and the witness concerned does not at any trial arising out of such preparatory examination, answer, in the opinion of the court, frankly and honestly all questions put to him at such trial, whether by the prosecution, the accused or the court.
(4) (a) Where a witness gives evidence under this section and is not discharged from prosecution in respect of the offence in question, such evidence shall not be admissible in evidence against him at any trial in respect of such offence or any offence in respect of which a verdict of guilty is competent upon a charge relating to such offence.
(b) The provisions of this subsection shall not apply with reference to a witness who is prosecuted for perjury arising from the giving of the evidence in question, or for a contravention
of section 319 (3) of the Criminal Procedure Act, 1955 (Act 56 of 1955).

227 Evidence of character and previous sexual experience

Posted: 17th October 2018 by jamesgrantlaw in Uncategorized

227 Evidence of character and previous sexual experience
(1) Evidence as to the character of an accused or as to the character
of any person against or in connection with whom a sexual offence as
contemplated in the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007, is alleged to have been committed, shall, subject
to the provisions of subsection (2), be admissible or inadmissible if such
evidence would have been admissible or inadmissible on the 30th day of
May, 1961.
(2) No evidence as to any previous sexual experience or conduct of
any person against or in connection with whom a sexual offence is
alleged to have been committed, other than evidence relating to sexual
experience or conduct in respect of the offence which is being tried, shall
be adduced, and no evidence or question in cross examination regarding
such sexual experience or conduct, shall be put to such person, the
accused or any other witness at the proceedings pending before the court
unless-
(a) the court has, on application by any party to the
proceedings, granted leave to adduce such evidence or to
put such question; or
(b) such evidence has been introduced by the prosecution.
(3) Before an application for leave contemplated in subsection (2) (a)
is heard, the court may direct that any person, including the complainant,
whose presence is not necessary may not be present at the proceedings.
(4) The court shall, subject to subsection (6), grant the application
referred to in subsection (2) (a) only if satisfied that such evidence or
questioning is relevant to the proceedings pending before the court.
(5) In determining whether evidence or questioning as contemplated
in this section is relevant to the proceedings pending before the court,
the court shall take into account whether such evidence or questioning-
(a) is in the interests of justice, with due regard to the
accused’s right to a fair trial;
(b) is in the interests of society in encouraging the reporting of
sexual offences;
(c) relates to a specific instance of sexual activity relevant to a
fact in issue;
(d) is likely to rebut evidence previously adduced by the
prosecution;
(e) is fundamental to the accused’s defence;
(f) is not substantially outweighed by its potential prejudice to
the complainant’s personal dignity and right to privacy; or
(g) is likely to explain the presence of semen or the source of
pregnancy or disease or any injury to the complainant,
where it is relevant to a fact in issue.
(6) The court shall not grant an application referred to in subsection
(2) (a) if, in its opinion, such evidence or questioning is sought to be
adduced to support an inference that by reason of the sexual nature of
the complainant’s experience or conduct, the complainant-
(a) is more likely to have consented to the offence being tried;
or
(b) is less worthy of belief.
(7) The court shall provide reasons for granting or refusing an
application in terms of subsection (2) (a), which reasons shall be entered
in the record of the proceedings.
[S. 227 substituted by s. 2 of Act 39 of 1989 (wef 1 August 1989) and by s.
68 of Act 32 of 2007 (wef 16 December 2007).]
© 2015 Juta and Company (Pty) Ltd.
Document 257

Basic Introduction to Law

Posted: 9th October 2018 by jamesgrantlaw in Criminal Law, Education

Bail before one’s first appearance

Posted: 3rd October 2018 by jamesgrantlaw in Criminal Procedure
Tags:

If one is arrested one may be permitted on bail – before one’s first appearance in court. These instances should be regarded as exceptions to the rule that one may apply for bail at one’s first appearance.[1]

They fall into two categories and are known as either “police bail” or “prosecutor bail”. Both categories are restricted to relatively minor offences.

Police bail is provided for in section 59 of the Criminal Procedure Act, which provides as follows:

(1) (a) An accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of Schedule 2 may, before his or her first appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.

It is unfortunate that this section is phrased in the negative and that this is so is not immediately apparent. The section provides that an officer of the relevant rank (such as a commissioned officer),[2] in consultation with the investigating officer, may grant bail if the offence for which one was arrested is not one of the following:[3]

  • Treason.
  • Murder.
  • Rape or compelled rape as contemplated in sections 3 and 4
  • Any sexual offence against a child or a person who is mentally disabled
  • Trafficking in persons for sexual purposes [by a person contemplated in section 71 (1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.]
  • Robbery.
  • Kidnapping.
  • Childstealing.
  • Arson.
  • Breaking or entering any premises, with intent to commit an offence
  • Theft, whether under the common law or a statutory provision, receiving stolen property knowing it to have been stolen, fraud, forgery or uttering a forged document knowing it to have been forged, in each case if the amount or value involved in the offence exceeds R2 500.
  • Offences relating to the coinage.
  • Sedition.
  • Assault, when a dangerous wound is inflicted.
  • Any offence under any law relating to the illicit possession of-

o   dagga exceeding 115 grams; or

o   any other dependence-producing drugs; or

o   conveyance or supply of dependence-producing drugs.

  • Any offence under any law relating to the illicit dealing in or possession of precious metals or precious stones.
  • Offences referred to in section 4 (1) and (2) of the Prevention and Combating of Torture of Persons Act, 2013.
  • Contravention of the provisions of section 1 and 1A of the Intimidation Act, 1982 (Act 72 of 1982).

The section requires that the relevant officer exercises a discretion – the word is “may” be released on bail. However, the discretion is not unfettered and cannot simply be ignored. If one has been arrested for an offence that triggers the section – an offence not in the list – an officer of the relevant rank must consider granting bail.[4]

Then – once the officer exercises this discretion, she or he must be ‘objectively rational and the same considerations’.[5]

It is worth noting – on a practical level – that only cash is accepted for police bail. It is therefore wise to arrange for a family member or friend to bring about R1000-2000 (or more if necessary) to the police station -if you qualify for bail – and in case it is granted.

Prosecutor’s bail is similarly circumscribed – provided for under section 59A(1) of the Criminal Procedure Act, as follows:

An attorney general, or a prosecutor authorised thereto in writing by the attorney general concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail.

Unlike for “police bail”, the list (in schedule 7) is formulated in the positive – if the offence is in the list, the nominated prosecutor may grant bail. The list is as follows:

  • Public violence.
  • Culpable homicide.
  • Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
  • Assault, involving the infliction of grievous bodily harm.
  • Arson.
  • Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence.
  • Malicious injury to property.
  • Robbery, other than a robbery with aggravating circumstances, if the
  • amount involved in the offence does not exceed R20 000,00.
  • Theft and any offence referred to in section 264 (1) (a), (b) and (c), if
  • the amount involved in the offence does not exceed R20 000,00.
  • Any offence in terms of any law relating to the illicit possession of
  • dependence-producing drugs.
  • Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in the offence does not exceed R20 000,00.
  • Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

On a practical note – a police station is supposed to keep a roster of the public prosecutors on duty to consider prosecutor bail. If one qualifies in terms of the offence with which one is charged, one is entitled to request that the nominated prosecutor is contacted by the relevant police official. If the police refuse or fail to, you (or your legal representative) may request the number so as to draw the attention of the nominated prosecutor to your case, that you qualify for prosecutor bail and desire that she or he consider releasing you on bail.

If you do not qualify for either police or prosecutors bail, you will have to wait until your first appearance at which time you may apply for bail – under section 60(1)(a) of the Criminal Procedure Act.[6] Applications for bail before court are concerned with whether it is in the interests of justice for you to be released. Courts are required to consider the following criteria – set out in section 60(4) of the Criminal Procedure Act,[7] which are given further content in section 60 – although this is not relevant here (to bail before one’s first appearance).

In conclusion then, find out what it is that you are charged with. Determine whether it is an offence which is not listed in Part II or Part III of Schedule 2 as set out above. If it is not, then you are entitled to have a commissioned officer consider whether you may be permitted on bail. If the offence is listed in Part II or Part III of Schedule 2 as set out above, you may still qualify for prosecutor bail – if the offence is one listed in schedule 7 – set out above. Both of these forms of bail are means to achieve your release on bail before your first appearance in Court and should be exercised vigorously by both arrested people and the police to avoid people arrested for minor offences burdening an already overburdened criminal justice system.

 James Grant

9 January 2018

[1] Section 60(1)(a) of the Criminal Procedure Act 51 of 1977 provides:

An accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit.

[2] In Mvu v Minister of Safety and Security & another 2009 (2) SACR 291 (GSJ)

at 300de Willis J observed that that a ‘commissioned officer’ is an officer of or above the rank of inspector, while a ‘noncommissioned officer’ is a police officer under the rank of inspector.

[3] The list that follows is a collation of the two lists (Part II or Part III of Schedule 2).

[4] See Setlhapelo v Minister of Police & another (unreported, GP case no 45031/2012, 20 May 2015) in which Rossouw AJ said:

‘. . . I am of the view that once the jurisdictional facts for the consideration of police bail in terms of s 59(1)(a) of the CPA are present, the police has a constitutional duty to ascertain as soon as reasonably possible after the arrest whether the arrestee wishes bail to be considered. If the arrestee wishes to apply for police bail, the senior police official, in consultation with the investigating police official, must consider bail as a matter of urgency. A failure to inform the arrestee of his constitutional right to apply for bail or a failure to consider bail or any unreasonable delay in the process could, depending on the circumstances of the case, render the arrestee’s further detention until his first appearance in court unlawful.’

[paragraph 38]

See also Shaw v Collins 1883 SC 389 and MacDonald v Kumalo 1927 EDL 293.

[5] See Setlhapelo v Minister of Police & another (unreported, GP case no 45031/2012, 20 May 2015) at para 41.

[6] See footnote 1.

[7] According to section 60(4) of the Criminal Procedure Act:

The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

(a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1

offence; or

(b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or

(c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice

system, including the bail system; or

(e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.

In 1968 Herbert Packer published a text that described two different ways of looking at the criminal justice system: The crime control model vs The due process model.

The crime control model is one which people tend to adopt when crime is prevalent and they have started to think that criminals enjoy more rights than victims. This is a perspective that says that if I see a crime being perpetrated in front of me, I don’t need to wait for a judge to tell me that the perpetrator is guilty. Packer calls this “factual guilt”. Its significance is that it was the model which the justice system in 1968 – under apartheid – adopted. People did not enjoy the rights that they do now, under the Bill of Rights in the Constitution. We lived in a police state and the justice system did pretty much what it wanted to do with people.

The due process model is one which is deeply rooted in a rights based culture. On this model, a person is not guilty until they have been afforded a fair trial and a judge has ultimately pronounced that the accused is guilty – Packer calls this “legal guilt”. On this model – crucially – it doesn’t matter how many people “saw” the perpetrator commit the deed that is, how “factually guilty” a person is. She or he is only “legally guilty” when a judge – after a proper process – says so. In a rights based democracy, the due process model must prevail.

The value of this analysis is that Packet explains why we may argue about the rights of the Dros rape suspect – how some are ready to drag him into the street and shoot him, while others insist that he deserves a fair trial – and that even his identity must be protected until he has been charged. Let me say, as a father of two young girls, I have asked several police officers, if ever any of my girls are harmed in this most despicable way, to track me down first and to lock me away before I can track down the suspect. This is because I know I will not be thinking straight. But we need to talk about what we can expect of people who are thinking straight, and of the society we want to live in.

For Packer, I may see someone gun another person down in front of me, in the cold light of day, but I cannot pronounce the perpetrator guilty until a court says so. This is because, in that moment, I might not be aware of several considerations that a court would need to take account of, which I, witnessing a shooting, would not know, or even think of. The most obvious is whether I would identify the right person. It is shocking that eyewitness identification is utterly fallible. Elizabeth Loftus – in her ground breaking research – tried to teach us some humility when if comes to what we can remember. The sad fact is that, asked “correctly” we will “remember” that the shooter was green and purple, wore a polar neck, used a “ray gun” and had parked his UFO on top of the stop sign. But its worse: was the shooter acting in self defence? Was he or she acting in a state of automatism, had he been provoked, or had he gone mad? Did he maybe think he was shooting the devil? One can see that Packer has a point – there are some decisions that we are not qualified to make – even as “factual” witnesses. What about the name of the person. What is the point here.

Let me share with you a snippet out of the life of a client who had the audacity to tell the police to slow down and drive more carefully. The officers did indeed slow down, only to stop and assault my client. They “found” a tiny amount of cannabis in his back pocket and arrested him. It doesn’t matter that the police did not pursue criminal charges against him or that they could not and never did produce the cannabis they say they found on him. He is now an outsider. In the eyes of his community, he is a snake, a drug dealer. His life is that of a loner, when he finishes work he heads straight home and locks himself inside his room. This false accusation of the possession of drugs has stolen his life – and no one seems to care that he was actually standing up for his community when he told the police to slow down.

What does the law say: Section 153(3) is long, but serves, in this context to identify the type of crime with which one is dealing. Its relevance is only that it triggers the provisions of section 154 because it includes sexual offences. The real work is done by section 154 (2) (b). The entire section is included here: Section 154 (2) (b) No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153 (3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question.

So what does this mean? It means that, until an accused (charged with a sexual offence) pleads, no one may publish “any information relating to the charge in question”.

In addition – arguably – until a charge has been properly formulated none of the prohibitions in section 154(2)(b) can apply (see S v Zululand Observer (Pty) Ltd and Another 1982 (2) SA 79 (N)).

Is there any reason not to expose the accused in the Dros child rape case for the monster he is? Yes, several. Do you and I know that the person who was dragged into court is the “right” person?

In the chaos that ensued, is it possible, just possible, that the police arrested the wrong person. But, one may object, the person that was arrested was reportedly full of the victims blood. Do we know that this is even true? And if it is, do we know whether, instead of being the perpetrator, this person had tried to help the victim – had tried to pick her up to carry her. And then, it seems that the police have not settled on this person as the perpetrator.

There is a level at which we may say we know enough to make a social or moral judgment. Sometimes – I agree – this may be enough. But there are times when so much is at stake that we should defer to our courts.

If we recognise anything that Packer argues as at least something we should aspire to, we may worry that the public display permitted yesterday was driven by a perception of the role of the courts as some nicety that we simply can’t have time or patience for anymore. Packer conceives of a shift in perspective from “due process” to more of a “crime control” model, the more crime gets out of control. We may even declare that we want to be more “due process”, but resort to “crime control” in order to bring crime under control. What remains necessary though is that we at least remain aware of the two possible perspectives and that we are deliberately choosing one – with all of the risks that living under that model brings.

James Grant

3 October 2018

The Dagga Docket Decisions

Posted: 30th September 2018 by jamesgrantlaw in Uncategorized

The Davis J decision in “Prince 2” in the Western Cape High Court: Prince 2 MArch 2017
The Constitutional Court decision in the confirmatory proceedings that followed: CC on Prince 2 (18 Sept 2018)