The Portfolio Committee on Justice and Constitutional Development has asked the Institute for Democracy in South Africa (IDASA) to investigate and report on whether reversing the onus of proof for the offence of unexplained wealth, from the prosecution to a public officer as is the case in s19 (2) of the Prevention of Corruption Bill, and limiting it to public officers is compatible with the Constitution of the Republic of South Africa.
S19 (2) of the Prevention of Corruption Bill provides that:
Evidence that a public officer: (a) Maintains a standard of living above that which is commensurate with his or her present or past lawful sources of income; or (b) Is in control of resources or property disproportionate to his or her present or
past lawful sources of income:
Will in the absence of evidence to the contrary which raises a reasonable doubt, be sufficient proof that the property or resources have been acquired corruptly.
There are two aspects to be considered in dealing with this issue of whether s19 (2) is unconstitutional. Firstly, whether reversing the onus infringes the right to be presumed innocent until proved guilty according to law. Secondly whether imposing the reverse onus for the offence of unexplained wealth on public officers alone does not infringe section 9 on the Constitution on Equality.
1. Reverse onus
The Committee is referred to our submission on the Prevention of Corruption Bill, where we submitted that based on s 35(3)(h) of the Constitution of the Republic and cases heard before the Constitutional Court, s 19 (2) is on the face of it, inconsistent with the right of presumption of innocence. However the courts have articulated that the right of presumption of innocence in s35 (3)(h) of the Constitution is not an absolute right and that there were circumstances in which such a measure would be justifiable.
The issue of reverse onus has also been considered in various countries around the world ranging from Canada, United Kingdom, Unites States, the European Union and Hong Kong. This has proved to be a contentious issue with the major debate centering on whether reverse onus provisions are inconsistent with Human Rights.
Article 6(2) of the European Convention on Human Rights states that "Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law." The European Court of Human Rights (EctHR) held that whilst Article 6(2) does not automatically prohibit all presumptions of fact or law, neither does it regard such presumptions "with indifference". Rules, which transfer the burden to the defence to disprove specific facts or matters, must be confined "within reasonable limits, which take into account the importance of what is at stake and maintain the rights of the defence". In particular, the prosecution bears the overall burden of proving the defendant’s guilt..
Both the EctHR and the courts in the United Kingdom (who recently adopted the European Convention on Human Rights) agree that in order to ascertain whether a statutory provision is vulnerable to challenge on ground of it being incompatible with article 6(2) of the Conventions the nature of the provision which is said to transfer the burden of proof from the prosecution to the accused must first be identified.
The extent to which they encroach upon the presumption of innocence depends upon the legislative technique, used. A distinction should be made between "evidential" burden or the burden of introducing evidence in support of one’s cases, on the one hand and the "persuasive" burden or the burden of persuading the jury as to one’s guilt or innocence on the other hand.
A "persuasive" burden of proof requires the accused to prove, on a balance of probabilities, an ultimate fact necessary to the determination of guilt or innocence. Such presumptions:
a. may relate to an essential element (of greater or lesser importance)
making up the actus reus or the mens rea of the offence;
b. may, on the other hands, relate to an exemption, proviso, exception or
defence which is not an essential element of the offence;
c. may be either mandatory or discretionary in their operation.
An "evidential burden" by contrast, requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined by the trier of facts. Once the accused has adduced sufficient evidence to raise the issue however the burden of proving (or disproving) the issue rests on the prosecution (as with the law on self-defence). In the final assessment of guilt, the burden on the accused is thus no more than a burden to raise a reasonable doubt as to guilt.
In Ex Parte Kebeline the Divisional Court and the House of Lords accepted the submissions that where a mandatory statutory provision necessarily requires the accused to disprove an important essential element of an offence, this will violate the presumption of innocence in Art 6(2) of the Convention since it will permit the accused to be convicted despite the existence innocence. It reverses the burden of proof by removing it from the prosecution of a reasonable doubt as to his guilt.
Lord Hope in Ex Parte Kebeline identified three questions, which should be addressed as a way of assessing whether a reverse burden amounts to a reasonable incursion on Article 6 (2):
- what does the prosecution have to prove in order to transfer the onus
to the defence ?
- What is the burden on the accused – does it relate to something which is likely to be difficult for him to prove or does it relate to something which is likely to be within his knowledge or to which he readily has access?
- What is the nature of the threat faced by society which the provision is designed to combat?
The EU and United Kingdom approach is useful precedent for the South African courts however cases that have been of particular assistance to our court are the Canadian cases since the Canadian Charter of Rights and Freedom contains a limitation clause similar to s36 of the South African Constitution.
Section 1 of the Canadian Charter of Rights and Freedom guarantees the rights and freedoms set out in it "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Section 1 has led the Canadian Supreme Court to adopt a two-stage test to the application of s.11 (d) (the presumption of innocence clause), asking first whether a reverse onus clause infringes the presumption of innocence and, if it does, going on to consider whether the interference is justified under s.1.
In the Canadian case Downey v The Queen 90 DLR (4th) 449 1992 at 461 it was held that the presumption of innocence will be breached where the accused may still be convicted while a reasonable doubt exists as to her or his guilt. However once it is shown that a statutory presumption is in breach of the Charter, the court must consider whether the presumption is nevertheless justifiable in terms of the Charter. The Charter expressly states that the rights are subject, only to such reasonable limits prescribed by law as can be demonstrated to be justified in a free and democratic society. The Court held that the presumption of innocence is not an absolute right and that in some cases, reverse onus provisions may be justifiable in terms of the Charter. There must be an existence of substantial and pressing public need, which must be met by the statutory provision, to justify the reverse onus provision in a statute.
Against this background the position on reverse onus can be summarised as follows:
- That reverse onus provisions are prima facie inconsistent with the Constitutions because they violate the right to presumption of innocence.;
- that however whether the reverse onus provision violate human rights will depend on the legislative technique used to draft the provision;
- that human right will be infringed depending on whether the burden required to be proved in "evidential" or "persuasive": and
- whether the infringement is justifiable in an open democratic society based on human dignity, equality and freedom.
2. Limitation of the Reverse Onus to Public Officers
Unlike most other crimes, corruption offences usually have no obvious victim to complain. Most of the parties involved are beneficiaries, and both have an interest in preserving secrecy. Thus, evidence of actual offences is exceptionally difficult to obtain. Because of the difficulty in proving offences of corruption it is therefore suggested that in an attempt to maintain good governance, a high standard of personal integrity and discipline should be demanded especially from public officers.
The starting point in an attempt to achieve good governance and transparency in the public sector should be to require public officers to declare all their assets, liabilities and interests on a regular basis and this should be entrenched in the statute. This is because assets and liabilities can fluctuate and one can acquire a new business interest at any time. The collected information should provide a comparison of assets of officials of the same rank. If one official has assets that are much higher than his equal, or higher than his past or present income it ought to cause suspicion.
The duty to prove the origin of the assets would then lie with the suspected official. It may well be that the official utilised his wit and skill to improve his or her financial position. Because of the difficulty in proving crimes of corruption the reverse onus here would be justifiable because it is a necessary in an open and democratic nation, which upholds transparency, accountability and integrity.
Before the prosecution can rely on the presumption that pecuniary resources or property were in the accused's control, it has of course to prove beyond reasonable doubt the facts, which give, rise to it. Once there is sufficient evidence of guilt upon which to convict, it becomes appropriate for the accused to provide a credible explanation, without which he or she will be likely to be convicted. Therefore the public officer has an "evidential" rather than a "persuasive" burden.
The "burden of proof" remains on the prosecution throughout; there is no presumption of guilt. It is once the prosecutor has discharged this burden that it falls to the defence to give an explanation.
The need to reverse the onus of proof for unexplained wealth within the public sector was considered by the Law Commission of England and Wales in relation to section 2 of the Prevention of Corruption Act 1916.
Section 2 provides that:
Where in any proceedings against a person for an offence under the Prevention of Corruption Act 1906, or the Public Bodies Corrupt Practices Act 1889, it is proved that any money, gift, or other consideration has been paid or given to or received by a person in the employment of [Her] Majesty or any other Government Department or a public body by or from a person, or agent of a person, holding or seeking to obtain a contract from [Her] Majesty or any Government Department or public body, the money, gift, or consideration shall be deemed to have been paid or given and received corruptly as such inducement or reward as is mentioned in such Act unless the contrary is proved.
The Commission thought that the presumption was reasonable given its historic background goes back to wartime. It acknowledged that, without the presumption, corruption would be very difficult to prove because crimes such as bribes are seldom paid in the presence of witnesses, and that there is often little documentary evidence because those involved in a corrupt transaction will inevitably tend to act secretly.
The Commission also acknowledged that the presumption causes no injustice to the accused, and that if there is an innocent explanation it should be easy for the giver and the recipient of the gift to furnish it; the facts relating to the gift are peculiarly within their own personal knowledge. The Law Commission did however clearly state that, the reverse onus provision should create only a rebuttable presumption of fact and should be restrictively worded. The presumption has only ever applied to employees of the Crown, public bodies and government departments and then only in relation to contracts. Corruption cases for the myriad of scenarios outside this category have been successfully prosecuted without any presumption deemed necessary to assist them.
The Law Commission went further to suggest that the presumption should be extended to the private sector and not remain exclusive to the public sector. They argued that many public bodies to which section 2 would formerly have applied are now privatised, and therefore no longer amenable to the presumption. Much work is now contracted out to the private sector; such work may be highly sensitive and influential, but, if an agent or employee of a private company performing such work is involved in corruption, the presumption will not bite. If it were thought that there were good reasons for retaining the presumption, it might also be thought that those reasons justified extending it. Therefore although there is some justification to the retention of the presumption, the Law Commission was of the opinion that case law has demonstrated that its retention was not necessary because cases of corruption in the private sector have been successfully prosecuted without the need for the reverse onus provisions.
As a result of the Law Commissions recommendations the reverse onus clause was deleted in the amendments made to the Prevention of Corruption Act in 1999.
Another jurisdictions which make it an offence for public officers to have unexplained wealth is Hong Kong. The value of such an offence in controlling the conduct of public servants, especially senior public servants, is being increasingly realised in Hong Kong. Public officers are seen as public trusts who must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency and act with patriotism and justice.
Several senior public servants that have been charged with possessing excessive wealth challenged the validity of the offence, arguing that the offence was inconsistent with the BiII of Rights In that it infringed the right to be presumed innocent.
The Hong Kong Court of Appeal rejected the argument. It accepted that placing "the onus on the accused to provide an explanation deviates from the principle of right to innocence. It stated that it was for the prosecution to prove the accused’s guilt beyond reasonable doubt, which principle is now entrenched in article 11(1) of the Bill of Rights. It went on however to point out that " there are exceptional situations in which it is possibly compatible with human rights to justify a degree of deviation from the normal principle that the prosecution must prove the accused’s guilt beyond reasonable doubt. It cited a passage from another Hong Kong case considered by the then final court of appeal, the Privy Council in London. The court in this case held that "Whether [such exceptions are justifiable will in the end depend upon whether it remains primarily the responsibility of the prosecution to prove the guilt of an accused to the required standard and whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle which article 11(1) enshrines.
It was further held that while the Hong Kong judiciary should be zealous in upholding an individual’s rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public. In order to maintain the balance between the individual and the society, as whole, rigid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime of corruption.
In Hong Kong imposing the reverse onus burden for unexplained wealth on public officers alone is seen as a justifiable way of ensuring transparency and good governance among the elected individuals.
We can therefore conclude from the above that there are two schools of thought on limiting the reverse onus to public officials.
The first school of thought is that taken by the Law Commission of England and Wales that although imposing the reverse onus on public official alone may be reasonable case law has shown that it is not justifiable because other cases of corruption against the private sector have been successfully prosecuted without the reverse onus provisions.
The second school of thought is as that used in Hong Kong and other countries like the Philippines. These countries view corruption as an evil practice, which threatens the foundations of any civilised society. They argue that there is "notorious evidential difficulty" in proving that a public servant has solicited or accepted a bribe and there is a pressing social need to stamp out the evil of corruption in Hong Kong and the Philippines among public official. Therefore the reverse onus provisions for unexplained wealth are justifiable.
It appears as though S19 (2) of the Prevention of Corruption Bill is not unconstitutional regarding the presumption of innocence. However it may be difficult to justify limiting the reverse onus to the public sector. Ultimately the responsibility is on policy-makers and legislators to strike the right balance between the interests of the individual and the interests of the community in the fight against corruption.