[95]The present is the first case in which this Court has had to consider the retrospectivity of an order declaring a statutory or common-law criminal offence to be constitutionally invalid. The issues involved differ materially from those in cases where reverse onus provisions have suffered this fate. In the latter cases an unqualified retrospective operation of the invalidating provisions could cause severe dislocation to the administration of justice and also be unfair to the prosecution who had relied in good faith on such evidentiary provisions.[1] In addition, the likely result of such an unqualified order would be numerous appeals with the possibility of proceedings having to be brought afresh.[2] In each case the issue would arise as to whether the accused in question would have been convicted, or could be convicted in the absence of reliance on the particular reverse onus provision. In hearings afresh, the necessary evidence to secure a conviction
- ↑ See, for example, the observations in this regard of Kentridge AJ in S v Zuma and Others 1995 (4) BCLR 401 (CC); 1995 (2) SA 642 (CC) at para 43.
- ↑ Id.
