Osman and Another v Attorney-General for the Transvaal (CCT37/97) [1998] ZACC 14; 1998 (4) SA 1224; 1998 (11) BCLR 1362 (23 September 1998)

Osman and Another v Attorney-General for the Transvaal (CCT37/97) [1998] ZACC 14; 1998 (4) SA 1224; 1998 (11) BCLR 1362 (23 September 1998)

Section 36 of the General Law Amendment Act 62 of 1955 does not violate the rights to remain silent or to be presumed innocent as protected by section 25(2)(c) and 25(3)(c) of the interim Constitution. The provision does not compel an accused to testify or provide an explanation for possession of suspected stolen goods. The inability to give a satisfactory account is an element of the offence, and the burden of proof remains on the state throughout the trial. The accused retains the right to remain silent and is not legally compelled to make any statement. The practical risk of conviction in the absence of an explanation does not amount to a constitutional infringement, as the accused may...

Citation
[1998] ZACC 14
Parties
Appellant: Moosa Osman; Appellant: Mohamed Shiraz Osman; Respondent: Attorney-General for the Transvaal
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
23 September 1998
Case Number
CCT 37/97
Procedural Posture
Civil Appeal / Appeal From Transvaal High Court to Constitutional Court
Outcome
Appeal dismissed.
Judges
Madala, Chaskalson, Langa, Goldstone, Kriegler, Mokgoro, O'Regan, Sachs, Yacoob
Legal Topics
Presumption of Innocence, Right to Silence, Reverse Onus, Self Incrimination, Fair Trial Rights
Constitutional Law Criminal Law Presumption of Innocence Right to Silence Reverse Onus Self Incrimination Fair Trial Rights

Case Brief

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Parties

Moosa Osman

Appellant

Mohamed Shiraz Osman

Appellant

Attorney-General for the Transvaal

Respondent

Procedural Posture

Civil Appeal / Appeal From Transvaal High Court to Constitutional Court

Legal Issues

  1. 1 Does section 36 of the General Law Amendment Act 62 of 1955 violate the right to remain silent and the presumption of innocence under section 25(2)(c) and 25(3)(c) of the interim Constitution?
  2. 2 Does section 36 impose a reverse onus or legal compulsion on accused persons to testify or provide an explanation for possession of suspected stolen goods?
  3. 3 Is the burden of proof shifted from the state to the accused under section 36?

Ratio Decidendi

Section 36 of the General Law Amendment Act 62 of 1955 does not violate the rights to remain silent or to be presumed innocent as protected by section 25(2)(c) and 25(3)(c) of the interim Constitution. The provision does not compel an accused to testify or provide an explanation for possession of suspected stolen goods. The inability to give a satisfactory account is an element of the offence, and the burden of proof remains on the state throughout the trial. The accused retains the right to remain silent and is not legally compelled to make any statement. The practical risk of conviction in the absence of an explanation does not amount to a constitutional infringement, as the accused may...

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.