S v Mello (CCT5/98) [1998] ZACC 7; 1998 (3) SA 712; 1998 (7) BCLR 908 (28 May 1998)

S v Mello (CCT5/98) [1998] ZACC 7; 1998 (3) SA 712; 1998 (7) BCLR 908 (28 May 1998)

Section 20 of the Drugs and Drug Trafficking Act 140 of 1992 creates a legal presumption that shifts the burden of proof to the accused, requiring them to disprove possession of drugs found in their vicinity. This reverse onus provision is inconsistent with the right to be presumed innocent under section 25(3)(c) of the interim Constitution, as it relieves the prosecution of its duty to prove guilt beyond reasonable doubt and risks convicting innocent persons. Previous Constitutional Court decisions have invalidated similar presumptions in criminal statutes. The Court finds no compelling justification for such a limitation under section 33(1), as the provision is not sufficiently tailored...

Citation
[1998] ZACC 7
Parties
Appellant: William Mello; Appellant: Constanina Botolo; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
28 May 1998
Case Number
CCT5/98
Procedural Posture
Constitutional Referral / Referral From High Court on Constitutionality of Statutory Presumption
Outcome
Section 20 of the Drugs and Drug Trafficking Act 140 of 1992 is declared unconstitutional and invalid from the date of this judgment. The declaration of invalidity applies to criminal trials where the verdict was entered after the interim Constitution came into force and where appeal or review is pending or the time...
Judges
Mokgoro, Chaskalson, Langa, Ackermann, Didcott, Goldstone, Kriegler, Madala, O'Regan, Sachs, Yacoob
Legal Topics
Presumption of Innocence, Reverse Onus, Fair Trial Rights, Statutory Presumptions, Limitation of Rights
Constitutional Law Criminal Law Presumption of Innocence Reverse Onus Fair Trial Rights Statutory Presumptions Limitation of Rights

Case Brief

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Parties

William Mello

Appellant

Constanina Botolo

Appellant

The State

Respondent

Procedural Posture

Constitutional Referral / Referral From High Court on Constitutionality of Statutory Presumption

Legal Issues

  1. 1 Whether section 20 of the Drugs and Drug Trafficking Act 140 of 1992, which creates a presumption of possession based on proximity, is consistent with the right to be presumed innocent under section 25(3)(c) of the interim Constitution.
  2. 2 Whether the reverse onus imposed by section 20 is a justifiable limitation under section 33(1) of the interim Constitution.
  3. 3 What is the appropriate remedy and scope of invalidity if section 20 is found unconstitutional.

Ratio Decidendi

Section 20 of the Drugs and Drug Trafficking Act 140 of 1992 creates a legal presumption that shifts the burden of proof to the accused, requiring them to disprove possession of drugs found in their vicinity. This reverse onus provision is inconsistent with the right to be presumed innocent under section 25(3)(c) of the interim Constitution, as it relieves the prosecution of its duty to prove guilt beyond reasonable doubt and risks convicting innocent persons. Previous Constitutional Court decisions have invalidated similar presumptions in criminal statutes. The Court finds no compelling justification for such a limitation under section 33(1), as the provision is not sufficiently tailored...

Court Disposition

Section 20 of the Drugs and Drug Trafficking Act 140 of 1992 is declared unconstitutional and invalid from the date of this judgment. The declaration of invalidity applies to criminal trials where the verdict was entered after the interim Constitution came into force and where appeal or review is pending or the time...

Orders

  • Section 20 of the Drugs and Drug Trafficking Act 140 of 1992 is declared inconsistent with section 25(3)(c) of the Constitution and invalid from the date of this judgment.
  • The declaration of invalidity shall invalidate any application of section 20 in any criminal trial in which the verdict was entered after the interim Constitution came into force and in which, as at the date of this judgment, either an appeal or review is pending or the time for noting an appeal has not yet expired.