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South Africa Judgment

Constitutional Court

S v Van Nell and Another (CCT3/98) [1998] ZACC 8; 1998 (8) BCLR 943 (28 May 1998)

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Source document

01

Holding and result

Section 20 of the Drugs and Drugs Trafficking Act imposes a reverse onus on the accused, requiring them to prove they were not in possession of drugs found in their vicinity. This provision is inconsistent with the right to a fair trial, particularly the presumption of innocence guaranteed by section 35(3)(h) of the 1996 Constitution. The Constitutional Court had already declared section 20 invalid in the related case of Mello and Another v The State, and the order in that case applies to the present matter. Accordingly, the order of constitutional invalidity made by the Northern Cape High Court is confirmed, and the matter is referred back for disposal in accordance with the Mello judgment.

Court disposition

Order of constitutional invalidity confirmed; matter referred back to the Northern Cape High Court for disposal in accordance with the Mello judgment.

Orders

  • The order of constitutional invalidity made by the Northern Cape High Court in respect of section 20 of the Drugs and Drugs Trafficking Act is confirmed.
  • The matter is referred back to the Northern Cape High Court to be disposed of in accordance with the order in Mello and Another v The State.

02

Material facts

Parties

Robert Van Nell

Appellant

Sam Bekker

Appellant

The State

Respondent

03

Procedural history

  1. Posture

    Constitutional Confirmation / Confirmation of Order of Constitutional Invalidity

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellants argued that section 20 of the Drugs and Drugs Trafficking Act violates the right to a fair trial by requiring the accused to disprove possession, thereby undermining the presumption of innocence and shifting the burden of proof unconstitutionally.
Respondent
The State contended that the reverse onus provision is necessary for effective prosecution of drug offences and does not unduly infringe constitutional rights, as it is justified by the need to combat drug-related crime.

05

Court’s reasoning

  1. 01

    Section 35(3)(h) of the Constitution of the Republic of South Africa, 1996

    A statutory presumption that shifts the burden of proof to the accused in criminal proceedings is inconsistent with the constitutional right to a fair trial, specifically the presumption of innocence.

  2. 02

    Section 172 of the Constitution of the Republic of South Africa, 1996

    Any law inconsistent with the Constitution is invalid to the extent of its inconsistency.

06

Ratio, limits and disposition

Ratio decidendi

Section 20 of the Drugs and Drugs Trafficking Act imposes a reverse onus on the accused, requiring them to prove they were not in possession of drugs found in their vicinity. This provision is inconsistent with the right to a fair trial, particularly the presumption of innocence guaranteed by section 35(3)(h) of the 1996 Constitution. The Constitutional Court had already declared section 20 invalid in the related case of Mello and Another v The State, and the order in that case applies to the present matter. Accordingly, the order of constitutional invalidity made by the Northern Cape High Court is confirmed, and the matter is referred back for disposal in accordance with the Mello judgment.

Obiter and limits

  • The Court notes that the invalidity of section 20 applies to any criminal trial where a verdict was entered after 27 April 1994 and where appeal or review proceedings are pending or not yet finalised.
  • The judgment in Mello and Another v The State comprehensively addresses the constitutional issues raised by reverse onus provisions in criminal statutes.

Court disposition

Order of constitutional invalidity confirmed; matter referred back to the Northern Cape High Court for disposal in accordance with the Mello judgment.

  • The order of constitutional invalidity made by the Northern Cape High Court in respect of section 20 of the Drugs and Drugs Trafficking Act is confirmed.
  • The matter is referred back to the Northern Cape High Court to be disposed of in accordance with the order in Mello and Another v The State.

Source and reliance status

Constitutional Court

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Judgment text

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Source document

Constitutional Court

Judgment

[1998] ZACC 8

CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT: 3/98

ROBERT VAN NELL First Appellant

SAM BEKKER Second Appellantversus

THE STATE Respondent

Decided on : 28 May 1998

JUDGMENT

MOKGORO J:[1] This case comes before this Court for confirmation under the 1996 Constitution[1] of an order of constitutional invalidity made by the Northern Cape High Court in respect of section 20 of the Drugs and Drugs Trafficking Act[2] (the Act).[3] This section, embodying a so-called “reverse onus”, provides as follows:

“ 20. Presumption relating to possession of drugs .—If in the prosecution of any person for an offence under this Act it is proved that any drug was found in the immediate vicinity of the accused, it shall be presumed, until the contrary is proved, that the accused was found in possession of such drug.”

In its terms, this section requires that facts, essential to the prosecution of a case against an accused, be presumed to exist, notwithstanding the presence of a reasonable doubt as to their existence in the mind of the trier of fact.[2] At approximately the same time as the referral for confirmation under the 1996 Constitution was made, a referral in terms of section 102(1) of the interim Constitution[4] in relation to the self-same section was brought to this Court under the head Mello and Another v The State.[5] We have this morning in that case declared section 20 of the Act to be in conflict with the provisions of the Constitution of the Republic of South Africa Act 200 of 1993 and declared it to be invalid. In addition in Mello, we declared the application of section 20 in any criminal trial to be invalid where a verdict had been entered after 27 April 1994, and in which, as at the date of the judgment in Mello, either an appeal or review of the matter was pending or had not been finalised, or the time for noting an appeal had not yet expired. Accordingly, that order covers the situation presented in this case.[3] The matter is referred back to the Northern Cape High Court to be disposed of in accordance with the order in the case of Mello.[6]Chaskalson P, Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Madala J, O’Regan J, Sachs J and Yacoob J concur in the judgment of Mokgoro J.

[1] In terms of section 172 of the Constitution of the Republic of South Africa, 1996.

[2] Act 140 of 1992 .

[3] The section was held to be inconsistent with section 35(3)(h) of the 1996 Constitution by the Court a quo.

[4] Constitution of the Republic of South Africa Act 200 of 1993.

[5] Case CCT 5/98. As yet unreported judgment.

[6] Id.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Mello and Another v The State (CCT 5/98)

Case cited

Drugs and Drugs Trafficking Act 140 of 1992

Legislation

Legislation referenced in the available case record.

Constitution of the Republic of South Africa, 1996

Legislation

Legislation referenced in the available case record.

Constitution of the Republic of South Africa Act 200 of 1993

Legislation

Legislation referenced in the available case record.

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