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

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

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.

Citation
[1998] ZACC 8
Parties
Appellant: Robert Van Nell; Appellant: Sam Bekker; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
28 May 1998
Case Number
CCT3/98
Procedural Posture
Constitutional Confirmation / Confirmation of Order of Constitutional Invalidity
Outcome
Order of constitutional invalidity confirmed; matter referred back to the Northern Cape High Court for disposal in accordance with the Mello judgment.
Judges
Mokgoro, Chaskalson, Langa, Ackermann, Didcott, Goldstone, Kriegler, Madala, O'Regan, Sachs, Yacoob
Legal Topics
Reverse Onus, Presumption of Possession, Constitutional Invalidity, Fair Trial Rights
Constitutional Law Criminal Law Reverse Onus Presumption of Possession Constitutional Invalidity Fair Trial Rights

Case Brief

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Parties

Robert Van Nell

Appellant

Sam Bekker

Appellant

The State

Respondent

Procedural Posture

Constitutional Confirmation / Confirmation of Order of Constitutional Invalidity

Legal Issues

  1. 1 Whether section 20 of the Drugs and Drugs Trafficking Act, which creates a reverse onus presumption of possession, is constitutionally valid under the 1996 Constitution.
  2. 2 Whether the application of section 20 infringes the right to a fair trial as protected by section 35(3)(h) of the Constitution.

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.

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.