S v Van Nell and Another (CCT3/98) [1998] ZACC 8; 1998 (8) BCLR 943 (28 May 1998)
- Citation
- [1998] ZACC 8
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Constitutional Court
- Panel
- Mokgoro, Chaskalson, Langa, Ackermann, Didcott, Goldstone, Kriegler, Madala, O'Regan, Sachs, Yacoob
- Case number
- CCT3/98
More details
- Court
- Constitutional Court
- Panel
- Mokgoro, Chaskalson, Langa, Ackermann, Didcott, Goldstone, Kriegler, Madala, O'Regan, Sachs, Yacoob
- Case number
- CCT3/98
On this page
Professional case brief
Research organized from the available case record
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
AppellantSam Bekker
AppellantThe State
Respondent03
Procedural history
Posture
Constitutional Confirmation / Confirmation of Order of Constitutional Invalidity
04
Questions and positions
Legal issues
- 01
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.
- 02
Whether the application of section 20 infringes the right to a fair trial as protected by section 35(3)(h) of the Constitution.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Constitutional Court
Judgment
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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