Scagell and Others v Attorney-General, Western Cape and Others (CCT42/95) [1996] ZACC 18; 1996 (11) BCLR 1446; 1997 (2) SA 368 (12 September 1996)

Scagell and Others v Attorney-General, Western Cape and Others (CCT42/95) [1996] ZACC 18; 1996 (11) BCLR 1446; 1997 (2) SA 368 (12 September 1996)

Sections 6(3) and 6(4) of the Gambling Act, 51 of 1965, are inconsistent with section 25(3) of the Constitution as they infringe the right to a fair trial. Section 6(4) imposes a legal burden on the accused, allowing conviction even where reasonable doubt exists, which violates the presumption of innocence. Section 6(3), though phrased as an evidential burden, is so sweeping that it allows prosecution and compels defence based on mere possession of items like playing cards, without evidence suggestive of criminality, thereby breaching substantive fairness. The State failed to justify these limitations under section 33(1), as no evidence was presented to show that conventional policing...

Citation
[1996] ZACC 18
Parties
Applicant: Gary John Scagell; Applicant: Christopher Jason Minard; Applicant: Candice Mitchell; Applicant: Christopher John Simon; Respondent: Attorney-General of the Western Cape; Respondent: Minister of Safety and Security; Respondent: Minister of Justice; Respondent: Government of the Republic of South Africa
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
12 September 1996
Case Number
CCT42/95
Procedural Posture
Constitutional Review / Judgment
Outcome
Sections 6(3) and 6(4) of the Gambling Act are declared invalid and of no force and effect from the date of judgment. The declaration applies to all cases not yet finalised as of the judgment date. The matter is referred back to the Cape Provincial Division for further proceedings in accordance with this judgment.
Judges
O'Regan, Chaskalson, Mahomed, Ackermann, Didcott, Kentridge, Kriegler, Langa, Madala, Mokgoro, Sachs
Legal Topics
Presumption of Innocence, Right to Fair Trial, Right to Silence, Limitation of Rights, Statutory Presumptions
Constitutional Law Criminal Law Presumption of Innocence Right to Fair Trial Right to Silence Limitation of Rights Statutory Presumptions

Case Brief

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Parties

Gary John Scagell

Applicant

Christopher Jason Minard

Applicant

Candice Mitchell

Applicant

Christopher John Simon

Applicant

Attorney-General of the Western Cape

Respondent

Minister of Safety and Security

Respondent

Minister of Justice

Respondent

Government of the Republic of South Africa

Respondent

Procedural Posture

Constitutional Review / Judgment

Legal Issues

  1. 1 Whether sections 6(3) and 6(4) of the Gambling Act, 51 of 1965, are inconsistent with section 25(3) of the Constitution guaranteeing the right to a fair trial.
  2. 2 Whether the evidentiary and presumptive provisions in section 6(3), 6(4), 6(5), and 6(6) violate the presumption of innocence and the right to silence.
  3. 3 Whether any unconstitutional provisions can be severed or saved under section 33(1) of the Constitution.

Ratio Decidendi

Sections 6(3) and 6(4) of the Gambling Act, 51 of 1965, are inconsistent with section 25(3) of the Constitution as they infringe the right to a fair trial. Section 6(4) imposes a legal burden on the accused, allowing conviction even where reasonable doubt exists, which violates the presumption of innocence. Section 6(3), though phrased as an evidential burden, is so sweeping that it allows prosecution and compels defence based on mere possession of items like playing cards, without evidence suggestive of criminality, thereby breaching substantive fairness. The State failed to justify these limitations under section 33(1), as no evidence was presented to show that conventional policing...

Court Disposition

Sections 6(3) and 6(4) of the Gambling Act are declared invalid and of no force and effect from the date of judgment. The declaration applies to all cases not yet finalised as of the judgment date. The matter is referred back to the Cape Provincial Division for further proceedings in accordance with this judgment.

Orders

  • Subsections (3) and (4) of section 6 of the Gambling Act, 51 of 1965, are declared inconsistent with the Constitution and invalid from the date of this judgment.
  • The declaration of invalidity applies to any criminal trial where the verdict was entered after the Constitution came into force and where, as at the date of judgment, an appeal or review is pending or the time for noting appeal has not expired.