Scagell and Others v Attorney-General of the Western Cape and Others

The applicants were jointly charged in the Cape Town Magistrates’ Court with permitting the playing of a gambling game in contravention of section 6(1) of the Gambling Act 51 of 1965, allegedly at the Highstead Casino Club in Sea Point. Anticipating that the prosecution would rely on statutory presumptions and evidentiary provisions in sections 6(3)–6(7) of the Act to secure a conviction, the applicants sought a postponement of their criminal trial to challenge the constitutionality of those provisions. Following procedures under sections 103(3) and (4) of the interim Constitution, the matter was referred to the Constitutional Court to determine whether the impugned provisions were inconsistent with the right to a fair trial, particularly the presumption of innocence and the right to remain silent in section 25(3) of the Constitution.

Sections 6(4) and 6(3) of the Gambling Act 51 of 1965 were declared inconsistent with section 25(3) of the Constitution and invalid. The referral in respect of section 6(7) was held to be incompetent. Section 6(5) was not declared unconstitutional on the material before the Court.

The case is a leading Constitutional Court authority on the constitutionality of statutory presumptions in criminal law. It clarified the distinction between legal burdens and evidential burdens, and confirmed that even evidential presumptions may violate the right to a fair trial if they are overly sweeping and permit prosecution without facts suggestive of criminality. The judgment reinforced the substantive content of the fair trial right beyond the enumerated guarantees and contributed to the Court’s developing jurisprudence following S v Zuma.