Two criminal matters were referred to the Constitutional Court from the Witwatersrand Local Division. In the first, Wellington Mbatha had been convicted in the Regional Court, Germiston, of unlawful possession of two AK47 rifles and ammunition under sections 32(1)(a) and 32(1)(e) of the Arms and Ammunition Act 75 of 1969, relying on the statutory presumption in section 40(1). In the second, Nicolaas Marthinus Prinsloo was standing trial with others for offences arising from pre‑election bombings in 1994. After most charges were dismissed, Prinsloo faced remaining counts of unlawful possession of firearms and ammunition, with the trial court relying solely on the section 40(1) presumption to refuse his discharge. Section 40(1) presumed that any person present at premises where arms or ammunition were found was in possession thereof unless the contrary was proved. Both matters raised the constitutionality of this presumption under the interim Constitution.
Section 40(1) of the Arms and Ammunition Act 75 of 1969 was declared unconstitutional and invalid for infringing the right to be presumed innocent. The matters were dealt with on the basis that the presumption could not be relied upon.
This case is a leading Constitutional Court authority on the unconstitutionality of reverse‑onus presumptions in South African criminal law. It reaffirmed the centrality of the presumption of innocence in the post‑constitutional era and limited the legislature’s ability to ease prosecutorial burdens through broad presumptions, even in the context of serious crime involving firearms.