Van Nell and Bekker v The State

The appellants, Robert van Nell and Sam Bekker, were prosecuted under the Drugs and Drugs Trafficking Act 140 of 1992. During their trial, section 20 of the Act was implicated. This provision created a presumption that if a drug was found in the immediate vicinity of an accused, the accused was presumed to be in possession of it unless the contrary was proved. The Northern Cape High Court declared section 20 constitutionally invalid for infringing the presumption of innocence and referred the matter to the Constitutional Court for confirmation under section 172 of the Constitution of the Republic of South Africa, 1996.

The matter was referred back to the Northern Cape High Court to be disposed of in accordance with the order made in Mello and Another v The State, which had already declared section 20 of the Act unconstitutional and invalid.

This case confirms and applies the Constitutional Court’s jurisprudence on reverse onus provisions in criminal law, reinforcing the constitutional protection of the presumption of innocence. Together with Mello, it contributed to the systematic invalidation of statutory presumptions that shift the burden of proof onto accused persons in a manner inconsistent with fair trial rights.