Robert Van Nell and Sam Bekker v The State

This case was referred to the Constitutional Court for confirmation of an order of constitutional invalidity made by the Northern Cape High Court. The High Court had declared section 20 of the Drugs and Drugs Trafficking Act 140 of 1992 to be inconsistent with section 35(3)(h) of the 1996 Constitution. Section 20 created a reverse onus provision which required that if a drug was found in the immediate vicinity of an accused person, it would be presumed that the accused was in possession of such drug until the contrary was proved. This provision required facts essential to prosecution to be presumed to exist even where there was reasonable doubt in the mind of the trier of fact.

• Whether section 20 of the Drugs and Drugs Trafficking Act 140 of 1992 is constitutionally invalid
• Whether the reverse onus provision in section 20 violates section 35(3)(h) of the 1996 Constitution
• Whether the constitutional invalidity should be confirmed

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 (CCT 5/98). The order of constitutional invalidity in respect of section 20 of the Drugs and Drugs Trafficking Act 140 of 1992 was implicitly confirmed.

Section 20 of the Drugs and Drugs Trafficking Act 140 of 1992, which creates a reverse onus by presuming possession of drugs found in the immediate vicinity of an accused until the contrary is proved, is constitutionally invalid. Such a provision, which requires facts essential to prosecution to be presumed even where there is reasonable doubt, violates the constitutional rights of accused persons under section 35(3)(h) of the 1996 Constitution.

The Court noted that at approximately the same time as this referral for confirmation under the 1996 Constitution was made, a referral under section 102(1) of the interim Constitution concerning the same section 20 was brought in Mello and Another v The State. This demonstrates the Court's approach to dealing efficiently with similar constitutional challenges arising under both the interim and final Constitutions. The judgment is brief because the substantive reasoning is contained in the Mello judgment delivered on the same day.

This case, read together with Mello and Another v The State, establishes an important precedent regarding reverse onus provisions in criminal law. It demonstrates the Constitutional Court's willingness to strike down legislative provisions that shift the burden of proof to the accused in a manner that violates constitutional rights to a fair trial. The case reinforces the principle that statutory presumptions requiring essential facts to be presumed even in the face of reasonable doubt are unconstitutional. It is significant in the context of drug prosecutions and the protection of rights of accused persons under the Bill of Rights.