William Mello and Constanina Botolo v The State

The appellants, with two other persons, stood trial in the Pretoria Magistrate's Court on charges of dealing in or alternatively possession of dagga in contravention of the Drugs and Drug Trafficking Act 140 of 1992. Several packages of dagga were found hidden in various parts of a truck driven by one of the accused and in which the other accused were passengers. The appellants and one other accused were found guilty and convicted on the alternative charge. In convicting them, the magistrate relied on the presumption created by section 20 of the Act, which provides that if a drug is found in the immediate vicinity of an accused, it shall be presumed that the accused was in possession of such drug until the contrary is proved. The appeal proceedings before the Transvaal High Court were suspended pending referral to the Constitutional Court under section 102(2) of the interim Constitution.

• Whether section 20 of the Drugs and Drug Trafficking Act 140 of 1992 is inconsistent with section 25(3)(c) of the interim Constitution (the right to be presumed innocent)
• Whether the presumption created by section 20, which imposes a reverse onus on an accused person, violates the right to a fair trial
• Whether section 20 can be justified as a reasonable and justifiable limitation in terms of section 33(1) of the interim Constitution
• What order should be made in terms of section 98(6) of the interim Constitution regarding retrospective or prospective effect of the declaration of invalidity

1. Section 20 of the Drugs and Drug Trafficking Act 140 of 1992 is declared to be inconsistent with section 25(3)(c) of the Constitution of the Republic of South Africa Act 200 of 1993 and, from the date of this judgment, declared to be invalid and of no force and effect. 2. In terms of section 98(6) of the interim Constitution, the declaration of invalidity shall invalidate any application of section 20 in any criminal trial in which the verdict of the trial court was entered after the interim Constitution came into force, and in which, as at the date of this judgment, either an appeal or review is pending or the time for noting an appeal has not yet expired. 3. The case is referred back to the Transvaal High Court to be dealt with in accordance with this judgment.

A statutory presumption that infers possession of a prohibited drug merely because the drug was found in the immediate vicinity of an accused person, and which requires the accused to prove on a preponderance of probabilities that he or she did not possess the drug, creates a reverse onus that violates the right to be presumed innocent and the right to a fair trial guaranteed by section 25(3)(c) of the interim Constitution. Such a presumption relieves the prosecution of the burden of proving an essential element of the offence beyond reasonable doubt and shifts the onus to the accused to prove innocence, which is inconsistent with the fundamental principles of criminal justice in an open and democratic society based on freedom and equality. The presumption cannot be saved by section 33(1) of the interim Constitution as it is not a reasonable and justifiable limitation: it is couched in wide terms, is not narrowly tailored to serve a legitimate law enforcement objective, has a disproportionate impact, and creates a real risk of convicting innocent persons who happen to be in the wrong place at the wrong time.

The Court made important observations about procedural compliance with Constitutional Court rules, noting that in terms of Rule 22(1), it is the duty of the party at whose instance a referral is made or the Registrar of the High Court to lodge the referral order with the Registrar of the Constitutional Court within 15 days of the order being made. The Court emphasized that this obligation must be carried out strictly in accordance with the rules and that proceedings should not be delayed by failure to do so. The Court also reiterated principles regarding the making of ancillary orders under section 98(6) of the interim Constitution, noting that the choice of an order (including questions of prospectivity, retrospectivity and conditional suspension) depends largely on evidence placed before the Court regarding the likely impact on successful litigants, state machinery, and other prospective litigants. The Court observed that where the constitutionality of a statute is in jeopardy, courts should consider whether notice should be given to organs of State and possibly others concerned with the administration of the targeted provision or likely to be affected by its demise. The Court cited with approval the principle from US jurisprudence that no one benefits from a situation where incarceration is subject to fresh litigation on issues already resolved, supporting the general principle that declarations of invalidity should not affect cases finalized prior to the date of the order.

This case is significant in South African constitutional jurisprudence as it forms part of a series of Constitutional Court decisions that struck down reverse onus provisions in criminal legislation for violating the presumption of innocence. It reinforces the principle that the prosecution bears the burden of proving guilt beyond reasonable doubt and that legislative provisions which shift this burden to the accused to prove innocence violate the fundamental right to a fair trial. The case demonstrates the Court's robust protection of fair trial rights under the interim Constitution and its willingness to invalidate longstanding statutory presumptions in drug trafficking and related offences. It establishes that such provisions require compelling justification and must be narrowly tailored to avoid the risk of convicting innocent persons. The judgment also clarifies the procedural requirements for referrals to the Constitutional Court and the importance of timely compliance with Court rules. The decision on retrospectivity ensures that the constitutional protection extends to all similarly situated accused persons whose cases were not finalized at the time of the judgment.