Brief Summary

Constitutional Law — Right to a fair trial — Presumption of innocence — Applicants challenged the constitutionality of sections 6(3), 6(4), 6(5), 6(6), and 6(7) of the Gambling Act, 51 of 1965, on the grounds that they infringe upon the right to a fair trial and the presumption of innocence as guaranteed by section 25(3) of the Constitution. The applicants were charged with permitting gambling games at a venue they controlled, and sought to postpone proceedings to challenge the validity of these provisions. The court found that sections 6(4) imposed an unconstitutional burden on the accused by shifting the onus of proof, thereby breaching the presumption of innocence. The referral of sections 6(3), 6(4), 6(5), and 6(6) was upheld, while section 6(7) was deemed irrelevant to the charges against the applicants.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned constitutional proceedings in the Constitutional Court in which the applicants challenged the validity of specific provisions of the Gambling Act 51 of 1965. The impugned provisions were sections 6(3), 6(4), 6(5), 6(6), and 6(7), attacked primarily on the basis that they infringed the right to a fair trial entrenched in section 25(3) of the Constitution of the Republic of South Africa, Act 200 of 1993, and in particular the presumption of innocence and right to remain silent in section 25(3)(c).

The parties were four accused persons in pending criminal proceedings, namely Gary John Scagell, Christopher Jason Minard, Candice Mitchell, and Christopher John Simon (the applicants), and the Attorney-General of the Western Cape, the Minister of Safety and Security, the Minister of Justice, and the Government of the Republic of South Africa (the respondents).

The procedural history arose from criminal proceedings in the Cape Town Magistrates’ Court, where the applicants were jointly charged with contravening section 6(1) of the Gambling Act (specifically, permitting the playing of a gambling game at a place under their control or in their charge). Anticipating reliance by the prosecution on the evidentiary and presumption provisions in section 6, the applicants sought a postponement under section 103(3) of the Constitution to enable an application to the Supreme Court for referral to the Constitutional Court under section 103(4). The magistrate granted the postponement as being in the interests of justice, and Farlam J in the Cape Provincial Division granted the application for referral to the Constitutional Court.

The general subject-matter was the constitutionality of statutory presumptions and evidentiary devices used to facilitate prosecutions for unlawful gambling, and whether these mechanisms were compatible with fair-trial guarantees under the interim Constitution.

2. Material Facts

The applicants were charged in the Cape Town Magistrates’ Court with having “wrongfully and unlawfully permitted the playing of a gambling game” at premises described as Highstead Casino Club in Sea Point during the period 7 to 12 December 1994, allegedly in contravention of section 6(1) of the Gambling Act.

The applicants’ constitutional challenge was premised on the practical significance of the impugned subsections of section 6. Those subsections created various presumptions or deeming provisions affecting proof of elements connected with offences under section 6(1), including presumptions arising from the presence of gambling-related items, presumptions triggered by obstruction of police entry, presumptions about games being played “for stakes”, and a deeming rule about who is “in control or in charge” of premises.

A material fact for the Constitutional Court was the scope of the criminal charge actually brought. The applicants were charged only with the offence relating to permitting gambling at premises under their control or charge (the first of the three offences created by section 6(1)), and not with the offences of playing a gambling game or visiting premises with the object of playing such a game. This fact was central to whether section 6(7) (which addressed the latter two offences) was properly before the Court via the section 103 referral mechanism.

The Court treated as material (and effectively common cause for purposes of the referral stage) that the applicants apprehended that the prosecution would rely on the impugned subsections to facilitate proof in the criminal trial, and that the referral route under sections 103(3) and 103(4) was invoked to determine constitutionality before continuation of the criminal proceedings.

3. Legal Issues

The Court was required to determine, first, a procedural/jurisdictional issue: whether the referral to the Constitutional Court under sections 103(3) and 103(4) was valid in respect of all the impugned provisions, particularly whether deciding the validity of each challenged subsection was material to the adjudication of the pending criminal proceedings in the Magistrates’ Court.

Secondly, the Court had to determine substantive constitutional issues concerning the compatibility of each impugned provision with section 25(3) of the Constitution (fair trial), including whether any of the provisions infringed the presumption of innocence and right to remain silent under section 25(3)(c), or more broadly infringed the overarching substantive fairness required by section 25(3).

Thirdly, to the extent that any infringement was established, the Court had to determine whether the limitation was reasonable, necessary, and justifiable under section 33(1) of the Constitution, applying the proportionality enquiry referenced in prior Constitutional Court jurisprudence.

Fourthly, the Court had to address remedial issues concerning the temporal reach of the invalidity declaration, including whether to suspend invalidity under section 98(5), and whether and how to extend relief to cases already decided but not finalised under section 98(6)(a).

The dispute predominantly concerned the application of constitutional law to the statutory scheme and the legal character and effect of presumptions (legal burdens, evidential burdens, and irrebuttable presumptions). It also involved an evaluative judgment under section 33(1) and a remedial discretion under section 98(6)(a).

4. Court’s Reasoning

On the preliminary question of referral validity, the Court held that the Constitutional Court had exclusive jurisdiction to decide the constitutionality of the provisions. However, the Court differentiated between the challenged subsections in assessing whether their validity was material to the pending criminal proceedings. Because the applicants were charged only with the “permitting” offence under section 6(1), section 6(7)—which operated only in relation to the “playing” and “visiting” offences—could not affect the applicants’ prosecution. The Court therefore concluded that the referral of section 6(7) did not fall within sections 103(3) and 103(4) and was not properly before it in the context of this referral.

Turning to section 6(4), the Court analysed its effect as creating a rebuttable presumption of law: once the prosecution proved obstruction or delay of an authorised police officer’s entry and proved the accused was in control or charge of the premises, the accused was presumed (unless the contrary was proved) to have permitted gambling. The Court emphasised that this imposed a legal burden requiring rebuttal on a balance of probabilities, and that conviction could follow even where a reasonable doubt existed as to guilt. Applying established Constitutional Court authority on onus provisions, the Court held that such a legal burden infringed the presumption of innocence protected by section 25(3)(c).

The Court then addressed whether section 6(4) could be saved under section 33(1). It considered the State’s evidence (including an affidavit addressing the social harms of unlicensed gambling) but found the evidentiary foundation insufficient to justify the particular sweeping presumption adopted. The Court noted the absence of convincing evidence of special investigative or prosecutorial difficulty that would necessitate such a presumption, and the absence of persuasive explanation why conventional policing methods could not secure proof. Weighing purpose and effect against the seriousness of the infringement, the Court found section 6(4) disproportionate and not justifiable under section 33(1).

With section 6(3), the Court distinguished the wording “shall be prima facie evidence” from “shall be presumed, until the contrary is proved”. Relying on established interpretive principles in South African law, it treated section 6(3) as imposing an evidential burden, not a legal burden. This meant that an accused could avoid conviction by producing evidence sufficient to raise a reasonable doubt, rather than having to disprove an element on a balance of probabilities. On this basis, the Court held that section 6(3) did not fall to be invalidated on the same rationale as section 6(4) (namely conviction despite reasonable doubt).

However, the Court proceeded to assess section 6(3) against the broader content of section 25(3) as a guarantee of substantive trial fairness. It considered the “trigger” for the prima facie evidentiary consequences: the mere finding of items such as playing cards or dice at a place or on a person. The Court characterised the provision as extraordinarily sweeping, because it could compel an accused to meet an evidential burden and stand trial even where the proven fact (possession or presence of ordinary items) was not, in itself, suggestive of criminal conduct. The Court regarded the key constitutional vice as the statutory authorisation of prosecutions against persons “against whom there is no evidence suggestive of criminal conduct at all”, thereby forcing them to defend themselves in court with the reputational, dignitary, time, and cost consequences attendant on criminal proceedings. This was held to infringe the right to a fair trial under section 25(3), relying on the Constitutional Court’s recognition in prior authority that section 25(3) goes beyond enumerated sub-rights and embraces substantive fairness.

On justification under section 33(1), the Court again found the State’s materials inadequate to justify an evidential mechanism of such breadth and tenuous connection between the proven and inferred facts, particularly absent an explanation of why ordinary investigative techniques could not yield sufficient proof. The Court also considered a severance proposal advanced on behalf of the Attorney-General (to narrow section 6(3) to “gambling devices” and to the “permitting” offence), but declined to sever. It reasoned that, given the breadth of statutory definitions (including “place” and “gambling device”), the constitutional defect might persist even after severance. The Court indicated reluctance to perform severance unless satisfied that the result would remove constitutional complaint, and it was not so satisfied.

As to section 6(5), the Court observed that, on its face, it resembled a reverse-onus provision. However, on analysis, it found uncertainty as to whether section 6(5) could ever produce the unconstitutional effect identified in the reverse-onus cases (conviction despite reasonable doubt). Because the statutory definition of “gambling game” already included that the game is played for money or something of value, proof that a gambling game was played would itself establish the “stakes” element. The Court considered the provision possibly to be a historical remnant from the Act’s earlier form (when “games of chance” and “stakes” were structured differently), but held that mere ineffectiveness or redundancy did not in itself establish a constitutional infringement. The applicants, in the Court’s view, did not demonstrate that section 6(5) violated section 25(3) or any other right.

In relation to section 6(6), the Court addressed the applicants’ contention that it created an unconstitutional irrebuttable presumption. It accepted, with reference to prior appellate authority discussing the structure of the Gambling Act’s presumptions, that section 6(6) was properly construed as irrebuttable. It then characterised irrebuttable presumptions of this kind as rules of substantive law rather than evidence. On this approach, section 6(6) functioned effectively as an extended definitional provision specifying who is deemed to be “in control or in charge” for purposes of section 6(1). The Court held that this did not shift a burden onto the accused in a manner that could yield conviction despite reasonable doubt. The prosecution still bore the burden to prove beyond reasonable doubt that a gambling game was played and that the accused permitted it. The Court therefore found no basis to invalidate section 6(6) under section 25(3), and it also rejected arguments for severing “servant” from the provision, noting that the offence still required proof of permission and that mens rea would ordinarily remain an element absent clear legislative exclusion.

On remedy, the Court held that, since sections 6(3) and 6(4) were inconsistent with the Constitution, they had to be declared invalid. It found no convincing basis to suspend invalidity under section 98(5). It then considered section 98(6)(a) and the interests of justice regarding the reach of the declaration beyond purely prospective application. The Court noted that a purely prospective order would provide no relief to persons already convicted through reliance on the invalid provisions, where their cases were still pending on appeal or review or otherwise not final. Drawing on the Court’s cautious approach to avoiding disruption while enabling reliance on constitutional rights, it extended the effect of invalidity to cases where the verdict was entered after the Constitution came into force and where finality had not been reached as at the date of judgment.

Finally, the Court noted that no submissions were made on costs and found no reason to make a costs order.

5. Outcome and Relief

The Court declared section 6(3) and section 6(4) of the Gambling Act 51 of 1965 inconsistent with the Constitution and invalid with effect from the date of the judgment, and held that the invalidity would also apply (by order under section 98(6)(a)) to criminal trials in which the verdict was entered after the Constitution came into force and where, as at the date of the judgment, an appeal or review was pending or the time for noting an appeal had not expired.

The Court did not grant relief in respect of section 6(7) because its referral was not valid within sections 103(3) and 103(4) given the nature of the charge faced by the applicants. The Court rejected the constitutional challenges to section 6(5) and section 6(6) on the bases advanced.

The matter of S v Scagell and others was referred back to the Cape Provincial Division for further handling consistent with the Constitutional Court’s judgment. No order as to costs was made.

Cases Cited

S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).

S v Bhulwana; S v Gwadiso [1995] ZACC 11; 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC).

S v Mbatha; S v Prinsloo [1996] ZACC 1; 1996 (2) SA 464 (CC); 1996 (3) BCLR 293 (CC).

S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

S v Ntuli [1995] ZACC 14; 1996 (1) SA 1207 (CC); 1996 (1) BCLR 141 (CC).

S v Mhlungu and Others [1995] ZACC 4; 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC).

Ex parte The Minister of Justice: In re Rex v Jacobson & Levy 1931 AD 466.

R v Abel 1948 (1) SA 654 (A).

S v Veldthuizen 1982 (3) SA 413 (A).

Pillay v Krishna and Another 1946 AD 946.

S v Alex Carriers (Pty) Ltd en 'n Ander 1985 (3) SA 79 (T).

R v Haffejee and Another 1945 AD 345.

S v Rosenthal 1980 (1) SA 65 (A).

S v de Sa 1982 (3) SA 941 (A).

Attorney General v Odendaal 1982 Botswana LR 194.

S v Arenstein 1964 (1) SA 361 (A).

S v De Blom 1977 (3) SA 513 (A).

Legislation Cited

Gambling Act 51 of 1965.

Gambling Act Amendment Act 144 of 1992.

Constitution of the Republic of South Africa, Act 200 of 1993 (sections 11(1), 25(3), 25(3)(c), 33(1), 98(5), 98(6)(a), 103(3), 103(4)).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Constitutional Court held that the referral procedure under sections 103(3) and 103(4) was competent in respect of provisions potentially material to the applicants’ criminal trial, but not competent in respect of section 6(7) because that subsection related to offences with which the applicants were not charged.

The Court held that section 6(4) imposed a legal burden on an accused and could result in conviction despite the existence of a reasonable doubt, thereby infringing the presumption of innocence in section 25(3)(c), and that the infringement was not justified under section 33(1).

The Court held that section 6(3), although framed as creating prima facie evidence and thus only an evidential burden, was nevertheless so sweeping and so weakly connected to criminal conduct that it undermined substantive trial fairness under section 25(3) by permitting the prosecution of persons on the basis of facts not suggestive of criminality; it was not justified under section 33(1), and severance was refused.

The Court held that the applicants did not establish that section 6(5) infringed constitutional rights, and it declined to declare it invalid.

The Court held that section 6(6) created an irrebuttable deeming rule functioning as a definitional provision rather than a reverse onus, and it did not infringe section 25(3) on the grounds advanced.

The Court granted declaratory and remedial relief invalidating sections 6(3) and 6(4) with effect from the date of judgment, and extended the benefit of invalidity to certain non-finalised cases under section 98(6)(a), with no costs order.

LEGAL PRINCIPLES

The judgment applied the principle that statutory provisions imposing a legal burden on an accused in a criminal trial, such that the accused may be convicted despite a reasonable doubt, infringe the presumption of innocence protected by section 25(3)(c) of the interim Constitution.

It reaffirmed the distinction between a legal burden (requiring rebuttal on a balance of probabilities) and an evidential burden (requiring evidence sufficient to raise a reasonable doubt), and treated the phrase “prima facie evidence” as ordinarily signalling an evidential burden rather than a legal one, subject to context.

The judgment applied the principle that the constitutional right to a fair trial in section 25(3) encompasses substantive fairness beyond the specific enumerated sub-rights. Even where a provision does not directly reverse the legal burden of proof, an evidentiary mechanism may still violate section 25(3) if it authorises the prosecution of persons on the basis of proof that is not itself suggestive of criminal conduct, thereby requiring “innocent persons” to stand trial and defend themselves.

In considering justification under section 33(1), the judgment applied a proportionality enquiry in which the Court weighs the purpose, importance, and effects of the impugned provision against the nature and extent of the rights infringement, and emphasised that the State must justify the specific mechanism challenged, not merely the overall statutory objective.

The judgment treated an irrebuttable presumption in certain contexts as a rule of substantive law capable of functioning as a definitional extension of the class of persons covered by an offence, rather than as an evidentiary presumption shifting the burden of proof; such a deeming provision does not necessarily infringe the presumption of innocence if the prosecution still bears the burden to prove the remaining elements beyond reasonable doubt.

On remedies, the judgment applied the approach that declarations of invalidity need not be purely prospective, and that under section 98(6)(a) the Court may, in the interests of justice and good government, extend relief to cases not yet finalised (including where appeals or reviews are pending or still available), while remaining attentive to potential disruption in the criminal justice system.

Scagell and Others v Attorney-General, Western Cape and Others (CCT42/95) [1996] ZACC 18; 1996 (11) BCLR 1446; 1997 (2) SA 368 (12 September 1996)