Summary of Judgment

1. Introduction

This matter came before the Constitutional Court as a confirmation proceeding under the Constitution of the Republic of South Africa, 1996, following an order of constitutional invalidity made by the Northern Cape High Court. The proceedings concerned the Constitutional Court’s function in confirming, varying, or refusing to confirm an order declaring legislation unconstitutional.

The parties were Robert Van Nell as the first appellant and Sam Bekker as the second appellant, with the State as the respondent. The appellants were accused persons in criminal proceedings in which the impugned statutory provision was relevant.

The procedural history reflected that the Northern Cape High Court (court a quo) had declared section 20 of the Drugs and Drugs Trafficking Act 140 of 1992 inconsistent with the Constitution, and the matter was then placed before the Constitutional Court for confirmation in terms of the 1996 Constitution. While this confirmation process was underway, a separate referral concerning the same statutory provision was simultaneously before the Constitutional Court in Mello and Another v The State (CCT 5/98).

The general subject matter of the dispute was the constitutional validity of a statutory presumption (“reverse onus”) in drug-related criminal prosecutions, namely a provision requiring an accused to disprove presumed possession where a drug is found in the accused’s immediate vicinity.

2. Material Facts

The material factual setting relevant to the Constitutional Court’s disposition was limited and largely procedural, because the Court did not engage in a detailed factual reconstruction of the underlying criminal case. The judgment proceeded on the basis of the content and operation of the impugned statutory provision and the existence of the High Court’s invalidity order requiring confirmation.

It was undisputed that the Northern Cape High Court had made an order declaring section 20 of the Drugs and Drugs Trafficking Act 140 of 1992 constitutionally invalid. It was also undisputed that section 20 created a presumption of possession in circumstances where a drug was found “in the immediate vicinity” of an accused, and that the presumption operated “until the contrary is proved.”

A further undisputed procedural fact relied upon by the Court was that, at approximately the same time as the present confirmation referral was made under the 1996 Constitution, the Constitutional Court was seized with a referral under section 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution) in Mello and Another v The State, which concerned the self-same section 20.

The Court also relied on the fact that it had, on the same morning, delivered judgment in Mello, declaring section 20 unconstitutional and invalid, and making an order regulating the invalidity of the provision’s application in certain criminal trials after 27 April 1994 in which appellate or review processes were pending, not finalised, or still capable of being noted. The Court treated that order as dispositive of the present matter.

3. Legal Issues

The central legal question was whether section 20 of the Drugs and Drugs Trafficking Act 140 of 1992—a statutory presumption requiring an accused to disprove presumed possession where drugs were found in the accused’s immediate vicinity—was constitutionally invalid and whether the High Court’s order of invalidity should be confirmed under the 1996 Constitution.

Although the judgment acknowledged that section 20 required facts “essential to the prosecution” to be presumed notwithstanding reasonable doubt, the Court in this matter did not undertake a fresh substantive constitutional analysis of the presumption itself. Instead, the decisive legal issue became the procedural and remedial consequence of the Constitutional Court’s contemporaneous judgment in Mello and Another v The State, which had already determined the constitutional status of section 20 and crafted a remedial order governing its application to pending or not-yet-finalised criminal matters.

Accordingly, the dispute as addressed in this judgment concerned primarily a question of law and remedy, namely the effect of the Court’s decision and order in Mello on the present confirmation proceedings and the appropriate procedural disposition of the matter.

4. Court’s Reasoning

The Court identified section 20 as embodying a so-called “reverse onus”, operating such that, if the prosecution proved that a drug was found in the immediate vicinity of the accused, the accused would be presumed to be in possession of that drug unless the contrary was proved. The Court noted that, in its terms, the provision required that facts essential to the prosecution be presumed to exist even where the trier of fact held a reasonable doubt as to their existence.

However, the Court’s reasoning turned decisively on the fact that a separate matter, Mello and Another v The State, involved a referral concerning the same provision. The Court stated that it had, earlier that day, declared section 20 to be in conflict with the interim Constitution and invalid. The Court further recorded that in Mello it had also declared the application of section 20 in any criminal trial to be invalid where a verdict had been entered after 27 April 1994 and, at the date of judgment in Mello, an appeal or review was pending or not finalised, or the time for noting an appeal had not yet expired.

On that basis, the Court reasoned that the order already made in Mello “covers the situation presented” in the present case. The Court therefore did not proceed to develop separate reasoning on confirmation or craft an independent remedial order in this matter. Instead, it treated the Mello order as determinative and directed that the present matter be returned to the High Court to be disposed of consistently with the order in Mello.

The reasoning thus involved a remedial and procedural alignment: because the constitutional invalidity of section 20 and the operative consequences for relevant criminal matters had already been determined in a contemporaneous decision, it was appropriate to refer the matter back for disposal under that existing order rather than duplicate analysis or issue an inconsistent remedy.

5. Outcome and Relief

The Constitutional Court held that its order in Mello and Another v The State (CCT 5/98) governed the present matter. The Court therefore referred the matter back to the Northern Cape High Court for disposal in accordance with the order in Mello.

No separate substantive confirmation order or independent costs order was set out in this judgment. The relief granted was procedural in nature, ensuring that the High Court would resolve the matter consistently with the Constitutional Court’s already-issued remedial framework in Mello.

Cases Cited

Mello and Another v The State (Case CCT 5/98) (Constitutional Court of South Africa) (as yet unreported at the time of this judgment).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 172.

Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution), section 102(1).

Constitution of the Republic of South Africa, 1996, section 35(3)(h).

Drugs and Drugs Trafficking Act 140 of 1992, section 20.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Constitutional Court held that the order made in Mello and Another v The State (CCT 5/98) declaring section 20 of the Drugs and Drugs Trafficking Act 140 of 1992 unconstitutional and regulating its invalid application in certain pending or not-yet-finalised criminal matters applied to and disposed of the situation in the present case. The matter was accordingly referred back to the Northern Cape High Court for disposal in accordance with the order in Mello.

LEGAL PRINCIPLES

A statutory presumption that requires facts essential to the prosecution to be treated as proved, despite the existence of reasonable doubt, constitutes a reverse onus mechanism and is constitutionally vulnerable where it conflicts with constitutional protections applicable to criminal trials, including those relating to the burden of proof and the position of an accused.

Where the Constitutional Court has already determined the constitutional validity of a statutory provision and has made an operative remedial order regulating its application to categories of criminal matters, the Court may dispose of a subsequent related confirmation proceeding by directing that the matter be handled consistently with that existing order, rather than duplicating substantive constitutional analysis.