Statutere vermoedens in die strafbewysreg : 'n grondwetlike perspektief
Date
1994-10
Authors
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Journal ISSN
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Publisher
Stellenbosch : Stellenbosch University
Abstract
ENGLISH SUMMARY: The presumption of innocence and privilege against self-incrimination are fundamental to our system of criminal justice. This presumption and privilege have now been constitutionalised.
Sections 2S(3)(c) and (d) of the Constitution of the Republic of South Africa 200 of 1994
provide as follows: "Every accused person shall have the right to a fair trial, which shall include
the right... to be presumed innocent and to remain silent during plea proceedings or trial and not
to testify during trial; ... and not to be a compellable witness against himself or herself ... "
Statutory presumptions which place some form of onus on the accused in respect of either an
essential element of the alleged offence or a defence, conflict with these constitutional
guarantees.
In this paper, the focus is primarily on the presumption of innocence. The elements of the
presumption of innocence are identified, and applied to criminal statutory presumptions. At the
outset, a classification is made of criminal statutory presumptions. The different standards of
proof they may impose on an accused are identified and examined
The American "due process" approach to criminal statutory presumptions, including the
protection of the right against self-incrimination, is taken into consideration. An examination is
made of the development and deficiencies of the "rational connection" test as applied by the
United States Supreme Court in determining the constitutionality of criminal statutory
presumptions.
The Canadian approach to statutory criminal presumptions IS considered. The Canadian
Supreme Court has devised a specific procedure for determining the permissible limitations of
fundamental rights.
The contents of the South African limitation clause are analysed in a comparative context. It is
suggested that the substantive and structural resemblances between section 1 of the Canadian
Charter of Rights and Freedoms and section 33(1) of the South African Constitution, present
useful systematic guidelines for judicial review of statutory limitations of the presumption of
innocence. The constitutionality of selected presumptions in South African criminal statutory
provisions which offend the presumption of innocence are analysed. Finally it is submitted that,
although the Canadian jurisprudence in respect of the presumption of innocence is a useful
comparative source, a unique and autogenous constitutional theory must be developed within a
local context.
Description
Skripsie (LL.M.) -- Universiteit van Stellenbosch, 1994.
Keywords
Criminal procedure -- South Africa, Self-incrimination -- South Africa, Habeas corpus -- South Africa, Civil rights -- Law and legislation -- South Africa, Dissertations -- Law