Browsing by Author "De Waal, Pieter"

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    Statutere vermoedens in die strafbewysreg : 'n grondwetlike perspektief
    (Stellenbosch : Stellenbosch University, 1994-10) De Waal, Pieter; Van der Merwe, S. E.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    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.