Statutere vermoedens in die strafbewysreg : 'n grondwetlike perspektief

[摘要] 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 1994provide as follows: Every accused person shall have the right to a fair trial, which shall includethe right... to be presumed innocent and to remain silent during plea proceedings or trial and notto 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 anessential element of the alleged offence or a defence, conflict with these constitutionalguarantees.In this paper, the focus is primarily on the presumption of innocence. The elements of thepresumption of innocence are identified, and applied to criminal statutory presumptions. At theoutset, a classification is made of criminal statutory presumptions. The different standards ofproof they may impose on an accused are identified and examinedThe American due process approach to criminal statutory presumptions, including theprotection of the right against self-incrimination, is taken into consideration. An examination ismade of the development and deficiencies of the rational connection test as applied by theUnited States Supreme Court in determining the constitutionality of criminal statutorypresumptions.The Canadian approach to statutory criminal presumptions IS considered. The CanadianSupreme Court has devised a specific procedure for determining the permissible limitations offundamental rights.The contents of the South African limitation clause are analysed in a comparative context. It issuggested that the substantive and structural resemblances between section 1 of the CanadianCharter of Rights and Freedoms and section 33(1) of the South African Constitution, presentuseful systematic guidelines for judicial review of statutory limitations of the presumption ofinnocence. The constitutionality of selected presumptions in South African criminal statutoryprovisions 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 usefulcomparative source, a unique and autogenous constitutional theory must be developed within alocal context.

[发布机构] Stellenbosch University