oa Comparative and International Law Journal of Southern Africa - The constitutionality of presumptions in South African law



In this article we consider the legal position of presumptions, be they of fact or of law, in the light of the South African Constitution (Act 108 of 1996). Where necessary and appropriate, account is taken of the provisions of the interim constitution, the Constitution of the Republic of South Africa Act 200 of 1993. In South African law presumptions are found in both civil actions and criminal cases. For present purposes we shall concentrate on presumptions operative in criminal cases, although reference to presumptions found in civil cases will be made when relevant. The term 'presumption' is best understood when explained from the perspective of its effect. Presumptions have the following effects: First, they shift the onus from the state to the accused. A presumption presumes the accused guilty until proven not guilty and, as such, runs counter to the presumption of innocence found in section 35 (3)(h) of the 1996 constitution which reads: Every accused person has a right to a fair trial which includes the right to be presumed innocent, remain silent and not to testify during the proceedings.


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