Recent Case: Constitutional application

• Jurisdiction: South Africa
• Pages: 124-134
• Date: 24 May 2019
• Author: Saras Jagwanth
• Citation: (1999) 12 SACJ 124
• Published date: 24 May 2019

124



SACJ •

(1999) 12 •

SAS

Constitutional application

SARAS JAGWANTH

University of

Cape

Town

Interpretation

Interpretation —two stage enquiry

In

S v Meaker

1998 (2) SACR 73 (W) the appellant challenged the

constitutional validity of the presumption contained in s 130(1) of the Road

Traffic Act 29 of 1989. This section provides that if in any prosecution relating

to the driving of a vehicle on a public road, 'it is material to prove who was

the driver of a vehicle, it shall be presumed, unless the contrary is proved,

that such vehicle was driven by the owner thereof'. Cameron J surveyed the

authorities dealing with the constitutional validity of reverse onus

presumptions in our law since 1995 and found that it was not difficult to

conclude that s 130 was a violation of the presumption of innocence

contained in s 35(3)(h) of the Constitution. Once this had been established,

the next question was whether the impugned provision was able to

withstand scrutiny under s 36 of the Constitution. After a thorough

application of the five considerations contained in s 36 to s 130 of the

Road Traffic Act, Cameron J found that the provision was saved by

the limitations enquiry. The approach in

Meaker

is, it is submitted, a good

example of the application of the two-stage enquiry, in which each stage is

kept separate for the purposes of the constitutional analysis. Cameron J's

judgment shows how the two-stage approach warrants a broader

interpretation of the fundamental right, qualified by the considerations of

(1999) 12 SACJ 124

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