Resolution [B93-97]
1. Report of the Portfolio Committee on Justice on the Criminal Matters Amendment Bill [B 93 - 97] (National Assembly - sec 75), dated 13 August 1998, as follows:

The Portfolio Committee on Justice, having considered the subject of the Criminal Matters Amendment Bill [B 93 - 97] (National Assembly - sec 75), referred to it, reports the Bill with amendments [B 93A - 97].

The Committee further wishes to report as follows:

1. The constitutionality of Clause 5 of the Bill was raised regarding the presumption of sanity. The Committee noted that such a presumption already exists in terms of the common law. The Clause provides that every person shall be presumed not to suffer from a mental illness or mental defect so as not to be criminally responsible in terms of section 78(1) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), until the contrary is proved on a balance of probabilities. The Clause further provides that, whenever the criminal responsibility of an accused person with reference to the commission of an act which constitutes an offence is in issue, the burden of proof with reference to the criminal responsibility of the accused shall be on the party who raises the issue.

2. The South African law on the matter was considered by the Committee. It noted that the Constitutional Court left open the question whether, when a statute imposes a burden upon an accused to prove an element of a defence as opposed to the element of an offence, it will be contrary to the Constitution.

3. The Committee also looked at comparative law on the subject, particularly that of Canada, for example the Canadian Supreme Court case of R v Chauk 1CRR (2d) 1, where the presumption of sanity, the right to be presumed innocent and the proportional limitation of the right to be presumed innocent, was considered extensively. The Court, with a large majority, in a persuasive judgment, inter alia, held that a Clause similar to the South African Clause was not unconstitutional.

4. As presently advised, and having considered all the available facts, factors and information, the Committee is of the view that Clause 5 will pass the test of constitutionality.

Report to be considered.