J U D G M E N T. I have enjoyed the privilege of reading the judgment prepared by Erasmus J

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1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION) In the matter between: Date delivered: Case No.: CA&R490/02 A. JAFTA Appellant vs THE STATE Respondent In the matter between: Case No.: CA&R77/02 NDONDO Appellant vs THE STATE Respondent In the matter between: Case No.: CA&R147/02 MCOTATA Appellant vs THE STATE Respondent J U D G M E N T LEACH, J: I have enjoyed the privilege of reading the judgment prepared by Erasmus J dealing with the question in limine whether these appeals are properly before court. At the time the appellants were tried and convicted, s. 309B and s. 309C of the Criminal Procedure Act No. 51 of 1977 required them to obtain leave to

2 2 appeal to the High Court, either from the trial court or upon petition to the judgepresident. On 29 November 2000 the Constitutional Court declared those sections inconsistent with the Constitution and therefore invalid but, in doing so, suspended the declaration for 6 months from the date of the order (i.e. up to and including 28 May 2001) see: S v Steyn 2001 (1) SA 1146 (CC); 2001 (1) SACR 16; 2001 (1) BCLR 52. The issue which arises for decision is whether the appellants were nevertheless required leave to appeal notwithstanding the declaration of invalidity. As is set out by Erasmus J in his judgment there are various conflicting decisions relating to this issue (and I would further observe that the Supreme Court of Appeal has recently consciously refrained from deciding the point see: S v Zulu unreported case no. 186/2002 delivered on 23 March 2003 at para [ 3 ] footnote 2). In my respectful view, the Constitutional Court s declaration of invalidity did not relieve the appellants from complying with s.309b and s.309c and, as all three appellants were convicted and sentenced prior to the date upon which the declaration of invalidity came into effect (as I shall detail more fully below) but failed to obtain such leave, in my opinion their appeals are not properly before us and should therefore be struck from the roll. The historical background to the legislation in question and the issue before this Court is fully set out by my learned brother in his judgment, and I have nothing to add thereto. Our views diverge when it comes to the interpretation of s. 172 (1) of

3 3 the Constitution which reads as follows: 172(1) When deciding a constitutional matter within its power, a court (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. My learned brother is of the opinion that the court which issues a declaration of invalidity in terms of s. 172 (1)(a) need not be the court which makes an order in terms of s. 172(1)(b). Indeed, in casu, while accepting that the Constitutional Court in Steyn s case, on declaring s. 309B and s.309c invalid under s. 172(1) (a), further exercised its powers under s. 172(1)(b) by suspending the declaration of invalidity for 6 months, it is his view not only that this Court is also empowered under s. 172(1)(b) to now make an order based on considerations of justice and equity regarding that declaration in respect of each of the three individual cases before us but that, in the exercise of that function, the appellants are entitled to relief declaring their appeals to be properly before us. With due respect, I find myself unable to agree to this interpretation of s. 172 (1). In my view, regard must necessarily be had to the use of the word and which links sub sections (a) and (b). It is a classical conjunctive and, while I accept that it is sometimes inaccurately used (see, for e.g. Binda v Binda 1993 (2) SA 123 (W) at and the cases there cited), that does not here appear to be

4 4 the case. Compelling support for this conclusion, even if it may have been obiter (about which I express no view), is to be found in Minister of Justice v Ntuli 1997 (3) SA 772 (CC) at para. [29] where Chaskalson P said: In my view subparas (a) and (b) of s 172(1) should not be read disjunctively so as to permit a Court to order that a declaration of invalidity may be suspended in different proceedings to those in which the declaration of invalidity is made. They should rather be read together to mean that when a Court declares a statutory provision inconsistent with the Constitution to be invalid, as it is required to do, it may also suspend that order if there are good reasons for doing so. Having regard to this and the plain meaning of the language used, it is in my view clear that where a court finds any law or conduct to be inconsistent with the Constitution it is obliged to declare it invalid under s. 172 (1)(a) but, on doing so, it may ameliorate the situation by way of a further order under s. 172 (1)(b) if it feels it is just and equitable to do so. I do not see that it could ever have been the lawgiver s intention for a law to operate differently depending on what different courts might feel would be just and equitable for persons in different circumstances. After all, it is a well established principle that the same relief should be offered to all persons who are in the same position and that a court, in exercising powers to ameliorate the effect of a declaration of invalidity of a law, should seek to avoid unnecessary uncertainty and dislocation, particularly in the criminal justice process see S v Bhulwana: S v Gwadiso 1996 (1) SA 388 (CC) at para [32]. The importance of certainty and finality is also echoed in

5 5 Ntuli s case, supra at para. [29] where Chaskalson P went on to say: [29] The principle of finality in litigation which underlies the common law rules for the variation of judgments and orders is clearly relevant to constitutional matters. There must be an end to litigation and it would be intolerable and could lead to great uncertainty if Courts could be approached to reconsider final orders made in judgments declaring the provisions of a particular statute to be invalid. In the light of the aforegoing, it is therefore my respectful opinion that subsections (a) and (b) of s. 172(1) are to be read conjunctively and not disjunctively. In reaching this conclusion, I am acutely aware that when interpreting the Constitution it is necessary to bear in mind and promote its underlying values, as enjoined by cases such as S v Zuma & Others 1995 (2) SA 642 (CC) at However, as Kentridge AJ stated in Zuma s case, supra at (in commenting upon a statement by Froneman J in Qozeleni v Minister of Law & Order and Another 1994 (3) SA 625 (E) at 634 C that the previous constitutional system of this country was the fundamental mischief the Constitution seeks to redress and that the Constitution must be interpreted to give clear expression to the values it seeks to nurture for a future South Africa ): [17]... This is undoubtedly true. South African Courts are indeed enjoined by s 35 of the Constitution to interpret chap 3 so as to promote the values which underlie an open and democratic society based on freedom and equality, and, where applicable, to have regard to the relevant public international law. That section also permits our Courts to have regard to comparable foreign case law. I am, however, sure that Froneman J, in his reference to the fundamental mischief to be remedied, did not intend to say that all the principles of law which have hitherto governed our Courts are to be ignored. Those principles obviously contain much of lasting value. Nor, I am equally sure, did the learned Judge intend to suggest that we should neglect the language of the Constitution. While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written

6 6 instrument. I am well aware of the fallacy of supposing that general language must have a single objective meaning. Nor is it easy to avoid the influence of one s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. [18] We must heed Lord Wilberforce s reminder that even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to values the result is not interpretation but divination. Bearing this in mind, it is my opinion that the language used by the legislature clearly prescribes that where the Constitutional Court finds a law to be inconsistent with the Constitution and, on declaring it to be invalid, ameliorates its declaration by an order under s. 172 (1)(b), the law so declared and ameliorated will thereafter apply consistently to all matters. I am therefore of the view that that there is no room for an interpretation that a declaration of invalidity made by the Constitutional Court may be ameliorated or adjusted by another court making a further order under s.172 (1)(b). In the Steyn matter, having declared s.309b and s.309c invalid under s.172(1) (a), the Constitutional Court ameliorated the situation under s.172(1)(b)(ii) by suspending the declaration of invalidity for a period of six months and, in the light of my conclusion set out above, there is therefore no room for this Court to make a further order under that section. All this Court can do is to determine the effect of the Constitutional Court s order i.e. whether upon the lapse of the six month period of suspension and without the legislature having taken any steps to correct the defect the Constitutional Court found to exist, the declaration of invalidity resulted in the sections being treated as invalid retrospectively with effect from the date of their original enactment or only from the date the six

7 7 month period expired. On the issue of the precise ambit of the powers extended under s.172 (1), I therefore find myself in respectful disagreement with Erasmus J. However, I agree with the reasoning he has set out in paras [34],[35] of his judgment and his conclusion in the first sentence of para [40] that the Constitutional Court by necessary implication did not intend the declaration of invalidity to operate retrospectively at the end of the period of suspension. I also agree with his criticism of the decision in S v Danster 2002 (2) SACR 178 (C) contained in para [51] of his judgment. It hardly seems likely that it was intended that all persons who were obliged to comply with the sections in question during the six month period of suspension would later be relieved of such obligations when that period came to an end or in the event of the legislature rectifying the defects the Court had found to exist in the procedure. After all, as Goldstone J explained in J and B v Director General: Department of Home Affairs and Others (case no CCT 46/02, unreported Constitutional Court judgment delivered on 28 March 2003) at para [21]: The suspension of an order is appropriate in cases where the striking down of a statute would, in the absence of a suspension order, leave a lacuna. In such cases, the Court must consider, on the one hand, the interests of the successful litigant in obtaining immediate constitutional relief and, on the other, the potential disruption of the administration of justice that would be caused by the lacuna. If the Court is persuaded upon a consideration of these conflicting concerns that it is appropriate to suspend the order made, it will do so in order to afford the legislature an opportunity to correct the defect. It will also seek to tailor relief in the interim to provide temporary constitutional relief to successful litigants. Accordingly, as the suspension of the declaration in Steyn s case was designed

8 8 to avoid a lacuna (a period when the procedures laid down in the sections did not apply), it is most unlikely that the Court intended that very lacuna to arise when the period of suspension came to an end. And in the light of the established general principle that an order of invalidity has no effect on cases finalised before the date of the order see: S v Bhulwana: S v Gwadiso, supra at 400 it is also unlikely that it was intended that persons who had unsuccessfully followed the procedures laid down in the sections in question should be in a worse position than those who had failed to take any steps at all to seek leave to appeal at a time when they were obliged to do so. This conclusion also appears to have been reached in Ndhlovu v Director of Public Prosecutions, Kwazulu Natal 2003 (1) SACR 216 (N). In that matter the appellant was convicted by a regional court in January In April 2000, he applied to the trial court under s.309b for leave to appeal but his application was refused. In May 2000, his petition to the judge president under s.309c was similarly unsuccessful. However, in June 2001 (viz. after the lapse of the period of suspension of the declaration of invalidity relating to s.309b and s.309c) he delivered a further notice of appeal against his conviction and sentence. When the matter came before the High Court, the crucial question was whether it had been open to him to note an appeal in June 2001 as he had purported to do. In considering the effect of the Constitutional Court s order in the Steyn case, Hurt J, with whom Kruger AJ concurred, said the following (at 220 a c): The order goes on then, to make specific provisions for a modified procedure under s

9 9 309C in respect of certain convicted persons. What is abundantly clear from the judgment in S v Steyn is that the order striking down ss 309B and 309C was not to operate retrospectively, ie it did not amount to a declaration that any proceedings under s 309C were to be treated as invalid. In fact, the applicant and the convicted accused who is described, in the judgment, as an amicus curiae were specifically refused relief by the Constitutional Court, notwithstanding that they had both been refused leave to appeal to the High Court under the procedure prescribed in s 309C. In my view, therefore, the declaration by the Constitutional Court did not have the effect of reviving the applicant s right to note an appeal against the judgment of the regional magistrate. I agree with this reasoning and the conclusion that was reached. In my opinion, the Constitutional Court, by suspending its declaration of invalidity, by necessary implication provided for it to become effective only from the date the suspension expired and not retrospectively to the date of enactment of the sections. In the light of that conclusion, I am of the respectful view that cases such as S v Xhoza (unreported TPD case A672/2001) and S v Jaars 2002(1) SACR 546 (C) which concluded that to be the position were correctly decided while judgments to the contrary, such as S v Danster supra, and S v Thusi 2002(12) BCLR 1274 (N), were wrongly decided. I do not think it is necessary to consider the various other interesting issues raised by Erasmus J in his thought provoking judgment as, in my view, for the reasons I have mentioned, the three matters before this Court must be determined on the basis that s. 309B and s.309c are to be regarded as valid from the date of their enactment up to and including 28 May Accepting that to be the case, I turn now to deal with the three cases before us. On 27 July 2000, the appellant in the matter of S v Jafta CA&R490/02 was convicted on a charge of rape and sentenced to 15 years imprisonment. On 24

10 10 November 2000, his application for leave to appeal under s. 309B was dismissed. He did not invoke the provisions of s. 309C by then petitioning for leave to appeal but, on 3 April 2002, he filed a notice of appeal in which he purported to appeal directly to this Court against his conviction and, possibly, his sentence as well. However, as his application for leave to appeal had been dismissed prior to the Constitutional Court s declaration of invalidity in the Steyn case, supra and as s. 309B and 309C are to be regarded as valid and enforceable from the date of their enactment up to and including 28 May 2001, the appellant was only entitled to appeal to this Court with the necessary leave being granted cf. S v Khoasasa [2002] 4 All SA 635 (SCA) at 637 para. [6] and S v Zulu, supra. In any event, even if the provisions of s. 309B and 309C are to be regarded as retrospectively invalid from the date of their enactment, on the principle that the order of invalidity should have no effect upon cases finalised before the date of the order, and as the appellant s application for leave to appeal had been refused and he had failed to take any steps to petition under s. 309C before 29 May 2001, this case can be considered as being finalised when the declaration of invalidity took effect and no effect can therefore be given to the purported notice of appeal of April The appeal is therefore not properly before this Court and should be struck from the roll. Turning to the case of S v Ndondo CA&R 77/02, the appellant was convicted on charges of rape and murder for which he was respectively sentenced to 10 years imprisonment and 15 years imprisonment. Sentence was imposed on 29 March

11 i.e. during the period the Constitutional Court s declaration of invalidity was suspended. The appellant was therefore obliged to apply for leave under s.309b. The appellant immediately applied for leave to appeal but his application was also dismissed. Although the magistrate then explained his right to seek leave to appeal under s. 309C by way of petition, the appellant did not avail himself of that option. However, on 27 July 2001 i.e. after the suspension of the Constitutional Court s invalidity declaration had lapsed, the appellant sent a fresh notice of appeal to the clerk of the court which was apparently received by the magistrate on 9 October The appellant in this case finds himself in the same position as the appellant in the Jafta case. At the time his application for leave to appeal was dismissed, the provisions of s. 309B and 309C were still in force, albeit in terms of a suspended declaration of invalidity. He failed to obtain the necessary leave to appeal in terms of those sections and the matter can be regarded as finalised, whether the declaration of invalidity which came into effect on 29 May 2001 is retrospective to the date of enactment of the sections or not. His appeal, too, is therefore not properly before this Court and must be struck from the roll. Finally, I turn to consider the position of the appellant in S v Mcontana CA&R No. 147/02. The appellant in this case was convicted in a regional court on 13 January 2000 on a charge of unlawfully dealing in dagga and sentenced to 15 years imprisonment. On 16 November 2000, he applied unsuccessfully under

12 12 s. 309B for leave to appeal against his sentence. Although he did not thereafter petition for leave under s. 309C, he did forward a letter to the clerk of the court which all concerned accept is to be construed as a notice of appeal. It is not clear when this letter was drafted or lodged but, for the purposes of this judgment, the parties are agreed that it can be accepted that it was after the Constitutional Court s declaration of invalidity came into effect. But, as the declaration of invalidity was not retrospectively effective and only effected matters from 29 May 2001 onwards, the appellant s right of appeal was limited by the provisions of s. 309B and 309C and, as he did not obtain the necessary leave, his appeal is not properly before us. However, in so far as his case is concerned, that is not the end of the matter. Pursuant to a plea of guilty and a statement made under s. 112 (2) of the Criminal Procedure Act, he was correctly convicted of having contravened s.5 (b) of Act No. 140 of 1992 by dealing in 131,18 kilograms of dagga which he admitted he had transported in a motor vehicle for the purposes of redistribution. The State then called a policeman, one Grieb, whose unit specialises in drug offences and who testified that the value of the dagga was R ,00. He arrived at this value by applying the street value of R1,00 per gram to the total quantity of the dagga the appellant had been transporting. Accepting this to be the relevant value, the magistrate concluded that the offence fell under Part II of Schedule 2 of the Criminal Law Amendment Act No. 105 of 1997 (viz. an offence referred to in s. 13 (f) of Act No. 140 of 1992 where that the value of the

13 13 dependence producing substance in question is more than R50 000,00) and that by reason of the provisions of s. 51 (2)(a)(i) of Act 105 of 1997, a minimum sentence of 15 years was therefore prescribed unless substantial and compelling circumstances justified a lesser sentence. The magistrate found that there were no such circumstances and, notwithstanding his reservations as to whether such a punishment was proportionate to the crime, therefore imposed what he considered was the mandatory minimum sentence of 15 years imprisonment. This case is remarkably similar to S v Legoa 2003 (1) SACR 13 (SCA) in which Cameron JA stressed that while the value of an article was as a general rule its market value, being the price a willing buyer would pay to a willing seller in an open market, it was wrong to assume that dagga sold in bulk and dagga sold in small quantities of 1 gram would have sold at the same price per gram. The magistrate in casu made the same mistake. There is no evidence here of the market value of a single consignment of 131,18 kilograms of dagga. That being so, the State has therefore failed to establish that the value of the dagga was more than R50 000,00 and that the offence was one envisaged by Part II of Schedule 2 to Act No. 105 of In any event, in Legoa s case, supra the court went on to hold that the facts which must be present to make the minimum sentence compulsory must be included in the facts on which the conviction is based so that where an accused pleads guilty and is convicted on his plea without admitting the facts which will

14 14 bring a prescribed minimum sentence into operation, the State cannot then lead evidence to establish that the matter is one in respect of which a minimum sentence is prescribed. As, in casu, the question of the value of the dagga was ventilated only after the accused had been convicted and was not even referred to in the charge sheet, the State was not entitled to seek to enforce the provisions of s.51 of Act 105 of 1997 against the appellant. The magistrate therefore erred in applying those provisions and the sentence must be set aside on review. There seems to me to be no necessity to remit the matter back to the magistrate to impose sentence afresh as all the material facts appear to be on record. The offence was clearly a serious one, involving a considerable quantity of dagga. The accused, who was 39 years of age at the time of the offence, is a first offender. The State accepted that he had undertaken for reward to drive the motor vehicle containing the dagga to Cape Town and he had therefore performed an intermediary function and was not the actual distributor. He also indicated his remorse by pleading guilty and by stating in his s. 112 statement (which was accepted by the State) that he regretted his conduct and would never commit a similar act again, and that he had done what he did by reason of the money that he had been offered as a fee to drive the car. In the light of all these circumstances, I am of the view that a sentence of 5 years imprisonment would be adequate.

15 15 In my judgment, for the reasons I have given, all three appeals should be struck from the roll. However, in the exercise of this Court s inherent review powers, the sentence imposed by the magistrate in the matter of S v Mcotana CA&R147/02, should be set aside and substituted with a sentence of 5 years imprisonment, that sentence to be ante dated to 13 January 2000 being the date upon which sentence was imposed in the court a quo. L.E. LEACH JUDGE OF THE HIGH COURT PICKERING, J: I agree with the judgment of my brother Leach and the order he proposes. As this is the majority decision, it is so ordered. J.D. PICKERING JUDGE OF THE HIGH COURT IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION) In the matter between: CASE NO:CA&R 490/02

16 16 A. JAFTA Appellant and THE STATE Respondent and In the matter between: CASE NO:CA&R 77/02 M. NDONDO Appellant and THE STATE Respondent and In the matter between: K.M.S. MCONTANA CASE NO:CA&R 147/02 Appellant and THE STATE Respondent JUDGMENT AR ERASMUS J: INTRODUCTION [1] In all three of the appeal cases on our roll the question arises in limine whether the matter is procedurally properly before court. The issue in each case turns on the question whether s 309B and s 309C of the Criminal Procedure Act 51 of 1977 are applicable to the appeals.

17 17 [2] Section 309B provided that an accused who wished to appeal against a decision of a lower court had to apply within 14 days to that court for leave to do so. Section 309C provided that if an application for leave to appeal under s 309B had been refused, the accused could within 21 days of such refusal petition the Judge President for leave to appeal. The Constitutional Court, in S vs Steyn 1, found this procedure to be inconsistent with the Constitution and declared the provisions invalid. The Court further ordered that the declaration of invalidity be suspended for a period of six months from the date of the order. (I deal more fully with the judgment and order later herein 2 ). [3] The suspension of the operation of the declaration means that there are three periods relevant to the question that arises before us: (a) the period between the enactment of ss 309B and C, and the judgment in S vs Steyn (25 May 1999 to 29 November 2000); (b) the six months period of suspension (30 November 2000 to 29 May 2001); and (c) the period following the end of the suspension (30 May 2001 to date). [4] The appellants were all three convicted on serious criminal charges and sentenced to lengthy terms of imprisonment. For present purposes, the following (1) SA 1146; 2001(1) SACR 25 (CC); 2001(1) BCLR Para [29] to [40].

18 18 further factors have relevance. S vs Jafta CA&R 490/02 The appellant was sentenced on 27 July He took no steps in terms of s 309B, but on 3 April 2002 simply lodged with the magistrate a document purporting to be a notice of appeal against his conviction and sentence. S vs Ndondo CA&R 77/02 The appellant was sentenced on 29 March Immediately thereafter, he applied in terms of s 309B for leave to appeal against his conviction. The court refused leave to appeal both in regard to conviction and sentence. The appellant did not petition the Judge President in terms of s 309C for leave to appeal. On 9 October 2001 he filed with the magistrate a letter which purported to be a notice of appeal to this Court against his conviction and sentence. S vs Mcontana CA&R 147/02 The appellant was sentenced on 17 January On 16 November 2001, he brought an application for leave to appeal which was dismissed. He did not thereafter petition the Judge President in terms of s 309C, but filed with the magistrate a document that could be taken to be a notice of appeal against his sentence (the date thereof is not quite clear). [5] The question that arises for our decision is essentially whether the declaration in S vs Steyn operated with full retrospective effect as from the date upon which the period of suspension came to an end, or whether it operated as

19 19 from that date forward only. The question has been the subject of a number of conflicting judgments in other Divisions of the High Court. JUDGMENTS OF THE HIGH COURTS [6] In the Transvaal Provincial Division, in S vs Khoza 3, the appellant was on 9 March 2001 convicted of a crime and sentenced to imprisonment by a regional court. He lodged an application for leave to appeal on 9 April 2001, but did not proceed with the application, for the reason so his attorney informed the court that such application was no longer necessary (presumably in view of the decision in S vs Steyn). Stafford DJP with Mynhardt J concurring found that the effect of the decision in Steyn s case was not retrospective, because the decree invalidating ss 309B and 309C had been suspended for six months. The learned Deputy Judge President declared: Eers na ses maande op 30 Mei is verlof om te appelleer nie meer nodig nie. Dit wil sê teen skuldigbevindings wat na 29 Mei 2001 plaasgevind het. [7] Thereafter, on 7 December 2001 in the Cape Provincial Division in S vs Jaars; S vs Williams; S vs Jantjies 4, Thring J (with the concurrence of Erasmus J) expressly agreed with and applied the decision in S vs Khoza. The learned Judge was of the view that the approach adopted in that case was consistent with the principle that amendments to statutes, generally speaking, affect future 3 An unreported judgment delivered on 11 September 2001 in case no. A672/ (1) SACR 546 (C).

20 20 conduct and do not have retrospective effect 5. [8] The question arose again in the Cape Provincial Division in two cases submitted to a Judge in Chambers on petition for leave to appeal in terms of s 309C (S vs Brandt; S vs Celento 6 ). The matters came before Knoll J. In her judgment, in which Selikowitz J concurred, the learned Judge stated that the effect of a declaration of constitutional invalidity of a statutory provision is retrospective in the absence of a contrary order by the court. Such declaration of invalidity, she added, invalidates also any action taken under any of the invalidated provisions, and does so from the moment that either the particular section or the Constitution came into effect, whichever is the later date; not from the moment of the court s order. The learned Judge relied for authority on National Coalition for Gay & Lesbian Equality v Minister of Justice & another 7 ; Dawood and another v Minister of Home Affairs, and three other cases 8. She pointed out that in Steyn the Constitutional Court made no order limiting the retrospectivity of the order of invalidity, as it could have done in terms of the Constitution. The learned Judge further referred to the comment of O Regan J 5 See Steyn, Die Uitleg van Wette 5 th ed. at 83; R vs Grainger 1958(2) SA 443(A), Unreported judgment dated 15 June 2001 in case no. P16/ (1) SA 6 (CC) at 46 D F; 1998 (12) BCLR 1517; 1998(2) SACR (1) SA 997 (C) at 1050 G H.

21 21 in S vs Bhulwana; S vs Gwadiso 9 : As a general principle, therefore, an order of invalidity should have no effect on cases which have been finalised prior to the date of the order of invalidity. Knoll J held that in both cases before her, the refusal of leave to appeal was invalidated by the declaration in Steyn s case; consequently, that the petitioners had the right to appeal without being at all affected by the invalid provisions. [9] Thereafter, presumably in view of the conflicting decisions in that Division, two matters were enrolled for decision before the Full Bench of the Cape Provincial Division consisting of Nel J, Conradie J and Davis J, (S vs Danster; S vs Nqido 10 ). In both matters the accused had been convicted and sentenced prior to 28 May 2001 and had not obtained leave to appeal in terms of s 309B or s 309C. Davis J, who delivered the judgment of the Court, accepted and applied the formula propounded by Knoll J in S vs Brandt; S vs Celento, viz that following a declaration of invalidity, the doctrine of objective constitutional invalidity operates absolutely with retrospective effect; limited only by the principle that the declaration does not apply to matters finalised prior to the date the declaration. He found that this conclusion had certain implications 11 ; in short, that retrospectivity applied to non completed cases, but not to completed (1) SA 388 (CC); 1995(2) SACR 748; 1995(17) BCLR (2) SACR 178 (C) b f

22 22 matters. (The order is fully set out and considered hereinbelow 12 ). [10] In the matter of S vs Ndlovu 13, Findlay AJ sitting in the Kwazulu Natal Provincial Division considered the various conflicting judgments. The learned Judge found that Danster was clearly the better view and should be followed. This finding was endorsed by Hartzenberg AJ 14 in S vs Thusi 15. LEGISLATIVE, CONSTITUTIONAL AND JUDICIAL DEVELOPMENTS [11] Any person convicted of any offence by a lower court always has had a right to appeal to a higher court 16. The right was unfettered save that since 1917 (as far as I can establish) no person undergoing imprisonment for any offence was entitled to prosecute a review or an appeal in person unless a Judge had certified that there were reasonable grounds for review or appeal 17. [12] The requirement of a Judge s certificate did not survive long in the new 12 Paras [47] to [54]. 13 Unreported judgment delivered on 2 July 2002 in case no. AR242/ Who had agreed in the judgment of Findlay AJ in the Ndlovu case (12) BCLR 1272 (N). 16 In terms of s 309(1)(a) of the Criminal Procedure Act and its precedecssors. 17 S 93(1) Act 32 of 1917; s 103(1) Act 32 of 1944; s 309(4) read with s 305 Act 51 of 1977.

23 23 constitutional dispensation introduced by the Republic of South Africa Constitution Act 200 of 1993 on 27 April 1994 ( the interim Constitution ). On 8 November 1995, the Constitutional Court in S vs Ntuli 18 ( Ntuli(1) ) held that this limitation of the right to appeal was inconsistent with the constitutionally guaranteed right to a fair trial. The Court accordingly declared the relevant provisions to be invalid. The Court, further, ordered that Parliament was required to remedy the defect by 30 April 1997, and suspended its declaration until that date. [13] Parliament however failed to act timeously upon the opportunity afforded it by the Constitutional Court. The Minister, in Minister of Justice vs Ntuli 19 ( Ntuli (2) ), made an abortive last minute attempt to have the period of suspension extended. Chaskalson P (now also Chief Justice) was critical of the failure on the part of the responsible public servants to institute steps remedying the defect. He referred to the sorry tale of the inexcusable delay in the launching of the proceedings 20. [14] In this Division these developments resulted in a flood of appeals by persons serving sentences of imprisonment. In the majority of cases the appeals were not only devoid of merit, but were also procedurally defective: they (1) SA 1207 (CC); 1996(1) SACR 94; 1996(1) BCLR (3) SA 772 (CC); 1997(6) BCLR 677; 1997(2) SACR Id at [37].

24 24 were for the most part out of time; they were initiated by documents that were little more than letters of complaint; there was seldom any attempt to obtain condonation for procedural defects. We adopted a lenient approach to the non compliance with the rules. However, where a document could not even on a liberal construction be seen as a notice of appeal or an application for condonation, the accused was advised of the requirements of the rules, on a standard letter devised by the Judge President. Such accused was informed also of his or her rights to legal representation. Despite these measures, appellants often appeared in person in prison garb with a posse of warders in attendance at court. Many of them accepted the advice of the Court to apply for legal aid; others insisted on arguing their own case, which in most instances amounted to protestations of their innocence reinforced by reiteration of their evidence in the lower court. The position was not satisfactory, but we coped. [15] At the time of the judgment in S vs Ntuli(1) 21, the statutory provisions prescribing leave to appeal from the High Court 22 were under challenge in the Constitutional Court. That Court, on 28 December 1995 in S vs Rens 23, ruled that the procedure was not inconsistent with the rights guaranteed under the (interim) Constitution. Presumably in view of that decision, the requirement of leave to appeal was introduced in the lower courts with effect from 28 May 1999, 21 Above n S 316 read with 315(1) of the Criminal Procedure Act, 51 of (1) SA 1218 (CC); 1996(2) BCLR 155; 1996(1) SACR 105.

25 25 in the provisions of s 309B and s 309C of the Criminal Procedure Act 24. [16] Prior thereto the Magistrates Courts Rules were aligned to notice of appeal procedure. Rule 67 prescribed the time periods and requirements as to the form and content of the notice of appeal. The rule was substantially amended so as to regulate the leave procedure and petition introduced by s 309B and s 309C 25. This rule is still in place, unamended despite the developments around it. [17] The validity of statutes was beyond judicial challenge in the preconstitutional era of absolute parliamentary sovereignty. This changed when the interim Constitution came into operation 26. Section 4(1) proclaimed that thenceforth the Constitution was the supreme law of the Republic and that any law or conduct inconsistent with it was invalid. Section 98(5), under the heading Constitutional Court and its jurisdiction, enjoined the Constitutional Court to declare invalid any law or provision found to be inconsistent with the Constitution. The interim Constitution did not spell out the effect of the declaration of invalidity. This was done by the Constitutional Court in Ferreira vs Levin NO and others; Vryenhoek & others vs Powell NO & others By s 3 Act 76 of 1997 with effect from 28 May By GN R569 of On 27 April 1994, see [12] (1) SA 984 (CC); 1996(1) BCLR (1).

26 26 Ackermann J pointed out that the Court s declaration does not invalidate the law; it declares it to be invalid. Pre existing laws either remained valid or became invalid upon the Constitution coming into operation. The Court relied on the supremacy clause of the Constitution to develop the notion that unconstitutional laws are invalid even without a declaration to that effect. The Constitutional Court thereby opted for what is sometimes called the doctrine of objective constitutional invalidity ; rather than judicial invalidation. [18] We are however concerned here not with the invalidity of a statutory provision in the abstract, but with the practical effect of the invalidity of a law upon procedure prescribed by that law. The interim Constitution dealt with the situation in specific terms. Section 98(6) decreed: Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity; or b) passed after such commencement, shall invalidate everything done or permitted in terms thereof. [19] The application of these provisions was considered in S vs Bhulwana; S

27 27 vs Gwadiso 28. The Constitutional Court struck down the reverse onus provisions of the Drug Trafficking Act 140 of In regard to an order in terms of para (a) of s 98(6), O Regan J, speaking for the Court, said that it was central to the consideration of the interests of justice in a particular case that not only the litigants but all other persons in the same situation as the litigants, should obtain the constitutional relief sought in the case, unless the interests of good government outweighed the interests of the litigants. On the other hand, she declared, the Court should be circumspect in exercising its powers under s 98(6) (a) so as to avoid unnecessary dislocation and uncertainty in the criminal justice process. The Court issued an order to the effect that the declaration of invalidity did not affect cases finalised in the sense that the accused had been convicted and sentenced, and the time for appeal had elapsed. [20] Chaskalson and his co authors 29 state in their work that this became the authoritative approach to s 98(6). They elaborate: Unless the interests of good government dictated otherwise, a declaration of invalidity of a statute generally had retrospective effect, irrespective of when that statute was enacted. In the application of this test only one clear principle emerged under the interim Constitution jurisprudence. In order to avoid dislocation and uncertainty in the administration of justice, orders of retrospective 28 Above n Chaskalson et al, Constitutional Law of South Africa, p9 28B.

28 28 invalidity did not affect cases which had been finalised at the date of the order. It was possible, however, to take advantage of the order of invalidity in any trial, appeal or review which was pending at the date of the order. Beyond this principle, questions of retrospective relief, good governance, and the interests of justice tended to be approached by the court on an ad hoc basis with an inclination not to grant retrospective relief in cases where the consequences of doing so were not clearly predictable. (My emphasis) [21] The final Constitution in its s 172 declares: (1) When deciding a constitutional matter within its power, a court a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and b) may make any order that is just and equitable, including i) an order limiting the retrospective effect of the declaration of invalidity; and ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent

29 29 authority to correct the defect. (2)(a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court. (b) A Court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct. [22] That then was the position when the Constitutional Court handed down the judgment in S vs Steyn. SECTION 172(1) OF THE CONSTITUTION [23] Section 172(1) deals with the two aspects involved in the unconstitutionality of a law, viz (in subpara (a)) the invalidity of the law and (in subpara (b)) the effect of the invalidity 30. The two questions are clearly closely interrelated in that it is really the effect of a law on human activity (or inactivity) 30 Quoted para [21] above

30 30 that determines the constitutionality of that law. All acts, performed in terms of a law declared to be invalid are therefore presupposedly inconsistent with the Constitution. [24] However, consequences harmful to individual persons or to society could flow from stripping the validity from acts performed in terms of an Act of Parliament in the bona fide belief that the law was valid. The architects of both the interim and the final Constitutions were obviously mindful of the fact that the blanket invalidity of all such acts could have implications inimical to constitutional principles and objectives. [25] The interim Constitution dealt with the problem fairly specifically, by preserving the validity of anything done or permitted in terms thereof prior to 27 April 1994 (the date of commencement of the interim Constitution), but invalidating everything done or permitted in terms thereof after that date; while allowing the Constitutional Court the power in both instances to order otherwise 31. The final Constitution (presumably in view of the judgments of the Constitutional Court on the question of retrospectivity) adopts a significantly different and more flexible approach. It dictates that a court may (in regard to the effect of a declaration of invalidity) make an order that is just and equitable, including an order limiting the retrospective effect of the declaration. 32 The court is given wide powers to ameliorate the effect of the declaration of invalidity. See in this regard for example the orders in National Coalition for Gay and 31 See above para [18]. 32 Above para [21].

31 31 Lesbian Equality vs Minister of Justice 33 ; Dawood and another vs Minister of Home Affairs, and three other cases 34 ; Fraser vs The Children s Court 35. [26] Where the court issues an express order limiting retrospectivity, the position is clear. The position is also clear where the court, having properly considered the question, expressly declines to make any order in terms of subpara (b) (see for example Dawood and another vs Minister of Home Affairs, and three other cases 36 ). [27] Section 172(1) does not prescribe the form of the order issued in terms of subpara (b). The Constitution is decidedly not formalistic. An order in terms of subpara (a) therefore need not be in express terms, but can be found in the intention of the court implicit in the judgment. On this basis the effect of the declaration will be in full harmony with the intention of the Court. [28] It becomes necessary therefore to consider carefully the judgment in S vs Steyn. S VS STEYN [29] Madlanga AJ commences his judgment with the observation that in S vs 33 Above n Above n 8; below para [59] (2) SA 261 (CC); 1997(2) BCLR Above n 8 at 1054E.

32 32 Rens 37 the Constitutional Court held that the leave requirements for criminal appeals from the High Court were not inconsistent with the Constitution. The starting point of the judgment was therefore that a leave requirement is not per se unconstitutional. It was argued by counsel representing the prosecuting authority that the magistrates courts leave procedure was likewise constitutional. Madlanga AJ considered the question under two headings: The nature of the magistrates courts leave to appeal procedure, and The institutional context. It is not necessary for present purposes to traverse this aspect of the judgment in any detail. The core element of the Justice s reasoning was the point of principle he identified in the difference in standing and functioning of the magistrates courts as compared to the High Courts. He concluded that the risk of an error leading to an injustice was substantially greater in the magistrates courts than in the High Courts. This conclusion gave rise to the finding that the attenuated appeal procedure contained in ss 309B and 309C constituted a limitation of the right of appeal to a higher court entrenched in s 35(3)(o) of the Constitution. [30] Madlanga AJ considered the question whether the infringement of such right by the challenged provisions was a limitation justifiable in terms of s 36 of the Constitution. In this regard he noted that the State had failed to adduce any evidence on the clogging of the appeal rolls, the impact of unmeritorious appeals, and the existence of any resource related problems or other relevant 37 Above n 21.

33 33 considerations that could justify the existence of the procedure introduced by ss 309B and 309C; nor was the Court referred to any objectively determinable factors that could be considered in justification of the challenged provisions. In the circumstances, he found, the State had failed to establish that the procedure was reasonable and justifiable. [31] The learned Justice commented that it could well be that a less restrictive and justifiable means of achieving the purpose of promoting the interests of the administration of justice existed. The State however had contented itself with the submission that because the leave and petition procedure was upheld in the context of the High Courts, the procedure should pass muster in the context of the magistrates courts as well. [32] Madlanga AJ considered the relief appropriate in the circumstances. (This aspect is of particular importance in relation to the issue before this Court.) He stated that in view of the Court s finding that the leave to appeal and petition procedure was inconsistent with s 35(3)(o) of the Constitution, a declaration of invalidity had to ensue. What was not so straightforward, he stated, was whether the declaration had to take effect forthwith. As appeared from s 172(1)(b), courts deciding constitutional matters had to take the dictates of justice and equity into account when making orders. The practical implications for the administration of justice were also to be borne in mind. In this regard, he said, the Court could adopt what was set out in s 172(b)(i) and (ii). Madlanga AJ then referred to the

34 34 Ntuli saga 38. The question that in view thereof loomed before him was whether in the matter before Court extension of time should be allowed in the interests of good government. He pointed out that the mechanism of suspending orders was intended to avert disorders or dislocation that could arise as a result of an immediate declaration of invalidity. He declared that even though the State had not furnished any hard data, the Court could not ignore the probability that the sudden increase in appeals that would result from an immediate declaration of invalidity would have a major impact on the court system, the full ramifications of which were not immediately imaginable. It was notorious, he noted, that the High Courts were already overburdened and that such a sudden increase in the workload could well prove impossible to handle. Also, the costs of the transcription of all records would certainly have a significant impact on financial resources. More importantly, the additional transcription workload was likely to result in delays in the production of records. The ripple effect thereof could be that the hearing of all appeals could be delayed. These were realities that could not be ignored. In order to avoid dislocation in the appeal process, he concluded, it seemed necessary to suspend the declaration of invalidity so that the State could take necessary, reasonable steps to address the impact of the declaration. [33] Madlanga AJ further found that during the period of suspension, in the interests of justice and equity, it was necessary to ameliorate the adverse effects 38 Para [13].