Nourse v Van Heerden NO and Others

• Jurisdiction: South Africa
• Judge: Wunsh J
• Judgment Date: 13 July 1999
• Citation: 1999 (2) SACR 198 (W)
• Hearing Date: 15 June 1999
• Counsel: H Diskin (attorney) for the appellant T Ferreira for the second respondent
• Court: Witwatersrand Local Division

Wunsh J:

The applicant was charged in the regional court for the Southern Transvaal with 18 E offences under the Abortion and Sterilization Act 2 of 1975 ('the 1975 Act'). The abortions were alleged to have been procured between 1987 and 12 March 1992. The applicant was arrested on some of the charges on 3 March 1992, appeared in court and was granted bail. On 26 November 1992 he pleaded not guilty to all the counts. The trial commenced on 27 F November 1992. Evidence was produced on only seven of the counts and at some stage the prosecutor said that he was not proceeding with the other 11 counts and that the applicant would be acquitted on them at the end of the case. The State closed its case on 26 September 1997. On 24 October 1997 the applicant's attorney applied for an order that the trial should not G proceed because the 1975 Act had been repealed and abortions were 'now legal'. On 30 October 1997 the application was refused and the magistrate ordered that the trial should continue. On 19 November 1997 this application to review the decision of the magistrate was launched. From then on the trial was postponed from time to time, pending the hearing of the H application for review. The notice of the application to review the decision of the magistrate is not drawn elegantly. It calls upon the respondents to show cause why the judgment of the first respondent, the magistrate, when he refused to grant the applicant's application for discharge in terms of s 174 of the Criminal Procedure Act 51 of 1977, should not be set aside. The notice I of application proceeds to ask that this Court:

'(C)ertify in terms of reg 18 of the Rules of the Constitutional Court Rules, that

(a)

it is desirable that the Constitutional Court determine the issue of whether the applicant can still be charged with having contravened Act 2 of 1975; J

Wunsh J

(b)

A that the matter does not involve the hearing of evidence, and that there is no likelihood that the matter will have to be referred back to the High Court for hearing of evidence;

(c)

that the applicant has a reasonable chance of succeeding before the Constitutional Court in his contentions why the first respondent cannot allow the trial to continue, and why the second respondent should not be B ordered to discontinue the prosecution of the applicant on charges of having contravened s 10 of Act 2 of 1975, in case No 041/00828/929, presently pending before the Johannesburg regional court, and which is scheduled to resume on 27 January, 1998.'

C The second respondent opposed the application while the other respondents chose to abide by the decision of this Court. At the hearing Mr Diskin conceded that no application had been made for the discharge of his client under s 174 of the Criminal Procedure Act at the close of the State's case or thereafter. In fact, before his application to the magistrate was made his client had started giving evidence.

D As will appear later, none of the grounds for reviewing the proceedings of the court below specified in s 24(1) of the Supreme Court Act 59 of 1959 exists. However, s 24(2) of the Supreme Court Act saves 'the provisions of any other law relating to the review of proceedings in inferior courts'. The application is based on the contention that the prosecution of the applicant infringes rights to which he is entitled under the Bill of Rights in the Constitution of the E Republic of South Africa 1996 ('the Constitution') and, presumably, that the proceedings in the magistrate's court so violate his rights as to be reviewable in terms of s 38 of the Constitution (cf Magano and Another v District Magistrate, Johannesburg and Others (2) 1994 (2) SACR 307 (W)). A charitable view of the form of the proceedings which the applicant F has launched is that it is, in effect, an application for an interdict restraining the continuation of the proceedings based on a finding to be made by this Court or the Constitutional Court that, by reason of the Constitution, it is no longer lawful to continue to prosecute a person who is alleged to have committed offences under the 1975 Act during its operation and before the G advent of the Constitution. The applicant submitted also that, by reason of a change in or the establishment of the mores of the public, abortion is no longer considered to be criminal and it is not just for the applicant to be prosecuted for what he did in the past. Another ground for seeking the interdict is that the applicant has been denied a fair trial because of the lengthy delays in the prosecution of the case which has involved about 50 postponements, a large H number of them attributable to the applicant himself. Speaking of the protraction of the trial, the applicant says in his founding affidavit:

'I did not have to bring cases before the Constitutional Court to declare the abortion laws illegal. It was obvious that I it was public policy and a declared element of the new Government's manifesto that abortion laws would be reformed and abortion made as legal as divorce. I merely waited for the old edifice of unjust laws to crumble, which duly happened even faster than anyone expected.'

His attorney said in a letter to the then Attorney - General of this Division on 1 October 1997 J that:

Wunsh J

'I merely had to wait for the inevitable to occur, which happened when the Choice on Termination of Pregnancy Act A came into force earlier this year, and it was no longer necessary to have the (1975) Act set aside because it had been repealed anyway.'

He continued:

'Dr Nourse and I felt that it was merely a matter of time before the Attorney - General's Office withdrew the B prosecution and we merely had to wait and seek postponements, until we were rudely surprised the other day on26 September, 1997, when someone from your office stated that the matter had to proceed . . .'

At the hearing Mr Diskin abandoned this ground except to submit that the long period that has C elapsed since the case began and the effect which the pendency of the proceedings has had on the applicant support the argument that it would be in the interests of justice for the prosecution to cease.

The statutory provisions which have a bearing on this case are the following. D

The 1975 Act

This prohibited the procurement of an abortion except in accordance with the provisions of the Act. A medical practitioner who performed an abortion otherwise than as sanctioned by the Act was guilty of an offence, punishable with a fine not exceeding R5 000 or to a maximum of five E years' imprisonment or both. An example of an abortion which was permitted, if procured by a medical practitioner, was one where the continued pregnancy endangered the life of the woman concerned or constituted a serious threat to her physical health and two other medical practitioners had certified in writing that, in their opinion, the continued pregnancy so F endangered her life or so constituted a serious threat to her physical health and that an abortion was necessary to ensure her life or physical health. The part of the 1975 Act which dealt with abortions was repealed by the Choice on Termination of Pregnancy Act 92 of 1996 ('the 1996 Act') which came into operation on 1 February 1997. The remainder of the 1975 Act was repealed on 1 February 1999 by the Sterilization Act 44 of 1998. G

Mr Diskin poured scorn on the 1975 Act of which June D Sinclair in The Law of Marriage vol 1 at 105 says, writing when it was still in force,

'(P)reliminary procedures that must be complied with are so cumbersome that they effectively deny access to abortion when it is countenanced by the law.' H

It was, he said, a repressive Act, referring to statistics given by Sinclair loc cit fn 279. It gave rise to large numbers of 'backstreet' abortions, many with disastrous consequences.

Even if the 1975 Act was a deficient measure to grant pregnant women a right of choice, its I inadequacy did not give a licence to medical practitioners to procure abortions (for gain, it should be added) simply according to their own judgments. It must be emphasised that we have not been asked to declare the 1975 Act to have been unconstitutional, subject to the confirmation of the Constitutional Court, assuming that such an option was available to the applicant. While this may have been a J

Wunsh J

A course suggested during argument, the respondents, three of whom, and in particular Government Ministers, were not before the Court when the case was heard, were not alerted to this possibility.

The 1996 Act

The preamble to the 1996 Act reads as follows:

B 'Preamble

Recognising the values of human dignity, the achievement of equality, security of the person, non-racialism and non-sexism, and the advancement of human rights and freedoms which underlie a democratic South Africa;

Recognising that the...