Rex v Noorbhai

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Watermeyer CJ, Tindall JA, Feetham JA, Greenberg JA and Davis AJA
• Judgment Date: 17 October 1944
• Citation: 1945 AD 58

Davis, A.J.A:

This was an application for a mandamus directing the learned Judge in the court below to make a special entry upon certain grounds and also for special leave to appeal. The applicant had been tried before a jury on a charge of murder, found guilty and condemned to death. Application had been made to the learned Judge under sec. 370 of the Criminal Code to record the special entry, but it had been refused. Application had also been made under sec. 372 to reserve as questions of law the points upon which special leave to appeal was now sought from this Court: that application had also been refused.

In limine Mr de Villiers asked for condonation in two respects. The conviction of the accused was on 29th May, 1944; the application for the making of a special entry, though it was filed on 6th June, did not come before the learned Judge until 15th June, which was the first available date. The Attorney-General has quite properly drawn the Court's attention to the fact that, in terms of the proviso to sec. 371 (1) of the Criminal Code, notice of appeal

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should have been given within fourteen days after the verdict; consequently, even if the learned Judge had directed the special entry to be made, the time for the giving of the notice of appeal had elapsed. While not opposing the granting of condonation, he raised the question as to whether, when a Statute has laid down a specific time within which a notice of appeal has to be given, the Court has any power to extend it.

It is first necessary to consider the steps that may have to he taken to secure the making of a special entry on the record. (a) The accused must make an application to the Court "either during his trial or after his conviction". There is no provision enacting that the application must be made immediately after his conviction: obviously, it will sometimes be impossible to do so. If the application be not made immediately, then, as in this case, some available date will have to be found for the application to be heard. (b) After the application has been heard, the Judge may require time to consider his decision. (c) The proposed special entry must be drawn up by the Registrar; both the accused and the Crown may see and copy it, and in case either the Crown or the accused object to its terms, these shall be settled by the Judge.

It will be seen that (a) may require action not only by the accused but also by the Registrar and may depend further on the exigencies of the Judge's other work as well as on the availability of the representative of the Crown; (b), if it arises, will depend entirely on the Judge; and (c) requires action by the accused, the Crown and the Registrar and sometimes also by the Judge. It follows that the possibility of giving the notice of appeal within the prescribed time will depend in the first lace on the accused, but will depend to a great extent also upon the co-operation of the Judge, the representative of the Crown and the Registrar, over none of whom the accused can have any control whatever.

It was suggested during argument that the accused could always. give notice of appeal within fourteen days, whether or not his application for a special entry had yet been granted. But this, in my opinion, is not what the section lays down. The right to appeal is only given "if such a special entry is made on the record", and then only "on the ground of the irregularity or illegality of, the proceedings as stated in such special entry", and it is the notice of "such appeal" that he must give within fourteen days. An accused cannot, consequently, give notice of appeal

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in anticipation of a special entry, which may or may not be made, and the terms of which, even if it be subsequently made, he cannot yet know.

We have consequently to deal with the interpretation of a statutory provision involving the performance of duties on the one side by the accused and on the other by the Judge and by independent public officials. This seems to me to involve the application of two entirely different principles. Maxwell, Interpretation of Statutes (8th ed at pp. 321, 322, 324 and 326) states these principles as follows:

"A strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege or power. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with it seems neither unjust nor inconvenient to exact a rigorous: observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative." . . . . .

"Enactments regulating the procedure in Courts seem usually to be imperative and not merely directory. If for instance, an appeal from a decision be given with provisions requiring the fulfilment of certain conditions, such as giving notice of appeal and entering into recognisances, or transmitting documents within a certain time, a strict compliance would be imperative and non-compliance, would be fatal to the appeal." . . . . .

"On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of

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those on whom the duty is imposed, or, in other words, as directory only."

Just as in Rex v Hendrikz (1940 AD 246), so here, the point has not been argued and must be left open whether, in so far as any act by the accused alone is concerned, the terms of the proviso are absolute - whether in other words, if he is solely or even partly responsible for the notice not having been given, he necessarily loses all right to appeal under the statute. That this is so is supported by a great weight of authority both in England and in South Africa, though in the latter at least, there are some decisions (e g. Queen v Herman (1 B.A.C. 318) ), which look the other way.

But it has, so far as I am aware, never been doubted that when we have to deal with the default or omission of someone over whom the person concerned has no control, the law will not be read so as to allow such default or omission prejudicially to affect that other person. This is only an application of the principle laid down by Voet (3.1.16), cited with approval in Leibbrandt v South African Railways (1941 AD at p. 13). It would, in my opinion, be little short of monstrous if an accused person were to be deprived of his right to complain of an irregularity or illegality by the fact that a Registrar or an Attorney-General was very buy or a Judge found it difficult immediately to make up his mind. This would certainly "lead to injustice" and thus conform to one of the tests suggested by WESSELS, C, J., in Sutter v Scheepers (1932 AD at p. 174). In Rex v Sebeso (1943 AD at p. 198) the point was touched on by my brother TINDALL and he pointed out the desirability of the Judge dealing with an application for the making of a special entry as expeditiously as possible, in view of this provision as to the time within which notice of appeal has to be given. The same considerations, of course, apply equally to the Registrar and to the Attorney-General.

The conclusion to which I come is that while, in so far as the failure to give the required notice of appeal within the prescribed time is due to the default of the accused, it may perhaps be that no application to the Court for condonation can be considered where, on the other hand, it can be shown that the omission to give the notice is solely due to the acts of the Judge or of the public officials concerned, the Court can and will grant condonation. Condonation was therefore granted in this case.

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Condonation had also to be applied for, under Rule 12, in respect of the late filing of the application for special leave to appeal, in breach of Rule 4. The principles which the Court will adopt in such a case are fully dealt with in Rex v Mkize (2) (1940 AD 211). In the present case it was not disputed that the applicant's attorney had done everything which he could do to bring the matter before this Court as expeditiously as he could, Consequently, condonation has here also been granted.

The next question which arose was whether the learned Judge a quo was right in his refusal of the application for a special entry, which was made upon various grounds. Now it is not necessary for me to repeat what was said by this Court in Rex v Nafte (1929 AD at p. 338), and in a number of other cases. I would put the matter thus. Sec. 370 is peremptory and gives the learned Judge no discretion to refuse an application, save only where, because it is manifestly frivolous or absurd, or for any other reason, it would clearly amount to an abuse of the process of the Court.

The first point which was sought to be made this subject of the special entry concerns the question whether a document, which was put in by the Crown and marked Exhibit "G", was rightly admitted. This document was headed "Books taken by Y. R. Noorbhai from Padaychee Bros'. Library" and consisted of four and a quarter typewritten pages. In the first column was the title of the...