S v Basson

• Jurisdiction: South Africa
• Judgment Date: 10 March 2004
• Citation: 2004 (1) SACR 285 (CC)

S v Basson
2004 (1) SACR 285 (CC)

2004 (1) SACR p285

Citation	2004 (1) SACR 285 (CC)
Case No	CCT 30/03
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Ackermann J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J and Yacoob J
Heard	November 4, 2003; November 5, 2003
Judgment	March 10, 2004
Counsel	W H Trengove SC (with P Mtshaulana and A P H Cockrell) for the applicant.; J G Cilliers (with M M W van Zyl) for the respondent.

Flynote : Sleutelwoorde

Fundamental rights — Generally — Appeal to Constitutional B Court — Whether issue in appeal constituting constitutional issues — State appealing against trial Court's refusal to recuse itself and refusal to admit record in bail application — Supreme Court of Appeal finding that issue constituting question of fact and not law and accordingly could not be reserved as a question of C law — Decision that trial Judge's refusal to recuse himself not appealable under s 319 of Criminal Procedure Act 51 of 1977 itself raising constitutional matter — Question whether trial Judge should have recused himself a constitutional matter properly directed to Constitutional Court — Legal and factual issues need to be decided in order to determine that matter D themselves issues connected with decision on constitutional matter — Fairness during trial a requirement of Constitution of the Republic of South Africa Act 108 of 1996 — Question whether admission of bail record fair to accused a constitutional matter and falling within jurisdiction of Court. E

Fundamental rights — Generally — Appeal to Constitutional Court — Whether issue in appeal constituting constitutional issues — State appealing against trial Court's quashing of charges — Where court quashes charges on ground that they don't disclose offence with result that State cannot prosecute that accused for that offence, constitutional obligation of prosecuting authority and State obstructed — In those circumstances quashing of charge in F indictment raising constitutional matter — However, not all cases concerned with quashing of charges will necessarily raise constitutional matters — In particular, charge could be quashed for technical reasons — In such cases where court considering factual adequacy of pleading of charge, no constitutional issue will arise. G

2004 (1) SACR p286

Fundamental rights — Generally — Appeal to A Constitutional Court — Whether issue in appeal constituting constitutional issues — State appealing against trial Court's quashing of charges — Accused charged with breaching Riotous Assemblies Act 17 of 1956 as offences committed during 1980s outside Republic — State's obligation to prosecute offences not limited to offences committed B after Constitution came into force but also applies to all offences committed before it came into force — Relevant to that enquiry that international law obliged State to punish crimes against humanity and war crimes — Also clear that practice of apartheid constituted crimes against humanity and some of practices of apartheid government constituted war crimes — Appearing C that crimes for which respondent charged could well fall within terms of that international law obligation — In circumstances, it may constitute added obligation upon State — Question of quashing of charges raising constitutional matter.

Trial — Presiding officer — Recusal of — Application for by State — Nothing precluding State from alleging actual or perceived bias in criminal trial. D

Appeal — Reservation of questions of law — Application for in terms of s 319 of Criminal Procedure Act 51 of 1977 — Which matters subject to reservation — Refusal of trial Court to recuse itself — Recusal challenge involving enquiry with 'social judgment of Court' applying 'common morality and common sense' in deciding whether reasonable person, in possession of all relevant E facts, would reasonably have apprehended that trial Judge would not be impartial in his adjudication of case — Where reasonable apprehension of reasonable person in recusal issue in dispute, as it invariably has to be that clearly involves normative evaluation on part of court — Correctness of such evaluation has to raise question of law.

Appeal — Reservation of questions of F law — Application for in terms of s 319 of Criminal Procedure Act 51 of 1977 — Which matters subject to reservation — Refusal of trial Court to admit record in bail application — In considering challenge to admissibility of bail record Court has to determine facts and measure facts against test of fairness in order to determine whether evidence G of bail record admissible — Second enquiry raising question of law.

Fundamental rights — Right to a fair trial — Double jeopardy — Where retrial not giving rise to double jeopardy retrial will not amount to unfair trial in violation of s 35(3)(m) of Constitution of the Republic of South Africa Act 108 of 1996. H

Court — Constitutional Court — Appeal to — In which cases — State seeking special leave to appeal to Court against decision of Supreme Court of Appeal, while also seeking to appeal directly from decision of High Court — Undesirable for litigant to be given two bites at appeal process — State opting to pursue its relief to SCA under s 319 of the Criminal Procedure Act 51 of 1977 and under Constitution I of the Republic of South Africa Act 108 of 1996 — SCA refusing it relief — State then seeking to approach Constitutional Court in terms of Rule 20 — Wrong to permit litigant who perceives that there are shortcomings in its appeal to SCA to rectify those shortcomings by allowing direct appeal under Rule 18, read with s 167(6)(a) of Constitution. J

2004 (1) SACR p287

Headnote : Kopnota

The respondent had been acquitted by a trial Court. Certain A questions of law had been reserved by the trial Court, at the instance of the State. The questions of law concerned the failure of the trial Judge to recuse himself after the State had applied for it near the beginning of the trial and issues surrounding the admission of the record of a bail application made by the respondent. The Supreme Court of Appeal had declined to hear the appeal by the State, because the issues raised did not constitute questions of law, but rather questions B of fact, and because the appeal was not properly before the Court. The SCA further refused to hear the State's appeal against the quashing of certain charges in terms of the Riotous Assemblies Act 17 of 1956, inter alia because the State had not initiated proceedings to appeal the decision within a reasonable time-period. The State then sought to appeal to the Constitutional Court against the findings of the SCA, as well as to appeal directly against certain findings of the C trial Court. The latter application covered similar issues to those already raised in the appeal to the SCA. The Constitutional Court called for argument from the parties as to whether the issues raised by the State were constitutional issues, such that the Constitutional Court would have jurisdiction to hear an application for special leave to appeal or the appeal itself. D

Whether the application for special leave to appeal raised a constitutional matter

Leave to appeal against the SCA's decision on the refusal of the trial Judge to recuse himself

Held (per Ackermann J, Madala J, Mokgoro J, Moseneke J, Ngcobo J and O'Regan J; Chaskalson CJ, Langa DCJ, Sachs J E and Yacoob J concurring), that the decision by the SCA that the trial Judge's refusal to recuse himself was not appealable under s 319 of the Criminal Procedure Act 51 of 1977, because it raised a question of fact and not of law, itself raised a constitutional matter. (Paragraph [20] at 299b.)

Held, further, that the question whether the trial Judge should have recused himself was a constitutional matter which was F properly directed to the present Court. As the question whether the trial Judge should have recused himself was a constitutional matter, legal and factual issues that need to be decided in order to determine that matter would themselves be issues connected with a decision on a constitutional matter. The question whether the refusal by the trial Judge to recuse himself involved a finding of fact and not of law was G an issue that needed to be determined by the SCA in order to determine the recusal question. It was accordingly an issue connected with a decision on recusal, which is a constitutional matter. (Paragraph [22] at 299e - f.)

Held, further, that the State prosecuted crime on behalf of all citizens, and it would have been incompatible with the Constitution of the Republic of South Africa Act 108 of 1996 to hold that the State H acting in such capacity was not entitled to an impartial court. The State had a right to an impartial Judge and a fair trial. The Constitution obliged the courts to apply the Constitution and the law 'impartially and without fear, favour or prejudice', as did a Judge's oath of office. Nothing precluded the State from alleging actual or perceived bias in a criminal trial. (Paragraph [23] at 300a - b.)

Held, further, that the application for special leave to I appeal on the question of recusal raised a constitutional matter. The question whether the SCA had been correct in holding that such issue had not been appealable to it under s 319 of the Criminal Procedure Act, because it involved a question of fact and not law, was therefore 'an issue connected with a decision on a constitutional matter' within the contemplation of s 167(3) of the Constitution. (Paragraph [25] at 300d - e.) J

2004 (1) SACR p288

Leave to appeal against the SCA's decision on whether the A admission of the bail record was appealable to it

Held, further, that fairness during a trial was a requirement of the Constitution. Therefore, the question whether the...