S v Basson

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J and Yacoob J
• Judgment Date: 10 March 2004
• Citation: 2005 (1) SA 171 (CC)
• Docket Number: CCT 30/33
• Counsel: W H Trengove SC (with him P Mtshaulana and A P H Cockrell) for the applicant. J G Cilliers (with him M M W van Zyl) for the respondent.
• Court: Constitutional Court

S v Basson
2005 (1) SA 171 (CC)

2005 (1) SA p171

Citation	2005 (1) SA 171 (CC)
Case No	CCT 30/33
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 him P Mtshaulana and A P H Cockrell) for the applicant.; J G Cilliers (with him M M W van Zyl) for the respondent.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to fair trial — Double jeopardy — Where retrial not giving rise to double jeopardy, it 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. C

Constitutional procedure — Appeal — To Constitutional Court — In which cases — State seeking special leave to appeal against decision of Supreme Court of Appeal, while at same time 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 in SCA under s 319 of Criminal Procedure Act 51 of 1977 and under Constitution — SCA refusing D relief — State then seeking to approach Constitutional Court in terms of Rule 20 of Constitutional Court Rules — Wrong to permit litigant who perceives there are shortcomings in its appeal to SCA to rectify those shortcomings by direct appeal to Constitutional Court.

Constitutional procedure — Appeal — To Constitutional Court — Whether issue in appeal constitutional — State appealing against trial Court's refusal to recuse itself or to admit record in bail E application — Supreme Court of Appeal finding that issue constituting question of fact incapable of being reserved as question of 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, and question whether he should have done so constitutional matter properly directed to Constitutional Court — Legal and factual issues surrounding said matter F constituting constitutional issues — Accordingly, question whether refusal by trial Judge to recuse himself constituting finding of fact or law amounting to constitutional matter — Fairness of trial a constitutional requirement — Question whether admission of bail record fair to accused a constitutional matter and falling within jurisdiction G of Constitutional Court.

Constitutional procedure — Appeal — To Constitutional Court — Whether issue in appeal constitutional — State appealing against trial Court's quashing of charges — Quashing of charges on ground that they fail to disclose offence obstructing constitutional obligation of prosecuting authority and State — In such circumstances H quashing of charge raising constitutional matter — However, some quashings, eg quashing on technical grounds, not raising constitutional matter — In such cases, where Court considering factual adequacy of pleading of charge, no constitutional issue arising.

Constitutional procedure — Appeal — To Constitutional Court — Whether issue in appeal constitutional — State appealing against trial Court's quashing of charges — Accused charged with breaching I Riotous Assemblies Act 17 of 1956 since offences committed during 1980s — State's obligation to prosecute extending also to offences committed before Constitution came into force — International law obliging State to punish crimes against humanity and war crimes — Apartheid practices amounting to crimes J

2005 (1) SA p172

against humanity and sometimes to war crimes — Crimes accused charged with possibly falling A within such categories — May thus impose added obligation on State — Question of quashing of charges raising constitutional matter.

Criminal procedure — Appeal — Reservation of question of law — Application for in terms of s 319 of Criminal Procedure Act 51 of 1977 — Which matters subject B 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 facts, would reasonably have apprehended that trial Court would not be impartial in its adjudication of case — Where reasonable apprehension of reasonable person in recusal issue in dispute, as C invariably it has to be, that clearly involving normative evaluation on part of Court — Correctness of such evaluation raising question of law.

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

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

Headnote : Kopnota

The respondent had been acquitted by a trial Court. Certain 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 F 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 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 G 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 H the SCA, as well as to appeal directly against certain findings of the 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 I Court would have jurisdiction to hear an application for special leave to appeal or the appeal itself.

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 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, J

2005 (1) SA p173

because it raised a question of fact and not of law, itself raised a constitutional matter. (Paragraph A [20] at 184E.)

Held, further, that the question whether the trial Judge should have recused himself was a constitutional matter which was 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 B constitutional matter. The question whether the refusal by the trial Judge to recuse himself involved a finding of fact and not of law was 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 185A - C.)

Held, further, that the State prosecuted crime on behalf of all citizens, and it would have been incompatible with the Constitution C of the Republic of South Africa Act 108 of 1996 to hold that the State 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 D actual or perceived bias in a criminal trial. (Paragraph [23] at 185C/D - E.)

Held, further, that the application for special leave to 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' E within the contemplation of s 167(3) of the Constitution. (Paragraph [25] at 185G - 186A.)

Leave to appeal against the SCA's decision on whether the 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 admission of the bail record would be fair to the accused was a F constitutional matter and fell within the jurisdiction of the Court. To the extent that the question of the admissibility of the bail record gave rise to a constitutional question, the question whether the SCA should have entertained an appeal in that regard was an 'issue connected with a decision on a constitutional matter' within the wording of s 167(3). (Paragraphs [26] and [27] at 186C - E.) G

Leave to appeal against...