S v Boesak

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Madlanga AJ
• Judgment Date: 01 December 2000
• Citation: 2001 (1) SACR 1 (CC)
• Hearing Date: 12 September 2000
• Counsel: W Trengove SC, M C Maritz SC and J Celliers for the applicant. J A van S d'Oliveira SC and J C Gerber for the respondent.
• Court: Constitutional Court

Langa DP:

Introduction

[1] H This is an application for special leave to appeal to this Court from a decision of the Supreme Court of Appeal ('the SCA'). The applicant was convicted in the Cape of Good Hope High Court (the High Court) on 17 March 1999 on four charges, one of fraud (count 4) and three of theft (counts 5, 9 and 31). An effective sentence of six years' imprisonment was imposed. I

[2] On appeal, the SCA set aside the conviction on count 9 but dismissed the appeal in respect of counts 4, 5 and 31, although the amount involved in the last-named count was substantially reduced from that found by the High Court to have been stolen. A consequence of the J

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partial success of the appeal was the reduction of the sentence of A imprisonment to an effective three years. [1]

[3] The applicant now seeks special leave to appeal to this Court against the decision of the SCA upholding the convictions on the three counts. The basis of the application is that the decision of the SCA constitutes an infringement of applicant's constitutional rights as enshrined in ss 12(1)(a) [2] and B 35(3)(h) [3] of the Constitution, namely the right not to be deprived of freedom and security without just cause and the right to a fair trial which includes the right 'to be presumed innocent, to remain silent, and not to testify during the proceedings'.

[4] The applicant occupied a prominent position as a minister of the Dutch Reformed Mission Church and was also in the forefront of the C anti-apartheid struggle. In 1982 he was elected as President of the World Alliance of Reformed Churches ('the WARC'). In 1984 applicant's congregation established 'The Foundation for Peace and Justice' ('the FPJ'), a body whose objective was to assist victims of apartheid. Large amounts of money were donated to the FPJ and to the D WARC by individuals, as well as international religious and humanitarian organisations. Applicant was the director of the FPJ and the WARC banking account was under his control. A new trust, known as the Children's Trust ('the Trust'), was formed in 1988 at the instance of an American entertainer as a vehicle to receive donations to be used for the benefit of child victims of apartheid. E

[5] Counts 4 and 5 are concerned with the sum of R682 161,21 which had come from this donor and was paid into the WARC account. Applicant advised the trustees of the Trust that R423 000 had been donated and he caused that amount to be transferred from the WARC account into the Trust. The State case was that the applicant fraudulently F misrepresented the amount donated to the Trust (count 4) and stole the balance (count 5). The gist of applicant's defence was that there had been no fraud or theft. It was contended that only R423 000 had been donated to the Trust and the balance had been intended for his own use.

[6] Count 31 was originally made up of more than 100 amounts G totalling R1 121 947,69, which applicant was alleged to have stolen from the FPJ at various times. The High Court convicted him in respect of six of the amounts only, involving R332 722. The SCA however held that only three of the amounts had been proved to have been stolen and J

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upheld the conviction in respect of amounts totalling only R147 160. A The applicant's defence on this count was that he was entitled to the amounts which the State alleged had been stolen, in repayment of money which he had lent and advanced to the FPJ.

Issues before the Court

B [7] The issues of constitutionality which the applicant wishes this Court to investigate do not arise from the judgment of the High Court, but from that of the SCA and the manner in which that Court dealt with the appeal from the decision of the High Court. The application in respect of counts 4 and 5 concerns the finding by the SCA that the C crimes of fraud and theft had been proved beyond reasonable doubt. In concluding that the applicant was guilty on these two charges, the SCA relied on a letter which had been produced in evidence in the High Court. The applicant challenged this reliance on the letter, contending that its authenticity had not been proved beyond reasonable doubt. He D urged us to hold that the confirmation of his conviction on the basis of the letter violated, under s 35(3)(h) of the Constitution, his right to be presumed innocent, to remain silent, and not to testify during proceedings.

[8] With regard to count 31, two main attacks were launched. The first was that there was no evidence to support the finding by the SCA E that guilt had been proved beyond reasonable doubt. The contention was that the conclusions drawn by the SCA were an erroneous interpretation of the facts. In particular, the applicant disputed the conclusion reached by the SCA that he had not been entitled to use the money in the WARC fund as his own and that the evidence proved that the three F amounts had been stolen from the trustees of the FPJ. The applicant contended that the SCA's decision confirming his conviction constituted a violation of an element of his right to a fair trial, that is the right to be presumed innocent. [4] G

[9] The second attack was based on the sentencing of the applicant to a term of imprisonment in consequence of his conviction on this count. It was contended that the trial Court and the SCA erred in their evaluation of the evidence and had wrongly concluded that the guilt of the accused had been proved beyond reasonable doubt. It was submitted that because the conviction was wrong, the sentence imposed consequent H thereto amounted to a deprivation of the applicant's freedom without just cause, in violation of s 12(1)(a) of the Constitution.

The jurisdiction of the Constitutional Court to hear appeals from the SCA

I [10] Applications for leave to appeal to this Court are governed by s 167(6) of the Constitution, which provides for appeals from any other court 'when it is in the interests of justice and with leave of J

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the Constitutional Court'. These provisions are echoed in Rule 20 of A the Rules of this Court in relation to appeals from the SCA. [5]

[11] A threshold requirement in applications for leave relates to the issue of jurisdiction. The issues to be decided must be constitutional matters or issues connected with decisions on constitutional matters. [6] This is dealt with more fully below.

[12] A finding that a matter is a constitutional issue is not B decisive. Leave may be refused if it is not in the interests of justice that the Court should hear the appeal. The decision to grant or refuse leave is a matter for the discretion of the Court, and in deciding whether or not to grant leave, the interests of justice remain fundamental. In considering the interests of justice, prospects of C success, although not the only factor, are obviously an important aspect of the enquiry. [7] An applicant who seeks leave to appeal must ordinarily show that there are reasonable prospects that this Court will reverse or materially alter the decision of the SCA. [8]

[13] The Constitution declares that the Constitutional Court is the highest court in all constitutional matters. Its jurisdiction is dealt D with in s 167(3)(b) of the Constitution which provides that it -

'may decide only constitutional matters, and issues connected with decisions on constitutional matters'.

The Constitution offers no definition of a constitutional matter, or an issue connected with a decision on a constitutional matter. Section E 167(3)(c) leaves that ultimately to the Constitutional Court to decide. [9]

[14] If regard is had to the provisions of s 172(1)(a) [10] and s 167(4)(a) [11] of the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and F

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functions of an organ of state. Under A s 167(7), [12] the interpretation, application and upholding of the Constitution are also constitutional matters. So too, under s 39(2), is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. [13] If B regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction. It is C neither necessary nor desirable in the present case to attempt to define the limits of that jurisdiction.

[15] One of the questions to be determined is which of the issues raised by the applicant relate to constitutional matters. This requires, amongst other things, a purposive approach to the harmonising of s 167(3)(a) and (b) [14] of the Constitution which constitutes the Constitutional Court as the highest court in constitutional matters and D s 168(3) [15] which constitutes the SCA as the highest Court of appeal except in constitutional matters. Certain broad principles for criminal cases can be identified:

(a)

A challenge to a decision of the SCA on the basis only that it is wrong on the facts is not a constitutional matter.

In the context of s 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. E Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory. There is a need for F finality in criminal matters. The structure of the Constitution suggests clearly that finality...