S v Dzukuda; S v Tilly; S v Tshilo

• Jurisdiction: South Africa
• Judgment Date: 17 May 2000
• Citation: 2000 (3) SA 229 (W)

S v Dzukuda;
S v Tilly;
S v Tshilo
2000 (3) SA 229 (W)

2000 (3) SA p229

Citation	2000 (3) SA 229 (W)
Case No	JPV 2000/35; JPV 1999/186; JPV 2000/11
Court	Witwatersrand Local Division
Judge	Lewis J
Heard	April 25, 2000; April 26, 2000
Judgment	May 17, 2000
Counsel	Z J van Zyl (with him J G Wasserman) for the State.; U R Mansingh for the accused in the Dzukuda matter.; N Makopo for the accused in the Tilly matter.; F A Snyckers for the accused in the Tshilo matter.

Flynote : Sleutelwoorde G

Constitutional law — Human rights — Right of accused to a fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Referral of accused to High Court for sentencing in terms of s 52 of Criminal Law Amendment Act 105 of 1997 — Court H imposing sentence not steeped in atmosphere of trial and faced with little other than bare record of proceedings — Result is unfairness in conduct of two-stage trial and, accordingly, infringement of accused's right to fair trial — Fragmentation of trial, coupled with nature of sentence that may be imposed by High Court, which may be life I imprisonment, infringes right of accused to fair trial — Inevitable institutional delay created by s 52 is infringement of right to trial that begins and concludes without unreasonable delay — Infringement of right to fair trial by s 52, even viewed in its social context, not proportional to purpose for which it has been designed — Less restrictive means exist to achieve objects of Legislature which s 52 seeks to J

2000 (3) SA p230

achiesve — Infringement cannot be justified in terms of s 36 of Constitution and accordingly s 52 declared invalid. A

Headnote : Kopnota

Section 52 of the Criminal Law Amendment Act 105 of 1997 (the Act) requires a regional court which convicts an accused of an offence referred to in Schedule 2 to the Act, if it is of the opinion that the offence in respect of which the accused has been convicted merits B punishment in excess of the jurisdiction of the regional court, to refer the accused to a High Court for sentencing. Accordingly, the guilt of the accused is first determined in one court and the accused is then referred for sentencing in another Court. Section 51(1) of the Act requires the High Court to impose a sentence of life imprisonment where the accused has been convicted of an offence referred to in Partb C I of Schedule 2 to the Act, unless substantial and compelling circumstances are present.

The High Court Judge to whom an accused is referred under s 52 is required to impose life imprisonment as a sentence, despite the fact that she or he has not tried the accused, is not steeped in the atmosphere of the trial and is faced with little other than the bare record of proceedings. The result is unfairness in the conduct of the D two-stage trial and, accordingly, an infringement of an accused's right to a fair trial. (At 240D/E - F/G.)

The Legislature, in enacting the Act, has decided that it should no longer be the prerogative of a Court to consider the nature of the offence or the interests of the public. It has decided already that the offences set out in Part I of Schedule 2 are so heinous that a sentence E of life imprisonment is, for the present, and in general, the only appropriate sentence for the perpetrator. And it has determined also that the interests of the public are so threatened by the endemic proportions reached by the commission of certain of the crimes set out in the Schedules to the Act that the perpetrators must spend the rest of their lives in prison so that the public is protected. That leaves F only the manner in which the offences were committed and the personal circumstances of the accused as factors to which the Court should have regard in determining whether there are substantial and compelling circumstances that justify the imposition of a lesser sentence. (At 242I - 243B.)

A consequence of the way in which s 51 of the Act has been interpreted by the Courts has been that it is impossible for a Court sentencing an G accused in respect of a scheduled offence to 'rubber-stamp' the Legislature's decision as to the appropriate sentence to be imposed. The Court is obliged, under s 51, as interpreted, to exercise a discretion and, in doing so, must have regard to many of the factors traditionally considered when determining the appropriate sentence to be imposed. This necessarily requires that the Court have as much information as possible about the trial, the offence committed, the H accused and the complainant. The fact that the High Court has the record and the judgment of the court that convicts does not put it in the same position as the court that has conducted the trial. If the High Court does not have the power to hear evidence about the commission of the offence, it will not be in the same position as the trial court. If it does have that power, the accused could be subjected to a process entailing the rehearing of her or his evidence. The I provisions of s 52 do not contravene the principle of double jeopardy in the strict sense, but that does not mean that the process of recalling witnesses and the hearing of new evidence or rehearing of evidence is fair. While the accused may not be prejudiced by such a process, the absence of prejudice does not always lead to fairness. (At 243D - F, G - G/H, 245D - G, 247F - H/I and 249E/F - G/H.) J

2000 (3) SA p231

The fragmentation of the trial, coupled with the nature of the sentence that may be imposed by the High Court, which may be life A imprisonment - the most severe sentence that can be passed - infringes the right of an accused to a fair trial. (At 240A/B - B, 245G and 251I/J - 252B.)

Where the accused has been charged and tried in part without unreasonable delay, the delay in the conclusion of the trial caused by the referral for sentencing in the High Court is systemic. It is an inevitable result of the process of committal for sentencing. Pending B the procedures that must be followed before the sentencing process can be completed, the accused must wait in prison, not knowing whether her or his conviction may be set aside, or whether she or he faces a sentence of life imprisonment or a lesser sentence. It is no answer to say that she or he has been convicted and faces life imprisonment and that the delay can make no difference. Even a convicted person is C entitled to be treated humanely and in such a way that her or his dignity is not unduly impaired. The inevitable institutional delay created by s 52 of the Act is an infringement of the right to a trial that begins and concludes without unreasonable delay. (At 249J - 250B, 250I/J - 251B and 251H/I - 252B.)

Evidence available in the Witwatersrand Local Division indicates that the legislative infringement of the right to a fair trial is not, at D least in that Division, achieving its purpose. The infringement of the right to a fair trial by s 52, even viewed in its social context, cannot possibly be proportional to the purpose for which it has been designed when it appears not even to meet that purpose. (At 254A/B - B and D - E.)

There are other ways to achieve the objects of the Legislature which s 52 of the Act seeks to achieve. The means sought to achieve a E reduction in the commission of specified offences is disproportionate to the end and less restrictive means of achieving that end can undoubtedly be used. (At 256B - C.)

Section 52 of the Act constitutes an infringement of an accused's right to a fair trial, which is entrenched in s 35 of the Constitution of the Republic of South Africa Act 108 of 1996. The infringement F cannot be justified in terms of s 36 of the Constitution and accordingly s 52 of the Act must be declared invalid. (At 256F - G.)

Cases Considered

Annotations F

Reported cases

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658): applied G

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1): applied

Freedom of Expression Institute and Others v President, Ordinary Court Martial, and Others 1999 (2) SA 471 (C) (1999 (3) BCLR 261): applied

Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) (1999 (12) BCLR 1420): referred H to

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517): dictum in paras [33] - [35] applied

R v Mapumulo 1920 AD 56: dictum at 57 applied

S v Blaauw 1999 (2) SACR 295 (W): discussed I

S v Budaza 1999 (2) SACR 491 (E): not followed

S v Cele and Others 1994 (1) SACR 616 (N): discussed

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) (1999 (2) SACR 51; 1999 (7) BCLR 771): referred to

S v Homareda 1999 (2) SACR 319 (W): applied

S v Ibrahim 1999 (1) SACR 106 (C): followed J

2000 (3) SA p232

S v Jansen 1999 (2) SACR 368 (C): approved A

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): dictum in para [104] applied

S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC) (2000 (1) SACR 414): applied

S v Mangesi 1999 (2) SACR 570 (E): not followed

S v Martin 1996 (2) SACR 378 (W): considered B

S v Mbambo 1999 (2) SACR 421 (W): discussed

S v Mbatha; S v Prinsloo 1996 (2) SA 464 (CC) (1996 (1) SACR 371; 1996 (3) BCLR 293): referred to

S v Mofokeng and Another 1999 (1) SACR 502 (W): not followed

S v Moodie 1961 (4) SA 752 (A): discussed

S v Naidoo 1962 (4) SA 348 (A): discussed C

S v Ngubane 1991 (1) SACR 163 (N): discussed

S v Pieters 1987 (3) SA 717 (A): referred to

S v Pillay 1977 (4) SA 531 (A): applied

S v Radebe; S v Mbonani 1988 (1) SA 191 (T): referred to

S v Rapoo en Andere 1999...