S v Jafta; S v Ndondo; S v Mcontana

• Jurisdiction: South Africa

S v Jafta;
S v Ndondo;
S v Mcontana
2005 (1) SA 108 (E)

2005 (1) SA p108

Citation	2005 (1) SA 108 (E)
Case No	CA&R 490/02; 77/02 and 147/02
Court	Eastern Cape Division
Judge	Erasmus J, Pickering J and Leach J
Heard	November 25, 2002
Judgment	April 10, 2003
Counsel	M Glover for the appellant in the Jafta matter, instructed by the Legal Aid Board.; C Mey for the appellant in the Ndondo matter, instructed by the Legal Aid Board.; A Frost for the appellant in the Mcontana matter, instructed by the Legal Aid Board.; L M Sakata for the State.

Flynote : Sleutelwoorde B

Criminal procedure — Appeal — Leave to appeal — From magistrate's court to High C Court — Suspension of invalidity of ss 309B and 309C of Criminal Procedure Act 51 of 1977 by Constitutional Court — Effect of — Constitutional Court having declared ss 309B and 309C inconsistent with Constitution of the Republic of South Africa Act 108 of 1996 and invalid but having suspended declaration for six months from date of order — Sections having required leave to appeal to High Court either from trial court or from Judge D President — Appellants having been convicted and sentenced prior to date upon which declaration of invalidity coming into effect — Constitutional Court not having intended declaration of invalidity to operate retrospectively at end of period of suspension — By suspending declaration of invalidity Court providing for it to become effective only from date of expiry of suspension and not retrospectively to date of enactment of E sections — Having failed to obtain leave to appeal, appeal not properly before Court.

Constitutional practice — Courts — Powers of — Declaration of invalidity — Constitution of the Republic of South Africa Act 108 of 1996, ss 172(1)(a) and (b) — Operation of — Clear that where Court finds any law or conduct F inconsistent with Constitution, obliged to declare it invalid under s 172(1)(a), but upon doing so may ameliorate situation by way of further order under s 172(1)(b) — Sections 172(1)(a) and 172(1)(b) to be read conjunctively and not disjunctively — Language used by Legislature clearly prescribing that where Constitutional Court finds law to be inconsistent with Constitution and, on deciding it to be invalid, ameliorates its declaration by order under s 172(1)(b), law G so declared and ameliorated thereafter applying consistently to all matters — Accordingly, no room for interpretation that declaration of invalidity made by Constitutional Court susceptible of amelioration or adjusted by another Court making further order under s 172(1)(b). H

Headnote : Kopnota

At the time the appellants had been convicted, ss 309B and 309C of the Criminal Procedure Act 51 of 1977 (the Act) had required them to appeal to the High Court, either from the trial court or upon petition to the Judge President. On 29 November 2000 the Constitutional Court declared the relevant sections of the Act to be inconsistent with I the Constitution of the Republic of South Africa Act 108 of 1996 and invalid. The declaration was, however, suspended for six months from the date of the order, ie up to and including 28 May 2001. Subsequently, the appellants sought to have their appeals heard without having obtained leave to appeal from the trial courts. The Court was called upon to decide in limine whether the appeals were J

2005 (1) SA p109

properly before the Court, ie whether the appellants were required to obtain leave to appeal notwithstanding the declaration of A invalidity.

Held, (per Leach J, Pickering J concurring) that the Constitutional Court's declaration of invalidity did not relieve the appellants from complying with ss 309B and 309C. As all three appellants had been convicted and sentenced prior to the date upon which the declaration of invalidity came into effect, but failed to obtain such leave, their appeals were not properly before the Court. (At 111G - H.) B

Held, further, that, having regard to the plain meaning of the language used in the Constitution, it was clear that where a Court found any law or conduct to be inconsistent with the Constitution, it was obliged to declare it invalid under s 172(1)(a), but upon doing so, it may ameliorate the situation by way of a further order under s 172(1)(b) if it was felt that it was just and equitable C to do so. Accordingly, ss 172(1)(a) and (b) needed to be read conjunctively and not disjunctively. (At 112H - I and 113C.)

Held, further, that the language used by the Legislature clearly prescribed that where the Constitutional Court found a law to be inconsistent with the Constitution and, on declaring it to be invalid, ameliorated its declaration by an order under s 172(1)(b), the law so declared and ameliorated would D thereafter apply consistently to all matters. There was, accordingly, no room for an interpretation that a declaration of invalidity made by the Constitutional Court may be ameliorated or adjusted by another Court making a further order under s 172(1)(b). (At 113I - 114A/B.)

Held, further, that the Constitutional Court, by necessary implication, did not intend the declaration of invalidity to operate E retrospectively at the end of the period of suspension. It seemed unlikely that it was intended that all persons who were obliged to comply with the sections in question during the six-month period of suspension would later be relieved of such obligations when that period came to an end or in the event of the Legislature rectifying the defects found to have existed in the procedure. (At 114D/E - F.) F

Held, further, that, in the light of the established general principle that an order of invalidity had no effect on cases finalised before the date of the order, it was unlikely that it was intended that persons who had unsuccessfully followed the procedures laid down in the sections in question should be in a worse position than those who had failed to take any steps at all to seek leave to appeal at a time when G they were obliged to do so. The Constitutional Court, by suspending its declaration of invalidity, by necessary implication, provided for it to become effective only from the date the suspension expired and not retrospectively to the date of the enactment of the sections. (At 114I/J - 115B and 115G.) H

Cases Considered

Annotations

Reported cases

Binda v Binda 1993 (2) SA 123 (W): referred to

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (1) SA 997 (C): referred to I

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837): discussed and dictum in para [60] applied

De Kock NO v Van Rooyen 2005 (1) SA 1 (SCA) (2004 (2) SACR 136): referred to J

2005 (1) SA p110

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

Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A): distinguished

Fraser v Children's Court, Pretoria North, and Others 1997 (2) SA 261 (CC) (1997 (2) BCLR 153): referred to

J and Another v Director-General, Department of Home Affairs, and Others 2003 (5) SA 621 (CC) (2003 (5) BCLR B 463): dictum in para [21] applied

Minister of Justice v Ntuli 1997 (3) SA 772 (CC) (1997 (2) SACR 19; 1997 (6) BCLR 677): discussed and applied

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): referred to C

Ndlovu v Director of Public Prosecutions, KwaZulu-Natal, and Another 2003 (1) SACR 216 (N): approved and applied

Qozeleni v Minister of Law and Order and Another 1994 (3) SA 625 (E) (1994 (2) SACR 340; 1994 (1) BCLR 75): referred to

R v Grainger 1958 (2) SA 443 (A): referred to D

S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) (1995 (2) SACR 748; 1995 (12) BCLR 1579): applied

S v Danster; S v Nqido 2002 (4) SA 749 (C) (2002 (2) SACR 178): not followed

S v Jaars; S v Williams; S v Jantjies 2002 (1) SACR 546 (C): approved and applied E

S v Khoasasa 2003 (1) SACR 123 (SCA) ([2002] 4 All SA 635): dictum in para [6] applied

S v Legoa 2003 (1) SACR 13 (SCA): applied

S v Ntuli 1996 (1) SA 1207 (CC) (1996 (1) SACR 94; 1996 (1) BCLR 141): discussed F

S v Rens 1996 (1) SACR 105 (CC) (1996 (1) SA 1218; 1996 (2) BCLR 155): referred to

S v Steyn 2001 (1) SA 1146 (CC) (2001 (1) SACR 25; 2001 (1) BCLR 52): applied

S v Thusi 2002 (12) BCLR 1274 (N): not followed

S v Zulu 2003 (2) SACR 22 (SCA): referred to

S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): dicta in paras [17] - [18] applied. G

Unreported cases

S v Brandt; S v Celento (CPD case No P16/2001, 15 June 2001): not followed

S v Xhosa (TPD case No A672/2001, 11 September 2001): approved and applied H

S v Ndlovu (NPD case No AR242/02, 2 July 2002): discussed.

Statutes Considered

Statutes

The Constitution of the Republic of South Africa Act 108 of 1996, s 172: see Juta's Statutes of South Africa 2003 vol 5 at 1-171

The Criminal Procedure Act 51 of 1977, ss 309B and 309C: see Juta's Statutes of South Africa 2002 vol 1 at 1-387 - 1-388. I

Case Information

Appeals against conviction and sentence. The judgment for the majority of the Court was handed down by Leach J, from whose judgment the facts appear. Erasmus J concurred with the majority except J

2005 (1) SA p111

as far as the Court's ability to act in terms of s 172(1)(b) of the Constitution of the Republic of South Africa Act 108 of 1996 was A concerned.

M Glover for the appellant in the Jafta matter, instructed by the Legal Aid Board.

C Mey...