S v Majavu

• Jurisdiction: South Africa
• Judge: Heath J
• Judgment Date: 01 July 1994
• Counsel: R D Claassen SC (with him K V Matthee) for the applicant W F Jurgens SC (Attorney-General) (with him G W Visagie) for the respondent
• Citation: 1994 (2) SACR 265 (Ck)
• Court: Ciskei High Court

Heath J:

The applicant in this matter (the accused in the pending criminal trial) brought an application against the respondent (the State) claiming the following relief: C

'1.

That the Legal Resources Centre, represented by Mr Clive Plasket, be authorised to act as attorneys of record for applicant in this application. D

2.

That respondent furnish applicant with copies of all relevant documentation (including transcripts of audio and/or audio visual tape recordings) and information in its possession regarding criminal case: State v Majavu.

3.

That such documentation and information shall include all: Witness E statements; names, addresses and occupations of all possible witnesses and other people with relevant information; notes; reports; in the absence of witness statements, a comprehensive summary of the expected evidence of such a person; exhibits, plans and diagrams; and all information in the possession of respondent relating to evidence that might be relevant to the above-mentioned F criminal case.'

This application is brought by the applicant who is charged with murder in the Supreme Court.

The first leg of the relief sought was not opposed by the respondent and G was granted. However, the respondent disputes the second leg of the relief sought in paras 2 and 3 of the notice of motion on various grounds summarised by Mr Jurgens (Attorney-General) as follows:

'1.

Does this Court enjoy the jurisdiction as set out in s 101(3) of the Constitution, upon a strict interpretation thereof?

2.

If so, should a purposive interpretation in terms of s 35(3) of H the Constitution not prevail?

3.

If not, should the judgment not be reserved until after a retrospective amendment to the Constitution? If not, then cadit quaestio.

4.

Was this case pending on 27 April 1994, as meant in s 241(8) of the Constitution? I

5.

Does that subsection deal with the whole body of law, or only with the question of jurisdiction?

6.

If questions 4 and 5 are answered in the affirmative, does this application fall under s 241(8), or is it separate, but ancillary proceedings not pending on 27 April 1994? If not the latter, then J cadit quaestio.

Heath J

7.

A Did the Ciskei Bill of Rights survive the new RSA Constitution?

8.

Even if so, does that Bill of Rights not continue to apply to the whole of this case?

9.

Does the common law relating to the prosecutor's privilege constitute a limitation to the applicant's right to access to the B police docket. Or, put otherwise: does s 23 include the right by an accused to claim disclosure of the police docket?

10.

Does this rule of common law constitute a limitation of the applicant's rights to a fair trial as meant in s 25(3)? If neither 9 or 10, then cadit quaestio.

11.

C Is the infringement so serious as to constitute a negation of those rights? If so, cadit quaestio.

12.

If not, is the limitation (if so found under question 9 above) reasonable, necessary and justifiable?

13.

If no limitation is found under question 9, but a limitation is found under question 10; is such limitation reasonable and D justifiable (but it need not also be necessary)? If so, then cadit quaestio.

14.

If not, then should the Court act in terms of the proviso to s 98(5)?'

The applicant summarised the relief sought in the following words:

'In general: the accused's right of access to all information held by the State, or any of its organs, which is relevant in the defence of his E presumed innocence and his right to a fair trial, and more particularly to adduce and challenge evidence.'

Jurisdiction

The first three issues summarised by the respondent can be dealt with and F disposed of under the same heading.

Section 101(3) of the Constitution of the Republic of South Africa Act 200 of 1993 reads as follows:

'Subject to this Constitution, a Provincial or Local Division of the Supreme Court shall, within its area of jurisdiction, have jurisdiction in respect of the following additional matters, namely -

(a)

G any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3;

(b)

any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of State;

(c)

H any inquiry into the constitutionality of any law applicable within its area of jurisdiction, other than an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution;

(d)

any dispute of a constitutional nature between local governments or between a local and a provincial government; I

(e)

any dispute over the constitutionality of a bill before a provincial legislature, subject to s 98(9);

(f)

the determination of questions whether any matter falls within its jurisdiction; and

(g)

the determination of any other matters as may be entrusted to it J by an Act of Parliament.'

Heath J

A The basis for the objection to the jurisdiction of this Court to adjudicate matters envisaged by the provisions of s 101(3) is that this Court is not a Provincial or Local Division as envisaged by the provisions of s 101(1). Section 101(1) reads as follows:

'There shall be a Supreme Court of South Africa, which shall consist of B an Appellate Division and such Provincial and Local Divisions, and with such areas of jurisdiction, as may be prescribed by law.'

The provisions of s 241(1) are also relevant which read as follows:

'Every court of law existing immediately before the commencement of this Constitution in an area which forms part of the national territory, shall be deemed to have been duly constituted in terms of this C Constitution or the laws in force after such commencement, and shall continue to function as such in accordance with the laws applicable to it until changed by a competent authority.'

(My emphasis.)

From the provisions of s 241(1) it is clear that the Ciskei General D Division which existed before the Constitution came into operation on 27 April 1994, is deemed to have been duly constituted in terms of the Constitution. As far as a High Court or a Supreme Court is concerned, no other category is envisaged but the categories provided for in s 101(1), namely either the category of the Appellate Division or the categories of Provincial and Local Divisions. The only logical conclusion is, therefore, E that the Ciskei General Division falls within one of those three categories. By reason of the fact that it is obviously not an Appellate Division, the inference is then simply that it is either a Provincial or a Local Division. That being the position, the Ciskei General Division is then entrusted with the jurisdiction provided for by the provisions of s F 101(3) and therefore the objection to the jurisdiction of the Court by the respondent cannot succeed and is dismissed.

Application of the Constitution

Paragraphs 4, 5 and 6 of the issues summarised by the State can also be G disposed of simultaneously.

Section 241(8) of the Constitution relied upon by Mr Jurgens, appearing on behalf of the respondent, assisted by Mr Visagie, reads as follows:

'All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any H tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be I brought before the court having jurisdiction under this Constitution.'

Mr Jurgens emphasised the words in ss 8, '. . . shall be dealt with as if this Constitution had not been passed . . . .' From this, he submitted, the inference should be drawn that cases that were pending when the Constitution became operative, are not governed by the Constitution and J therefore no reliance can be placed on the provisions of the Constitution.

Heath J

A When s 241 is read as a whole, it becomes clear that s 241(8) makes provision for the area of jurisdiction in which a court was operative and it is provided in terms of this subsection that such a court would continue to be operative in such an area of jurisdiction in which it was operative prior to the Constitution becoming operative. It is therefore a B territorial provision. Section 241, therefore, does not exclude the operation of the Constitution as far as pending matters are concerned. (See also: S v Smith and Another case No CC 13/94 at p 7 of the unreported judgment.) [*] For these reasons the second issue reflected in paras 4, 5 and 6 of the summary relied upon by Mr Jurgens cannot succeed and is dismissed. C

Survival of the Ciskei Bill of Rights

Paragraphs 7 and 8 of the summary of issues raised by Mr Jurgens can be dealt with simultaneously. The question is whether the Ciskei Bill of D Rights contained in Decree No 45 of 1990 survived the new South African Constitution and whether an accused in a pending matter could, therefore, still rely on the old Bill of Rights.

I am of the view that the Ciskei Bill of Rights did not survive the new South African Constitution.

In the first instance, it is a matter of simple constitutional law that no E country can be governed by two different constitutions simultaneously and as a matter of simple interpretation, the second constitution would then inevitably repeal or replace the original constitution.

Furthermore, the Ciskei Bill of Rights was in fact repealed in terms of a decree promulgated by the interim government, consisting of two F Administrators, in terms of the provisions of Decree No 5 of 1994...