S v Marwane

• Jurisdiction: South Africa
• Judge: Hiemstra CJ
• Judgment Date: 18 March 1981
• Citation: 1981 (3) SA 588 (B)
• Hearing Date: 16 March 1981
• Court: Bophuthatswana Supreme Court

Hiemstra, CJ.:

This is a belated application for leave to appeal on the merits of the applicant's conviction on 28 November 1978 of

Hiemstra CJ

contravening s 2 (1) (c) of the Terrorism Act 83 of 1967 (RSA). After conviction there was an application for leave to appeal against the sentence of 15 years' imprisonment. The notice of application for leave A to appeal against the sentence filed on 12 February 1979 expressly stated that the applicant

"does not appeal against his conviction under s 2 (1) (c) of the Terrorism Act".

In a judgment delivered on 21 March 1979 leave to appeal against the sentence was refused but special leave was applied for in terms of s 316 B (6) of the Criminal Procedure Act, by petition to the Chief Justice of the South African Appellate Division. I have not seen the petition, but evidently there was some misunderstanding, because special leave was granted, not only against the sentence but also against the verdict. Leave in respect of the verdict was incompetent because no such C application had first been made in this Court. The order granting special leave was corrected on 29 September 1980 by restricting it to sentence.

Apparently fortified by the initial granting of special leave in regard to the verdict itself, the applicant to-day came back to this Court and for the first time asked for leave to appeal against the conviction. The D Attorney-General correctly raised the point of peremption and, although in the result it is not necessary to decide it, I will nevertheless deal with the peremption aspect presently.

A single point was raised by Mr Suttner on the merits of this application, namely that the South African Terrorism Act was of no application in E Bophuthatswana at the time of the trial. This argument was based on s 7 (1) of the Constitution Act 18 of 1977 which reads:

"7 (1) This constitution shall be the supreme law of Bophuthatswana."

Reference is then made to chap 2 of the Constitution, which is a "Declaration of fundamental rights". The Terrorism Act is said to F conflict with the words and spirit of the Bill of Rights in that it -

(1)

defines contraventions in terms so wide as to render definition meaningless and leaves an accused unaware of the precise allegations against himself (s 2 (1));

(2)

permits of indefinite detention of persons without any prospect of a trial within a reasonable time or at all (s 6 (1));

(3)

G sanctions indefinite detention...