S v Mhlungu and Others

• Jurisdiction: South Africa

S v Mhlungu and Others
1995 (3) SA 867 (CC)

1995 (3) SA p867

Citation	1995 (3) SA 867 (CC)
Case No	CCT/25/94
Court	Constitutional Court
Judge	Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O'Regan J and Sachs J
Heard	February 23, 1995
Judgment	June 8, 1995

Flynote : Sleutelwoorde B

Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Applicability of — Proceedings pending at the time of coming into operation of Constitution — Effect of s 241(8) of C Constitution — Section 241(8) seeking to preclude an attack on authority of any court of law or tribunal to continue dealing with proceedings which were pending before commencement of Constitution — Purpose of s 241(8) not simply to regulate territorial jurisdiction of the relevant court before D which proceedings were pending — Protection afforded by Constitution available to all persons whose trials were pending on date of commencement of Constitution — No trials completed before commencement of Constitution subject to re-opening — In respect of trials commenced but not concluded before date of commencement of Constitution, no constitutional challenges E based on right to a fair trial provided for in s 25(3) of Constitution competent in respect of any decision already made during trial but before commencement of Constitution.

Constitutional practice — Courts — Supreme Court — Jurisdiction — Referral F of issues to Constitutional Court — When to be referred — Section 102 of Constitution of the Republic of South Africa Act 200 of 1993 not entitling a Judge to refer to Constitutional Court an issue which is within his own jurisdiction.

Constitutional practice — Courts — Supreme Court — Jurisdiction — Referral of issues to Constitutional Court — When to be referred — Referral in G terms of s 102(1) of Constitution of the Republic of South Africa Act 200 of 1993 — Fact that issue is within the exclusive jurisdiction of Constitutional Court not necessitating an immediate referral to Constitutional Court — Even if issue a substantial one it must be decisive and in interests of justice to be referred — Implicit that there be a H reasonable prospect that provision would be held to be invalid — When possible to decide any case without raising a constitutional issue, such the course to be followed.

Constitutional law — Constitution — Interpretation of — Constitution of the Republic of South Africa Act 200 of 1993 — Although Constitutional I Court has jurisdiction in terms of s 98(2) of Constitution over all matters relating to interpretation of the Constitution, such not an exclusive jurisdiction — Section 101(3) of Constitution not expressly giving Provincial and Local Divisions of Supreme Court jurisdiction over matters relating to interpretation of Constitution — But such jurisdiction J having to be implied in order to allow those Courts to exercise their jurisdiction under s 101(3)(a) to determine whether there has been a violation of a fundamental right entrenched in chap 3.

1995 (3) SA p868

Criminal procedure — Appeal — Generally — Effect of provisions of Constitution of the Republic of South Africa Act 200 of 1993 on cases on B appeal — Effect of s 241(8) — Appeals arising from proceedings which had commenced and been concluded after Constitution came into effect to be determined on basis that chap 3 of Constitution clearly of application — If protection of chap 3 wrongly denied, Court on appeal must take that C into account in making its order — In respect of appeals arising from proceedings which had commenced before Constitution came into effect but concluded thereafter, if fundamental right relied upon was operative at relevant time of the trial, appellant entitled to rely on it — If such fundamental right had been wrongly denied, appellant would be entitled to suitable relief on appeal — If such right did not exist at relevant time D of the trial, appellant would have no legitimate cause for complaint — In respect of appeals arising from trials commenced and completed before Constitution came into operation, such appeals to be disposed of without applying chap 3 of Constitution.

Constitutional law — Legislation — Validity of — Declaration of invalidity E — Effect of declaration of invalidity of s 217(1)(b)(ii) of Criminal Procedure Act 51 of 1977 — Effect on proceedings pending at time of coming into operation of Constitution of the Republic of South Africa Act 200 of 1993 — Such declaration affecting any application of s 217(1)(b)(ii) in F any criminal trial, irrespective of whether it commenced before, on or after 27 April 1994 and in which the final verdict was or might be given after 27 April 1994.

Headnote : Kopnota

The accused had been charged in a Circuit Local Division of the Supreme Court with murder and other crimes and an indictment in Afrikaans had been G served on them on 11 March 1994. At their request an English version of the indictment was served on them on 4 May 1994. The accused appeared before the Circuit Court for remand on 11 May and 18 May 1994. At the subsequent commencement of their trial the accused pleaded not guilty to the charges. At an early stage of the trial the State tendered evidence of confessions made by the accused to a magistrate and relied on the presumption contained in s 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977. The State prima facie established that in relation to two of the H confessions tendered the requirements of s 217(1)(b)(ii) had been satisfied. Defence counsel then informed the Court that he would contend that s 217(1)(b)(ii) was in conflict with s 25 in chap 3 of the Constitution of the Republic of South Africa Act 200 of 1993 and would, if necessary, ask for a referral of this issue to the Constitutional Court. Before any further evidence was led and after hearing argument, the Court a quo suspended the proceedings in terms of s 102(2) of the Constitution and referred the following constitutional questions to the Constitutional Court in terms of s 102(1): (a) whether the proceedings could be said to I have been 'pending' immediately before the commencement of the Constitution; (b) whether, in the light of the provisions of s 241(8) of the Constitution, the provisions of the Constitution were applicable to the trial; and (c) whether the provisions of s 217(1)(b)(ii) of the Criminal Procedure Act were in conflict with the Constitution. The Court a quo was of the opinion that fairness to the accused required that they knew with certainty where the onus lay before they decided to give evidence in the trial within the trial. The Court held that the issue might be decisive and that it was in the interests of justice to refer the J issue immediately to the Constitutional Court.

1995 (3) SA p869

A As to the competence of the referral, the Court per Kentridge AJ, the other members of the Court (with the exception of Sachs J, who expressed no opinion on this issue) concurring, first examined whether the proceedings were pending at the commencement of the Constitution on 27 April 1994.

Held, that in terms of s 144(4) of the Criminal Procedure Act an indictment had to be served on an accused at least ten days before the trial and proceedings at a summary trial in a superior Court were B commenced by the serving of an indictment on the accused and the lodging thereof with the Registrar of the Court concerned: there was nothing in the judgment of the Court a quo to indicate whether the Afrikaans indictment had been withdrawn or lodged with the Registrar and, in the latter event, on what date it had been lodged; these matters were for the trial Court to decide. (At para [52] at 892E.)

Held, further, that, unless a duly served indictment had been lodged with C the Registrar before 27 April 1994, there was no basis on which it could be contended that on 27 April proceedings were pending in terms of s 241(8): it did not follow however that, in the context of s 241(8), proceedings could be said to have been pending as soon as the indictment was lodged. It was not, however, necessary to decide exactly when proceedings could be said to be pending. (At para [52] at 892F.)

Held, further, that had it not been for the issue under s 241(8) there would have been no doubt as to the competence of the referral of the issue D of the validity of s 217(1)(b)(ii). (At para [54] at 893C.)

Held, further, that the Constitutional Court had jurisdiction under s 98(2) over all matters relating to the interpretation of the Constitution: this was not an exclusive jurisdiction; and although s 101(3) did not in terms give the Provincial or Local Division of the Supreme Court jurisdiction over matters relating to the interpretation of the Constitution, such jurisdiction had to be implied otherwise those Courts could not exercise their jurisdiction under s 101(3)(a) to determine E whether there had been a violation of a fundamental right entrenched in chap 3 of the Constitution. (At para [55] at 893H.)

Held, accordingly, that the Court a quo had had jurisdiction to interpret s 241(8) and determine its effect on the case before it. (At para [55] at 893I/J.)

Held, further, that s 102 did not entitle a Judge to refer to the Constitutional Court an issue which was within his own jurisdiction: the referral was therefore not competent. (At paras [56] and [58] at 894B and F 894H/I.)

Held, further, as to referrals under s 102(1), that the fact that an issue within the exclusive jurisdiction of the Constitutional Court arose in the Provincial or Local Division did not necessitate an immediate referral to the Constitutional Court: even if the issue appeared to be a substantial one, the Court hearing the case was required to refer it only if the issue were one which might be decisive...