S v Mhlungu and Others

• Jurisdiction: South Africa
• Citation: 1995 (2) SACR 277 (CC)

S v Mhlungu and Others
1995 (2) SACR 277 (CC)

1995 (2) SACR p277

Citation	1995 (2) SACR 277 (CC)
Court	Constitutional Court
Judge	Mahomed J
Heard	February 23, 1995
Judgment	June 8, 1995
Counsel	A E Potgieter for the applicants at the request of the Court; J W S de Villiers, J H du Plessis and I Stretch for the respondents

Flynote : Sleutelwoorde

B Fundamental rights — Generally — Applicability of provisions of Constitution Act 200 of 1993 to proceedings pending at the time of coming into operation of Constitution — Effect of s 241(8) of Constitution — C Section 241(8) seeks to preclude an attack on the authority of any court of law or tribunal to continue dealing with proceedings which were pending before the commencement of the Constitution — Purpose of s 241(8) not simply to regulate the territorial jurisdiction of the relevant court before which proceedings were pending — Protection afforded by the D Constitution available to all persons whose trials were pending on the date of commencement of the Constitution — No trials completed before the commencement of the Constitution subject to reopening — In respect of trials commenced but not concluded before the date of commencement of the Constitution, no constitutional challenges based on s 25(3) of the E Constitution competent in respect of any decision already made during the trial but before the commencement of the Constitution.

Court — Supreme Court — Jurisdiction — Referral of issues to Constitutional Court — When to be referred — Section 102 of Constitution Act 200 of 1993 not entitling a Judge to refer to the Constitutional Court an issue which was within jurisdiction of Provincial or Local F Division.

Court — Supreme Court — Jurisdiction — Referral of issues to Constitutional Court — When to be referred — The fact that an issue is within the exclusive jurisdiction of the Constitutional Court does not necessitate an immediate referral to the Constitutional Court — Even if the issue is a substantial one it must be decisive and in the interests G of justice to be referred — Implicit that there be a likelihood that provision will be held to be invalid — When it is possible to decide any case without raising a constitutional issue that is the course which should be followed.

Court — Supreme Court — Jurisdiction — Interpretation of Constitution — H Although Constitutional Court has jurisdiction in terms of s 98(2) of Constitution Act 200 of 1993 over all matters relating to interpretation of the Constitution, this is not an exclusive jurisdiction — Although s 101(3) of the Constitution does not expressly give Provincial and Local Divisions of the Supreme Court jurisdiction over matters relating to the I interpretation of the Constitution such jurisdiction has 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 Chapter 3.

Appeal — Generally — Effect of provisions of Constitution Act 200 of 1993 on cases on appeal — Effect of s 241(8) — Appeals arising from J proceedings which had commenced and been concluded after the

1995 (2) SACR p278

A Constitution came into effect to be determined on the basis that Chapter 3 clearly of application and if the protection of Chapter 3 had been wrongly denied the Court on appeal must take that into account in making its order — In respect of appeals arising from proceedings which had commenced before the Constitution came into effect but concluded B thereafter, if the fundamental right relied upon was operative at the relevant time of the trial, the appellant was entitled to rely on it and if it had been wrongly denied, he would be entitled to suitable relief on appeal — If it did not exist at the relevant time of the trial the appellant would have no legitimate cause for complaint — In respect of C appeals arising from trials commenced and completed before the Constitution came into operation, such appeals to be disposed of without applying Chapter 3 of the Constitution.

Words and phrases — 'Pending' — Meaning of as used in s 241(8) of Constitution Act 200 of 1993.

Words and phrases — 'Dealt with as if this Constitution had not been D passed' — Meaning of as used in s 241(8) of Constitution Act 200 of 1993.

Evidence — Confession — Admissibility of — Confession made to a magistrate — Effect of declaration of unconstitutionality of s 217(1) (b) (ii) of Criminal Procedure Act 51 of 1977 — Effect on proceedings pending E at the time of coming into operation of Constitution Act 200 of 1993 — Declaration of invalidity affecting any application of s 217(1) (b) (ii) in any criminal trial, irrespective of whether it commenced before, on or after 27 April 1994 and in which the final verdict was or may be given after 27 April 1994.

Headnote : Kopnota

F The accused were charged with murder and other crimes and an indictment in Afrikaans was 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 and 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 G magistrate and relied on the presumption 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 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 of the Constitution Act 200 of 1993 and would, if necessary, ask for a H 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 have been said to have been 'pending' immediately before the commencement of the Constitution; I (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 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 held that it was in the interests of justice to refer the issue J immediately to the Constitutional Court.

1995 (2) SACR p279

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 Act 200 of 1993 on 27 April 1994.

Held, that in terms of s 144(4) of the Criminal Procedure Act an B 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 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 C the trial Court to decide. (At para [52].)

Held, further, that unless a duly served indictment had been lodged with 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 D was lodged. It was not however necessary to decide exactly when proceedings could be said to be pending. (At para [52].)

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 of the validity of s 217(1)(b)(ii).

E 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: 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 F whether there had been a violation of a fundamental right entrenched in Chapter 3. The Court a quo accordingly had jurisdiction to interpret s 241(8) and determine its effect on the case before it. (At para [55].)

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, 58].)

G Held, further, as to referrals under s 102(1), 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 for the case and if it H considered it to be in the interests of justice to do so. It was implicit that there be a reasonable prospect that the relevant law or provision would be held to be...