S v Ngcobo; S v Mzindle; S v Nxusa

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: Didcott J, Law J and Wilson J
• Judgment Date: 03 November 1987
• Citation: 1988 (4) SA 374 (N)
• Hearing Date: 09 December 1986

Wilson J:

The accused in each of these cases was tried, convicted and sentenced by a magistrate sitting at Umlazi. In each case the accused was sentenced to a fine and in default of payment to a term of I imprisonment; in each case, the operation of either the whole or part of the sentence was suspended. In each case, the sentence imposed was one which would be subject to automatic review in terms of s 302(1)(a) of the Criminal Procedure Act 51 of 1977. However, the effect of the suspension was that the balance of the sentence would not in itself be J subject to automatic review in terms of s 302(2)(b) which provided that:

Wilson J

A 1 'For the purpose of ss (1) that part of the sentence which is suspended shall not be taken into account.'

The Criminal Procedure Act 51 of 1977 was made applicable to KwaZulu on 22 July 1977 by Proc R155 of 1977; this was after KwaZulu became a self-governing territory. Section 302(2)(b) was deleted by s 22 of Act B 59 of 1983, an Act which amended many of the provisions of the Criminal Procedure Act and which was not, in terms, made applicable to KwaZulu.

The result of this amendment was to make all such sentences subject to automatic review in terms of the Criminal Procedure Act 51 of 1977, as amended, from 11 May 1983.

C These cases were not submitted for automatic review for some time. When they were, it was under cover of a letter from the magistrate, Umlazi, which read:

'1.

I regret that this case was not sent on review within seven days of sentence. The reason therefor is that the presiding judicial officer's view was that s 22 of Act 59 of 1983 was not applicable D to Blacks in KwaZulu, and that the sentence was not subject to automatic review at that stage. As a result of conflicting local opinions regarding this aspect, I am now forwarding this case for review. I am in agreement with the said magistrate's views for the following reasons:

(i)

The district of Umlazi is situated within KwaZulu.

(ii)

KwaZulu became a self-governing territory in January 1977.

(iii)

E In terms of s 30(3) of Act 21 of 1971 Acts of Parliament made after KwaZulu became a self-governing territory, and relating inter alia to matters mentioned in item 12 of Schedule 1 of the Act, are not applicable in KwaZulu. Section 30(1)(b) authorises the Legislative Assembly to make laws in respect of matters mentioned in Schedule 1 and has in fact done so from time to time amending the Criminal Procedure Act - for example KwaZulu Acts 14 of 1979, 23 of 1980 and 16 of 1983.

(iv)

F In terms of item 12 of Schedule 1 of the Act, the KwaZulu Legislature is empowered to make laws applicable only to Blacks. This indicates a curtailment of the powers of Parliament to legislate for Blacks in such matters in KwaZulu.

2.

The Legislative Assembly has not altered the existing jurisdiction and constitution of the Umlazi magistrate's court in terms of s 14 G and this suggests that Parliament's Acts amending the Criminal Procedure Act are applicable in KwaZulu. But if read with s 30(3) - which is applicable only after KwaZulu became a self-governing territory, a different meaning is discerned, that is the limited applicability of Parliament's legislation.

3.

I conclude, in these circumstances, that if Act 59 of 1983 is applicable in KwaZulu, it is applicable only in respect of races H other than Blacks. See S v Matsana and Another 1978 (3) SA 817 (T) at 819 (4.2.2).'

In the light of the difficulties raised by the magistrate and in view of the fact that there had been conflicting decisions in other Divisions, as to the effect of the relevant legislation, all three cases were I referred to a Full Bench.

The matter was argued before us by Mr Slabbert SC of the Attorney-General's Department and by Mr C R Nicholson of the Legal Resources Centre at the request of the Court. We are indebted to both counsel for the assistance they gave the Court.

Umlazi was originally set apart as a native location on 30 November J 1934, in terms of Government Notice 1709 of 30 November 1934. It was

Wilson J

A proclaimed a township in terms of Proc R293 of 1962 by Government Notice 1731 of 30 October 1964, and was incorporated into KwaZulu in terms of Proc R70 of 1972.

A Legislative Assembly was established for KwaZulu on 30 March 1972 in terms of s 1 of the National States Constitution Act 21 of 1971 (hereinafter referred to as the Act). The legislative powers of this B assembly were those contained in s 3 of the Act and were as follows:

'3. Legislative powers of legislative assemblies

(1) Any legislative assembly may -

(a)

for the area for which it has been established, make laws, not inconsistent with this Act, in respect of any matter referred to in Schedule 1;

(b)

C provide in any such law for the amendment or repeal of any law (other than an Act of Parliament insofar as it relates to any such matter;

[Paragraph (b) substituted by s 7(a) of Act 71 of 1974 and by s 11 of Act 16 of 1979.]

(c)

with the prior approval of the State President first had and D obtained, provide in any such law for the enforcement thereof in respect of citizens who are or reside outside that area but within the Republic;

and may make different such laws for different regions or places and different categories or groups of persons.

(2) No law made in terms of ss (1) shall have any force or effect until it has been approved by the State President and made known by notice in the Gazette, and the State President may, before E approving any law, refer it back to the legislative assembly concerned for reconsideration.

(3) No law (excluding any Act of Parliament or a law made by the legislative assembly concerned or the State President or any such Act or ordinance as is referred to in s 6(2)(a) (ii) and (iii)) made after the constitution of the first executive council for an area in terms of s 5, and which relates to a matter referred to in Schedule 1, shall apply in that area or in F relation to a citizen of that area in respect of whom that legislative assembly is...