S v Ntuli

• Jurisdiction: South Africa
• Judge: Didcott J, Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, Ngoepe AJ, O'Regan J, Sachs J
• Judgment Date: 08 December 1995
• Citation: 1996 (1) SACR 94 (CC)
• Hearing Date: 24 August 1995
• Counsel: W H Trengove SC (with him L Gerntholz) forthe applicant J S M Henning SC (with him P P Stander) for the State N Pandya SC (with him R Mogagabe) for the Government of the Republic of South Africa
• Court: Constitutional Court

Didcott J: I

[1] Section 25(3) of the Constitution (Act 200 of 1993) proclaims 'the right to a fair trial' that every person charged with a crime enjoys in South Africa nowadays. A general principle of fundamental importance has thus been introduced into our system, one which it previously lacked according to the decision reached in S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A). The former position was this, as the J Appellate Division

Didcott J

A described it on that occasion. The rules regulating the conduct of criminal trials, either statutorily or at common law, had been designed to take full care of their fairness and set all the legal standards for that. Infringements of those specific rules were judicially cognisable as defects in the proceedings. But no broader grounds were recognised for B any complaint about the unfairness of a trial. The view then taken of such complaints was expressed by Nicholas AJA, who declared (at 387A-B):

'What an accused person is entitled to is a trial initiated and conducted in accordance with those formalities, rules and principles of procedure which the law requires. He is not entitled to a trial which is fair when tested against abstract notions of fairness and justice.'

C Section 25(3) has removed the restriction and enlarged the enquiry. The import of the subsection was noted in para [16] of the judgment delivered by this Court in S v Zuma and Others 1995 (2) SA 642 (CC), where Kentridge AJ wrote (at 651J-652A):

D 'The right to a fair trial conferred by that provision . . . embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force.'

The result is that criminal trials must now be run not only in compliance with the old E requirements mentioned by Nicholas AJA but also, as Kentridge AJ then added (at 652D), in conformity with those 'notions of basic fairness and justice' which have entered the reckoning at last. The significance of that development was underestimated by Erasmus J, I believe, when he dismissed the subsection in S v Shuma and Another 1994 (4) SA 583 (E) (at 591A-B) as 'no radically new phenomenon', as 'not a F startling innovation', but a provision which contributed nothing momentous to the 'distillation of wisdom' on the subject that he ascribed to our earlier jurisprudence. [1]

[2] Section 25(3) lists some particular rights that are deemed to be covered by the G general right to a fair trial, bestowing and protecting them individually. One of those, which paragraph (h) specifies, is -

'. . . the right . . . to have recourse by way of appeal or review to a higher Court than the court of first instance.'

The paragraph has been invoked in the matter that we now have before us.

H [3] The case concerns a man named Nicko Ntuli. A regional magistrate convicted him of rape, attempted murder and assault with intent to do grievous bodily harm. For those crimes he was sentenced by the magistrate to terms of imprisonment which amounted effectively to an aggregate of 13 years. He went to gaol at once. There he resolved to appeal against the convictions and the sentences. He had not been legally I represented at his trial. Nor, it seems, could he get a lawyer to prepare and present his appeal. So he planned to perform the tasks personally. But a hurdle had to be J surmounted at first, one erected by the provisions of the Criminal

Didcott J

A Procedure Act (51 of 1977) which regulated appeals lodged by convicts like him.

[4] Section 309(1)(a) of the statute decrees that:

'Any person convicted of any offence by any lower court . . . may appeal against such conviction and against any resultant sentence or order to the Provincial or B Local Division having jurisdiction.'

A magistrate's court is a lower one for that purpose, and the Provincial and Local Divisions of the Supreme Court are those thus mentioned. In Ntuli's circumstances, however, his right to appeal was qualified. Section 309(4)(a) stipulates that:

C 'When an appeal under this section is noted, the provisions of . . . s 305 shall mutatis mutandis apply in respect of the conviction, sentence or order appealed against.'

And this is how s 305 goes in turn:

'Notwithstanding anything to the contrary in any law contained, no person who D has been convicted by a lower court of an offence, and is undergoing imprisonment for that or any other offence, shall be entitled to prosecute in person any proceedings for the review of the proceedings relating to such conviction unless a Judge of the Provincial or Local Division having jurisdiction has certified that there are reasonable grounds for review.'

E A condition of the same nature therefore governs every appeal that is noted by a prisoner against his or her conviction or sentence.

[5] Ntuli wrote a letter to the authorities, an informal one protesting at the outcome of his trial. The letter was forwarded to the Witwatersrand Local Division of the Supreme F Court since the matter fell within its jurisdiction. There Cloete J considered the complaint in Chambers. Taking the course usually followed in such a situation, he treated the letter as both a notice of appeal and an application for a Judge's certificate. He then wrote a short judgment, saying that he saw -

'. . . no prospect whatever of an appeal Court interfering with either the G convictions or the sentences'.

He did not, however, refuse the application. Instead he made this order mero motu:

'The question whether the provisions of s 309(4)(a) as read with s 305 of the Criminal Procedure Act are in conflict with the provisions of s 25(3)(h) of the Constitution is referred to the Constitutional Court in terms of s 102(1) of the H Constitution for its decision. Pending the decision of the Constitutional Court, the application is suspended in terms of s 102(2) of the Constitution.'

[6] A second item was placed on our agenda, this time by us after a perusal of the record when we sent the parties a note worded thus: I

'The arguments on both sides are to deal also with a point not specifically raised by the order of referral. Section 305 of the Criminal Procedure Act, as read with s 309(4)(a), applies only to prisoners who are not legally represented. It touches neither prisoners who are represented nor convicted persons, represented or unrepresented, who are not serving sentences of imprisonment. The questions J that must be

Didcott J

A argued in those circumstances are whether it infringes ss 8(1) and 8(2) of the Constitution or either and, if so, whether the infringement is permissible under s 33(1).'

Section 8(1) dictates that 'every person shall have the right to equality before the law', while s 8(2) forbids 'unfair discrimination' against anyone.

B [7] By the time when we issued that direction Ntuli no longer lacked the services of a lawyer. The Legal Resources Centre had kindly stepped into the breach and was already acting for him pro amico in the proceedings before us. The Government of South Africa entered the lists afterwards, exercising the privilege of intervention which ...