S v Ntuli

• Jurisdiction: South Africa
• Citation: 1996 (1) SACR 94 (CC)

S v Ntuli
1996 (1) SACR 94 (CC)

1996 (1) SACR p94

Citation	1996 (1) SACR 94 (CC)
Court	Constitutional Court
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
Heard	August 24, 1995
Judgment	December 8, 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

Flynote : Sleutelwoorde

Fundamental rights — Right to equality before the law — Restriction imposed by s 309(4)(a) of Criminal Procedure Act 51 of 1977 on prisoner's right to appeal to a C higher Court, an infringement of s 8(1) of Constitution Act 200 of 1993 and accordingly invalid — Parliament required to remedy defect by 30 April 1997.

Fundamental rights — Right to a fair trial including right to have recourse by way of appeal or review to a higher Court — Restriction imposed by s 309(4)(a) of the Criminal Procedure Act 51 of 1977 on prisoner's right to appeal to a higher D Court an infringement of s 25(3)(h) of Constitution Act 200 of 1993 and accordingly invalid — Parliament required to remedy defect by 30 April 1997.

Headnote : Kopnota

The accused was convicted in a regional court of rape, attempted murder and assault E with intent to do grievous bodily harm and was sentenced to 13 years' imprisonment. The accused had not been represented at his trial and was immediately sent to jail after sentence was passed. Whilst in jail he resolved to appeal against the convictions and sentence and as he could not get the services of a legal representative to prepare and present his appeal, he planned to perform the tasks personally. He accordingly wrote a letter to the authorities protesting at the outcome of his trial. The letter was forwarded F to the relevant Local Division of the Supreme Court where a Judge considered it in Chambers. The Judge, treating the letter as both a notice of appeal and an application for a Judge's certificate in terms of s 305 of the Criminal Procedure Act 51 of 1977, wrote a short judgment saying that he saw 'no prospect whatever of an appeal Court interfering with either the convictions or the sentences'. The Judge however did not G refuse the application but made an order mero motu referring to the Constitutional Court, in terms of s 102(1) of the Constitution Act 200 of 1993, the question whether the provisions of s 309(4)(a) of the Criminal Procedure Act as read with s 305, which imposed the requirement of a Judge's certificate, were in conflict with the provisions of s 25(3)(h) of the Constitution. When the record was perused by the Constitutional H Court a second question was added, namely whether those provisions infringed ss 8(1) and 8(2) of the Constitution, and, if so, whether such infringement was permissible under s 33(1) of the Constitution.

The Court, after noting that there was no procedure prescribed for the granting of Judge's certificates, remarked that the lack of statutory control fashioned a pattern with no clear design. No uniform practice prevailed in respect of the obtaining of the court record: some Judges obtained the record habitually, others did so rarely, being content I by and large to rely rather on the magistrate's account of the trial. Those Judges who did not read the record would have no means of knowing whether the evidence substantiated the findings made by the magistrate on the credibility of witnesses and other factual issues nor would they learn of any procedural irregularities that may have marred the trial. Nothing alerted them to flaws in the magistrate's findings or conduct of J the proceedings and there was no petition prepared by counsel to guide them in that

1996 (1) SACR p95

A direction. (At para [15].) The scheme was accordingly unsystematic and worked in a haphazard way. It exposed the process to the real danger that appeals which deserved to be heard were stifled because their merits never attracted judicial attention. The danger could not be removed by dictating to the Judges of the Provincial and Local Divisions what practice they should adopt uniformly to remedy the shortcomings in the scheme. (At para [16].) The Court held further that the minimum that s 25(3)(h) of the B Constitution envisaged and implied was the opportunity for an adequate reappraisal of every case and an informed decision on it. Section 309(4)(a) read with s 305 of the Criminal Procedure Act made no provision for that opportunity. Nor did it ensure that certificates would never be refused without it. Applications for such certificates accordingly did not amount to exercises of the Constitutional right and no other occasion for its exercise could arise once a certificate had been refused. The C requirement was therefore incompatible with s 25(3)(h). (At para [17].) It followed that the requirement was inconsistent with s 8(1) of the Constitution as well: it differentiated between two groups of people which, in its circumstances and consequences, amounted per se to unequal treatment. (At para [18].) The Court remarked that the objective of the provisions as stated by counsel, namely to eliminate D frivolous excursions to Court by prisoners in order to gain some temporary relief from the tedium of imprisonment, was probably exaggerated. (At para [23].) The other objective, namely that of blocking appeals that were devoid of discernible merit, was a valid objective but one could not be certain that no appeal but those without substance got stopped. (At para [24].) The Court held accordingly that the infringements of ss E 8(1) and 25(3)(h) were neither reasonable nor justifiable. (At para [25].)

The Court held that numbers of appeals would be swollen substantially by allowing prisoners who needed certificates to appear without them in future: the statute book could not be purged suddenly of all its old elements that were now repugnant to the Constitution. If fresh problems were to be avoided, the removal of the objectionable parts and their replacement by ones that were sound and realistic had to be both F thorough and thoughtful. (At para [28].) The Court accordingly declared s 309(4)(a) of the Criminal Procedure Act 51 of 1977 invalid and Parliament was required to remedy the defect by 30 April 1997. (At para [30].)

Case Information

Referral of a constitutional issue to the Constitutional Court in terms of s 102 of G Constitution Act 200 of 1993.

W H Trengove SC (with him L Gerntholz) for the 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.

Cur adv vult. H

Postea (8 December 1995).

Judgment

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

1996 (1) SACR p96

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...