S v Ntuli

• Jurisdiction: South Africa
• Citation: 1996 (1) SA 1207 (CC)

S v Ntuli
1996 (1) SA 1207 (CC)

1996 (1) SA p1207

Citation	1996 (1) SA 1207 (CC)
Case No	CCT 17/95
Court	Constitutional Court
Judge	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) 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.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to equality before the law in terms of s 8(1) in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Restriction imposed by s 309(4)(a) read with s 305 of C Criminal Procedure Act 51 of 1977 on prisoner's right to appeal in person to a higher Court an infringement of s 8(1) of Constitution and accordingly invalid — Parliament required to remedy defect by 30 April 1997.

Constitutional law — Human rights — Right of accused to a fair trial in terms of s 25(3) in chap 3 of Constitution of Republic of South Africa Act D 200 of 1993 — Such right including right to have recourse by way of appeal or review to higher Court — Restriction imposed by s 309(4)(a) read with s 305 of Criminal Procedure Act 51 of 1977 on prisoner's right to appeal in person to higher Court an infringement of s 25(3)(h) of Constitution and accordingly invalid — Parliament required to remedy defect by 30 April 1997. E

Headnote : Kopnota

The minimum that s 25(3)(h) of the Constitution of Republic of South Africa Act 200 of 1993 (which provides that '(e)very accused person shall have the right to a fair trial, which shall include the right - . . . (h) to have recourse by way of appeal or review to a higher Court than the court of first instance; . . .') envisages and implies is the opportunity for an adequate reappraisal of every case and an informed decision on it. F The Criminal Procedure Act 51 of 1977 in s 309(4)(a) (which provides that '(4) When an appeal under this section is noted, the provisions of - (a) s 305 shall mutatis mutandis apply in respect of the conviction, sentence or order appealed against; . . .') read with s 305 (which provides that '(n)otwithstanding anything to the contrary in any law contained, no person who 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 G relating to such conviction unless a Judge of the Provincial or Local Division having jurisdiction has certified that there are reasonable grounds for review') makes no provision for that opportunity. Nor does it ensure that certificates will never be refused without it. Applications for such certificates do not amount to exercises of the constitutional right in s 25(3)(h) of the Constitution. And no other occasion for its exercise can arise once a certificate has been refused. The requirement of a certificate is therefore incompatible with s 25(3)(h). (Paragraph [17] at 1214B-C.)

H It follows that the requirement of a certificate is inconsistent with s 8(1) of the Constitution as well (s 8(1) providing that '(e)very person shall have the right to equality before the law and to equal protection of the law'). It suffices to say that the guarantee in s 8(1) surely entitles everybody, at the very least, to equal treatment by courts of law. Such treatment must accordingly be administered within the area controlled by s 25(3)(h) of the Constitution. (Paragraph [18] at 1214C/D and 1214D/E.)

I In order to pass one of the tests for their permissibility which s 33(1) of the Constitution sets, the infringements of ss 8(1) and 25(3)(h) by s 309(4)(a) of the Criminal Procedure Act have to be rated as reasonable. They are not. They fail another test too, the test of justifiability in a 'society based on . . . equality'. Each of these failures suffices on its own to dispose of the defence raised under s 33(1) of the Constitution. The provisions of s 309(4)(a) read with s 305 of the Criminal Procedure Act cannot consequently be allowed to stand. (Paragraph [25] at J 1215I-1216A.)

1996 (1) SA p1208

A The Court accordingly issued an order declaring s 309(4)(a) of the Criminal Procedure Act to be invalid and requiring Parliament to remedy the defect therein by 30 April 1997, with the result that the declaration of invalidity was suspended until the section had been remedied or 30 April 1997 arrived, whichever occurred the earlier. The case was remitted to the Witwatersrand Local Division to be dealt with accordingly. (Paragraph [30] at 1217D/E-E/F.)

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

B S v Rens 1996 (1) SA 1218 (CC)

S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A)

S v Shuma and Another 1994 (4) SA 583 (E)

S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC) (1995 (2) SACR 125; 1995 (7) BCLR 851)

C S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401)

Shabalala and Others v Attorney-General, Transvaal, and Another 1996 (1) SA 725 (CC).

Case Information

Adjudication of a constitutional issue referred to the Constitutional D Court in terms of s 102 of Constitution Act 200 of 1993. The facts appear from the judgment of Didcott J.

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.

Cur adv vult. E

Postea (December 8).

Judgment

Didcott J:

F [1] Section 25(3) of the Constitution of the Republic of South Africa 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 G and Another; S v Mthwana 1992 (1) SA 343 (A). The former position was this, as the Appellate Division 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 any complaint about the unfairness of a H 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 I tested against abstract notions of fairness and justice.'

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) (1995 (1) SACR J 568; 1995 (4) BCLR 401) where Kentridge AJ wrote (at 651J-652A):

1996 (1) SA p1209

Didcott J

A '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 requirements mentioned by Nicholas AJA but also, as Kentridge B 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 C 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 general right to a fair trial, bestowing and protecting them individually. One of those, which para (h) specifies, is

D '. . . 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.

E [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 F convictions and the sentences. He had not been legally 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 surmounted at first, one erected by the provisions of the Criminal Procedure Act 51 of 1977 which regulated appeals lodged by convicts like him.

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

'Any person convicted of any offence by any lower court . . . may appeal against such...