S v Pennington and Another

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Madala J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 18 September 1997
• Citation: 1999 (2) SACR 329 (CC)
• Hearing Date: 21 August 1997
• Counsel: M S M Brassey SC (with him G Kerr-Phillips) for the appellants A J Fourie for the State
• Court: Constitutional Court

Chaskalson P:

[1] The two appellants were convicted in the Witwatersrand Local Division of the E Supreme Court on 172 counts of fraud in January 1992. The first appellant was sentenced effectively to six years' imprisonment, half of which was conditionally suspended, and the second appellant effectively to seven years' imprisonment. The appellants appealed unsuccessfully to the Supreme Court of Appeal [1] against their convictions and sentences. The judgment dismissing the F appeals was delivered on 16 May 1997. [2]

[2] On 26 May 1997 the appellants lodged a notice with the Registrar of this Court purporting to appeal to this Court against the decision of the Supreme Court of Appeal. The grounds of appeal set out in the notice are to the effect that the appellants' rights to 'human dignity' and to 'a fair trial' in terms of ss 10 and 35(3) of the Constitution of the Republic of South Africa Act 108 of 1996 had G been infringed, and the Supreme Court of Appeal had erred in holding that these provisions were not applicable to their appeal. The detailed grounds of appeal set out in the notice relate to delays in prosecuting the appellants, the absence of legal representation at 'crucial times' during the trial, the failure by the trial Judge to explain to the appellants the rights that they had, and the admission of H certain evidence at the trial, all of which were said to have resulted in the trial being unfair and to have impaired the appellants' dignity. The notice of appeal omitted a ground of appeal relating to the admission of evidence on which the appellants wished to rely in support of their contentions and an I application to amend the grounds of appeal was lodged with the Registrar of the Court. I will deal with the matter on the assumption that if there is an appeal, the amendment will be granted.

Chaskalson P

[3] The notice lodged with the Registrar purports to note the appeal in terms of s 167 of the 1996 A Constitution. Section 167(3), (6) and (7) provide that:

'(3) The Constitutional Court -

(a)

is the highest Court in all constitutional matters;

(b)

may decide only constitutional matters, and issues connected with decisions on constitutional B matters; and

(c)

makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

. . .

(6) National legislation or the Rules of the Constitutional Court must allow a person, when it is in the interests C of justice and with leave of the Constitutional Court -

(a)

. . .

(b)

to appeal directly to the Constitutional Court from any other court.

(7) A constitutional matter includes any issue involving the interpretation, protection or enforcement of the D Constitution.'

The legislation referred to in s 167(6) has not yet been enacted; nor has a Rule of Court been made to regulate the right of appeal referred to in s 167(6).

[4] Section 100(1) of the interim Constitution (the Constitution of the Republic of South Africa Act E 200 of 1993) made provision for the Rules of the Constitutional Court to be prescribed by the President of the Constitutional Court in consultation with the Chief Justice. This was done and the Rules were promulgated in Regulation Gazette 5450 of 6 January 1995. At that time the Appellate Division had no jurisdiction to decide constitutional issues and the Rules made no provision for appeals from the Appellate Division to the Constitutional Court. Section 100(1) of the interim F Constitution has been repealed. [3] The making of Rules for the Constitutional Court is now dealt with by s 171 of the 1996 Constitution which provides that:

'All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation.' G

Neither the Constitutional Court Complementary Act 13 of 1995 nor the Rules Board for Schedule 7 of the 1996 Constitution make provision for the making of Rules for the Constitutional Court and there is, as yet, no national legislation prescribing how such Rules are to be made. [4] Until that H legislation is passed the existing Rules cannot be supplemented to deal with the changes in the functioning of the courts effected by the 1996 Constitution.

[5] In correspondence that was exchanged between the attorney for the appellants and the Director of this Court it was contended on behalf of the appellants that the constitutional issues raised by them fell to be dealt with under the 1996 Constitution and in the absence of any provisions in I

Chaskalson P

A such Constitution, or in legislation or Rules regulating appeals from the Supreme Court of Appeal to this Court, the appellants were entitled as of right to appeal. If an appeal was noted, so it was contended, this Court was obliged to hear it.

[6] The appellants, through counsel, submitted written argument in support of their contentions. The B matter was then set down for hearing to enable the Court to deal with the matters that had been raised. Counsel for the appellants and counsel for the State were requested to address argument to the Court on these and other issues, the nature of which appears from this judgment.

The proceedings in the Supreme Court of Appeal C

[7] The trial of the two appellants was completed before the interim Constitution of 1993 came into force. They appealed to the Appellate Division against their convictions and sentences. During the period between the noting of the appeal and the hearing before the Supreme Court of Appeal the D interim Constitution came into force and was superseded by the 1996 Constitution.

[8] Under the interim Constitution the Appellate Division had no constitutional jurisdiction. This was changed by the 1996 Constitution which gave the Supreme Court of Appeal jurisdiction to decide E appeals in respect of any matter. [5] At the hearing before the Supreme Court of Appeal the appellants contended that the trial Court had erred in convicting them. They also contended that they had not received a fair trial. In support of this contention they sought to rely on the provisions of the 1996 Constitution and the jurisdiction conferred on the Supreme Court of Appeal by that F Constitution to decide constitutional issues. The Supreme Court of Appeal dismissed the appeals. On the merits of the appeals the majority of the Court held that the appellants had not shown that the judgment of the trial Judge was wrong or that the sentences were excessive. On the issue as to whether the appellants had received a fair trial the Court held unanimously that this had to be G determined according to the law in force at the time the trial was conducted and that the appellants had failed to establish that they had not received a fair trial in accordance with such law.

The jurisdiction of the Constitutional Court to hear appeals from the Supreme Court of Appeal

H [9] The appellants contend that they are entitled to have the question as to whether or not they had been given a fair trial, and their complaint that their dignity was infringed by the way the trial was conducted, determined in accordance with the provisions of the 1996 Constitution, [6] and that they are entitled to appeal as of right to this Court, as the highest Court in all constitutional matters, to I set aside the decision of the Supreme Court of Appeal holding that the Constitution was not applicable to their appeal.

Chaskalson P

[10] On a proper construction of the 1996 Constitution there can be no doubt that this Court has A appellate jurisdiction, including jurisdiction to hear appeals from decisions of the Supreme Court of Appeal on constitutional matters. Section 167(3)(a) of the 1996 Constitution provides that the Constitutional Court 'is the highest Court in all constitutional matters'. Section 168(3) provides that the Supreme Court of Appeal B

'may decide appeals in any matter. It is the highest Court of appeal except in constitutional matters . . .'.

The 'highest' Court of appeal in respect of constitutional matters is therefore the Constitutional Court. This is made explicit by s 167(6) of the 1996 Constitution which provides: C

'National legislation or the Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court -

(a)

to bring a matter directly to the Constitutional Court; or

(b)

to appeal directly to the Constitutional Court from any other court.' D

The words 'any other court' would include the Supreme Court of Appeal.

[11] Section 167(6) makes clear that the Constitutional Court is to have both original and appellate jurisdiction, and the power to control access to it by granting 'leave' only in cases where it is in the E interests of justice to do so. In other words, litigants will not ordinarily have the right to insist upon a matter being heard by the Constitutional Court. What has to be decided in the present matter is whether in the period between the coming into force of the 1996 Constitution and the enactment of the legislation or Rules required by s 167(6), the Court can hear appeals from the Supreme Court of Appeal, and if so, whether it can regulate the procedure to be followed in such appeals. F

[12] Counsel for the appellants contended that:

(a)

s 167(3) read with s 168(3) vests appellate jurisdiction in this Court to hear appeals from decisions of the Supreme Court of Appeal; G

(b)

a court has no power at common law to decline to entertain a matter properly within its jurisdiction by refusing leave to appeal and that this Court has been vested with no power under the 1996 Constitution to impose such a requirement; alternatively, H

(c)

s 167(6) read with ss 171 and 34 of the 1996 Constitution places the decision in regard to whether, and...