S v Tieties

• Jurisdiction: South Africa
• Judge: Hoexter JA, Botha JA, Smalberger JA, Milne JA and F H Grosskopf JA
• Judgment Date: 01 March 1990
• Hearing Date: 24 November 1989
• Citation: 1990 (2) SA 461 (A)
• Court: Appellate Division

Smalberger JA:

This appeal concerns the proper interpretation of s 123(b) of the Criminal Procedure Act 51 of 1977 ('the Act'). In J particular

Smalberger JA

A it raises the question whether an Attorney-General is competent to convert the proceedings at a criminal trial in a magistrate's or regional court into a preparatory examination after conviction.

The appellant originally appeared before a magistrate at Stampriet in terms of s 119 of the Act. He was charged with the murder of his wife B ('the deceased'). He pleaded not guilty to the charge, whereupon he was questioned by the magistrate under the provisions of s 115 of the Act. The appellant made a detailed statement in which he set out his version of the events immediately preceding the deceased's death. Thereafter the proceedings were adjourned pending the decision of the Attorney-General. In due course the Attorney-General directed that the appellant be tried C in the magistrate's court at Stampriet on a charge of culpable homicide. (It is common cause that at the time there was no regional court in South West Africa.) The trial duly proceeded, and at its conclusion the appellant was convicted of culpable homicide. The presiding magistrate found, on the evidence, that the appellant had unlawfully and intentionally killed the deceased (and was thus guilty of murder), but D convicted him of culpable homicide on the strength of the decision of this Court in S v Ngubane 1985 (3) SA 677 (A).

After the appellant had been convicted, but before sentence was passed, the State prosecutor, acting on prior instructions obtained from the Attorney-General, caused the proceedings to be converted into a E preparatory examination. In issuing the necessary instruction to convert the proceedings into a preparatory examination, the Attorney-General purported to act in terms of s 123(b) of the Act. The preparatory examination proceedings were concluded without any further evidence having been lead. In due course the Attorney-General elected to arraign the appellant for trial in the Supreme Court of South West Africa on a F charge of murder. The appellant eventually appeared before Hendler J. No special plea was entered, and the trial proceeded in the normal way. At its conclusion the appellant was duly convicted of murder with extenuating circumstances, and sentenced to seven years' imprisonment. He was later granted leave to appeal to this Court by the Judge a quo. G Such leave was limited to issues surrounding the competence of the Attorney-General to convert the original trial into a preparatory examination after the appellant's conviction. It is not disputed that the evidence at the trial before Hendler J established that the appellant was in fact guilty of murder.

The relevant provisions of s 123 of the Act read as follows: H

'If an Attorney-General is of the opinion that it is necessary for the more effective administration of justice -

(a)

...

(b)

that a trial in a magistrate's court or a regional court be converted into a preparatory examination, he may at any stage of I the proceedings, but before sentence is passed, instruct that the trial be converted into a preparatory examination.'

On a literal interpretation thereof the meaning of s 123(b) would seem to be clear. The words 'before sentence is passed' signify that the Attorney-General (once he has formed the required opinion) may instruct J that the proceedings be converted into a preparatory examination at any

Smalberger JA

A stage prior to sentence - which necessarily implies the power to do so both before and after conviction. The crisp issue is whether this is what the Legislature intended, or whether it only had in mind to empower the Attorney-General to act in the manner prescribed by s 123(b) before and not after conviction. To arrive at the latter conclusion would necessarily involve substituting the words 'before conviction' for the B words 'before sentence is passed' in s 123(b). This would not only amount to a radical departure from the literal meaning of the actual words used, but in effect constitute a redrafting of s 123(b). Does our law permit such a course?

The primary rule in the construction of statutory provisions is to ascertain the intention of the Legislature. In order to do so one attributes to the words of a statute their ordinary, literal, C grammatical meaning. Where the language of a statute, so viewed, is clear and unambiguous effect must be given thereto, unless to do so

'would lead to absurdity so glaring that it could never have been contemplated by the Legislature, or where it would lead to a result contrary to the intention of the Legislature, as shown by the context or by such other considerations as the Court is justified in taking into D account...'

(per Innes CJ in R v Venter 1907 TS 910 at 915). (See also Shenker v The Master and Another 1936 AD 136 at 142; Summit Industrial Corporation v Claimants Against the Fund Comprising the Proceeds of the Sale of the MV Jade Transporter 1987 (2) SA 583 (A) at 596G - H.) Where the ordinary grammatical meaning of the words used would not reflect the E Legislature's true intention (as gleaned from other relevant considerations) 'it is within the powers of a Court to modify the language of a statutory provision where this is necessary to give effect to what was clearly the Legislature's intention' (per Schreiner JA in Durban City Council v Gray 1951 (3) SA 568 (A) at 580B). (See also the F remarks of Ward J, in Skinner v Palmer 1919 WLD 39 at 44 that 'if a proper case arose the Court could delete one word and read in another. But the Court will not reject a word of clear meaning unless it is forced to do so.') Before a Court can modify or alter the words of a statute in terms of the above principles 'the intention of the Legislature must be clear, and not a mere matter of surmise or probability' (per De Villiers JA in Shenker v The Master (supra at 143). G One must heed the warning of Corbett JA in the Summit Industrial Corporation case supra at 596J - 597B that

'it is dangerous to speculate on the intention of the Legislature (see eg the reference in Savage v Commissioner for Inland Revenue 1951 (4) SA 400 (A) at 409A) and the Court should be cautious about thus departing H from the literal meaning of the words of a statute (see remarks of Solomon JA in Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 at 554 - 5). It should only do so where the contrary legislative intent is clear and indubitable (see Du Plessis v Joubert 1968 (1) SA 585 (A) at 594 - 5).'

Or in the words of Davis J in De Villiers v Cape Law Society 1937 CPD I 428 at 432:

'I must... be certain that the result of any alteration that I may make will be to carry out the intention...