S v Western Areas Ltd and Others

• Jurisdiction: South Africa
• Judge: Howie P, Scott JA, Farlam JA, Mthiyane JA and Cloete JA
• Judgment Date: 31 March 2005
• Citation: 2005 (1) SACR 441 (SCA)
• Docket Number: 65/04 and 245/04
• Hearing Date: 01 March 2005
• Counsel: G J Marcus SC (with A E Bham and M Chaskalson) for the first, second and fourth appellants (heads of argument having been drawn by M R Hellens SC, Marcus, Bahm and Chaskalson). Christo Meiring for the third appellant. W H G van der Linde SC (with K D Moroka SC and L Mdalana) for the State.
• Court: Supreme Court of Appeal

Howie P:

[1] A criminal trial cuts across a number of an accused A person's fundamental rights. Attendance at the trial, even if on bail, limits freedom of movement and even the right to liberty is curbed to an extent. Those are some of the negative consequences. On the other hand the accused is afforded a number of what are collectively called B fair trial rights. One of these is the right to appeal. The primary question in the present instance is whether this Court has jurisdiction to hear an appeal at this stage. The question arises in the following way.

[2] The four appellants, a company and three individuals, have been charged in the High Court, Johannesburg on an indictment C containing 12 counts alleging their commission of a variety of offences. Before pleading they formally objected to each of seven counts as disclosing no offence.

[3] Six of the counts (counts 1, 2, 3, 4, 6 and 7 in the indictment) each comprises a charge of fraud and some have alternative D charges of contravening the Riotous Assemblies Act 17 of 1956 - conspiracy to commit fraud as one alternative and incitement to commit fraud as another. Each fraud count alleges, as an element of the offence, the non-disclosure of facts which the State says it was the appellants' statutory and common-law duty to disclose E in respect of certain share-dealings. The notice of objection points to the fact that the statutory and regulatory provisions which pertain to share-dealings and impose a duty of disclosure, fail to criminalise non-disclosure. The nub of the objection is that non-disclosure in that situation cannot as a matter of law constitute the misrepresentation element of fraud. (It is not disputed that non-disclosure amounts to a F misrepresentation that the undisclosed facts do not exist.) Consequently, so the objection continues, each of the six fraud charges in question is bad in law. That being so the alternative charges, being inextricably linked to the alleged fraud, are also bad.

[4] The seventh count objected to (count 12 in the indictment) G alleges a contravention of s 2(1) of the Insider Trading Act 135 of 1998, again with conspiracy and incitement charges as alternatives. The objection is that s 4(1)(d) of that Act creates a specific defence and the conduct attributed to the appellants in the charge is the very conduct which constitutes that defence.

[5] At the start of the hearing in the High Court, but before H plea, argument was heard on the objection. The presiding Judge (Labuschagne J) reserved his decision and subsequently dismissed the objection. [*] Later he granted leave to appeal to this Court and also granted a certificate in terms of Rule 18 of the Constitutional Court Rules in respect of a possible appeal to that Court. [*1] I

Howie P

[6] Turning to the jurisdictional issue, usually referred to in A the present context as appealability, the case for the appellants is that this Court has jurisdiction at this juncture, firstly, by reason of the provisions of s 168(3) of the Constitution, [1] secondly, as a matter of discretion and, thirdly, by virtue of the provisions of s 21(1) of the Supreme Court Act. [2]

[7] Section 168(3) of the Constitution (omitting irrelevant B words) reads as follows -

'The Supreme Court of Appeal may decide appeals in any matter. It is the highest Court of appeal except in constitutional matters, and may decide only -

(a)

appeals;

(b)

issues connected with appeals; and C

(c)

. . . .'

[8] The first submission by counsel for the appellants in regard to this subsection is that it altered the pre-existing position by conferring plenary appellate jurisdiction. Before the coming into operation of the Constitution on 4 February 1997 this Court's jurisdiction had to be conferred by statute. [3] Questions of appealability went D to jurisdiction and had to be decided by reference to the Supreme Court Act, [4] the Criminal Procedure Act [5] and other legislation specifically material to appeals to this Court. Now, said counsel, the appealability questions that pre-dated 1997 have fallen away; every High Court order is appealable in principle and no Rule of this Court restrains that E otherwise limitless jurisdiction. In this regard counsel relied on Chevron Engineering (Pty) Ltd v Nkambule. [6]

[9] In evaluating this contention the following considerations are of importance. First, there is a significant background history. The interim Constitution [7] specifically stated that F this Court had no jurisdiction in matters falling within the jurisdiction of the Constitutional Court, viz constitutional matters. [8] The intention in s 168(3) was to remove that restriction. The words 'any matter' accord jurisdiction not only in matters that were subject to the Court's jurisdiction before but, now also constitutional matters. In effect the G jurisdiction bestowed is to decide appeals on any subject-matter. The words 'any matter' also appear in s 170 of the Constitution which empowers magistrates' courts and all other courts [9] to decide 'any matter determined by an Act of Parliament'. Here, again, the intention, in my view, is to refer to subject-matter because the section goes on to say that a court of lower status than a High Court may not enquire into or rule on the constitutionality of any legislation or any conduct of the President. These are instances of H

Howie P

subject-matter. The appellants' A reliance on Chevron [10] is misplaced. The question there was not whether the decision in issue was appealable but whether, in respect of a decision that clearly was appealable, an appeal lay to this Court.

[10] Secondly, nothing in the subsection suggests the conferment of jurisdiction to hear as an appeal that which, by established B statutory construction and practice, is not appealable. On the contrary, quite apart from subject-matter, the words 'decide appeals' plainly means that the cases to be decided are appeals. A decision which is not appealable is not justiciable as an appeal. The subsection therefore means an appeal properly before the Court as such. C

[11] Thirdly, a dispute on the question of appealability is not itself an appeal. It falls contextually and linguistically within the meaning of the words 'issues connected with appeals' in s 168(3)(b).

[12] Fourthly, no reason suggests itself why the framers of the Constitution would have wanted to render decisions such as rulings on D evidence or interlocutory procedure appealable. More importantly, if the argument under consideration were right, the prosecution could appeal against any acquittal. Understandably that has never been regarded as the correct legal position.

[13] Finally, s 171 of the Constitution states that all courts E function in terms of national legislation and their Rules and procedures must be provided for in terms of national legislation. Here is a very clear indication that the framers had no intention to speak in s 168(3) of matters of...