S v Zuma and Others

• Jurisdiction: South Africa
• Citation: 1995 (2) SA 642 (CC)

S v Zuma and Others
1995 (2) SA 642 (CC)

1995 (2) SA p642

Citation	1995 (2) SA 642 (CC)
Case No	CCT/5/94
Court	Constitutional Court
Judge	Chaskalson P, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O'Regan J, Sachs J, Kentridge AJ
Heard	February 23, 1995
Judgment	April 5, 1995

Flynote : Sleutelwoorde B

Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Courts — Constitutional Court — Referral to Constitutional Court of question of validity of provision of Act of C Parliament — Parties having consented in terms of s 101(6) of Constitution to Provincial Division having jurisdiction to decide such question — Judge in Provincial Division not deciding question but referring it to Constitutional Court — Referral wholly incompetent — Judge of Provincial Division not relieved of duty to decide question — Jurisdiction of D Provincial and Local Divisions under s 101(3) not an optional jurisdiction, but conferred in order to be exercised — Constitutional Court, however, proceeding with matter by granting application in terms of s 100(2) for direct access to Constitutional Court.

Constitutional law — Constitution — Constitution of the Republic of South E Africa Act 200 of 1993 — Courts — Constitutional Court — Direct access to Constitutional Court in terms of s 100(2) of Constitution — Rule 17 of Constitutional Court Rules contemplating direct access only in most exceptional cases — Not to be used to legitimate an incompetent reference to Constitutional Court.

Constitutional law — Constitution — Interpretation of — Constitution of F the Republic of South Africa Act 200 of 1993 — Legal history, traditions and usages of country concerned to be had regard to — But constitutional rights conferred without express limitation not to be cut down by reading implicit restrictions into them to bring them into line with common law — Such cave at of particular importance in interpreting s 25(3) of G Constitution (providing for right to fair trial for every accused).

Constitutional law — Human rights — Right to a fair trial in terms of s 25(3) in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Section 25(3) requiring since 27 April 1994 criminal trials to be conducted in accordance with 'notions of basic fairness and justice' — All H courts hearing criminal trials or criminal appeals now to give content to those notions.

Constitutional law — Constitution — Interpretation of — Constitution of the Republic of South Africa Act 200 of 1993 — Whilst fundamental I 'mischief' remedied by new Constitution was previous constitutional system of Republic, such not meaning that all principles of law which have hitherto governed the Courts to be ignored — Language of Constitution also not to be neglected — Court's task is to interpret a written instrument — To be stressed that Constitution not meaning whatever it might be wished it meant.

Constitutional law — Legislation — Validity of — Presumption in s J 217(1)(b)(ii) of Criminal Procedure Act 51 of 1977 — Section

1995 (2) SA p643

A 217(1)(b) (ii) violating provisions of s 25(2) and s 25(3) (c) and (d) of Constitution of the Republic of South Africa Act 200 of 1993 — Section 217(1) (b) (ii) of Criminal Procedure Act not meeting criteria of limitation provisions of s 33(1) of Constitution — Section 217(1) (b) (ii) accordingly invalid — Court declaring s 217(1) (b) (ii) invalid and in B terms of s 98(6) of Constitution ordering that such declaration to invalidate any application of s 217(1) (b) (ii) in any criminal trial commencing after 27 April 1994 and in which verdict not yet given.

Constitutional law — Constitution — Constitution of the Republic of South Africa Act 200 of 1993 — Courts — Constitutional Court — Powers of — C Declaration of invalidity of statutory provision — Power of Court in terms of s 98(6) to order declaration to have retrospective effect — Section 98(6) intended to ensure that invalidation of provision existing at date of commencement of Constitution should not ordinarily have retrospective effect so as to avoid dislocation and inconvenience — Court's power to order declaration to have retrospective effect to be exercised D circumspectly — Sometimes interests of individuals to be weighed against interest of avoiding dislocation to administration of justice and desirability of smooth transition from the old to the new.

Headnote : Kopnota

E Where the parties in proceedings in a Provincial or Local Division of the Supreme Court have consented in terms of s 101(6) of the Constitution of the Republic of South Africa Act 200 of 1993 to that Division having jurisdiction to determine a constitutional question which that Division would otherwise not have jurisdiction to determine (in casu the question being the constitutional validity of the presumption contained in s 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977), the constitutional question no longer remains within the exclusive F jurisdiction of the Constitutional Court, and falls within the jurisdiction of the Provincial or Local Division concerned. Where in such circumstances the Provincial or Local Division does not determine the issue but refers it to the Constitutional Court for determination, the referral is wholly incompetent. (Para [10] at 649C/D-D/E.) Even if a rapid resort to the Constitutional Court were convenient, that would not relieve the Judge from making his own decision on a constitutional issue within his jurisdiction. The jurisdiction conferred on Judges of the Provincial G and Local Divisions of the Supreme Court under s 101(3) of the Constitution is not an optional jurisdiction. The jurisdiction was conferred in order to be exercised. (Para [10] at 649E-E/F.)

As appears from the terms of Rule 17 of the Rules of the Constitutional Court (promulgated in Government Notice R5 in Government Gazette 16204 of 6 January 1995 (Regulation Gazette 5450), direct access to the Constitutional Court in terms of s 100(2) of the Constitution is contemplated in only the most exceptional cases, and it is certainly not H intended to be used to legitimate an incompetent reference of a constitutional question to the Constitutional Court. (Para [11] at 650A/B-B.)

In the present case the Constitutional Court granted an application by the Attorney-General of Natal for direct access to the Court where the Natal Provincial Division had wrongly referred a constitutional matter to the Constitutional Court (ie the question of the constitutional validity of the presumption contained in s 217(1)(b)(ii) of the Criminal Procedure Act I 51 of 1977). The Court found that, by reason of the parties having consented in terms of s 101(6) of the Constitution to the Provincial Division determining the constitutional question, the referral thereof by that Court to the Constitutional Court was incompetent. The Court found, however, that the prevailing uncertainty as to the validity of s 217(1)(b)(ii) of the Criminal Procedure Act had resulted in inconsistency in practice in Natal and elsewhere and that this state of affairs was seriously prejudicing the general administration of justice as well as the J interests of the numerous accused persons affected. The Court held,

1995 (2) SA p644

A accordingly, that in the special circumstances the application for direct access to the Court was fully justified and that the question of the constitutional validity of the presumption contained in s 217(1)(b)(ii) of the Criminal Procedure Act was properly before the Court. (Para [11] at 649H-650A/B and 650B-B/C.)

In interpreting a constitution regard must be paid to the legal history, B traditions and usages of the country concerned, if the purposes of its constitution are to be fully understood. Nevertheless, 'constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them, so as to bring them into line with the common law'. That caveat is of particular importance in interpreting s 25(3) of the Constitution of the Republic of South Africa Act 200 of 1993, which provides that 'every accused shall have the right to a fair trial . . .'. The right to a fair trial conferred by that provision is broader than the list of specific rights set out in paras (a)-(j) of the subsection. (Paras [15]-[16] at 651H-I and 651J-652A.)

C The dictum in Attorney-General v Moagi 1982 (2) Botswana LR 124 at 184 applied.

Since 27 April 1994, when the Constitution came into operation, s 25(3) has required criminal trials to be conducted in accordance with 'notions of basic fairness and justice'. It is now for all courts hearing criminal trials or criminal appeals to give content to those notions. (Para [16] at 652D-D/E.)

The judgment in Qozeleni v Minister of Law and Order and Another 1994 (3) SA 625 (E) D contains much of value in its approach to constitutional interpretation. It is stated at 635B-C that the previous constitutional system of South Africa was the fundamental 'mischief' to be remedied by the new Constitution. It is also stated at 633H that, because the Constitution is the supreme law against which all law is to be tested, 'it must be examined with a view to extracting from it those principles or values against which such law . . . can be measured', and at 634C it is added that the Constitution must be interpreted so as 'to give clear expression to the values it seeks to nurture for a future South Africa'. E This is undoubtedly true. South African Courts are indeed enjoined by s 35 of the Constitution to interpret chap 3 so as 'to promote the values which underlie an open and democratic society based on freedom and equality', and, where applicable, to have regard to relevant public international law. The section also permits the Courts...