Veldman v Director of Public Prosecutions, Witwatersrand Local Division

• Jurisdiction: South Africa
• Citation: 2007 (3) SA 210 (CC)

Veldman v Director of Public Prosecutions, Witwatersrand Local Division
2007 (3) SA 210 (CC)

2007 (3) SA p210

Citation	2007 (3) SA 210 (CC)
Case No	CT19/05
Court	Constitutional Court
Judge	Langa CJ, Mosenke DCJ, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	August 18, 2005
Judgment	December 5, 2005
Counsel	A Bava (with M Augustine) for the applicant.; H J Broodryk SC (with C E Britz) for the respondent.

Flynote : Sleutelwoorde H

Jurisdiction — Penal jurisdiction — Increase in — Effect on sentencing for offences committed before increase — Increase in penal jurisdiction not peremptory and not creating 'prescribed punishment' — To read 'prescribed punishment' in s 35(3)(n) of Constitution, I 1996, as inclusive of increased penal jurisdiction giving it unduly strained meaning — Accordingly, s 35(3)(n) providing protection against retrospective application of increased sentencing jurisdiction in terms of s 92(1)(a) of Magistrates'

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Courts Act 32 of 1944 — This not meaning that right to fair trial (which extends beyond specific rights listed A in s 35(3)) not applicable in such cases — To expose accused to higher sentence during trial undermining rule of law and violating right to fair trial — Unfairness deriving from uncertainty created by retrospective application of court's increased penal jurisdiction during course of trial, exposing accused to sentence more severe than that which competent when plea tendered. B

Jurisdiction — Penal jurisdiction — Increase in — Whether procedural or substantive in nature — Presumption against retrospectivity — Distinction between procedural and substantive provisions not always decisive — Correct approach that procedural law applying retrospectively unless such application adversely affecting person's substantive rights — However, if new legislation affecting person in C manner detrimental to substantive rights, application of that law not escaping scrutiny simply on grounds that procedural in nature — To expose accused person to higher sentence during course of trial undermining rule of law and violating right to fair trial — Accused person not to be exposed to sentence higher than that competent at time of tendering plea. D

Constitutional law — Fundamental rights — Right to fair trial — Section 35(3)(n) of Constitution, 1996 — Right to benefit of least severe prescribed punishment where prescribed punishment for offence changing between time of commission of offence and time of sentencing — Increase in penal jurisdiction not peremptory and not constituting prescribed punishment — Accordingly, s 35(3)(n) not E providing protection against retrospective application of increased sentencing jurisdiction in terms of s 92(1)(a) of Magistrates' Courts Act 32 of 1944 — Not meaning that right to fair trial (which extends beyond specific rights listed in s 35(3)) not applicable in such cases — To expose accused person to higher sentence during course of trial undermining rule of law and violating right to fair trial — Accused person not to be exposed to sentence higher than that competent at time of F tendering plea.

Headnote : Kopnota

The applicant was convicted in a regional court of, among other charges, murder, for which a sentence of 15 years' imprisonment was imposed. At the time he had committed the offence, and when he G pleaded, the maximum penal jurisdiction of a regional court for murder was ten years' imprisonment. However, in October 1998, after he had pleaded, but before he was sentenced, legislation was passed increasing that jurisdiction to 15 years. In addition, s 51 of the Criminal Law Amendment Act 105 of 1997, which prescribed minimum sentences for certain offences, inter alia, murder, came into force H after he had pleaded. The applicant's appeal against conviction and sentence failed in the High Court and his application for leave to appeal to the Supreme Court of Appeal was dismissed by the latter Court without reasons. He then applied to the Constitutional Court for an order setting aside the 15-year term of imprisonment and replacing it with a term of ten years, on the grounds that the more severe sentence violated his constitutional right to a fair trial as set out in I s 35(3)(n) of the Constitution of the Republic of South Africa, 1996. Two central issues required determination: (1) whether the regional court in imposing a 15-year term had done so in terms of the minimum sentence legislation, or by virtue of its increased penal jurisdiction as provided for in the amended s 92(1)(a) of the Magistrates' Courts Act 32 of 1944; and (2) whether the regional court's J

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retrospective application of either statute violated the applicant's right to a fair trial protected by A s 35(3)(n) of the Constitution. Mokgoro J made the finding for the majority. O'Regan J and Ngcobo J, writing separately, agreed with the order made by the majority, but differed in approach.

Held (per Mokgoro J; Moseneke DCJ, Sachs J, Skweyiya J and Van der Westhuizen J concurring), that the sentence imposed by the trial court was not authorised, and that the resulting B sentence violated the principles of the rule of law and breached the applicant's s 35(3) rights. No specific mention had been made by the trial court concerning the application of either s 51 of the minimum sentence legislation or its increased penal jurisdiction under the amended Magistrates' Courts Act. There had been no reference to 'substantial and compelling circumstances', and it was to be expected C that, if the trial court had applied s 51, it would have warned the applicant of the effects thereof. A similar warning was also to be expected if it had decided to apply its increased jurisdiction under the Magistrates' Courts Act. Instead, it was silent in this regard, too. This was probably due to the fact that the application of the sentencing powers in s 92(1)(a) of the Magistrates' Courts Act was regarded as routine procedure. Accordingly, it would appear D that the trial court had acted in terms of the Magistrates' Courts Act rather than in terms of the minimum sentence legislation. (Paragraphs [15] - [17] at 220H - 221F.)

Held, further, regarding the applicability of s 35(3)(n) of the Constitution, that this provision protected an accused from the retrospective application of increased prescribed punishment. An increase in penal jurisdiction was not E peremptory and did not create a 'prescribed punishment'. To read prescribed punishment in s 35(3)(n) as inclusive of increased penal jurisdiction was to give it an unduly strained meaning. Accordingly, s 35(3)(n) did not provide protection against the retrospective application of s 92(1)(a). However, the notion of the right to a fair trial extended beyond the specific rights listed in s 35(3) of the Constitution, and the general right to a fair trial was applicable in casu. (Paragraphs [21] - [22] and [25] at 222F - 223B and 223H.) F

Held, further, that there was a presumption against retrospectivity. Unless otherwise provided, a statute was not to be interpreted to extinguish existing rights and obligations. This was basic to the notions of fairness and justice that were integral to the rule of law, a foundational principle of the Constitution. As to the G argument that an increase in sentencing jurisdiction was merely a procedural change which did not trigger the presumption against retrospectivity, the distinction between procedural and substantive provisions could not always be decisive. The contradictory line of case law on the question demonstrated this. The correct approach was that a procedural law could apply retrospectively unless this would adversely H affect an applicant's substantive rights. However, if new legislation affected a person in a manner detrimental to his or her substantive rights, the application of that law would not escape scrutiny simply on the grounds that it was procedural in nature. (Paragraphs [26], [28] and [34] at 224A - C, 224H and 226D.)

Held, further, concerning the argument that there had been no prejudice to the applicant since he could have received a sentence I in excess of 15 years had he been arraigned in the High Court, or if the regional court trial had been converted into a preparatory examination with a view to having the matter tried in the High Court, that, neither of these possibilities having in fact happened, the penal competence of the regional court was confined to the maximum penal jurisdiction at the time of plea. If available legislation was not invoked and, consequently, an accused person was not referred to a J

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court of higher penal jurisdiction, the extent of the penalty was limited by the boundaries of the trial court's sentencing A discretion. While an accused person did not have a vested right to a particular sentence, he or she did have a legally valid interest in the certainty that his or her sentence would not exceed the maximum penal jurisdiction of the trial court at the time of plea. An accused might possibly plead guilty to expedite the trial, or for other reasons, based on the trial court's maximum penal jurisdiction, in which case B it would be unfair to expose him or her to a higher sentence. Certainty as to the boundaries of the prosecution and the penal risk should be upheld consistently throughout the trial, since it was at the time of the plea that issue was joined and the parameters of the trial defined. Accordingly, to expose an accused person to a higher sentence during the course of a trial undermined the rule of law and violated his or her right to a fair trial. It was to be emphasised that the C unfairness to the applicant did not arise from his inability to devise trial strategies to escape moral...