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IN THE CONSTITUTIONAL COURT OF SOUTH
AFRICA
CASE NO CCT/25/94
In the matter between:
MHLUNGU AND FOUR OTHERS Applicants
and
THE STATE Respondents
HEARD ON : 23 February 1995
DELIVERED ON : 8 June 1995
JUDGMENT
[1] MAHOMED J: I have had the privilege of reading the judgment of Kentridge AJ in this matter and the comments made thereon by some of my esteemed colleagues. I respectfully agree that -
(a) section 102 of the Constitution of the Republic of South Africa, 1993
(“the Constitution”) did not entitle the Court
a quo to refer
to this Court the issue of the proper interpretation of section 241(8) of the
Constitution;
(b) for the reasons given by Kentridge AJ the proper interpretation of section 241(8) is relevant in the present proceedings and should be determined by this Court.
[2] I have, however, considerable difficulty with the proper interpretation of section 241(8) which reads as follows:
"All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be brought before the court having jurisdiction under this Constitution".
The attraction of the analysis of section 241(8) which Kentridge AJ has made, is that it is consistent with the literal words of the main part of the sub-section which could, on that approach, simply be reduced to read as follows:
"All proceedings which immediately before the commencement of this Constitution were pending ............. shall be dealt with as if this Constitution had not been passed."
[3] This literal interpretation involves, however, a number of formidable difficulties.
[4] In the first place it leads to some very unjust, perhaps even absurd, consequences. Thus, merely because an accused person was served with an indictment before 27 April 1994, (and even if no evidence whatever was lead before that date) he could not contend that the provisions of section 217(1)(b)(ii) of the Criminal Code were unconstitutional. In the result, the Court could be compelled to convict him (and in consequence thereof even to imprison him for a substantial period) in circumstances where it has a reasonable doubt whether his confession was freely and voluntarily made and therefore even if the Court has a reasonable doubt about his guilt. Another accused charged as his co-conspirator could be acquitted simply because the indictment was served on him on 28 April 1994 in respect of an offence arising from exactly the same incident and the same evidence.
[5] The right of each of these accused to a "fair trial" in terms of section 25(3) of the Constitution (including the right to counsel in terms of section 25(3)(e)) could similarly be different because of the one day difference in the date of the service of the indictment, although both accused were equally indigent and equally in need of counsel in order to avoid "substantial injustice". The result again may well be a conviction and resultant imprisonment for one accused and the total acquittal of the other, based purely on arbitrary circumstances, totally unjustified by any objective considerations.
[6] A Judge passing sentence on the accused charged with committing exactly the same offence, on the same date and in exactly the same circumstances, would be entitled to sentence one accused to death, and may be disentitled to do so in respect of the other accused in the same trial, merely because when the indictment was sought to be served on 26 April 1994, the one accused was at home and the other could not be located until the next morning. Exactly the same irrational discrimination would be present if corporal punishment was sought to be imposed. Such a sentence would be competent in respect of the one accused and might be incompetent in respect of the other, on the sole ground that the one indictment was served on the day before and the other on the day after the commencement of the Constitution.
[7] South African statutory law, prior to the enactment of the Constitution, is replete with the most disgraceful and offensive legislation which discriminates against South Africans of colour and criminalizes arbitrarily and purely on the grounds of race and colour, perfectly innocuous acts of life and living by such citizens. It is possible that a citizen charged with such an offence before the commencement of the Constitution could, on the literal interpretation, be convicted and sentenced, even after 27 April 1994, for having contravened a law, which sought to punish him on racial grounds, if his case was pending when the Constitution came into operation. This is a plainly outrageous consequence. It is suggested by Kentridge AJ that the legislature and the executive can avoid such a consequence by taking steps to repeal the law or to cause the prosecution to be withdrawn. This is of scant comfort to the accused person concerned, who might have no means to compel such a decision or who might be exposed to the risk of a conviction before the bureaucratic machinery of the State reacts to afford relief. He is entitled to say: "The Constitution affords every person equal protection against unfair racial discrimination. I claim that right for myself and my family. You, the Court must protect me".
[8] What these and many other examples would suggest is that the approach favoured by Kentridge AJ would remove the protection of fundamental rights to substantial groups of people in the country, simply because the proceedings in which the protection of such rights might be crucial for a person, had begun prior to the commencement of the Constitution on 27 April 1994, although the substance of the proceedings takes place only after that date. I would be extremely distressed to accept that this is what the Constitution intended. It seems to negate the very spirit and tenor of the Constitution and its widely acclaimed and celebrated objectives. Fundamental to that spirit and tenor was the promise of the equal protection of the laws to all the people of this country and a ringing and decisive break with a past which perpetuated inequality and irrational discrimination and arbitrary governmental and executive action. The literal interpretation would invade all these objectives in its arbitrary selection of one category of persons who would become entitled to enjoy the human rights guarantees of the Constitution and the arbitrary exclusion of another group of persons from such entitlement. The Courts must strive to avoid such a result if the language and context of the relevant provision, interpreted with regard to the objectives of the Constitution, permits such a course. What must be avoided, if this is a constitutionally permissible course, is a result which permits human rights guaranteed by the Constitution to be enjoyed by some people and denied arbitrarily to others. Such a consequence would effectively allow substantive parts of a disgraced and unacceptable culture from the past to continue into a future, protected by the Constitution. In proceedings which might affect their lives and liberties, large numbers of South African citizens would, on purely fortuitous grounds, be unable to assert the expanding human rights guaranteed by Chapter 3 of the Constitution, including the fundamental right to a fair trial protected by section 25(3). Such a result would be inconsistent with the international culture of constitutional jurisprudence which has developed to give to constitutional interpretation a purposive and generous focus. It seeks to avoid what Lord Wilberforce called
"the austerity of tabulated legalism" (Minister of Home Affairs (Bermuda) v Fisher 1980 AC 319 at 328H).
This is because
"A Constitution is an organic instrument. Although it is enacted in the form of a statute it is sui generis. It must broadly, liberally and purposively be interpreted so as to avoid "the austerity of tabulated legalism" and so as to enable it to continue to play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of the nation, in the articulation of the values bonding its people and in disciplining its Government." (Government of the Republic of Namibia and Another v Cultura 2000 and Another 1994 (1) SA 407 at 418).
[9] An interpretation of section 241(8) which withholds the rights
guaranteed by Chapter 3 of the Constitution from those involved
in proceedings
which fortuitously commenced before the operation of the Constitution would not
give to that Chapter a construction
which is "most beneficial to the widest
possible amplitude” and should therefore be avoided if the language and
context of
the relevant sections reasonably permits such a course. (S v Zuma
and Others 1995(4) BCLR 401 (SA) ; James v Commonwealth of Australia
[1936] AC 578 at 614; Minister of Defence, Namibia v Mwandingi 1992 (2)
SA 355 (NmS) at 361-3; S v Acheson 1991 (2) SA 805 (Nm) at 813A-C;
S v Marwane 1982 (3) SA 717 (A) at 748-749G; Ex parte Cabinet for the
Interim Government of South West Africa: In re Advisory Opinion in terms of s
19(2) of Proc R101 of 1985
(RSA) (supra at 853C-G); Hewlett v Minister
of Finance and Another 1982 (1) SA 490 (ZS); Minister of Home Affairs
and Others v Dabengwa and Another 1982 (4) SA 301 (ZS) at 306E-H;
Minister of Home Affairs v Bickle and Others 1984 (2) SA 439 (ZS) at
447C-G; Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd
1984 (2) SA 778(ZS); and Bull v Minister of Home Affairs 1986 (3) SA 870
(ZH & ZS) at 872J-873C and at 880J-881C.)
[10] The second difficulty I have with the literal approach is that if the death sentence or corporal punishment are held to be unconstitutional, the Court would be imposing sentences which could not lawfully be executed in terms of section 7(2) of the Constitution. The lawmaker should not lightly be imputed with the intention to authorise the Court to impose sentences which could not lawfully be executed. Even if the Constitution had intended to vest in the Court, irrationally, the authority to impose sentences which would not constitutionally be implemented, what happens to accused persons who have received such sentences? No obvious and easy legal machinery is created for the substitution of a competent sentence after the implementation of the constitutionally impermissible sentence has been restrained, perhaps by a Court order.
[11] There is another problem: if pending proceedings have literally to be dealt with as if the whole of the Constitution had not been passed, by virtue of what law could the Court in such proceedings refer any question for determination by the Constitutional Court? It could not rely on section 102 to do so because this is a provision of the Constitution and if it relied on it, it would not be dealing with the matter "as if this Constitution had not been passed." It is true that if this Court makes a decision on the question so referred to it by the Supreme Court it would be exercising a jurisdiction given to it in terms of the Constitution but that does not overcome the difficulty that its jurisdiction can only be exercised in the circumstances if there has been a proper referral and if the Court making the referral had no jurisdiction to do so there could not have been a proper referral.
[12] On the interpretation favoured by Kentridge AJ the reference in section 241(8) to -
"any court of law, exercising jurisdiction in accordance with the law then in
force"
is quite incongruous and difficult to understand. If the intention of
the section was simply that all proceedings which were pending
before the
commencement of the Constitution before a Court of law or other tribunal should
be dealt with as if the whole of the Constitution
had not been passed, the
qualification that such a Court of law or tribunal had to be "exercising
jurisdiction in accordance with
the law then in force" would appear to be quite
unnecessary. If that phrase was absent, could it conceivably have been
contended
that the reference to "any court of law" or “tribunal”
included a reference to illegal tribunals such as informal kangaroo
courts? In
my view, "any court of law" or “tribunal” must mean one lawfully
exercising its jurisdiction. The qualification
that it must be a “court
of law” or “tribunal” "exercising jurisdiction in accordance
with the law then in
force" would therefore add nothing to the meaning of "any
court of law" or “tribunal” without any qualification.
[13] On the interpretation favoured by Kentridge AJ the relevant phrase therefore serves no purpose. On the interpretation which I favour and which I will deal with later, it does serve an important purpose: it serves to emphasise that the object of the section is to preserve the authority of Courts dealing with pending matters to continue to discharge their functions as such Courts.
[14] In his analysis Kentridge AJ refers to various presumptions of application in the interpretation of statutes and states that
"it is against this background that the purpose of section 241(8) can be understood".
Included in the presumptions which he applies is the presumption that
"a statute is as far as possible to be construed as operating only on facts which come into existence after its passing"
and the presumption that a new statute is
"not to effect matters which are the subject of pending legal proceedings".
Kentridge AJ considers these presumptions to support the conclusion to which he arrives in the proper construction of section 241(8). I have no difficulty with his views on the content of these presumptions but if the section simply seeks to achieve what would in any event be the result of these presumptions, it would seem to me to be unnecessary. The presumptions do not have to be statutorily re-articulated in order to preserve their effect.
[15] None of these very serious difficulties can justify a refusal to give effect to the words of the section if they were not reasonably capable of an alternative construction. Such an alternative construction would have to be based not only on the literal meaning of the words "as if this Constitution had not been passed" in isolation but, in its proper context. The relevant context would be section 241(8) itself, section 241 as a whole and the larger context of the Constitution regarded as a holistic and integrated document with critical and important objectives. The crucial question is whether, adopting this approach, such an alternative construction to section 241(8) is reasonably available.
[16] In the decided cases in the Provincial and Local Divisions of the
Supreme Court at least three alternatives are suggested. The
first is the
approach adopted by Cloete J in Shabalala and Others v The Attorney-General
of the Transvaal and Others 1994 (6) BCLR 85 (T); 1995 (1) SA 608 (T) and
followed in Jurgens v The Editor, The Sunday Times Newspaper and Another
1995 (1) BCLR 97 (W). What it amounts to is that the reference to
“pending proceedings” in section 241(8) means simply
the particular
proceedings within the case which were pending immediately before the
commencement of the Constitution. Thus, an
application made before the
commencement of the Constitution for legal representation at State expense, or
to admit a confession
in terms of section 217 of the Criminal Code or even an
application to impose the death sentence or corporal punishment would have
to be
dealt with as if the Constitution had not been passed. Other applications made
after the commencement of the Constitution,
would be dealt with in terms of the
Constitution.
[17] Attractive as the consequences of this approach may otherwise be, I am unable to support it. What section 241(8) applies to is "all proceedings which are pending". What the approach favoured by Cloete J effectively does is to limit its application to interlocutory procedures within such proceedings. There seems scant justification for this either in the language of section 241(8) or its context. Moreover it is inconsistent with the use of the word "proceedings" in section 241(9) which provides that "any legal proceedings instituted before or after the commencement of the Constitution" by or against certain functionaries which ceased to exist after such commencement, could be continued by or against the relevant functionary which superseded the original functionary. Clearly, the ambit of "proceedings" in this regard cannot be limited to interlocutory proceedings within the larger case. There is no persuasive reason why it should have such a limited meaning in section 241(8).
[18] The second approach is that favoured by the Cape Provincial Division in S v W and Others 1994 (2) BCLR 135(C); 1994 (4) SA 126 (C). Substantially what it amounts to is that there is a distinction between fundamental rights of a procedural nature and those of a substantive nature and that the proper meaning of section 241(8) is that only fundamental rights of a procedural nature sanctioned by the Constitution would not be available to an accused person in pending proceedings.
[19] A serious difficulty which I have with this approach is that there
is nothing in section 241(8) which seeks to distinguish between
rights of a
procedural nature from those of a substantive nature. Moreover, the distinction
made raises the complex problem of satisfactorily
classifying what right in
Chapter 3 can be said to constitute a procedural right as distinct from a
substantive right. (See Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER
833 (PC) at 838f-g; Industrial Council for the Furniture Manufacturing
Industry (Natal) v Minister of Manpower and another 1984 (2) SA 238(D) at
242F; Euromarine International of Mauren v The Ship Berg and Others 1984
(4) SA 647 (N) at 661I-662A.) Furthermore, this distinction assumes that a
right is either procedural or substantive. It could
be a hybrid right involving
both. What is the right set out in section 25(3) to "legal representation at
State expense if substantial
injustice would otherwise result"? Is it
procedural or substantive? If it involves both substantive and procedural
elements, what
is the dominant element? Is that the test to be applied in
classifying the right? If it is and the dominant element is procedural,
how
does it help the argument that section 241(8) was never intended to take away
fundamental rights in pending proceedings? Is
the right to “legal
representation at State expense if substantial injustice would otherwise
result” any the less fundamental
for being procedural? I find it
difficult to accept that the law-maker intended to leave uncertain and
unresolved serious disputes
of this kind in the crucial area of fundamental
rights.
[20] A third alternative suggested by some of the cases in the Provincial and Local Divisions of the Supreme Court is that the object of section 241(8) is to preserve the continuing territorial jurisdiction of the Courts in which the case was pending immediately before the commencement of the Constitution (Qozoleni v Minister of Law and Order and Another 1994 (1) BCLR 75 (E); 1994 (3) SA 625 (E); S v Majavu 1994 (2) BCLR 56 (CKGD); 1994 (4) SA 268 (Ck); Gardener v Whitaker 1994 (5) BCLR 19(E); S v Shuma 1994 (2) SACR 486 (E)). In my view, the special emphasis on "territorial jurisdiction" is not justified by section 241(8), but the emphasis on the jurisdictional objectives of the section provides a basis for an alternative approach to the meaning of the section that can constitutionally be defended.
[21] What the section seeks to preclude is an attack on the authority of any Court of law or tribunal to continue dealing with proceedings which were pending before the commencement of the Constitution. What the section would then mean is that:-
"All proceedings which immediately before the commencement of this Constitution were pending before any Court of law, including any tribunal or reviewing authority, established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if the passing of this Constitution had not impacted on that jurisdiction: provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such proceedings, such proceedings shall be brought before the Court having jurisdiction under this Constitution and the Court or tribunal which might otherwise in terms of this section have had authority to deal with such appeal or review shall have no such authority."
(See, for example, S v Smith and Another 1994 (1) BCLR 63 (SE); 1994 (3) SA 887 (SE); S v Saib 1994 (2) BCLR 48 (D); S v Sixaxeni 1994 (3) BCLR 75 (C); 1994 (3) SA 733 (C).)
[22] To appreciate why sections 241(8) had to be enacted to give effect to this intention it is necessary to understand that what the Constitution does is to establish a new legal and political order involving a new Parliament, a new Executive and a new Judiciary. In terms of Chapter 7 of the Constitution, a new Constitutional Court is established in section 98, a new Supreme Court is established in terms of section 101 and other new Courts are established in terms of section 103. But, the mechanics of the contemplated establishment of the new Courts had to await the rationalisation process contemplated by section 242. That left a vacuum in the interim which section 241 seeks to fill. It does that in section 241(1) by providing that every Court of law which existed immediately before the commencement of the Constitution shall be deemed to have been duly constituted by the Constitution or the laws in force after such commencement. The word "deemed" means that the Courts which existed before the Constitution were in truth not Courts established under the Constitution or any law in force after its commencement but that they should fictitiously be assumed to have been so constituted (see S v Voigt 1965 (2) SA (N) 749 at 752F-G; Queen v Norfolk County Council (1891) 60 L.J.Q.B. 379; Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13 at 33).
[23] The effect of section 241(1) is that the pre-Constitution Courts are
legitimized as new post-Constitution Courts as if there
was a separate section
in the Constitution or in some law after the Constitution creating such Courts.
Section 241(1) therefore
would allow a pre-Constitution Court to exercise
jurisdiction in cases arising after the commencement of the Constitution but, it
might not be sufficient to authorize them to continue hearing cases which had
commenced before the Constitution came into operation.
It seems to me that it
is for that contingency that section 241(8) was enacted. I say this because
what section 241(1) “deems"
is that the pre-Constitution Courts are to be
taken to have been established in terms of the Constitution and this must
therefore
mean with effect from the date of the Constitution. It cannot mean
from some date prior to the Constitution because the Constitution
operates
prospectively in establishing new Courts and not retrospectively. The
Constitution does not contemplate that the new Legislature,
the new Executive or
the new Judiciary should be established at any date before the
commencement of the Constitution. Thus interpreted, a meaningful role is
determined for the phrase "exercising jurisdiction
in accordance with the law
then in force" in section 241(8). Its role is to make clear that in proceedings
which were pending before
the commencement of the Constitution, the authority
and jurisdiction conferred on the relevant Court or tribunal by "the law then
in
force", would continue unimpaired by the Constitution "as if this Constitution
had not been passed" and as if it had not impacted
upon that authority. This
interpretation gives to what is a substantial part of the section, a significant
purpose. The literal
interpretation, in my respectful view, does not. This
part could be omitted entirely without detracting in any way from the purpose
of
the section said to be protected on the literal approach.
[24] Kentridge AJ, in paragraph 69 of his judgment, agrees with my conclusion that the reference to the relevant Court or tribunal "exercising jurisdiction in accordance with the law then in force" in section 241(8) was indeed intended to preserve the authority of a pre-Constitution Court to continue its function of adjudication after the commencement of the Constitution in cases which were pending before such commencement; but he suggests that section 241(8) has a second purpose and that purpose is to ensure that such pending cases should be determined as if the Constitution had not been passed at all. I have some difficulty with that suggestion. If Kentridge AJ is correct in concluding that "another purpose" of section 241(8) was to ensure that the whole of the Constitution, including the protection of fundamental rights enshrined in Chapter 3, would be inapplicable in pending proceedings, both these suggested purposes would have been achieved at the same time by providing that
"all proceedings which immediately before the commencement of this Constitution were pending before any court of law ...shall be dealt with as if this Constitution had not been passed"
without including the phrase
"exercising jurisdiction in accordance with the law then in force"
to qualify the Court of law referred to. If pending proceedings were to be dealt with as if the whole of the Constitution had not been passed, the Courts of law (or any other relevant tribunal) would in any event be "exercising jurisdiction in accordance with the law then in force" because the Constitution which impacted upon that authority would have to be ignored and the authority of the pre-Constitution Courts to continue in pending matters would therefore have remained "as if this Constitution had not been passed". In my respectful view, therefore, the language of section 241(8) is not, in the circumstances, cogently supportive of the suggestion that it had two purposes. The proposition that its only purpose was to preserve the authority of pre-Constitution Courts to continue to function as Courts for the purposes of adjudication in pending cases, appeals to me as a more persuasive interpretation of the section. At the very least it seems to me to be an interpretation of the section which is reasonable and the fact that it is more effective in securing the equal protection of the Constitution for all persons makes it significantly more attractive and defensible.
[25] Although, on this interpretation, a Court "exercising jurisdiction in accordance with the law then in force" would have its authority limited to the territorial area in which it has jurisdiction in terms of that law, in my view, the purpose of section 241(8) is not simply to regulate the territorial jurisdiction of the relevant Court before which proceedings are pending. That issue is sufficiently covered by section 241(1) and more particularly the amendment thereto introduced by section 15 of Act 13 of 1994. This amendment introduces a proviso to section 241(1) which defines the areas of jurisdiction of the Appellate Division, the Provincial and the Local Divisions of the Supreme Court of South Africa, any other Supreme Court or general division thereof and any other Courts. Section 241(8) was therefore not introduced specifically to deal with the areas of jurisdiction of the Courts before which proceedings were pending at the commencement of the Constitution but to ensure that their authority to deal with pending cases was not assailed because of the fact that the Constitution creates new Court structures with effect from the commencement of the Constitution. Section 241(8) creates Constitutional legitimacy for a pre-Constitution Court, to continue to operate as a Court after the commencement of the Constitution in respect of pending matters. Every Court needs such Constitutional authority to function as a Court (see Smith and Brazier: Constitutional and Administrative Law 7th Ed (1994 Penguin p. 69); Brown v Leyds N.O (1897) 4 OR 17; Madzimbamuto v Lardner Burke 1968 (2) SA 284 at 331-2 (AD); Madzimbamuto v Lardner Burke (1969) 1 AC 645).
[26] This interpretation is also supported by the direction that pending proceedings "shall be dealt with" as if the Constitution had not been passed. This is an unusually colloquial expression to be found in a formal statutory instrument. If the intention of the law-maker was to say that pending proceedings should be adjudicated on the basis that the Constitution in all respects should be ignored, it could have used clearer language. Law-makers are often concerned with the problem which arises when a new statutory regime replaces the old but there is a continuing residue of proceedings from the old. This was the position when the Criminal Procedure Act 51 of 1977 replaced the previous Criminal Procedure Act of 1955. Section 344(3) of the 1977 Act sought to protect the previous proceedings which were still pending by directing that if such proceedings had not been concluded at the commencement of the new Act "they should be continued and concluded" as if the previous Act had not been repealed. Similar provisions appear in other statutes. This is illustrated by section 12(2)(e) of the Interpretation Act of 1957 which provides in clear language that unless the contrary intention appears the repeal of a law "should not affect any investigation, legal proceeding, or remedy in respect of any such right ... and any such investigation, legal proceeding or remedy may be instituted, continued and enforced ... as if the repealing law had not been passed". What this kind of phraseology emphasises is a desire by the legislature to ensure that the provisions of the previous regime will in the relevant circumstances apply inexorably to the final end and determination of the proceedings. "Deal with" is a more protean, inherently more tentative idea. The New Shorter Oxford English dictionary (Volume 1; page 601) discusses the meaning of the word "deal" when it is followed by the word "with" in the following passage:
"deal... Foll. by with: be concerned with (a thing) in any way; busy or occupy oneself with, esp. with a view to discussion or refutation. Also, take (esp. punitive or corrective) measures regarding, cope with, handle (a difficult person, situation, etc.). ME. 11 v.i. Foll. by with or by: behave towards, treat (a person etc.) (in a specified way). Also absol., act towards people generally (in a specified way), conduct oneself. ME 12 v.i. Take action, act, proceed (in a matter).ME-M17. 13 v.i. Set to work, practise (up)on. arch. rare. L16".
The phrase therefore has different nuances but one of its well recognized meanings is to "Take action, act, proceed (in a matter) ... Set to work, practise". These are perfectly appropriate expressions to confer authority on a Court or tribunal to proceed with or take action under the authority vesting in it in terms of "the law then in force". The "Oxford English Dictionary" to which Kentridge AJ refers also includes in its discussion of the phrase "to deal with" the meaning: "to grapple with" and it also refers to "deal" as meaning "to take action, act, proceed". These meanings are consistent with my view of the purpose of the section. It is true that the idea of "disposing" the matter is in some contexts also a permissible nuance in the meaning of the phrase "deal with", but the very fact that it ordinarily bears the meaning of "setting to work" or "proceeding" demonstrates its inherently fluid and uncertain content. It is probably for this reason that it does not ordinarily appear in statutes which seek to convey the idea that something should be "continued and concluded" as if the relevant law had not been passed. If the intention of the Constitution was to say that pending matters should be "continued and concluded" as if the Constitution had not been passed it would have been a simple matter to say so in such a phrase of well-known usage in our statute law instead of recourse being had to something so colloquial, flabby and uncertain as "deal with".
[27] I have examined the two cases mentioned by Kentridge AJ in which it is said that the phrase "dealt with" is used synonymously with "continued and concluded" (S v Thomas and Another 1978 (1) SA 329 (A) at 334; Pinkey v Race Classification Board 1968(4) SA 628 at 636 C-D). With respect, I do not think they detract from what I have said. In Pinkey's case (supra) the Court was concerned with the effect of a statutory amendment under the notorious race classification procedures of Act 30 of 1950 and reliance had been placed on section 12 of the Interpretation Act of 1957 (which provided that in the absence of a contrary intention a repealing law shall not affect any investigation, legal proceeding or remedy in respect of any right or privilege and "any such investigation, legal proceeding or remedy may be instituted, continued or enforced ... as if the repealing law had not been passed"). The Court held that this protected Mr Pinkey from the statutory change made by the subsequent statute. In the passage referred to by Kentridge AJ, Jansen JA stated that there was no contrary intention and that
"it follows that pending cases should be dealt with... as if the repealing law had not been passed".
The Court was never called upon to apply its mind to the distinction between "dealt with" and "continued and concluded". It was never an issue in that case. It could never be, because the relevant part of section 12(2) of the Interpretation Act effectively included both meanings. It allowed legal proceedings to "be instituted, continued or enforced". The case of S v Thomas (supra) similarly was not concerned with this distinction.
[28] Whatever be the exact phraseology used, however, the basic idea of legitimizing the authority of the old to continue that authority under a new regime has a long and very well-established constitutional history. Thus, section 116 of the South African Act, 1909, provided that all appeals to the King-in-Council which were pending at the establishment of the Union should proceed as if that Act had not been passed. The object was simply to legitimise the authority of the Privy Council to continue to hear appeals which were pending before it at the date of the commencement of the Constitution. This same objective was sought to be achieved by section 1(2) of the Special Courts for Blacks Abolition Act 34 of 1986 which provided that an action pending in the Commissioner's Courts or an Appeal Court for Commissioner's Courts on the date identified should be dealt with as if the section had not been introduced. The purpose was to legitimize the authority of those Courts to deal with cases which were pending before them. Substantially the same formula is followed when Parliament purports to create new States and Republics. Thus the Constitutions of the Transkei, Bophuthatswana, Ciskei and Venda all provide that proceedings which were pending before the commencement of the relevant Constitutions in certain Courts (created by South African statutes in respect of its Black citizens) should be continued and concluded as if that Constitution had not been passed. The object was again to legitimize the authority of such Courts to deal with cases which were pending before them prior to the commencement of the Constitution. (See section 54(c)(ii) of the Republic of Transkei Constitution Act 15 of 1976; section 91 of the Republic of Bophuthatswana Constitution Act 18 of 1977; section 52(1)(d) of the Republic of Venda Constitution Act 9 of 1979 and section 76(1)(d) of the Republic of Ciskei Constitution Act 20 of 1981.)
[29] These kinds of statutory formulae were not confined to the TBVC States. Apart from the provisions of the South African Act of 1909, they also appear in section 116 of the Republic of South Africa Act 32 of 1961 which seeks to sanction the authority of the Courts to conclude pending proceedings which were initiated before the Constitution in the name of the Queen who ceased to be the Constitutional authority in South Africa in terms of the Constitution.
[30] It seems to me therefore that section 241(8) does no more than carry
on a well-established constitutional tradition that when
there is a change of
legal regimes, proceedings instituted but uncompleted in Courts under the
previous regime have to be protected
against a potential attack on the grounds
that they have no authority to dispose of such cases after the commencement of
the new
regime. It must be conceded, however, that in many of these statutes
the formula adopted for the purposes of allowing pending proceedings
to continue
after the change of the regime, created no comparable problems with regard to
whether or not such Courts could ignore
the provisions of the substantive law of
the new regime in disposing of their pending cases. This is because some of
these statutory
instruments contained no Bills of Rights and the other statutes
of the previous regime pertaining to substantive law were perpetuated
by
suitable provisions in the new statutes. This does not detract from the fact,
however, that the basic objective in sections analogous
to section 241(8) is to
confer authority on Courts to continue to hear cases pending before them prior
to the Constitution, notwithstanding
the fact that the Constitution itself
creates a new structure of Courts. This is the position in terms of statutes
which authorize
such Courts to “continue and conclude” pending
proceedings as if the Constitution had not been passed. A fortiori this
must be the position where the language is less tight such as in the expression
“dealt with” in section 241(8).
[31] It must also be remembered that although most of the Constitutions and statutory instruments to which I have referred do not create fundamental rights and do not therefore involve the problem of deciding whether the relevant sections also entitle the Courts to ignore the substantive provisions of the Constitutions guaranteeing such rights, some Constitutions do have such fundamental rights entrenched. The Constitution of Bophuthatswana does. Significantly, however, the formula used is substantially the same and it has never been contended that in pending cases the Courts in that territory were entitled to ignore the guarantees conferred by the Chapter enacting fundamental rights.
[32] My view of section 241(8) is also supported to some degree by the
proviso to section 241(8). A proviso qualifies the substantive
part (Mphosi
v Central Board for Co-operative Insurance Ltd 1974 (4) SA 634 (A) at 645;
R v Dibdin [1910] P 57 at 125). The ordinary consequence of the
substantive part of section 241(8) would have been that all appeals and reviews
in pending proceedings would have had to be continued in the old Courts
established prior to the Constitution. The proviso reverses
that consequence by
directing that such appeals or reviews must (notwithstanding the substantive
provision) be instituted in the
Courts which are given jurisdiction in terms of
the Constitution and not the Courts which would have had jurisdiction under the
old
law. On that interpretation the proviso flows naturally and logically to
qualify the substantive provision in section 241(8), if
the substantive
provision itself were to be limited in its purpose to a legitimization of the
old Courts and tribunals from the date
when the proceedings before such bodies
commenced. This is what attracted some of the local and provincial judges of the
Supreme
Court when they said that the literal interpretation of section 241(8)
did not involve a “rational connection” between
the substantive part
of section 241(8) and the proviso (see, for example, S v Sixaxeni
(supra), BCLR at 78D-E). I think there is merit in the suggestion that the
proviso in section 241(8) flows more easily and naturally if
the substantive
part is confined to the purpose of conferring authority on the Courts to
continue to function as such Courts and
tribunals in respect of matters pending
before them at the commencement of the Constitution. To that extent my
interpretation of
section 241(8) is supported by the proviso. But, it is not a
decisive consideration : there could be a logical if not particularly
natural
interpretation of the section which would break the substantive part of section
241(8) into two elements, the first dealing
with the jurisdiction or authority
of the Courts or tribunals to continue to function in pending cases and the
other dealing with
their right and capacity to ignore the Constitution in so
exercising their functions and the proviso could be interpreted so as to
limit
the first element and not the second. The argument based on the proviso is
therefore only one of many elements which must
be weighed in the proper
interpretation of section 241(8).
[33] The literal interpretation of section 241(8) involves a very radical
constitutional consequence because, as I have said, it would
deny to a
substantial group of people the equal protection of fundamental rights
guaranteed by Chapter 3. I would therefore expect
it to be articulated
conspicuously in Chapter 3 itself. But section 7, which deals with the
application of the Chapter on fundamental
rights, makes no such qualification.
It says in section 7(2), in rather peremptory and promissory terms, that this
Chapter shall
apply to all law in force and all administrative
decisions and acts performed during the period of the Constitution and it does
not contain any qualification or proviso
that the rights of persons in
proceedings pending at the commencement of the Constitution are not included in
the word “all”.
It does not make section 7(2) subject to section
241(8); nor does it say that section 7(2) shall apply save in cases which were
pending when the Constitution commenced. Instead, if the literal interpretation
is correct, that radical consequence is to be inferred
from an obscure
sub-section dealing with transitional arrangements for the Judiciary and
not even in section 229 which deals with the transitional provisions pertaining
the continuation of Laws. I feel no confidence in seeking to infer from
such a provision a meaning which would entail the radical consequences which
must
inevitably follow for so many people, if the literal approach is adopted. I
am also not persuaded that this would affect only a tiny
segment of the
community. The present Constitution has a limited life and a good deal of the
litigation in the Courts might indeed
be a residue of proceedings commenced
before the Constitution. Significantly, section 241(8) has become relevant for
this very reason
in the majority of the cases which the Constitutional Court has
so far heard. Kentridge AJ, in paragraph 83 of his judgment, suggests
that "the
tension between Chapter 3 and section 241(8) is likely to arise only in the
respect of the fair trial requirements of section
25(3)". I am respectfully
unable to agree. The Constitutional attacks on capital punishment, corporal
punishment, civil imprisonment
for debt and statutes founded on unfair racial
discrimination, for example, are legally vulnerable without any reliance on
section
25(3).
[34] My suggestion that the purpose of section 241(8) was indeed to provide the authority for a Court in pending proceedings to continue as a Court is also supported by other sub-sections of section 241. Thus, the authority of the Chief-Justice, the Judge President and other judges to continue in office is provided in section 241(2) and 241(3). The authority of the Attorney-General to so continue is provided in section 241(4). Their authority to continue to receive remuneration, pension benefits, gratuities and similar privileges is sanctioned by section 241(5). Section 241(8) appears in that context. It is a transitional arrangement to legitimize the authority of important structures in the judicial system in circumstances where that authority might otherwise have been assailable. This approach to the objectives of section 241 is consistent with the objectives also apparent in the preceding transitional arrangements pertaining to Legislative authorities in section 234, to Executive authorities in section 235, to the Public administration in section 236 and to the Public service commissions in terms of section 238.
[35] It must be readily conceded that the interpretation which I have favoured in this judgment is not free from difficulties. One difficulty with it is section 241(10) which provides that the laws and other measures which immediately before the commencement of the Constitution regulated the jurisdiction of the Courts of law, Court procedures and all other matters pertaining to the establishment and functioning of Courts of law, shall continue in force subject to any amendment or repeal thereof by a competent authority. It could be argued that the terms of this sub-section are wide enough to preserve the authority of the old Courts in pending proceedings to deal with and dispose of such matters before them and that section 241(8) was therefore not needed to confer such authority, as I have suggested. That argument does have merit but I think that the answer to it lies in the distinction between the authority of such Courts to continue as Courts at all in order to dispose of pending matters after the commencement of the Constitution and their authority to continue in particular areas and over particular persons and in terms of particular procedures (if they have authority to continue to function as Courts). The former authority is not sanctioned by 241(10). The latter is. It is the former authority which is provided by section 241(8). Without it, it could have been argued that the old Courts had no authority to function in pending cases although section 241(10) would have defined how and what they could do if they had such authority.
[36] I am also alive to another difficulty in my interpretation of
section 241(8). Although it gives to the phrase “exercising
jurisdiction
in accordance with the law then in force” a meaning and a role which is
absent from the literal approach to the
section which I have described, it is
not necessarily inconsistent with the inference that when the section directs
that pending
proceedings “shall be dealt with as if this Constitution had
not been passed” it means that the whole of the Constitution,
including
the Chapter on fundamental rights, should therefore be ignored in such
circumstances. That observation is not without
weight, but it is necessary to
bear in mind that the relevant phrase is also not inconsistent with the
inference that the direction
is simply a direction to proceed with pending cases
as if the Constitution had not impacted on the authority of a pre-Constitution
Court to continue to function as a Court. Indeed, the phrase “exercising
jurisdiction in accordance with the law then in force”
makes this
inference more probable. What the phrase emphasizes is that the relevant Court
must exercise jurisdiction in accordance
with the law then in force, not that it
must, in the exercise of that jurisdiction, ignore the substantive law of the
Constitution.
This reference to the exercise of jurisdiction immediately
precedes the direction that it should deal with the proceedings as if
the
Constitution had not been passed. It therefore derives some flavour, colour,
substance and purpose from its neighbour. Such
an approach would also be
consistent with other well-known canons of construction such as the presumption
that the law giver must
not be imputed with the intention to enact irrational,
arbitrary or unjust consequences. (Hleka v Johannesburg City Council
1949 (1) SA 842 (A) at 852; Venter v R 1907 TS 910 at 914-915 and 921;
Lister v Incorporated Law Society Natal 1969 (1) SA 431 (N) at 434;
R v Sachs 1953 (1) SA 392 (A) at 399).
[37] I have considered whether there is perhaps another rule of interpretation which might in the circumstances of this case justify a result different from the one which I have favoured. The rule I have in mind is the presumption that, unless the contrary intention appears, a statute does not operate retrospectively to impact upon pending proceedings. (Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A) at 683; Thom v Moulder 1974 (4) SA 894(A); Bellairs v Hodnett and Another 1978 (1) SA 1109 (A) at 1148.)
[38] On this approach it could be contended that since the Constitution was not in operation when the proceedings became pending within the meaning of section 241(8), an interpretation which compels a Court to apply the Chapter on Fundamental Rights to such proceedings constitutes a breach of this presumption. In my view, this is not a sound argument. In the first place the presumption is not inflexible. It operates only if there is no contrary intention. In a very important sense a document as fundamental as a Constitution can itself be the basis for the inference of such a contrary intention. This is particularly true of the Chapter on Fundamental Rights. The presumption to which I have referred is intended as a protection against an invasion of rights which might have occurred in litigation; it is not intended to exclude the benefits of rights sanctioned by new legislation. Chapter 3 of the Constitution seeks not to invade but to expand rights. The relevant presumption can have scant application in such circumstances (R v Sillas 1959 (4) SA 305 (A) at 311; S v Williams 1979 (3) SA 1270 (C); Van Lear v Van Lear 1979 (3) SA 1162 (W) at 1167G-H; Dys v Dys 1979 (3) SA 1170 (O)).
[39] I have also applied my mind to the criticism that the interpretation of section 241(8) favoured by me might be open to the pragmatic objection that it could cause some measure of "dislocation" in the running of trials which were pending on the date of the commencement of the Constitution. This objection undoubtedly has some merit, but the weight which must be attached to this consideration must, with respect, be balanced having regard to the degree of "dislocation" involved, the capacity and the skill of the Court fairly and sensibly to manage its effects and the grave consequences of any alternative approach denying to an important and not insubstantial sector of the citizenry, the equal protection of fundamental rights guaranteed to all. Thus approached, I am not convinced that the "dislocation" factor is sufficiently compelling to favour the literal approach to the interpretation of section 241(8). My interpretation of the section does not involve any re-opening of trials which were completed before the commencement of the Constitution. Such trials can be eliminated as potential targets of "dislocation". Moreover, even in respect of trials which had commenced but had not been concluded before the date of the commencement of the Constitution, no Constitutional challenge based on section 25(3) would be competent in respect of any decision already made during the trial but before the commencement of the Constitution. If, for example, an accused person had at the commencement of the trial and before the Constitution came into operation, applied for and been refused legal representation at State expense, a challenge to that decision could not competently be proffered after the Constitution came into operation notwithstanding section 25(3)(e). What could be asserted would be the right of the accused to be so represented from a date after the commencement of the Constitution. If the application is granted and the legal practitioner seeks to recall witnesses for cross-examination it will not be on the grounds that the original decision to deny such representation should be reviewed, but simply another example of the experience known to all practising lawyers when an attorney is engaged on the third day of the trial and then applies to recall witnesses. He does not assert a right, but simply the invocation of a discretion in the interests of justice. It is often allowed by the presiding officer. It causes no "disruption". Indeed, it is often welcomed because it assists the Court.
[40] Other potential "disruptions" of this sort can sensibly be managed in this kind of way by a balanced and mature judicial officer. The danger of such disruptions is limited and containable. In my view, it is not of a magnitude sufficient to justify the plainly untenable denial of fundamental human rights to accused persons who were fortuitously charged just before the commencement of the Constitution but whose trials had not yet been concluded on that date.
[41] On my interpretation of section 241(8) appeals would not create any "dislocation" either. Appeals arising from proceedings which were commenced and concluded after the Constitution came into operation should, in principle, be determined in the ordinary course on the basis that Chapter 3 of the Constitution was clearly of application and if the protection of that Chapter had wrongly been denied to the Appellant, the Court on appeal would take that into account in making its order. In respect of appeals arising from proceedings which had commenced before the Constitution came into operation but were only concluded thereafter, there should again be no "dislocation". If the particular fundamental right relied on by the Appellant was of operation at the relevant time of the trial, the Appellant was entitled to rely on it and if it had been wrongly denied to him he would be entitled to suitable relief on appeal.(Regina v Antoine 4 CRR 126). If it did not exist at the relevant time, the Appellant would have no legitimate cause for complaint. The remaining category concerns appeals arising from trials which had commenced and were completed before the Constitution came into operation. In my view such appeals must be disposed without applying Chapter 3 of the Constitution, because an appeal inherently contains the complaint that the Court a quo had erred in terms of the law which was then of application to it and not in terms of a law which subsequently came into operation. There should therefore also be no "dislocation" arising from this category of appeals. There is nothing in the wording of section 241(8) which, on my interpretation, would entitle an Appellant on appeal to rely on Chapter 3 if the proceedings against him had been concluded before the commencement of the Constitution. Such an Appellant would have to confine himself to the substantive law which applied during his trial. The case of S v Thomas (supra) is not inconsistent with that conclusion. That case was concerned with section 344(3) of Act 51 of 1977 which provided as follows:
"Notwithstanding the repeal of any law under sub-section (1) [the Criminal Procedure Act of 1955 was such a law] criminal proceedings
which have under such law at the date of the commencement of this Act been commenced in any ... court ... and in which evidence has at such date been led in respect of the relevant charge, shall, if such proceedings have at that date not been concluded, be continued and concluded under such law as if it had not been repealed".
It was held that the Appellant in that case was not entitled on appeal to rely on the provisions of Act 51 of 1977 which provided special machinery to persons suffering from psychopathic disorder. It therefore confirmed the approach that the law to be applied on appeal was the law which was of application at the time of the trial and not the law as it was amended at the time of the appeal.
[42] In the result there are no "dislocations" arising from appeals or any other considerations which would justify the plainly unequal consequences of the literal approach.
[43] I have also had regard to the fact that even on my interpretation of section 241(8) not every anomaly is eliminated. Kentridge AJ suggests some such anomalies in paragraph 83 of his judgment. Included in that analysis is the suggestion that the results of appeals might depend on when they had been noted or when they had been set down. For the reasons I have referred to, these are not anomalies resulting from my interpretation.
[44] What is nevertheless true is that there may be some residual anomalies arising from the mere fact that some accused might fortuitously have been charged, convicted and sentenced just before the commencement of the Constitution without the benefit of one or other fundamental right identified in Chapter 3 whilst other accused are fortuitously charged just after the commencement of the Constitution and therefore have the advantage of asserting such rights. But that kind of anomaly is inherent in any situation where one legal regime based on human rights values replaces, on a particular date, another legal regime which had denied such rights: it does not justify extending the anomaly to accused persons who were merely charged with offences before the commencement of the Constitution, but who seek to assert their fundamental rights during their trials at a time when the Constitution is of operation.
[45] I confess to considerable difficulties in all the theories which
have become manifest in the interpretation of section 241(8).
None of them are
without problems. Its controversial nature manifests itself in the diversity of
opinion which has agonized judicial
deliberations on the meaning of the section
almost from the very inception of the Constitution. In my view, the
difficulties involved
in the approach adopted by Cloete J in
Shabalala’s case (supra), by the Cape Provincial Division of in
S v W and Others (supra) and by the Eastern Cape Provincial Division of
the Supreme Court in the case of Qozoleni (supra) and other cases
following thereupon, are more formidable than the difficulties involved in the
interpretation based on the literal
approach and the interpretation which I have
favoured in this judgment. I have sought to deal with some of the difficulties
arising
from my interpretation and contrasted them with some of the difficulties
inherent in the literal approach. I am of the view, however,
that on a balance,
my interpretation is to be preferred because it gives force and effect to the
fundamental objectives and aspirations
of the Constitution, because it is less
arbitrary in its consequences and because it is more naturally in harmony with
the context
of section 241(8) itself and the Constitution as a whole.
[46] The literal interpretation, in my respectful view, has none of these
advantages and it is not compelled by the text of the section,
read in its
context and with regard to the objects of the Constitution. It is clear from the
express objectives of the Constitution,
that it seeks to articulate and to
guarantee the fundamental right to a fair trial to all persons; the literal
interpretation would
deny such right to many. The Constitution seeks to secure
for indigent persons the right to legal representation at State expense
if
substantial injustice would otherwise result; the literal approach would reserve
this for an arbitrarily delineated class. The
Constitution secures the right to
life and human dignity and guarantees protection from inhuman or degrading
treatment or punishment
to all persons; the literal approach would deny reliance
on this promise by those sought to be punished after the Constitution simply
because the proceedings against them commenced before the Constitution. The
Constitution expressly entrenches the presumption of
innocence allowing an
accused person the right to protection from laws which effectively reverse this
presumption; the literal approach
denies such protection to potentially large
classes of persons, including the very accused in this case. The contrast, in
every
area of legitimate concern for the ends of justice, is stark and
distressing. I am not persuaded that a proper reading of the Constitution
compels me to accept these distressingly anomalous consequences of the literal
approach.
[47] The result of this view is that the Applicants in the case before Page J
were entitled to invoke the protection of the Constitution
in the attack on
section 217(1)(b)(ii) of the Criminal Procedure Act of 1977 which this Court has
held to be invalid in its judgment
(in the Zuma case (supra)) on 5
April 1995. Notwithstanding the fact that the trial of the accused in the
present matter was pending on the date of the commencement
of the Constitution,
they are entitled to contend that the onus was on the State to prove that their
confessions were freely and
voluntarily made and without any undue influence.
In my view, they are therefore still entitled to contend before Page J that in
his determination of their guilt or otherwise, he should proceed on the basis
that section 217(1)(b)(ii) is inconsistent with the
Constitution and therefore
invalid. The Applicants are therefore entitled to a declaration to that effect.
I think also that it
would be proper to make a declaration in terms of section
98(6) of the Constitution invalidating the application of section 217(1)(b)(ii)
of Act 51 of 1977 in any criminal proceedings in which the final verdict of the
relevant Court was or may be given after 27 of April
1994.
[48] These conclusions also make it necessary to deal with an issue which was deferred by Kentridge AJ in the Zuma case (supra) in the following passage (in paragraph 44):
"Whether an order under section 98(6) may and should encompass proceedings which were pending before 27 April 1994, depends on the proper interpretation of the Constitution. As indicated at the beginning of the judgment that issue is deferred for determination in the Mhlungu case".
It
follows from what I have said that the question deferred in Zuma's case
(supra), in the passage I have quoted, should be answered by saying that
an order in terms of section 98(6) may encompass proceedings which
were pending
immediately before 27 April 1994. Because of the issues left undecided in the
Zuma case (supra), the order in that case invalidated the
application of section 217(1)(b)(ii) of Act 51 of 1977 only in respect of
criminal trials which
commenced on or after 27 April 1994 and in which the
verdict had not, at the date of the order, been given. It did not, however,
preclude an extension of these limits in the present case. In my view, the
declaration should also invalidate any application of
section 217(1)(b)(ii) of
Act 51 of 1977 in proceedings which were pending immediately before the
commencement of the Constitution.
It would also be arbitrary and irrational to
deny to an accused person the right to rely on such invalidity merely because
the declaration
of invalidity by the Court took place on a date subsequent to
the date when his pending trial was fortuitously completed. All accused
persons
whose trials either began after the Constitution or which were pending
immediately before the Constitution commenced, are
entitled to be treated
equally. I therefore make the following order:
1. It is declared that section 241(8) does not preclude an accused person in a criminal trial from relying on any of the applicable provisions of Chapter 3 of the Constitution in proceedings which were pending before a Court of law immediately before the commencement of the Constitution.
2. In terms of sub-section (6) of section 98 of the Constitution it is ordered that the declaration of invalidity made by this Court in the case of S v Zuma and Others, 1995(4) BCLR 401 (SA) invalidates any application of section 217(1)(b)(ii) of the Criminal Procedure Act, 1977 in any criminal trial, irrespective of whether it commenced before, on or after 27 April 1994, and in which the final verdict was or may be given after 27 April 1994.
Langa J, Madala J, Mokgoro J and O'Regan J concur in the judgment of Mahomed
J.
[49] KENTRIDGE AJ : This case came before this Court by way of a
referral by Page J in the course of a criminal trial in the Natal Provincial
Division.
It was heard in this Court at the same time as the case of S v
Zuma and Others 1995(4) BCLR 401(SA), in which judgment was given on
5th April 1995. Both referrals raised the question whether section
217(1)(b)(ii) of the Criminal Procedure Act, 1977, is inconsistent
with the
provisions of the Constitution of the Republic of South Africa, 1993. The
referral by Page J also raised the question of
the proper construction of
section 241(8) of the Constitution, an issue which did not arise in the
Zuma case. In the latter case we declared section 217(1)(b)(ii) of the
Criminal Procedure Act to be invalid, but deferred the question
relating to
section 241(8) for consideration in this case. This question still requires
resolution, as the applicability of our
declaration to the present case may
depend on the interpretation of section 241(8). In order to explain why this is
so it is necessary
to recount what took place at the trial before Page
J.
[50] The accused were charged with murder and other crimes alleged to have been committed in April 1993. An indictment in Afrikaans was served on all five accused at Newcastle on 11th March 1994. Possibly because they did not understand Afrikaans they requested a copy in English. An indictment in English was served on them, but only on 4th May 1994. The accused appeared before the Circuit Court for remand on 11th May and on 18th May, 1994 and pleaded not guilty to the charges before Page J, sitting with assessors. At an early stage of the trial, the prosecution tendered evidence of confessions made by four of the accused, in each case before a magistrate. In respect of three of them it relied on the presumptions created by proviso (b) to section 217(1). Defence counsel at once informed the court that he would contend that sub-paragraph (ii) of proviso (b) was in conflict with the provisions of section 25 of the Constitution and therefore no longer of any force or effect, and would if necessary ask for the referral of the issue to the Constitutional Court. As Page J said in his judgment, given on 28th October 1994, a question which arose at the outset of the enquiry was whether, in view of section 241(8) of the Constitution, provisions such as section 25 had any application to the case before him. Section 241(8) reads as follows -
"(8) All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed : Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be brought before the court having jurisdiction under this Constitution."
The
question raised by Page J was whether, in the first place, the proceedings
before him could be said to have been "pending" immediately
before the
commencement of the Constitution, i.e. 27th April 1994; and, if so,
whether on its proper construction section 241(8) rendered the Constitution
inapplicable to those proceedings.
Page J made no finding on either of these
questions.
[51] With regard to the first issue, further findings of fact may have been
necessary. The term "pending" in relation to proceedings
may have different
connotations according to its context. See Noah v Union National South
British Insurance Co Ltd 1979(1) SA 330(T), 332 per Eloff J ; Arab
Monetary Fund and others v Hashim, NO (No 4) [1992] 1 WLR 553. As Hoffmann
J said in the latter case at 558, in the normal meaning of the term proceedings
"are pending if they
have begun but not yet finished." It is clear enough that
a "pending" proceeding is one not yet decided. See King v King 1971(2)
SA 630(O), 634; Groenewald v Minister van Justisie 1972(4) SA 223(O),
225. What is not so clear is when a legal proceeding may be said to have
begun.
[52] Section 144(4) of the Criminal Procedure Act 1977, requires an
indictment to be served on an accused at least ten days before
the date
appointed for trial, and section 76 states that the proceedings at a summary
trial in a superior court shall be commenced
by the serving of an indictment on
the accused and the lodging thereof with the registrar of the court concerned.
There is nothing
in the judgment of Page J to indicate whether the Afrikaans
indictment was withdrawn or was lodged with the registrar and, in the
latter
event, on what date it was lodged. These matters and, in general, the date of
commencement of the proceedings, were and are
questions for the trial court to
decide. All that one can say at this stage is that unless a duly served
indictment was lodged
with the registrar before the 27th April, there
would appear to be no basis on which it could be contended that on 27th
April, 1994, the proceedings were "pending" in terms of section
241(8).[1] But it does not follow
that, in the context of section 241(8), proceedings are pending as soon as the
indictment is lodged. It
may be that for the purposes of that section criminal
proceedings are pending only on plea, or when the evidence has begun. (Compare
section 344 (3) of the Criminal Procedure Act, 1977.) That is a question we do
not now decide.
[53] At all events, at the trial before Page J the State prima facie
established that in relation to at least two of the confessions tendered, the
requirements of section 217(1) (b)(ii) had been satisfied.
But before any
further evidence was led, and after hearing argument, the learned judge decided
to refer the constitutional issues
to this Court. His reasoning, in essence,
was that fairness to the accused required that they knew with certainty where
the onus
lay before they decided whether to give evidence in the voir
dire. The parties in this case having made no agreement under section
101(6) of the Constitution, the learned judge considered that
the issue might be
decisive and held that it was in the interests of justice to refer the issue
immediately to the Constitutional
Court. He accordingly did so, and suspended
the proceedings before him in terms of section 102(2) of the
Constitution.
[54] In this case were it not for the issue under section 241(8), there would be no reason to doubt the competence of the referral of the issue of the validity of section 217(1)(b)(ii). That issue entails an inquiry into the constitutionality of a provision in an Act of Parliament. In terms of sub-sections (2) and (3) of section 98 of the Constitution, read with section 101(3) that enquiry is within the exclusive jurisdiction of the Constitutional Court. The course taken by Page J accords with the provisions of sub-sections (1) and (2) of section 102 of the Constitution which read as follows-
(1) If, in any matter before a provincial or local division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the exclusive jurisdiction of the Constitutional Court in terms of section 98(2) and (3), the provincial or local division concerned shall, if it considers it to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the provincial or local division concerned shall hear such evidence and make a finding thereon, before referring the matter to the Constitutional Court.
(2) If, in any matter before a local or provincial division, there is any issue other than an issue referred to the Constitutional Court in terms of subsection (1), the provincial or local division shall, if it refers the relevant issue to the Constitutional Court, suspend the proceedings before it, pending the decision of the Constitutional Court.
Page J found
that the issue was one which might be decisive of the case and that, for the
reasons which he gave, the referral to this
Court was in the interests of
justice. As to the proviso to section 102(1), there was no factual finding
which was necessary for
the determination of the validity of section
217(1)(b)(ii). As there were other issues remaining to be dealt with by the
trial
court the judge suspended the proceedings as required by sub-section
(2).
[55] What is open to doubt is the basis on which the issue arising under
section 241(8) was referred to this Court. This Court has
jurisdiction under
section 98(2) "over all matters relating to the interpretation... of the
provisions of this Constitution". But
that, it seems to me, cannot be an
exclusive jurisdiction. Although section 101(3) does not in terms give the
Provincial and Local
Divisions of the Supreme Court jurisdiction over matters
relating to the interpretation of the Constitution, such jurisdiction must
be
implied. Otherwise they could not exercise their undoubted jurisdiction under
paragraph (a) of section 101(3) to determine whether
there has been a violation
of a fundamental right entrenched in Chapter 3. It follows that Page J had
jurisdiction to interpret
section 241(8) of the Constitution and to determine
its effect on the case before him. He ought therefore to have made the
necessary
findings of fact to enable him to decide whether or not the case was a
"pending" one in terms of section 241(8). I may add that
there have been
numerous (and conflicting) decisions in Provincial and Local Divisions of the
Supreme Court on the interpretation
of section 241(8).
[56] What then of the competence of the learned judge's referral of that issue? I cannot read section 102 as entitling the judge to refer to this Court a constitutional issue which is within his own jurisdiction. In my opinion sub-section (2) of section 102 deals only with procedure on references under sub-section (1). Under sub-section (2) the words "any issue other than an issue referred to the Constitutional Court in terms of subsection (1)" include other constitutional issues as well as non-constitutional issues. But no power to refer those other constitutional issues is conferred on the judge. In contrast to sub-section (1), sub-section (2) contains no words granting such power. Nor does it require any finding of fact relevant to those other constitutional issues - a requirement which one would expect if the power to refer such issues were intended. A similar point arises in sub-section (3), which reads as follows -
"(3) If, in any matter before a provincial or local division, there are both constitutional and other issues, the provincial or local division concerned shall, if it does not refer an issue to the Constitutional Court, hear the matter, make findings of fact which may be relevant to a constitutional issue within the exclusive jurisdiction of the Constitutional Court, and give a decision on such issues as are within its jurisdiction."
That sub-section is not well drafted,
but it too requires findings of fact only in relation to issues within the
exclusive jurisdiction
of the Constitutional Court, and it contains no words
which authorise any other reference. In spite of the lack of clarity in the
sub-section the only reasonable construction, it seems to me, is that the words
"if it does not refer an issue to the Constitutional
Court" must be read as
referring only to references under sub-section (1). Similarly, in sub-section
(2) the words "the relevant
issue" mean the issue referred under sub-section
(1).
[57] The only other provision authorising a reference by a Provincial or Local Division is sub-section (8) of section 102, which provides -
"(8) If any division of the Supreme Court disposes of a matter in which a constitutional issue has been raised and such court is of the opinion that the constitutional issue is of such public importance that a ruling should be given thereon, it may, notwithstanding the fact that the matter has been disposed of, refer such issue to the Constitutional Court for a decision."
It may at some time have to be decided at
what stage it can be said that a court has disposed of a matter under that
sub-section.
In this case the sub-section plainly has no application.
[58] The referral of the issue of the proper interpretation of section 241
(8) was therefore not competent.
[59] It is convenient at this point to say something about the practice of
referrals to this Court under section 102(1) of the Constitution.
The fact that
an issue within the exclusive jurisdiction of this court arises in a Provincial
or Local Division does not necessitate
an immediate referral to this Court.
Even if the issue appears to be a substantial one, the court hearing the case is
required to
refer it only
(i) if the issue is one which may be decisive for the case; and
(ii) if it considers it to be in the interest of justice to do so.
In section 103(4) of the Constitution, which deals with the referral to this Court of matters originating in inferior courts, the referring Provincial or Local Division must in addition be of the opinion "that there is a reasonable prospect that the relevant law or provision will be held to be invalid." In S v W and Others 1994(2) BCLR 135(C), 147G; S v Williams and Five Similar Cases 1994(4) SA 126(C), 139F, Farlam J said that although that was not an express requirement of section 102(1) it was implicit therein. I respectfully agree. See also Matiso and Others v The Commanding Officer, Port Elizabeth Prison and Others 1994(3) BCLR 80(SE), 89G - 90D; Matiso and Others v The Commanding Officer, Port Elizabeth Prison and Another 1994(4) SA 592(SE), 599G - 600E. The reasonable prospect of success is, of course, to be understood as a sine qua non of a referral, not as in itself a sufficient ground. It is not always in the interest of justice to make a reference as soon as the relevant issue has been raised. Where the case is not likely to be of long duration it may be in the interests of justice to hear all the evidence or as much of it as possible before considering a referral. Interrupting and delaying a trial, and above all a criminal trial, is in itself undesirable, especially if it means that witnesses have to be brought back after a break of several months. Moreover, once the evidence in the case is heard it may turn out that the constitutional issue is not after all decisive. I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. One may conceive of cases where an immediate reference under section 102(1) would be in the interests of justice - for example, a criminal trial likely to last many months, where a declaration by this Court of the invalidity of a statute would put an end to the whole prosecution. But those cases would be exceptional. One may compare the practice of the Supreme Court with regard to reviews of criminal trials. It is only in very special circumstances that it would entertain a review before verdict. See Hiemstra, Suid-Afrikaanse Strafproses (5de uitgawe), 764. In any event, the convenience of a rapid resort to this Court would not relieve the trial judge from making his own decision on a constitutional issue within his jurisdiction.
[60] I should make it clear that these remarks are in no way intended as a
criticism of the decision of Page J to refer the issue
on section 217(1)(b)(ii).
At the stage when he did so this Court had not yet been convened, and no
guidelines for referrals had been
laid down. The issue was, moreover, one of
great and pressing concern to all criminal courts, and it was right that it be
resolved
as soon as possible.
[61] It may be asked at this stage why it is necessary or competent for this
Court to consider section 241(8) in this case. The
reason is that if the
proceedings before Page J were pending immediately before the 27th
April 1994, and if that section means that the proceedings had to be completed
in all respects in accordance with the law as it
existed before that date, it
would follow that the judge would have to deal with the case in accordance with
the requirements of
section 217(1)(b)(ii), notwithstanding the fact that this
Court in the Zuma case declared that section to be invalid. In order to
answer the question whether Page J is to apply the ruling in the Zuma
case when the trial resumes, the question left open in the Zuma case has
to be decided, namely, whether an order in terms of section 98(6) should
encompass proceedings pending on the 27th April. To answer that
question the meaning of section 241(8) has to be determined. Moreover, we know
that there are other criminal
cases which may have been pending on the
27th April 1994, in which the same question may arise, although of
course we have no way of knowing how many. We heard full argument
on this issue
and we are consequently able to deal with it, and it is appropriate that we
should do so.
[62] There have been a number of competing interpretations of section 241(8) in Provincial and Local Divisions of the Supreme Court. I shall not cite all those decisions, still less attempt to analyse them. It will be sufficient to identify in summary form the differing interpretations placed on the sub-section.
a) Some judges have held that section 241 (8) is intended to do no more than preserve the territorial jurisdiction of the courts in relation to cases pending on 27th April 1994 and that the Constitution, including Chapter 3, must otherwise be applied fully to those cases. See e.g. the judgments of Froneman J in Qozoleni v Minister of Law and Order and Another 1994(1) BCLR 75(E); 1994(3) SA 625(E) and Gardener v Whitaker 1994(5) BCLR 19(E);
b) Other judges have held that section 241(8) preserves the existing law in pending cases only in matters of procedure. Fundamental rights of a substantive nature are thus to be applied in pending cases. See e.g. S v W and Others supra. In some cases it has been held that procedural rights which are fundamental are not necessarily excluded by section 241(8), but that where existing procedures have been followed in pending cases they are to remain undisturbed. See e.g. Shabalala and Others v The Attorney-General of Transvaal and Others 1994(6) BCLR 85(T); Shabalala v Attorney-General, Transvaal, and Another 1995(1) SA 608(T).
In all the above cases the judges have concluded that, given the fundamental concerns and values of the Constitution, it is unthinkable that a court should after 27th April 1994 pronounce any verdict or sentence which has the effect of violating a fundamental constitutional right of the person before the court.
c) The third line of decisions holds that section 241(8) excludes any application of the Constitution in cases which were pending at its commencement. See e.g. Kalla and Another v The Master and Others 1994(4) BCLR 79(T); 1995(1) SA 261(T).
[63] In interpreting section 241(8) I would accept that it would not be right
to ignore what Froneman J called the "fundamental concerns"
of the Constitution,
(Qozoleni's case BCLR at 86A), or "the spirit and tenor of the
Constitution" (Shabalala's case BCLR at 95F). A purposive construction
is as appropriate here as in other parts of the Constitution. Nonetheless, a
purposive
construction requires one to search for the specific purpose of
section 241(8) within its context in the Constitution. Its immediate
context is
a section headed "Transitional arrangements : Judiciary", in a chapter (chapter
15) headed "General and Transitional Provisions".
[64] As stated in the preamble, the Constitution creates a new legal order in
South Africa. The afterword recites inter alia that the Constitution is
a bridge from a past characterised by injustice to a future founded on the
recognition of human rights.
But the Constitution cannot wipe out all traces of
the past in one blow, and does not attempt to do so. It was necessary for the
Constitution to consider how far the new legal order, especially the fundamental
rights provisions of Chapter 3, should affect actions
taken or acts performed
under the old legal order before the Constitution came into force. This is a
perennial legal problem, which
arises whenever a new statute repeals an old one.
Sometimes repealing statutes contain provisions which give a clear answer to the
problem. All too often they do not, and canons of statutory interpretation have
been developed over the years to assist in solving
the problem. In general, our
courts have held that in the absence of a discernible contrary intention, it is
presumed that a new
statute is not intended to have retroactive or retrospective
effect. This is not the place for a detailed analysis of the presumption,
but
a reminder of its scope may help to explain the purpose of section
241(8).
[65] First, there is a strong presumption that new legislation is not
intended to be retroactive. By retroactive legislation is meant
legislation
which invalidates what was previously valid, or vice versa, i.e. which
affects transactions completed before the new statute came into operation. See
Van Lear v Van Lear 1979(3) SA 1162(W). It is legislation which enacts
that "as at a past date the law shall be taken to have been that which it was
not". See Shewan Tomes & Co. Ltd. v Commissioner of Customs and
Excise 1955(4) SA 305(A), 311H per Schreiner ACJ. There is also a
presumption against reading legislation as being retrospective in the
sense
that, while it takes effect only from its date of commencement, it impairs
existing rights and obligations, e.g. by invalidating
current contracts or
impairing existing property rights. See Cape Town Municipality v F. Robb
& Co. Ltd. 1966(4) SA 345(C), 351 per Corbett J. The general rule
therefore is that a statute is as far as possible to be construed as operating
only on facts which come into existence after its passing.
[66] There is a different presumption where a new law effects changes in
procedure. It is presumed that such a law will apply to
every case
subsequently tried "no matter when such case began or when the cause of action
arose" - Curtis v Johannesburg Municipality 1906 TS 308, 312. It is,
however, not always easy to decide whether a new statutory provision is purely
procedural or whether it
also affects substantive rights. Rather than
categorising new provisions in this way, it has been suggested, one should
simply ask
whether or not they would affect vested rights if applied
retrospectively. See Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553
(PC), 563; Industrial Council for Furniture Manufacturing Industry, Natal v
Minister of Manpower and Another 1984(2) SA 238(D), 242.
[67] There is still another well-established rule of construction namely,
that even if a new statute is intended to be retrospective
in so far as it
affects vested rights and obligations, it is nonetheless presumed not to affect
matters which are the subject of
pending legal proceedings. See Bell v
Voorsitter van die Rasklassifikasieraad en Andere 1968(2) SA 678(A);
Bellairs v Hodnett and Another 1978(1) SA 1109(A), 1148.
[68] Problems of retrospectivity may arise in relation to new Constitutions as they do in relation to other new statutes. They arose in relation to the introduction of the Canadian Charter of Rights. See R v Antoine (1983) 4 CRR 126. In the South African Constitution express provisions obviate at least some of the major problems of retrospectivity. Section 4(1) provides -
"This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force or effect to the extent of the inconsistency."
Section 7(2), which is part of Chapter 3, provides -
"This Chapter shall apply to all law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution."
These provisions mean that Chapter 3 prima facie has effect as from
the commencement of the Constitution even if the result is to impair a vested
right. In that sense it is
retrospective.[2] The importance of
section 7(2) is that it enables any person to invoke the Constitution as a
protection against any unconstitutional
official action taken against him or
her, after 27th April 1994, even if that action arises from that
person's conduct before 27th April 1994. On the other hand it
follows from section 7(2) that official acts completed before 27th April 1994
are not invalidated
by anything in the
Constitution.[3]
[69] It is against this background that the purpose of section 241(8) can be
understood. The purposes, I suggest, were twofold.
First, to ensure that
Courts which had derived their power to hear cases from the old Constitution,
could continue to hear them under
the new Constitution. Here I am in agreement
with Mahomed J, and broadly with the reasons which he has given for that
conclusion.
But that is not the only purpose of section 241(8). It is clear
from the language used, that there was another purpose, and that
was to ensure
that there would be an orderly transition from the old to the new legal order,
so as to avoid the dislocation which
would be caused by introducing a radically
different set of legal concepts in the middle of ongoing proceedings.
[70] There is no warrant for reading section 241(8) as merely preserving the
territorial jurisdiction of the courts in pending matters.
First, the
sub-section states no such limitation. Second, sub-sections (1) and (10) of
section 241, expressly preserve jurisdiction
of existing Courts, in all
proceedings. If section 241(8) merely preserved territorial jurisdiction in
pending cases it would be
entirely superfluous. The reliance which some
judgments place on the proviso is in my opinion misconceived. The effect of a
proviso
is to except something from the preceding portion of the enactment
which, but for the proviso, would be within it. It cannot be
construed as if it
were an enacting clause. R v Dibdin [1910] P 57, 125; Mphosi v
Central Board for Co-Operative Insurance Ltd. 1974(4) SA 633(A), 645.
"Pending proceedings" include an appeal from the original proceedings - S v
Thomas and Another 1978(1) SA 329(A). The proviso to section 241(8) in my
view does no more than ensure that, notwithstanding the main enactment, appeals
may go to appeal Courts other than those to which they would have gone under the
old law.
[71] The words in section 241(8), "any court of law, including any tribunal or reviewing authority established by or under any law" are qualified by the words "exercising jurisdiction in accordance with the law then in force". They lend weight to the view that, in the general context of section 241, sub-section (8) is concerned with the jurisdiction of the Courts seized of pending proceedings. I emphasise "jurisdiction", because "jurisdiction" is not limited to "territorial jurisdiction". The term embraces territorial jurisdiction but in ordinary usage territorial limits are only a part of what is meant by a Court's jurisdiction. The accepted meaning of "jurisdiction" is -
"a lawful power to decide something in a case, or to adjudicate upon a case".
Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in liquidation) 1987(4) SA 883(A), 886D.
It is -
" ... the power vested in a court by law to adjudicate upon, determine and dispose of a matter."
Ewing McDonald & Co Ltd v M & M Products Co 1991(1) SA 252(A), 256G.
In Garthwaite v Garthwaite [1964] P 356, Diplock L.J. said at 387 -
"In its narrow and strict sense, the "jurisdiction" of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference 1) to the subject-matter of the issue or 2) to the persons between whom the issue is joined or 3) to the kind of relief sought, or to any combination of these factors. In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its "jurisdiction" (in the strict sense) ...."
[72] If the broad purpose of section 241(8) is, as stated by Mahomed J to be,
"to ensure that the jurisdiction of Courts to deal with
pending cases was not
assailed because of the fact that the Constitution creates new Court structures
with effect from the commencement
of the Constitution", the drafters of the
Constitution would have to address two matters. First, courts and tribunals
would have
to be empowered to continue and complete pending cases. Second, they
would have to be told how to deal with cases heard partly under
one legal order
and partly under another. They could have been told to deal with pending cases
in the period after the new Constitution
comes into force, in accordance with
the provisions of that Constitution, or to deal with them as if the Constitution
had not been
passed. Rightly or wrongly the framers of the Constitution chose
the latter option, and we are required to give effect to that choice.
[73] With all respect to the judges who have taken a different view, I find
it difficult to see what other meaning can reasonably
be given to the language
used. Even if the language were to be read, as Mahomed J suggests it should be,
as "a direction to proceed
with pending cases as if the Constitution had not
impacted on the authority of the pre-Constitution Court to continue to function
as a Court ... [and] emphasizes ... that the relevant Court must exercise
jurisdiction in accordance with the law then in force",
the conclusion would not
in my view be any different. The power of the Court in accordance with the law
in force when it commenced
the proceedings did not include the power to strike
down an Act of Parliament. On the contrary, it was quite explicitly stated in
section 34(3) of the Republic of South Africa Constitution, Act 110 of 1983 that
no such power existed. The power to strike down
such legislation comes from the
1993 Constitution. It is, subject to section 101(6), a power which can be
exercised only by this
Court, but a challenge to the validity of an Act of
Parliament can be raised in proceedings before other Courts and Tribunals. It
is only pursuant to powers vested in the courts by the 1993 Constitution that a
challenge to the validity of section 217(1)(b)(ii)
of the Criminal Procedure Act
can be raised; but section 241(8) states in as many words that pending
proceedings shall be dealt with
as if that Constitution had not been passed.
Consequently, even if section 241(8) is to be read as meaning that a court or
tribunal
before which proceedings were pending should exercise its
"jurisdiction" "as if this Constitution had not been passed", the result
would be the same. Its jurisdiction would not include the constitutional
jurisdiction conferred on the Supreme Court under section 101(3), because such
powers are derived from the new Constitution, and
did not exist under the old
one.
[74] Equally, I see no warrant for limiting the operation of section 241(8)
to the preservation of existing court procedure. Again,
there is no such
limitation in the sub-section, and existing "court procedures" are expressly
preserved by sub-section (10). Nor
can I find in section 25 or any other
section of the Constitution any meaningful distinction between procedure and
substance. If
the lawmakers had intended that those provisions of the
Constitution which had a procedural character were not to be applied in pending
proceedings, whereas purely substantive provisions were to be applied it would
not be easy to find less appropriate words than "...
shall be dealt with as if
this Constitution had not been passed".
[75] The words which I have just quoted from section 241(8) echo wording used for over 100 years by legislators wishing to make it clear that new statutes did not affect pending proceedings. Thus the Interpretation Act, 1957 (like the Interpretation Act, 1910 and the English Interpretation Act, 1889) provides in section 12(2)(e) that the repeal of law shall not affect (inter alia) any right or obligation accrued or incurred under the repealed law, and shall not affect any legal proceedings in respect of such right or obligation, and such legal proceedings may be continued "as if the pending law had not been passed."
Section 344(3) of the Criminal Procedure Act, 1977 provides
"(3) Notwithstanding the repeal of any law under subsection (1), criminal proceedings which have under such law at the date of commencement of this Act been commenced in any superior court, regional court or magistrate's court and in which evidence has at that date been led in respect of the relevant charge, shall, if such proceedings have at that date not been concluded, be continued and concluded under such law as if it had not been repealed."
Similar words appear in section 115 of
the Magistrate's Courts Act 24 of 1944 (see Janover v Registrar of Deeds
1946 TPD 35) and in older statutes such as the Administration of Estates
Act, 1913. See George Municipality v Freysen NO 1973(2) SA 295(C) 300.
Such provisions have often been judicially applied. It has never been suggested
that they relate only to
territorial jurisdiction or procedure. See e.g. S v
Thomas supra; S v Swanepoel 1979(1) SA 478(A).
[76] As far as I am aware the words "shall be dealt with", used in section
241(8), are not found in the statutes to which I have referred.
In those the
words commonly used are "continued" or "concluded", or both. In at least two
cases in the Appellate Division judges
have used the phrase "dealt with" as
synonymous with "continued" and "concluded" as used in section 344(3) of the
Criminal Procedure
Act and section 12(2)(e) of the Interpretation Act. See S
v Thomas supra at 334H; Pinkey v Race Classification Board and
Another 1968(4) SA 628(A), 636C-D. This accords with the ordinary meaning
of the words. "Dealt with" is not a term of art. The phrase
is part of
colloquial English usage. A judge, in ordinary parlance, deals with a case by
conducting the hearing in accordance with
the law of evidence, by finding the
facts, applying the law and finally pronouncing the decision. More shortly, he
exercises his
jurisdiction in the general sense explained above. A judge bound
to deal with a case as if the Constitution had not been passed
must exercise his
jurisdiction as if the Constitution had not been passed. By contrast, a court
does not "deal with" proceedings
simply by retaining its territorial
jurisdiction. There is no basis in law, language or logic for giving "dealt
with" some different
meaning in the context of section 241(8), even if a
different meaning could be found.
[77] I cannot accept that the words "dealt with" are words of uncertain
meaning. According to the Oxford English Dictionary the ordinary
meaning of
these words is "to act in regard to, to administer, handle, dispose in any way
(of a thing)". In the context of section
241(8) these words quite clearly
relate to the conduct of a "pending proceeding" in the period after the
Constitution has come into
force. There is nothing "tentative" or "uncertain"
in the injunction that "pending proceedings shall be dealt with as if this
Constitution
had not been passed"; nor, in my view, can these words reasonably
be understood as meaning that in the period after the 27th April 1994
courts and tribunals should deal with pending proceedings in terms of the law
then in force. On the contrary, they have
precisely the opposite meaning.
[78] There are limits to the principle that a Constitution should be construed generously so as to allow to all persons the full benefit of the rights conferred on them, and those limits are to be found in the language of the Constitution itself. Thus, in Minister of Home Affairs (Bermuda) v Fisher and Another [1980] AC 319 (PC) at 329E-F, Lord Wilberforce was at pains to point out that a constitution is a legal instrument, and that respect has to be paid to the language used. This was accepted in the unanimous judgment delivered by this Court in S v Zuma (supra) where it was said:
"We must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to "values" the result is not interpretation but divination."
The existence of such limits is also recognised by section 4(1) of the
Constitution which provides that "...any law or act inconsistent
with [the
Constitution's] provisions shall, unless otherwise provided expressly or by
necessary implication in this Constitution, be of no force and effect to the
extent of the inconsistency." (my emphasis)
Section 241(8) of the Constitution provides expressly that pending cases
shall be dealt with as if the Constitution had not been passed.
When the
language is clear it must be given effect, and this has been stressed in cases
in several different jurisdictions. See
for example: S v Marwane 1982(3)
SA 717(A) at 749D-G; Bull v Minister of Home Affairs 1986(3) SA 870(ZSC)
at 881E-H; Ex Parte Cabinet for the Interim Government of South West Africa:
In re Advisory Opinion in terms of S 19(2) of Proc R101 of 1985
(RSA)
1988(2) SA 832(SWA) at 853G; Tam Hing Yee v Wu Tai Wai (1992) LRC
(Const.) 596 (Hong Kong) at 600; Attorney-General v Moagi 1982 (2)
Botswana LR 124,184.
With all respect to the judges who have taken a different view I find it
difficult to see what meaning other than that which I have
suggested can
reasonably be given to the language used.
[79] It follows that, although my reasoning is by no means identical, I agree
with the conclusion of van Dijkhorst J in Kalla and Others v The Master and
Others supra, BCLR at 88C, that section 241(8) excludes the application of
the substantive provisions of the Constitution in pending cases. The
courts in
the conflicting lines of cases to which I have referred have objected that this
interpretation would lead to anomalies
and injustices. Thus in S v W and
Others supra BCLR at 145H, Farlam J said that he was satisfied that the
framers of the Constitution could not have intended that cruel, inhuman
or
degrading punishment could be imposed even in pending cases. In Qozoleni v
Minister of Law and Order and Another supra BCLR at 86D, Froneman J asked
whether the Constitution could countenance any discrimination based on race even
in pending proceedings,
and answered his own question in the negative. The
example has been suggested of two accused on the same charge, with the
indictment
served on 26th April 1994 on the one and 27th
April 1994 on the other. These apparent anomalies may arise in the limited and
reducing number of cases, civil and criminal, which
were pending on
27th April 1994. They are the inevitable result of a transitional
provision such as section 241(8). Nor are they as serious as the examples
given
may suggest. If it be assumed that a Court in some "pending proceeding" may
have felt compelled to pass a sentence of a type
which this Court may
subsequently hold to be cruel, inhuman or degrading, it certainly does not
follow that such sentence will be
carried out after such declaration has been
made. The carrying out of the sentence would be an unconstitutional executive
act which
this Court would restrain under section 98(7) of the Constitution, and
no court would knowingly impose a sentence which cannot lawfully
be carried out.
Issues arising out of racial or other discrimination in civil cases may involve
questions of public policy which
would depend, not on the enforcement of any
Constitutional provision, but on public policy prevailing at the time the case
is heard.
See Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984(4)
SA 874(A).
[80] In his judgment Mahomed J contends that if pending proceedings are to be
dealt with literally "as if this Constitution had not
been passed" a Supreme
Court could not refer a matter to this Court in terms of section 102(1) because,
by utilising the provisions
of section 102(1) it would not in fact be dealing
with the proceedings as if the Constitution had not been passed. In my view
there
is a twofold answer to this contention. In the first place the Supreme
Court in referring the matter to this Court pursuant to the
provisions of
section 102(1) is not "dealing" with proceedings, it is seeking directions from
the Constitutional Court as to how
to deal with proceedings. In the second
place, even if the contention were correct, this would not end the matter; for
this Court
could still be seized with the matter on appeal after the Supreme
Court had construed the provisions of section 241(8), and deal
with the matter
in accordance therewith.
[81] It is in theory possible that as late as 26th April 1994, there could
have been a prosecution pending for the cotravention of
(for example) a racially
discriminatory local authority by-law which had somehow survived the process of
repeal of discriminatory
laws. A conviction on such a charge after
27th April 1994, would indeed seem to be extraordinary. But it must
not be forgotten that the courts are not the only organs of state
bound to
respect and enforce the Constitution. Legislative and executive organs of state
at all levels are similarly bound - see: sections 4(2) and 7(1) of the
Constitution. In the hypothetical case envisaged it would be open to Parliament
or the appropriate
Provincial legislature to repeal the offending by-law. And
one would expect the executive in the person of the Attorney-General
having
jurisdiction, to withdraw such a prosecution.
[82] It should be borne in mind that we are not concerned here with the
meaning of rights guaranteed under the Constitution, but with
whether guaranteed
rights can be claimed in pending proceedings; nor are we concerned with a
provision drafted with "an eye to the
future", requiring it to be interpreted
then in the light of changed conditions. Section 241(8) is a transitional
provision, intended
to deal with a limited number of cases, covering a defined
and comparatively short period of time. It is moreover a provision which
has
only limited and indirect application to the fundamental rights entrenched in
Chapter 3 of the Constitution. Chapter 3 governs
acts performed and decisions
taken after the Constitution comes into force, and there will not
ordinarily be such issues in litigation pending on the date the Constitution
came into force.
[83] The tension between Chapter 3 and section 241(8) is likely to arise only
in respect of the fair trial requirements of section
25(3). There will be
anomalies in the conduct of trials which flow from what I consider to be the
clear meaning of section 241(8).
But there will also be anomalies flowing from
the other constructions that have been suggested. The "day before" and "day
after"
anomalies exist where judgement has been reserved in comparable cases and
is given either immediately before or immediately after
the 27th April; the
outcome of cases in which convictions were correctly imposed before the
27th April on the basis of presumptions later to be declared
"unconstitutional", could depend on whether appeals had or had not been noted,
or on the dates when particular appeals were set down for hearing; proceedings
could be disrupted because of the need on the 27th April for
unrepresented accused in part-heard cases to exercise rights under section
25(3)(e); witnesses may have to be recalled
to be cross-examined by the newly
appointed counsel; prosecutions based on partially completed cases, involving
"unconstitutional
presumptions" may have to be re-opened to call evidence which
had previously been considered to be unnecessary, and so on. The point
is that
there are anomalies on both sides, and even if we were to think that the wrong
choice was made, or that on balance, there
would be fewer or less serious
anomalies if the framers of the Constitution had chosen differently, we would
not be entitled to depart
from the clear language of the section. Nor is it
strange, as some judges have suggested, to find that this choice is set out in
section 241(8) and not in Chapter 3. A transitional provision is precisely
where one would expect such a choice to be recorded,
because the intention is
not to limit rights generally, but to limit their application only in respect of
pending cases, affected
by the transition.
[84] The reluctance of some judges to give literal effect in particular cases
to the language of section 241(8) is no doubt understandable.
But I believe that
the anomalies which disturb them are the price which the lawmakers were prepared
to pay for the benefit of orderly
transition and for avoiding the disruption
which would be caused by changing the applicable law in the middle of a case.
In the
same way existing laws, although they may be held in due course to be
unconstitutional, prima facie continue to have effect until they are
actually struck down - see sections 98(6) and 229 of the Constitution. The
danger of regarding
a text as necessarily having a single objective meaning has
already been adverted to in the Zuma case. I am also fully aware that
it is a
Constitution and not an ordinary statute that we are expounding. One of the
distinctions between them is that a constitution
is drafted with an eye to the
future. Another is that a constitutional bill of rights should as far as
possible be read as protecting
individual rights, if necessary against the
public interest. I thus agree with the approach to constitutional
interpretation found
in the judgment of the Supreme Court of Canada in Hunter
et al v Southam Inc. (1984) 9 CRR 355, at 364-5, and find the narrow
approach to the language of a constitution exemplified by Government of the
Republic of Bophuthatswana and Others v Segale 1990(1) SA 434(B AD),
especially at 448-9, unacceptable. Nonetheless, there are some provisions, even
in a constitution, where the
language used, read in its context, is too clear to
be capable of sensible qualification. It is the duty of all courts, in terms
of
section 35, to promote the values which underlie a democratic society based on
freedom and equality. In the long run, I respectfully
suggest, those values are
not promoted by doing violence to the language of the Constitution in order to
remedy what may seem to
be hard cases.
[85] This, I fear, over-long consideration of section 241(8) is motivated, if
not excused, by the need to resolve the considerable
conflicts of judicial
opinion to which I have referred. The immediate result of it is that in my view
the retrospectivity which
we gave to our ruling in the Zuma case under
section 98(6) must remain limited to cases in proceedings which began on or
after 27th April 1994, i.e. which were not pending on that date. We
cannot override section 241(8). Since this is a minority judgment nothing
need
be said about the form of order.
Chaskalson P, Ackermann J and Didcott J concur in the judgment of Kentridge AJ.
[86] KRIEGLER J: In another case argued contemporaneously with this
one,[4] we held that section
217(1)(b)(ii) of the Criminal Procedure Act, 1977 is unconstitutional because it
assails the right of an accused
to a fair
trial.[5] In this case the same
question arose but judgment was held over because the case raises the further
question whether an accused
whose case was pending when the Constitution came
into operation is entitled to the benefits it confers.
[87] The applicability of the Constitution to cases which were pending when
it came into operation has been considered in numerous
cases around the
country.[6] It would hardly be an
exaggeration to say that the cases produced as many answers as there were
judgments. The present case runs
true to form. There is manifestly a sharp
division of opinion among the members of this Court. On the one hand Kentridge
AJ, supported
by three colleagues, has concluded that the benefits of chapter 3
do not accrue to an accused whose case was pending on 27 April
1995. On the
other hand, my colleague Mahomed J, with the concurrence of a number of
justices, has come to the opposite conclusion.
Sachs J agrees with them, but
for different reasons. Although I have come to the same conclusion as the
latter group and subscribe
to the order formulated by Mahomed J, my reasoning is
somewhat different and ought to be recorded.
[88] If one asks the wrong question, one is likely to come up with the wrong
answer. And to my mind, the question in this case is
emphatically not:
What is the effect of section 241(8) of the Constitution. The correct question
is as I have formulated it in the opening paragraph
of this judgment.
[89] There is universal consensus that the Constitution ushered in the most
fundamental change in the history of our country. It
made everything new. The
country's national territory (section 1), its national symbols (section 2), its
languages (section 3),
and its citizenship (section 5) were created anew. The
Constitution gave birth to a new legislature (chapter 4), a new executive
(chapter 6), and a new judiciary (chapter 7). More significantly, in the
present context, it created justiciable fundamental rights
and freedoms (chapter
3). Above all, it established a constitutional democracy in which the
Constitution itself was to be the supreme
law of the land and would "bind all
legislative, executive and judicial organs of state" (section 4). It was a
fundamental metamorphosis.
[90] The aspect of that metamorphosis with which we are most directly
concerned is the recognition of fundamental rights and freedoms
in chapter 3.
That chapter recognises for every person a comprehensive set of rights and
freedoms enforceable in a court of law.
It commences with section 7, which
imperiously makes the chapter binding on "all legislative and executive organs
of state" and applicable
to "all law in force ... during the period of operation
of this Constitution". In terms of section 251(1) of the Constitution that
period of operation commenced on 27 April 1994. It must follow that on that day
every person became
entitled to claim the rights and freedoms contained in chapter 3.
[91] But - say the proponents of the opposite point of view - that isn't so.
The benefits so unequivocally recognized for all with
effect from 27 April 1994
are to be withheld from a certain category. Those accused persons whose trials
were pending when the Constitution
came into operation, somehow and
notwithstanding the unequivocal language of sections 4, 7 and 251(1), are not
entitled to share
in the bounty. If otherwise qualified, they became citizens
of the new South Africa, owe allegiance to its new institutions, pay
homage to
its symbols and are eligible for office in the executive, legislative and
judicial branches of the new state. Nevertheless,
they are not entitled to the
rights and freedoms conferred by chapter 3. That disentitlement is sought to be
founded on the fact
that they were accused persons whose cases were
pending.
[92] Such a startling proposition surely calls for very convincing support indeed. But the sole justification is found in the vague wording of an obscure subsection of a prosaic transitional provision - namely section 241(8). Although that subsection has been quoted time without number, it is as well to quote it again.
"All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution has not been passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement
such proceedings shall be brought before the court having jurisdiction under this Constitution."
[93] It is also as well to
contextualize that subsection. Section 241 is part and parcel of chapter 15,
titled “General and
Transitional Provisions”. Save for section 229,
which provides for the continuation of existing laws until their repeal, and
section 230 (read with schedule 7) which repeals the panoply of Bantustan
legislation, the chapter has nothing to do with substantive
law. Section 231
keeps the country's international treaties extant and sections 232 and 233 deal
with interpretation and definitions.
From there up to section 248 the chapter
deals seriatim with the continuation of a variety of vital state
functions. Section 234 provides for the role of members of certain legislatures
to come to an end but for the staff of such bodies to remain in office. Then
sections 235 to 238 make provision for the incumbents
of executive authorities,
the civil service, and the Public Service Commission to continue functioning
until replaced by their successors.
Section 239 provides for continuity and
order in the disposition of state assets and liabilities and section 240 for the
continuation
of the State Revenue Fund. Then follows section 241, which deals
with transitional and continuity arrangements for the judiciary,
and section 242
which makes provision for its subsequent rationalization. Sections 243 to 246
make transitional arrangements regarding
the Ombudsman, the Auditor General,
local government structures, and the pensions of political office bearers. The
whole pattern
of the chapter is manifestly to ensure orderly continuity of
function and authority.
[94] That, then, is the light in which section 241 is to be read. Quite
logically it commences in subsection (1) with continuity
of the judiciary. This
is done by the simple stratagem of deeming the existing courts to be the new
courts constituted in terms
of the
Constitution.[7] It is followed by
three provisos and two substantive subsections which were inserted
later.[8] The amendments were aimed
at the orderly winding down of appellate tribunals that had been created in the
former TBVC territories.
Subsection (2), linking up with subsection (1), then
deems the erstwhile Supreme Court judges to have been appointed under the
Constitution.
We therefore have continuity of courts and of their judges.
Subsection (3) then keeps all other judicial officers in their posts,
subsection
(4) does the same for attorneys-general, while subsections (5) and (6) maintain
their salaries and pensions. Judges,
magistrates and attorneys-general of the
old regime having been kept in office, subsection (7) requires them to take a
fresh oath
of office. By-passing subsection (8) for the moment, we see that
subsections (9) and (10) are also concerned with continuity. Subsection
(9)
allows pending legal proceedings against a government body to be continued
against any successor while subsection (10) keeps
in operation for the time
being all pre-existing laws relating to the jurisdiction, procedures, powers,
establishment and functioning
of courts of law and judicial officers.
[95] Viewed in that matrix, subsection (8) of section 241, despite the
equivocal nature of its wording, should hold no terrors. It
has nothing to do
with the substantive law to be applied by courts. It nowhere mentions law,
substantive or otherwise. It talks
of "proceedings", i.e. court cases, and
seeks to organize their orderly and continued disposition. More specifically,
it is concerned
with proceedings which are "pending" when the Constitution comes
into operation, i.e. when the old courts die and the new courts
are born. With
regard to such cases, part heard or still awaiting their initial hearing, the
same question arises: Who deals with
them now that the old courts have gone?
All the subsection says is that, notwithstanding the judicial metamorphosis, all
cases that
were pending before the old courts are to be dealt with by those
courts as if they had not been reborn. The subsection does not
purport to
relate to the law to be applied by any court, it merely designates the court
which will deal with the case. The subsection
is concerned with the
administrative channelling, handling and hierarchical disposition of cases that
were on the rolls of courts
of the old South Africa. That is what the phrase
"any court of law ... exercising jurisdiction in accordance with the law then in
force" denotes. In other words, a proceeding "pending before any court" is to
be "dealt with as if [the] Constitution had not been
passed". In the context, I
suggest, there can be little doubt that the subsection simply and only means
that the tribunal having
jurisdiction under the old order has to deal with a
pending case. Completely logically, the proviso then says that an appeal or
review from such new court (wearing its old robes) has to be brought to the new
superior tribunal designated by the Constitution.
[96] There is no overlap between subsection (8) and any of the other
subsections of section 241. Subsection (8) deals with pending
cases only, says
by whom they are to be heard and it alone deals with that topic. More
importantly, though, there is no overlap
between section 241(8) and any
provision in chapters 2 or 3 of the Constitution. There is no tension between
them. Sections 4,
7 and 251(1) confer rights on the individual and prescribe
when they accrue. Section 241(8) merely prescribes which courts are to
dispose
of those cases that had not been concluded when the new Constitution came into
operation.
[97] Even assuming that there may be some tension between sections 4, 7 and
251(1) on the one hand and section 241(8) on the other,
the tension should be
resolved in light of the qualitative distinction between them. They deal with
clearly distinct matters of
fundamental constitutionalism and recognition of
rights. They operate at a wholly different level than does section 241(8). The
"international culture of constitutional jurisprudence which has developed to
give to constitutional interpretation a purposive and
generous
focus",[9] is applicable to chapters 2
and 3. It has no place in the interpretation of section 241(8). The former are
concerned with the broad
brush-strokes of the constitutional canvas. Peer at
them too closely and you lose focus, thus missing the picture. The latter has
a
narrow, technical and brief purpose and scope. To understand and correctly
apply it require close reading, not a generous perspective.
[98] The ultimate conclusion to which I come is therefore, that no accused person whose case was pending on 27 April 1994 is precluded from sharing in the benefits bestowed by the new Constitution. Such an accused is entitled to claim any one or more of the rights conferred by chapter 3 and the presiding officer is obliged to entertain such claim. In particular the accused in such a case against whom a confession had already been admitted under section 217(1)(b)(ii) of Act 51 of 1971 is entitled to have its admissibility reconsidered without the applicat
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