CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 23/00
THE STATE
and
GEORGE
DZUKUDA First Applicant
WINSTON TILLY Second Applicant
MALOPE JAN
TSHILO Third Applicant
Case CCT 34/00
THE
STATE
and
MALOPE JAN TSHILO Applicant
Heard on : 16
August 2000
Decided on : 27 September
2000
JUDGMENT
ACKERMANN J:
Introduction
| [1] | Both these matters arise out
of an order made by Lewis J in the Witwatersrand High Court on 17 May 2000,
declaring section 52 of the
Criminal Law Amendment Act 105 of 1997 (“the
Act”) to be inconsistent with section 35 of the Constitution and
invalid.[1] This order has been
referred to this Court for confirmation under the provisions of section
172(2)(a) of the Constitution. The
first matter (case CCT 23/00) relates to the
confirmation of this order, which followed on the three applicants having been
convicted
of rape in a Regional Court and committed for sentence by the High
Court under the provisions of section 52 of the Act. The second
matter (case
CCT 34/00) is an application by the third applicant in the first matter (to whom
reference will be made throughout as
“the third applicant”) for
leave to appeal against the refusal by the High Court to set aside his
conviction. |
| [2] | The two matters were heard
together by this Court and in both the State was represented by counsel on
behalf of the National Director
of Public Prosecutions and the Director of
Public Prosecutions: Witwatersrand High Court. The directions in the first
matter, together
with a copy of the High Court judgment were drawn to the
attention of the General Council of the Bar of South Africa, the Law Society
of
South Africa and the Human Rights Commission. Pursuant thereto the Law Society
of South Africa delivered written representations,
in support of the
confirmation, to which due regard has been given. The Court is indebted to Mr
Snyckers, who appeared pro bono for the third applicant, instructed by
the Witwatersrand University Law Clinic, for his comprehensive and helpful
argument. |
| [3] | It is necessary at the
outset to quote both sections 51 and 52 of the Act in order to appreciate the
issues involved in these cases: |
“51. Minimum sentences for certain serious
offences.
(1) Notwithstanding any other law but subject to subsections (3) and (6), a High
Court shall, if it has convicted a person of an
offence referred to in Part I of
Schedule 2, sentence the person to imprisonment for life.
(2) Notwithstanding any other law but subject to subsections (3) and (6), a
regional court or a High Court shall
—
(a) if it has convicted a person of an offence referred to in Part II of
Schedule 2, sentence the person, in the case of
—
(i) a first offender, to
imprisonment for a period not less than 15 years;
(ii) a second offender of any such offence, to imprisonment for a period not
less than 20 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for
a period not less than 25 years;
(b) if it has convicted a person of an offence referred to in Part III of
Schedule 2, sentence the person, in the case of
—
(i) a first offender, to
imprisonment for a period not less than 10 years;
(ii) a second offender of any such offence, to imprisonment for a period not
less than 15 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for
a period not less than 20 years; and
(c) if it has convicted a person of an offence referred to in Part IV of
Schedule 2, sentence the person, in the case of
—
(i) a first offender, to
imprisonment for a period not less than 5 years;
(ii) a second offender of any such offence, to imprisonment for a period not
less than 7 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for
a period not less than 10 years:
Provided that the maximum sentence that a regional court may impose in terms of
this subsection shall not be more than five years
longer than the minimum
sentence that it may impose in terms of this
subsection.
(3) (a) If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which
justify the imposition of a
lesser sentence than the sentence prescribed in those subsections, it shall
enter those circumstances
on the record of the proceedings and may thereupon
impose such lesser sentence.
(b) If any court referred to in subsection (1) or (2) decides to impose a
sentence prescribed in those subsections upon a child who
was 16 years of age or
older, but under the age of 18 years, at the time of the commission of the act
which constituted the offence
in question, it shall enter the reasons for its
decision on the record of the
proceedings.
(4) Any sentence contemplated in this section shall be calculated from the date
of sentence.
(5) The operation of a sentence imposed in terms of this section shall not be
suspended as contemplated in section 297 (4) of the
Criminal Procedure Act, 1977
(Act No. 51 of 1977).
(6) The provisions of this section shall not be applicable in respect of a child
who was under the age of 16 years at the time of
the commission of the act which
constituted the offence in question.
(7) If in the application of this section the age of a child is placed in issue,
the onus shall be on the State to prove the age
of the child beyond reasonable
doubt.
(8) For the purposes of this section and Schedule 2, 'law enforcement officer'
includes —
(a) a member of the National Intelligence Agency or the South African Secret
Service established under the Intelligence Services
Act, 1994 (Act No. 38 of
1994); and
(b) a correctional official of the Department of Correctional Services or a
person authorised under the Correctional Services Act,
1959 (Act No. 8 of
1959).
52. Committal of accused for sentence by High Court after plea of
guilty or trial in regional court.
(1) If a regional court, after it has convicted an accused of an offence
referred to in Schedule 2 following on
—
(a) a plea of guilty; or
(b) a plea of not
guilty,
but before sentence, is of the opinion that the offence in respect of which the
accused has been convicted merits punishment in excess
of the jurisdiction of a
regional court in terms of section 51, the court shall stop the proceedings and
commit the accused for sentence
by a High Court having
jurisdiction.
(2) (a) Where an accused is committed under subsection (1) (a) for sentence by a
High Court, the record of the proceedings in the
regional court shall upon proof
thereof in the High Court be received by the High Court and form part of the
record of that Court,
and the plea of guilty and any admission by the accused
shall stand unless the accused satisfies the Court that such plea or such
admission was incorrectly recorded.
(b) Unless the High Court in question
—
(i) is satisfied that a plea of
guilty or an admission by the accused which is material to his or her guilt was
incorrectly recorded;
or
(ii) is not satisfied that the accused is guilty of the offence of which he
or she has been convicted and in respect of which he or
she has been committed
for sentence,
the Court shall make a formal finding of guilty and sentence the accused as
contemplated in section 51.
(c) If the Court is satisfied that a plea of guilty or any admission by the
accused which is material to his or her guilt was incorrectly
recorded, or if
the Court is not satisfied that the accused is guilty of the offence of which he
or she has been convicted and in
respect of which he or she has been committed
for sentence or that he or she has no valid defence to the charge, the Court
shall
enter a plea of not guilty and proceed with the trial as a summary trial
in that Court: Provided that any admission by the accused
the recording of which
is not disputed by the accused, shall stand as proof of the fact thus
admitted.
(d) The provisions of section 112 (3) of the Criminal Procedure Act, 1977 (Act
No. 51 of 1977), shall apply with reference to the
proceedings under this
subsection.
(3) (a) Where an accused is committed under subsection (1) (b) for sentence by a
High Court, the record of the proceedings in the
regional court shall upon proof
thereof in the High Court be received by the High Court and form part of the
record of that Court.
(b) The High Court shall, after considering the record of the proceedings in the
regional court, sentence the accused, and the judgment
of the regional court
shall stand for this purpose and be sufficient for the High Court to pass
sentence as contemplated in section
51: Provided that if the judge is of the
opinion that the proceedings are not in accordance with justice or that doubt
exists whether
the proceedings are in accordance with justice, he or she shall,
without sentencing the accused, obtain from the regional magistrate
who presided
at the trial a statement setting forth his or her reasons for convicting the
accused.
(c) If a judge acts under the proviso to paragraph (b), he or she shall inform
the accused accordingly and postpone the case for
judgment, and, if the accused
is in custody, the judge may make such order with regard to the detention or
release of the accused
as he or she may deem fit.
(d) The Court in question may at any sitting thereof hear any evidence and for
that purpose summon any person to appear to give evidence
or to produce any
document or other article.
(e) Such Court, whether or not it has heard evidence and after it has obtained
and considered a statement referred to in paragraph
(b), may
—
(i) confirm the conviction and
thereupon impose a sentence as contemplated in section 51;
(ii) alter the conviction to a conviction of another offence referred to in
Schedule 2 and thereupon impose a sentence as contemplated
in section 51;
(iii) alter the conviction to a conviction of an offence other than an
offence referred to in Schedule 2 and thereupon impose the
sentence the Court
may deem fit;
(iv) set aside the conviction;
(v) remit the case to the regional court with instruction to deal with any
matter in such manner as the High Court may deem fit; or
(vi) make any such order in regard to any matter or thing connected with such
person or the proceedings in regard to such person as
the High Court deems
likely to promote the ends of justice.”
| [4] | In separate cases before the
Regional Court all three applicants were convicted of raping girls under the age
of 16 years. The first
two applicants were so convicted following on their
pleas of guilty and, in the case of the third applicant, following on his plea
of not guilty. The offence of raping a girl under the age of 16 years is one
referred to in Part I of Schedule 2 to the
Act[2] and the Regional Court, after
convicting each applicant but before imposing sentence, stopped the proceedings
and committed each
accused for sentence by the High Court, acting under the
provisions of section 52(1) read with section 51(1) of the
Act. |
| [5] | In the case of the third
applicant, Lewis J had doubts as to whether the proceedings in the Regional
Court were in accordance with
justice. Acting under the provisions of the
proviso to section 52(3)(b), the learned Judge directed the attention of the
presiding
Regional Court magistrate to various difficulties which she had and
requested reasons for the conviction of the third applicant.
The magistrate
duly responded to these queries. Lewis J did not, however, deal further with
the merits of the case and I shall
deal later in this judgment with certain
submissions made by Mr Snyckers in this regard. The learned Judge, entertaining
doubts
as to the constitutionality of section 52 of the Act, requested argument
thereon and, having heard argument in all three the cases,
made the order
presently before this Court for confirmation. It should be stressed that the
issue of the constitutional validity
of section 51 itself was not before the
High Court and is not before this Court. This section must accordingly, for
purposes of
this case, be assumed to be constitutionally
valid. |
The proper construction of section
52(1)
| [6] | There has been disagreement
among the High Courts on the correct construction of section 52(1). In
particular, the question has arisen
whether a Regional Court, having convicted
an accused of an offence referred to in Part I of Schedule 2 of the Act and
being of the
opinion that the offence merits punishment in excess of the
Regional Court’s jurisdiction, is empowered to stop the proceedings
and
commit such accused for sentence by a High Court. There are High Court
judgments that have held that in such circumstances a
Regional Court has no
power to commit the accused for sentence by a High
Court.[3] There are other High Court
judgments which have reached the opposite
conclusion.[4] Lewis J, although
bound by the decision in Mdatjiece’s case, independently came to
the positive conclusion that it was “absolutely clear” that in the
situation mentioned,
“such jurisdiction is conferred on the High
Court”.[5] It is solely because
of the consequences of such committal for sentence by a High Court, more
particularly the split thereby created
in the criminal trial and the resultant
effect of the section 52(3)(d) provisions on the sentencing part of the trial,
that the High
Court held section 52 to be constitutionally
invalid. |
| [7] | It is unnecessary to decide
which interpretation is correct. It is clear that, on both interpretations, a
split procedure arises
in which sentencing is undertaken by a High Court in the
case of an accused convicted in the Regional Court. The difference between
the
two interpretations given to section 52 relates to the range of cases to which
the split procedure applies. The one interpretation
(“the extensive
interpretation”) extends the range of cases to which the split procedure
applies to include an accused
convicted in a Regional Court of an offence
referred to in Part I of Schedule 2 which, under section 51(1) of the Act,
requires the
imposition by a High Court of a sentence of life imprisonment in
the absence of substantial and compelling reasons to impose a lesser
sentence.
The other interpretation (“the restrictive interpretation”) limits
it to accused convicted in a Regional Court
of offences referred to in Parts II,
III and IV of Schedule 2. On the restrictive interpretation no question of
unconstitutionality
arises in the case of the sentencing procedure in respect of
an accused convicted in a Regional Court of an offence referred to in
Part I of
Schedule 2, because such an accused has to be sentenced by the same court that
convicted him or her. The argument in the
first matter, on the basis of the
extensive interpretation as applied to an accused convicted of an offence
referred to in Part I
of Schedule 2, was that the inevitable effect of the split
procedure decreed by section 52 was such as to render its provisions
unconstitutional,
particularly having regard to the character of life
imprisonment as a form of punishment. I shall consider this argument below.
If
it falls to be rejected, then it must a fortiori be rejected in the case
of the split procedure applied to accused convicted of offences referred to in
Parts II, III and IV of Schedule
2, on the former construction.
|
Is section 52 of the Act inconsistent with
the accused’s right to a fair trial under section 35(3) of the
Constitution?
| [8] | Section 35(3) of the
Constitution provides that “[e]very accused person has a right to a fair
trial” and further, that
such right includes the right -
|
“ ....
(d) to have their trial begin and conclude without unreasonable
delay;
....
(m) not to be tried for an offence in respect of an act or omission for which
that person has previously been either acquitted or
convicted”.
As appears generally from the
judgment of the High Court in the present case and, for example, the judgments
referred to therein,[6] the division
or splitting of the criminal trial between a Regional Court and the High Court
brought about by section 52 of the Act
has elicited criticism from the High
Courts. Lewis J’s judgment is, however, the first to consider in detail
and directly
whether such splitting is constitutionally invalid because of its
inconsistency with section 35(3) of the Constitution.
| [9] | As was said by this Court in
Zuma’s case,[7] an
accused’s right to a fair trial under section 35(3) of the Constitution is
a comprehensive right and “embraces a concept
of substantive fairness
which is not to be equated with what might have passed muster in our criminal
courts before the Constitution
came into
force.”[8] Elements of this
comprehensive right are specified in paragraphs (a) to (o) of subsection (3).
The words “which include the
right” preceding this listing indicate
that such specification is not exhaustive of what the right to a fair trial
comprises.
It also does not warrant the conclusion that the right to a fair
trial consists merely of a number of discrete sub-rights, some
of which have
been specified in the sub-section and others not. The right to a fair trial is
a comprehensive and integrated right,
the content of which will be established,
on a case by case basis, as our constitutional jurisprudence on section 35(3)
develops.
It is preferable, in my view, in order to give proper recognition to
the comprehensive and integrated nature of the right to a fair
trial, to refer
to specified and unspecified
elements[9]of the right to a
fair trial, the specified elements being those detailed in sub-section
(3). |
| [10] | It should not be assumed
that a fair trial, as required by section 35(3), can only be achieved by one
specific system of criminal
procedure. There may be more than one way of
securing the various elements necessary for a fair trial and provided the
legislature
devises a system which effectively secures such right, it cannot be
faulted merely because it settles for a system which departs
from past
procedures. The norm prescribed by section 35(3), is a “fair
trial.” The question to be determined in each
case is whether the
criminal procedure scheme, or the relevant part thereof, devised by the
legislature, whatever its form, conforms in substance to that
norm. |
| [11] | It would be imprudent, even
if it were possible, in a particular case concerning the right to a fair trial,
to attempt a comprehensive
exposition thereof. In what follows, no more is
intended to be said about this particular right than is necessary to decide the
case at hand. At the heart of the right to a fair criminal trial and what
infuses its purpose, is for justice to be done and also
to be seen to be done.
But the concept of justice itself is a broad and protean concept. In
considering what, for purposes of this
case, lies at the heart of a fair trial
in the field of criminal justice, one should bear in mind that dignity, freedom
and equality
are the foundational values of our
Constitution.[10] An important aim
of the right to a fair criminal trial is to ensure adequately that innocent
people are not wrongly convicted, because
of the adverse effects which a wrong
conviction has on the liberty, and dignity (and possibly other) interests of the
accused. There
are, however, other elements of the right to a fair trial such
as, for example, the presumption of innocence, the right to free legal
representation in given circumstances, a trial in public which is not
unreasonably delayed, which cannot be explained exclusively
on the basis of
averting a wrong conviction, but which arise primarily from considerations of
dignity and
equality.[11] |
| [12] | More particularly, in
relation to sentencing in the context of the present case, it seems to me that
what the right to a fair trial
requires, amongst other things, is a procedure
which does not prevent any factor which is relevant to the sentencing process
and
which could have a mitigating effect on the punishment to be imposed, from
being considered by the sentencing court. In the present
circumstances a fair
trial would also have to ensure that, in the process of the sentencing court
being put in possession of the
factors relevant to sentencing, the accused is
not compelled to suffer the infringement of any other element of the fair trial
right. |
| [13] | The High Court considered
that there were four aspects of section 52 that, both individually and
collectively, infringe the accused’s
right to a fair trial, namely
- |
(a) the fragmentation of the trial;
(b) the nature of the sentence that may be imposed and the sentencing discretion
within such fragmented trial;
(c) the adverse consequences for the accused of the procedures detailed in
section 52(3) (which the High Court referred to as “double
jeopardy”); and,
(d) institutional delay.
The arguments before this
Court in favour of constitutional invalidity supported these grounds, and the
reasoning of the High Court
in relation thereto. There was, in the High
Court’s judgment, considerable overlapping between the first and the
second aspects
and it is more convenient to deal with them
together.
Fragmentation, the sentencing discretion and the nature of
the sentence that may be imposed.
| [14] | In dealing with the split
procedure that results in the accused being convicted by one court and sentenced
by another, Lewis J characterised
the resulting problem
thus: |
“[T]he sentencing court is faced with a bare record of the trial, and has
not had the opportunity to assess the characters
of the accused and the
complainant where relevant. It can hardly be suggested that that is an ideal
procedure, nor that the High
Court is in as good a position to sentence the
accused as it would have been had it tried the accused, listened to the evidence
and
weighed it up in the process of determining
guilt.”[12]
The
test is not whether the procedure is ideal, but whether it is fair. A deviation
from the perfect does not by that reason alone
result in the accused not being
afforded a fair trial. I am only too conscious of the dangers of relativism for
the proper protection
of fundamental rights both domestically and
internationally and of too readily invoking a lack of resources to justify
inadequate
protection. Taking the protection and enjoyment of fundamental
rights seriously demands constant vigilance and effort to attain
in practice
what is promised in the Constitution. This is a grave responsibility.
| [15] | Lewis J correctly pointed
out that the split procedure, where an accused is convicted in one court and
sentenced in another, is not
something new, but that section 116 of the Criminal
Procedure Act 51 of 1977 (“the CPA”) provides for the referral of
an
accused for sentence from a district court to a Regional Court; indeed section
52 of the Act is, in regard to pleas of guilty,
modelled on section 114 of the
CPA and in regard to pleas of not guilty, modelled on the provisions of section
116. Section 116
of the CPA has been implemented and reviewed by the courts for
many years but, as correctly observed by the High Court, this does
not by itself
establish that it, or any comparable procedure, passes constitutional muster.
The learned Judge drew attention to
the
fact[13] that the implementation of
section 116 had been the subject of adverse criticism in cases such as S v
Ngubane[14] and S v Cele and
Others,[15] in which the
advantages of sentence being imposed by the same court have been
stressed. |
| [16] | It is unfruitful, in my
view, to consider whether, as the High Court
concluded,[16] there are significant
differences between section 116 of the CPA and section 52 of the Act, which
place the accused under the latter
in a substantially inferior position compared
with that of an accused under the former. This comparison does not assist in
determining
whether the split procedure under section 52 infringes the
accused’s right to a fair trial. The question is whether the procedure
under section 52 is fair, not whether it is inferior to section 116 of the
CPA. |
| [17] | In the High Court judgment
great stress is laid on the superior position the trial court enjoys when it
comes to the imposition of
sentence. This already appears from the passage
cited in paragraph 14 above. Reference was also
made[17] to cases highlighting the
advantages which a trial court enjoys over an appellate tribunal when it comes
to the imposition of sentence,
such as S v Toms; S v
Bruce[18] and the well-known
dictum of Innes CJ in R v
Mapumulo[19]
that- |
“[t]he infliction of punishment is preeminently a matter for the
discretion of the trial court. It can better appreciate the
atmosphere of the
case and can better estimate the circumstances of the locality and the need for
a heavy or light sentence
...”[20]
| [18] | The High Court incorrectly
assessed the nature of a High Court’s sentencing function under section
52. It is an original sentencing
jurisdiction, designed to place the High
Court in the same position as the trial court after it has convicted the
accused, and not
comparable to that exercised by a court on appeal. In any
event, the Toms case dealt with a sentence prescribed by the legislature
that leaves the court with no discretion at all, which distinguishes it
from
section 51 of the Act. It therefore throws no further light on the extent to
which the convicting court is in a better position
to impose sentence than
another court. |
| [19] | In the same part of the
High Court judgment, Lewis J expressed the
view[21] that
- |
“... the Legislature, in enacting the Amendment Act, has decided that it
should no longer be the prerogative of a Court to
consider the nature of the
offence or the interests of the public.”
Whether or not
this conclusion is correct, a matter on which I express no view, it is
irrelevant to the constitutionality of section
52, relating as it does to the
provisions of section 51.
| [20] | In the course of this part
of the High Court’s
judgment[22] the following is also
stated: |
“[The obligation under section 51 to exercise a discretion] necessarily
requires that the Court have as much information as
is possible about the trial,
the offence committed, the accused and the complainant.
. . .
.
A transcription of proceedings can never place a Court of appeal or review, or a
sentencing court, in the same position as the trial court.”
(Emphasis in the original)
In my respectful view this
overstates the position. Not all information concerning the trial, the offence
or the parties is relevant
to the question of sentencing and a fair trial does
not require the sentencing court to be in a position identical to that of the
trial court, provided it is in all material respects in the same position and
the procedure adopted affords the accused a fair trial.
| [21] | In regard to an argument
advanced by the State, the High Court held as
follows: |
“A court required to sentence, without having conducted the trial, is in
no better position than a Court of appeal. Yet it
is required to do what a
Court of appeal does not do: exercise its own discretion based primarily on the
record. The comparison
between the position of a sentencing court and an appeal
Court does not thus advance the argument of the
State.”[23]
I
regret that I am unable to agree with this conclusion. In the first place it
ignores the fact that section 52(3)(d) of the Act
enables all evidential
material relevant to sentencing to be placed before the High Court, an advantage
which a court of appeal does
not ordinarily enjoy. In fact the High Court,
exercising the powers under section 52 consequent upon a section 52(1)
committal,
is exercising an original sentencing jurisdiction. In this regard
section 274(1) of the CPA provides that “[a] court may,
before passing
sentence, receive such evidence as it thinks fit in order to inform itself as to
the proper sentence to be passed.”
In S v Dlamini the Appellate
Division of the Supreme Court, in the context of this provision, commented on
the fact that there was no legal reason
why a judge should, in considering
sentence, be restricted to the material placed before the court by the parties.
It also alluded
critically to the fact that often so little and such superficial
attention is given to sentencing, in stark contrast to the time,
resources and
talent devoted to procuring the conviction of an
accused.[24]
| [22] | In the second place it
fails to distinguish between two different functions of an appeal court
considering an appeal against sentence.
The first is concerned with the setting
aside of the sentence imposed by the trial court. It is trite law that the
grounds for
doing so are limited to patent and latent misdirections, as appears
from the authorities cited in the judgment of the High
Court.[25] The second is the
function of a court of appeal once it has, after applying the correct test, set
aside the sentence of the trial
court. Although the court of appeal is at
liberty, in appropriate circumstances, to refer the case back to the sentencing
court
for the reimposition of sentence, it often proceeds to impose an
appropriate sentence itself and does so on the “bare record”
of the
trial court. It does so for a variety of reasons, including the consideration
that the trial court has misdirected itself
in such a manner that it would not
be fair for it to reimpose sentence or, even when this is not the case, in order
to avoid the
further incurring of costs and to obviate further
delay. |
| [23] | Even when exercising the
first function referred to above, there are circumstances when a court of appeal
is obliged, on the bare
record, to consider what punishment it would have
imposed in the case under appeal. This occurs when no patent misdirection has
been demonstrated but the court of appeal sets aside a sentence on the grounds
that - |
“... there exists such a striking disparity between the sentenc[e] ...
passed by the [trial court] and the sentenc[e] which
[the court of appeal] would
have passed ... as to warrant interference with the exercise of the [trial
court’s] discretion
regarding
sentence.”[26]
As
part of this evaluative process the court of appeal has to determine what
sentence it would itself have passed; and this it does
on the bare record of the
trial court. This of course does not by itself establish that such sentencing
procedure is consistent
with the right to a fair trial under our present
Constitution. It is in fact a procedure employed in other democratic countries,
such as England, Canada, Australia, New Zealand, India, France and
Germany.[27]
| [24] | On this part of the case,
the High Court has significantly overestimated the benefits enjoyed by the trial
court. There are two aspects
of the sentencing process which must be
distinguished in this regard. The first relates to the process whereby the
factors relevant
to sentencing are placed before the court. The second to the
determination of the appropriate sentence on the basis of such
factors. |
The first aspect of the sentencing
process
| [25] | The first is the
establishing of the factual basis relevant to the imposition of a balanced and
just sentence according to the so-called
“triad” referred to in S
v Zinn,[28] consisting of
“the crime, the offender and the interests of society.” I cannot,
in this regard, see that it is necessarily
more favourable for the accused to be
sentenced by the trial court. As far as the circumstances of, and surrounding
the offence
are concerned, these would emerge from the judgment on the merits.
Even where the trial court imposes the sentence, it is itself
bound by such
factual findings in its
judgment.[29] Where necessary,
additional evidence relevant to sentence which supplements, but does not
contradict such factual findings, may
be received. There is nothing in the
provisions of section 52 which places the High Court in any worse position than
the Regional
Court. In no way does it prevent the High Court from enabling the
accused to place all relevant material before the High Court which
might be
necessary to ensure a fair trial for the accused on
sentence. |
| [26] | Similarly, where the law,
consistently with the Constitution, permits the leading of further evidence on
the conviction (a matter
I deal with more fully in paragraphs 45-9 below), the
accused dealt with under section 52 is not in a worse position than an accused
sentenced by the trial court. This is so whether the accused is liable to be
sentenced to imprisonment for life under section 51(1)
or faces a lesser
sentence under section 51(2). |
| [27] | Mr Snyckers strongly
pressed this Court with the argument that the imposition of the sentence of life
imprisonment itself, as well
as the statutory provision for a minimum
imprisonment for life, undeniably entail “constitutional fragility”,
that is
to say they “live at the borders of unconstitutionality.”
These considerations, supported by comparative human rights
materials, have
given rise to grave constitutional concerns in the courts of this country and in
Namibia. This fragility and the
attendant concerns, so the argument developed,
when taken collectively, create a “constitutionally problematic”
situation
which must be acknowledged by this Court. The constitutional
fragility of mandatory minimum sentences in general and the mandatory
imposition
of a sentence of life imprisonment in particular have, so the argument runs,
motivated the legislature to provide for,
what Mr Snyckers termed, a
constitutional “safety valve” in the form of the “substantial
and compelling circumstances”
exception in section 51(3)(a). This Court
must accordingly more closely and anxiously scrutinise the effect of the split
procedure
on the efficacy of this safety valve. This argument concluded on the
basis that the above safety valve, “chosen to save the
constitutionality
of the minimum sentence is destroyed by the fragmentation in section 52”
because it places the sentencing
court in a position that is not identical to
the situation where the trial court also imposes
sentence. |
| [28] | The process of determining
whether a statutory provision is constitutionally invalid, involving as it does
a two-stage process of
determining whether there has been a limitation of a
Chapter 2 right and, if so, whether such limitation is justified under section
36, is inherently a complex process. To introduce concepts relating to a
provision being constitutionally “fragile”
or
“problematic”, but still falling short of constitutional invalidity,
is in my view to make of constitutional jurisprudence
something unacceptably
abstract and over-subtle. I have a further difficulty with this approach.
Neither the constitutionality
of life imprisonment nor that of compulsory
minimum sentences, either in the abstract or as related to section 52, is before
this
Court. It would therefore be impermissible, in any event, to hazard a view
as to the extent to which either is constitutionally
problematic or fragile,
even if such an exercise were possible. |
| [29] | It is also not permissible
in this case to attempt to have the constitutionality of section 51(2) or that
of life imprisonment considered
by, as it were, the back door. An argument
cannot be countenanced which is in substance based on the proposition that the
“substantial
and compelling circumstances” criterion is
unconstitutional because of its impact on the fair trial, but is in form
directed
at the split procedure occasioned by section 52 and presented as though
the former sentencing problem is created by the split procedure.
The only
inquiry in the case before this Court is whether the split procedure created by
section 52 limits an accused’s right
to a fair sentencing trial.
|
| [30] | As far as the fundamental
considerations and procedures regarding sentencing are concerned, our law does
not distinguish between heavy
and lesser sentences. The responsibility resting
on a judicial officer may well be more onerous, in human terms, when considering
the choice between a sentence of life imprisonment and a lesser sentence on the
one hand, than when considering the choice between
sentences of three or five
years imprisonment or the choice between a custodial and a non-custodial
sentence, on the other. Yet
the broad principles are the same and in all these
cases the judicial officer must, among other things, be put in possession of all
information relevant to the imposition of a sentence and in particular
information relevant to mitigating circumstances, in the broadest
sense of the
expression, which might ameliorate the severity of the ultimate punishment.
|
| [31] | Even when the High Court
has to sentence an accused who has been convicted by a Regional Court of an
offence referred to in Part I
of Schedule 2 for which a mandatory life sentence
is provisionally prescribed under section 51(1), and whatever the correct
construction
of “substantial and compelling circumstances” in
section 51(3)(a) may be, there is nothing in the provisions of section
52 that
hinders the High Court from being placed in possession of all relevant
sentencing material so as to ensure that the accused
is fairly
sentenced. |
| [32] | Where an accused has
pleaded guilty in the Regional Court and the High Court has made a formal
finding of guilty under section 52(2)(b),
the ensuing sentencing proceedings are
hardly distinguishable from what would have happened if the Regional Court had
conducted them.
The High Court in fact came to this
conclusion[30] and Mr Snyckers, on
behalf of the third applicant frankly and properly conceded this. Ms Mansingh,
who argued the matter in this
Court on behalf of the first and second applicants
vigorously persisted with the submission that even in such a case an accused was
deprived of the valuable atmosphere of the trial court. She could not, however,
indicate specifically what, in the atmosphere of
a court in which an accused is
convicted on a plea of guilty, could be relevant to the sentencing hearing or
deprive the accused
of any element of a fair trial. In my view there is
nothing. |
| [33] | In the course of her
judgment[31] Lewis J referred to
problems experienced by herself and other judges of the High Court with, amongst
other things, “having
to work with records from the courts of first
instance which are rarely adequate.” If the inadequacy relates to the
transcription
of the records there are of course means for the High Court to
ensure adequacy in this regard. If the inadequacy relates to the
evidence or
judgment, the matter can be cured by the High Court ensuring that all the
necessary evidence, for purposes of sentence,
be placed before it. Nothing in
section 52 precludes it from doing so, and from obtaining, under the proviso to
section 52(3)(b),
the Regional Court’s reasons for
conviction. |
| [34] | Where, in the course of the
judgment on conviction, a finding of credibility in favour of or adverse to the
accused is made, this
will appear from the record. I cannot see how the
atmosphere alone in the trial court could be relevant to the imposition of
sentence.
Neither can I see how it provides an advantage to accused of which
they are deprived by the split procedure. More often than not
the conviction of
accused would have followed a rejection of their evidence and an express or
implied credibility finding against
them. An accused might in fact, on this
score, benefit from being sentenced by another court that will not
subconsciously be influenced
by atmosphere at the trial adverse to the accused.
|
The second aspect of the sentencing
process
| [35] | The second aspect of the
sentencing process involves the determination by the sentencing court of the
nature and severity of the sentence,
having considered all the relevant facts
that the law requires it to consider and having weighed up against one another,
in the manner
required by the law, the often competing considerations which
constitute the “triad” referred to above. In order to reach
such a conclusion, the sentencing court has, in each particular case, to decide
what weight is to be given to each
element in the triad. This calls for the
exercise of a normative judgment, almost invariably referred to as a
“discretion”,
for which no precise formula exists and which could
lead different sentencing courts, on exactly the same facts and scrupulously
applying their minds to the correct sentencing principles applicable, to reach
different conclusions. The mere atmosphere of the
trial can have little place
in the actual weighing up and evaluative process of sentencing. On this part of
the case I conclude
that the provisions of section 52 do not in any way limit
the accused’s right to a fair
trial. |
The imputation that the procedures
detailed in section 52(3)(d) have adverse consequences for the accused
| [36] | For convenience I repeat
that section 52(3)(d) provides the following: |
“The Court in question may at any sitting thereof hear any evidence and
for that purpose summon any person to appear to give
evidence or to produce any
document or other article.”
The High Court correctly
found that paragraph (d) did not infringe the guarantee against double jeopardy
embodied in section 35(3)(m)
of the Constitution which provides that every
accused person has the right “not to be tried for an offence in respect of
an
act or omission for which that person has previously been either acquitted or
convicted.” It did however conclude that this
paragraph renders a trial
of an accused governed by sections 51 and 52
unfair.[32]
| [37] | Before dealing with the
High Court judgment in this regard, it is important to refer to certain
principles laid down by this Court
in De Lange v Smuts NO and
Others,[33] Bernstein and
Others v Bester and Others
NNO,[34] Nel v Le Roux NO and
Others[35] and The
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others; In Re Hyundai
Motor Distributors (Pty) Ltd
and Others v Smit NO and
Others,[36] which principles may
be summarised as follows: |
(a) The purport and objects of the Constitution find expression in section 1,
which lays out the fundamental values which the Constitution
is designed to
achieve. The Constitution requires that judicial officers read legislation,
where possible, in ways which give effect
to its fundamental values.
Consistently with this, when the constitutionality of legislation is in issue,
they are under a duty
to examine the objects and purport of an Act and to read
the provisions of the legislation, so far as is possible, in conformity
with the
Constitution.
(b) The fact that statutory provisions relating to the examination of witnesses
are general in terms and contain no express limitations
as to their application,
does not mean that they are to be construed as permitting anything not expressly
excluded. On the contrary,
such provisions must be applied in conformity with
the Bill of Rights.
(c) If such provisions, properly construed, compel the presiding officer
(judicial or otherwise) to act or apply such provisions
in a way which would
infringe any of the examinee’s constitutional rights, then the
constitutionality of such provisions would
properly be in issue. That would
also be the case if the presiding officer were prohibited by the provision from
acting or intervening
in a way which would prevent a particular infringement
which would inevitably follow in the absence of such intervention.
(d) The Court is not required to consider a multitude of questions relating to
hypothetical decisions or rulings which may (not must)
be made in applying such
provisions, or the question whether such rulings or decisions
would or might infringe any of the examinee’s constitutional rights.
(e) The application of such provisions stand under judicial control and the
courts in this country have developed a considerable
body of case law the design
of which is to prevent the mechanisms of these provisions being used
oppressively, vexatiously or unfairly
towards the examinee, and will continue to
do so having due regard to the spirit, purport and objects of the
Constitution’s
Bill of Rights. It must also be borne in mind, that
judgments concerning the proper construction and application of such provisions
before the Constitution came into operation will not necessarily correctly
reflect the post-constitutional position.
| [38] | These principles are
directly applicable to the procedures detailed in section 52(3)(d) of the Act
and dispose, in my view, of all
the difficulties raised by the High Court. The
provisions of this section are capable of being applied, and must be applied, in
conformity with the Bill of Rights and in particular in conformity with the
accused’s section 35(3) fair trial right. They
do not compel the High
Court to act or apply them in a way which would infringe an accused’s
constitutional rights, nor do
they prohibit the High Court from acting or
intervening in a way which would prevent any such infringement. I therefore
propose
dealing briefly with the difficulties in this regard raised by the High
Court in various passages of the judgment. |
| [39] | The first passage reads as
follows: |
“And if [the High Court] does have the power to hear evidence on the
commission of the offence, then, even though there may
not be an infringement of
the principle autrefois convict, the accused could be subjected to a
process entailing the rehearing of his or her evidence which inevitably will
give rise to inconvenience,
the use, possibly wasteful, of scarce resources; the
duplication of work; and, most importantly the rehearsal of the trauma of the
trial. That trauma would not, of course, be confined to the accused. Moreover,
it might be difficult, or even impossible to find
the witnesses, including the
complainant, who are required to give evidence at the hearing conducted by the
High
Court.”[37]
| [40] | The provisions of section
52(3)(d) of the Act are, on the application of the principles to which I have
alluded in paragraph 37 above,
capable of application, and ought therefore to be
applied, so that they do not affect the accused any more negatively than in the
case where the trial court is also the sentencing court. Save in exceptional
cases, the sentencing part of the trial does not permit
the revisiting of the
merits of the conviction in any way that would contradict the findings of fact
on conviction.[38] The
accused’s right under section 35(3)(h) of the Constitution “to
remain silent, and not to testify during the proceedings”
applies to the
sentencing stage as well, including the proceedings here in question. A proper
construction and application of the
provisions will obviate any unnecessary
trauma, ie any more trauma than would arise if the trial court had conducted the
sentencing
proceedings. |
| [41] | Mr Snyckers contended that
one of the insurmountable difficulties of employing the powers under section
52(3)(d) in order to utilise
the section 51(3)(a) safety valve properly is that
“to the extent that the process of enlightenment approximates the
‘ideal’
position — i.e. places the judge in a position
properly and sensitively to exercise the discretion based on the full drama
of
the trial — the trial has to be repeated.” He also submitted that
“[i]f the safety valve is to be saved by
recourse to section 52(3)(d),
then the procedure must manifestly be deprecated as an expensive farce, if
nothing else. The impact
such duplication of resources would have on the right
to a trial within a reasonable time ... need not be over-elaborated.”
The
logic of the submission may be impeccable, but the premises are false. The
“ideal position” is not, as explained
in this judgment, the
constitutional test. Sentence is not imposed by a trial court on the
“full drama of the trial.”
In order to have before it all the facts
relevant to the imposition of a just punishment the High Court does not have to
retry the
accused. |
| [42] | The second passage is to
the following effect: |
“I consider, therefore, that the provisions of s 52 do not contravene the
principle of double jeopardy in the strict sense.
But that does not mean that
the process of recalling witnesses, especially the accused and the
complainant (where relevant), and the hearing of new evidence or the rehearing
of evidence is fair. While it is true that
the accused may not be prejudiced by
such process, and that the evidence might even persuade the Court that
substantial and compelling
circumstances warrant the imposition of a lesser
sentence, the absence of prejudice does not always lead to fairness. The
indignity and the ordeal of being examined and cross-examined, the
inevitable lengthening of the period before the pronouncement of sentence, the
tension of sitting through another court process,
and the possible
unavailability of key witnesses at the new hearing, all lead to a situation
where the accused is placed in an unfair
position.”[39] (Emphasis
added)
....
“In my view, s 52(3)(d) ... may well lead to a situation where an accused
is dealt with unfairly simply by reason of the fact
that he may be subjected to
examination and cross-examination twice; that he will be in this position while
uncertain of his fate,
and of whether a sentence of life imprisonment might be
imposed on him. That is inherently
unfair.”[40]
The
conclusions reached previously are equally applicable to the criticisms and
concerns expressed in this extract. The accused is
not compelled to testify
again, anymore than if the convicting court also conducted the sentencing
hearing. The accused is not compelled
to suffer “[t]he indignity and the
ordeal of being examined and cross-examined.”
| [43] | The third passage
reads: |
“The State argued that ... the provisions of s 52 (3) were capable of fair
application, and that fairness would be dependent
on the presiding Judge. This
contention is plainly unacceptable. In determining whether a procedure is fair,
one cannot hope for
a good Judge: the procedure itself must conduce to fairness.
If there is any possibility that a provision regulating trial procedures
might
result in unfairness then the provision cannot be constitutional unless
justified under s 36 of the Constitution
...”[41]
For
the reasons already advanced, I am compelled to the opposite conclusion. The
presiding judge in these proceedings stands under
the Constitution and is both
able and obliged to conduct them in conformity with its provisions. An accused
is entitled to expect
no less. However, judges are human and liable to err.
Should this happen, the accused has the right, under section 35(3)(o) of
the
Constitution, “of appeal to, or review by, a higher court.”
| [44] | In the last passage the
perceived problems are expressed thus: |
“A further factor conducive to unfairness is that, should a High Court
hear evidence as to conviction, it might well ‘perfect’
the
conviction, in the sense of hearing and accepting evidence that was not heard in
the regional court. A conviction that might
have been appealable by an accused
may then be rendered unappealable as a result of the High Court’s
intervention.”[42]
Substantial
parts of section 52(3) of the Act, in particular paragraphs (d) and (e) thereof,
are clearly modelled on the provisions
of section 304 of the CPA which regulate
the procedure to be followed in what have come to be known as “automatic
review”
proceedings under section 302 of the CPA. A considerable body of
case law has been developed on the application of section 304 of
the CPA and
related review provisions.[43]
Neither the constitutionality of section 304 of the CPA nor that of such case
law is before this Court and their constitutionality
is not questioned in this
judgment. However, just as in the case of the judgments referred to in
paragraph 37 above, provisions
such as those embodied in section 304 must now be
construed in the light of the Bill of Rights and it cannot unquestioningly be
assumed
that such pre-constitutional case law will necessarily correctly reflect
the post-constitutional position.
| [45] | Whether it is
constitutionally permissible, under the provisions of paragraph (d) of section
52(3) of the Act, for the High Court
to hear evidence which, in the words of the
High Court, would “perfect” the conviction and, if so, under what
circumstances,
is not an issue that this Court is called upon to decide in the
present case. The only point that needs to be emphasised is that
the High Court
is not obliged by paragraph (d) to do so. |
| [46] | Further to the reasons put
forward by the High Court in the extract quoted above, Mr Snyckers also
strenuously contended that if,
under the exercise of the High Court’s
powers under section 52(3)(d), the effect of the resulting evidence was to
“perfect”
the State’s case against the third applicant, this
would constitute an infringement of his right, under section 35(3)(m) “not
to be tried for an offence in respect of an act or omission for which [he] has
previously been ... acquitted ...” I tend to
agree with Lewis J’s
rejection of this argument on the simple basis that the third applicant has not
been acquitted. Mr Snyckers’
argument that, because the High Court ought
on the record before it, to have acquitted the third applicant, it should in
substance
be assumed that there was such an acquittal, I find unsound and
unconvincing. |
| [47] | In view of the above
approach to the arguments based on the alleged unfair consequences of section
52(3)(d), it is unnecessary to
decide whether its application in the way
postulated by Mr Snyckers would actually infringe an accused’s section
35(3)(m) right,
as such right is properly understood, or whether it would
amount, in effect, to the reopening of the State case to adduce further
evidence
under circumstances that would infringe an unspecified element of the
accused’s right to a fair trial, analogous to
the common law rule which
permits the reopening of a trial after conviction only in narrowly circumscribed
circumstances.[44] If, on either
approach, the adduction of such evidence would infringe the accused’s
right to a fair trial, the High Court
would not cause or allow such evidence to
be adduced. For the reasons already mentioned, section 52(3)(d) of the Act does
not oblige
the court to do so. |
| [48] | Mr Snyckers also submitted
in this regard that the power to call for evidence on any matter and to remit
the case to the Regional
Court “has the potential of being applied in
violation of the right not to be tried for an offence in respect of an act or
omission for which one has previously been either acquitted or convicted.”
As indicated above, the true question is whether
the provisions under
consideration compel the High Court to apply them in contravention of an
accused’s constitutional rights.
As I have indicated, they do not.
Potential misapplication of a statutory provision is not the test for
unconstitutionality. If
the provisions are misapplied the accused has an appeal
remedy or may use the special entry mechanism of the CPA in case of
irregularity. |
| [49] | I stress, at the risk of
supererogation, that neither the provisions of subsection (3) (d), nor any other
provision in section 52,
requires the High Court to act in a way which would
impinge on an accused’s right to a fair trial. It is for the High Court,
in each case committed to it under section 52 for sentence, to ensure that the
accused receives a fair trial and nothing in the section
prevents the High Court
from doing so. It is, in the first instance, the duty of the High Courts to
flesh out the procedures enacted
in section 52 in a manner consistent with the
accused’s right to a fair
trial. |
Institutional delay
| [50] | The High Court
found[45] that
- |
“... the inevitable institutional delay created by s 52 of the [Act] is an
infringement of the right to a trial that begins
and concludes without
unreasonable delay [as guaranteed by section 35(3)(d) of the
Constitution].”
Lewis J came to this conclusion
because -
(a) a full record of the proceedings (including a transcript of the evidence)
has to be prepared and forwarded to the High Court;
(b) the provisions of section 51(3)(b) are often invoked and the reasons for
conviction requested from the regional magistrate; this
has occurred in 44 per
cent of the cases referred to the Witwatersrand High Court and in all such cases
heard by Lewis J;
(c) it is the general experience (in the Witwatersrand High Court I presume)
that those reasons are not furnished within the period
set by the High Court,
necessitating a further postponement;
(d) there is the inevitable further delay caused by the fragmented
process:
“The accused must wait, in prison, not knowing whether his conviction
might be set aside, or whether he faces a sentence of
life imprisonment or a
lesser sentence. The anxiety, uncertainty and frustration that is experienced
must be enormous. It is no
answer to say that he has already been convicted;
that he faces life imprisonment, and that the delay can make no difference.
Even
a convicted person is entitled to be treated humanely, and in such a way
that his dignity is not unduly
impaired”;[46]
(e) the final outcome of the case will be even further delayed if the accused
wishes to appeal;
(f) the present uncertainty as to the correct appeal forum can only add to the
uncertainty and delay that is inflicted on the
accused.
| [51] | A few general comments are
necessary. The task of deciding whether the right to a fair trial has been
limited by unreasonable delay
rests, of course, with the courts; it is, however,
for the applicants to prove the facts upon which they rely for the claim of
infringement
of this right in the present
case.[47] The High Court failed to
consider the substantial qualitative difference between a delay which occurs
before a conviction and one
that takes place afterwards. It also omitted to
distinguish between the breach of this element of the fair trial right in
respect
of a particular trial and declaring a statutory provision invalid
because it renders such breach inevitable in relation to all trials
to which the
provision relates. In Sanderson v Attorney-General, Eastern
Cape,[48] the Court was
dealing with an alleged breach of the right in respect of a particular trial.
Moreover the profound difficulty which
pre-conviction delays present to a court
was stressed.[49] In the case of
pre-conviction delays, three kinds of interests should be regarded as protected:
trial-related interests, liberty
and
security.[50] Trial-related
prejudice refers to prejudice suffered by accused mainly because of witnesses
becoming unavailable and memories fading
as a result of delay, in consequence
whereof such accused may be prejudiced in the conduct of their
trial.[51] |
| [52] | Of particular importance in
the pre-conviction stage of the trial is the prejudice suffered by accused to
their liberty and security
(dignity) interests, features stressed by Kriegler J
in Sanderson.[52] Despite
being presumed innocent, the accused is subject to various forms of prejudice
and penalty merely by virtue of being an accused,
because many in the community
pay little more than lip service to such presumption of innocence. “Doubt
will have been sown
as to the accused’s integrity and conduct in the eyes
of family, friend and
colleagues.”[53] Although
Sanderson was concerned with the application of section 25(3)(a) of the
interim Constitution, which guarantees the right “to a public
trial before
an ordinary court of law within a reasonable time of having been charged,”
the principles enunciated in that judgment
are of equal application to the right
protected by section 35(3)(d) of the present
Constitution. |
| [53] | When applied to the
post-conviction stage of the trial the prejudice suffered by the accused in
respect of liberty and security (dignity)
interests of the nature above
described, while not totally absent, is significantly reduced. There is the
possibility that the accused
may ultimately succeed on appeal, but the
presumption of innocence, which lies at the heart of pre-conviction prejudice,
is absent
and it is for the accused to establish, in any appeal, that the
conviction should be set aside. |
| [54] | Particularly when applied
to section 52 of the Act, the liberty prejudice is substantially reduced,
because a conviction referred
to the High Court under its provisions is one
that, by definition, exceeds the sentencing jurisdiction of the Regional Court.
The
accused, unless acquitted of the charge by the High Court or on appeal,
faces a lengthy period of imprisonment. In her judgment,
Lewis J
observed: |
“It must be noted further that s 51(4) provides that ‘any sentence
contemplated in this section shall be calculated from
the date of
sentence’. Thus the High Court is not able to take into account, as it
would normally do in determining the length
of a sentence of imprisonment, the
period spent by the accused in custody while awaiting trial, or the imposition
of
sentence.”[54]
In
my view section 51(4) is irrelevant to the constitutionality of the split
procedure. Any unfairness consequent upon the provisions
of section 51(4)
should be made the subject of a specific challenge to that subsection, which is
clearly severable from the other
provisions.
| [55] | In its judgment, the High
Court only applied its mind to the striking down of section 52 as a remedy for
an accused aggrieved by trial
delay. It overlooked the fact that justice could
be done on a case by case basis where it appears that, in a particular case, the
total time elapsed from the beginning of a trial to the moment the High Court is
seized of it, is such that it constitutes an unreasonable
delay for purposes of
section 35(3)(d) of the Constitution, having regard to all facets of the inquiry
and the approach laid down
in
Sanderson. |
| [56] | In my view, accused face
a formidable task when they seek to persuade a court, which it is their
obligation to do,[55] that a
statutory provision (as opposed to a particular lapse of time, in the
circumstances of a particular case) limits this fair
trial right. It is
incumbent on them, in my view, to show that the nature of the provision is such
that it must invariably lead,
however it is applied, to a delay of such a nature
that it compromises the right on the Sanderson test. Anything short of
this could well be destructive of any criminal procedure system. Any statutory
provision, express or implied,
for postponement (other than at the request of
the accused), however necessary for the functioning of the system in other
respects,
would then be liable to be struck down if all that had to be
demonstrated was that it was a causal factor in leading, in particular
cases, to delays of such a nature that in those cases it compromised
this element of the fair trial right. |
| [57] | It is in this regard that
the reasoning of the High Court is, in my respectful view, flawed. Although
mention is made in the judgment
of delays occurring in consequence of the
section 52 procedures, no attempt has been made to demonstrate that, in any one
of those
cases, on the approach propounded in Sanderson, the
accused’s right to have his or her trial begin and conclude without
unreasonable delay was constitutionally compromised.
If that is so, there is no
logical basis for concluding that section 52 is unconstitutional because it must
lead to “unconstitutional
delays”. |
| [58] | The above conclusion is
dispositive of the High Court’s finding that section 52 is
constitutionally invalid because of the delay
it causes. It also renders it
unnecessary to consider any of the statistics placed before this Court by the
State. Without excluding
the notional possibility that some provision in a
criminal procedure related statute might conceivably lead, by itself, to an
inevitable
delay of such a degree and under such circumstances that it infringed
this element of the fair trial right, it seems to me that by
far the better
course is to consider the infringement of such right on a case by case basis.
|
| [59] | The conclusion I have reached must not,
however, be seen as an encouragement to the adoption, by any person involved in
the implementation
of the criminal justice system, of a supine attitude. The
disposition of a criminal trial as reasonably expeditiously as possible
is the
hallmark of a civilized criminal justice system. Regional Court magistrates who
have, after a plea of not guilty, convicted
an accused of an offence which falls
under the committal provisions of section 52, will have given a reasoned
judgment in the process.
It ought therefore to be possible for such
magistrates, notwithstanding the intense pressure under which they work, to
respond with
reasonable promptness to requests from High Courts under section
52(3)(b) for their reasons for conviction. There also appears to
be no good
reason, and certainly none has been addressed to this Court, why the trial
record in such cases cannot be prepared and
dispatched to the High Court
concerned with expedition, as in the case of the records in automatic reviews
under section 303 of the
CPA. This judgment does not insulate unreasonable
delays from scrutiny in particular cases. |
| [60] | The conclusion I reach in
the first matter is that it has not been established, either for the reasons
furnished in the High Court
judgment, or for any other reason, whether taken
individually or collectively, that the provisions of section 52 of the Act limit
an accused’s right to a fair trial under section 35(3) of the
Constitution. It follows that the order made by the High Court
ought not to be
confirmed. |
The application for leave to
appeal
| [61] | The application for leave
to appeal of the third applicant must now be adjudicated on the basis that the
High Court’s declaration
of invalidity will not be confirmed and that, but
for the argument raised in the application for leave to appeal, the cases of the
three applicants will be referred back to Lewis J to be finalised. The essence,
however, of the argument in support of the application
for leave to appeal is
that Lewis J ought to have acquitted the third applicant and that this Court
should, on appeal, set aside
the conviction in the Regional
Court. |
| [62] | In order to deal with this
argument it is necessary to quote the relevant part of the judgment of the High
Court dealing with the
merits of the third applicant’s conviction in the
Regional Court. The learned Judge, having considered the Regional Court’s
response to the query she had sent under section 52(3)(b), remained uncertain.
She put it as follows: |
“I find quite simply that I am not in a position to say whether there has
been a failure of justice without the hearing of
further evidence, and that I am
not in a position to sentence the accused without having heard evidence from the
complainant (possibly
through an intermediary, if that is necessary) and from
the accused. But if I were to hear evidence on the merits of the conviction
I
would be guilty of infringing the accused’s right to a fair trial. Hence,
the determination of the constitutionality of
s 52 is essential for the
determination of the Tshilo
matter.”[56]
| [63] | Should the third
applicant’s application for leave to appeal fail it would also be
necessary to refer his case back to Lewis
J for the proceedings to be finalised.
Under these circumstances I consider it inadvisable to attempt to gauge from the
above passage,
or any other part of the judgment, what precisely the learned
Judge’s preliminary view of the merits of the third applicant’s
conviction was at that stage, or what the objective would have been for the
hearing of further evidence. |
| [64] | It is, however, clear from
the passage cited that the High Court had reached no final conclusion, one way
or the other, on the merits
of the conviction and had made no order thereon.
There being no order on the merits, there is nothing before this Court that can
be confirmed or set aside. |
| [65] | The consequence
of non-confirmation of the order of constitutional invalidity, is that Lewis J
is still seized of the third applicant’s
case. No authority has been
cited, and I am unaware of any which, under such circumstances, would permit a
court on appeal to make
any order on the merits of a criminal case on behalf of
or in the place of the court still hearing the matter. Under these
circumstances
there are no prospects of the appeal succeeding and the
application for leave to appeal must accordingly be
dismissed. |
The Order
| [66] | The following order is
made: |
1. The Court declines to confirm the order declaring section 52 of the Criminal
Law Amendment Act 105 of 1997 to be constitutionally invalid.
2. The application for leave to appeal by the third applicant is dismissed.
3. The cases of the three applicants are referred back to Lewis J in the
Witwatersrand High Court.
4. The three applicants are to remain in custody until their cases are disposed
of by the High Court, subject to any order to the
contrary that the High Court
might make.
Chaskalson P, Langa DP,
Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J, Yacoob J
and Madlanga AJ concur with
the judgment of Ackermann J.
For the first applicant : URD Mansingh instructed by the Legal Aid
Board.
For the second applicant : N Makopo instructed by the Legal Aid
Board.
For the third applicant : F Snyckers instructed by the Wits Law
Clinic.
For the amicus curiae : SA Jazbhay.
For the state : Dr JA van der S d’Oliveira SC, A Nieman, A M Persad
and ZJ van Zyl.
[1] The judgment of the High Court is
reported as S v Dzukuda; S v Tilly; S v Tshilo 2000 (3) SA 229 (W) and
references in the present judgment will be to such report.
[2] Part I of Schedule 2 provides:
“Murder, when —
(a) it was planned or premeditated;
(b) the victim was —
(i) a law enforcement officer
performing his or her functions as such, whether on duty or not; or
(ii) a person who has given or was likely to give material evidence with
reference to any offence referred to in Schedule 1 to the
Criminal Procedure
Act, 1977 (Act No. 51 of 1977), at criminal proceedings in any court;
(c) the death of the victim was caused by the accused in committing or
attempting to commit or after having committed or attempted
to commit one of the
following offences:
(i) Rape; or
(ii) robbery with aggravating circumstances;
or
(d) the offence was committed by a person, group of persons or syndicate acting
in the execution or furtherance of a common purpose
or
conspiracy.
Rape —
(a) when committed —
(i) in circumstances where the victim
was raped more than once whether by the accused or by any co-perpetrator or
accomplice;
(ii) by more than one person, where such persons acted in the execution or
furtherance of a common purpose or conspiracy;
(iii) by a person who has been convicted of two or more offences of rape, but
has not yet been sentenced in respect of such convictions;
or
(iv) by a person, knowing that he has the acquired immune deficiency syndrome
or the human immunodeficiency virus;
(b) where the victim —
(i) is a girl under the age of 16
years;
(ii) is a physically disabled woman who, due to her physical disability, is
rendered particularly vulnerable; or
(iii) is a mentally ill woman as contemplated in section 1 of the Mental
Health Act, 1973 (Act No. 18 of 1973); or
(c) involving the infliction of grievous bodily harm.”
[3] See, for example, S v Mofokeng
and Another 1999 (1) SACR 502 (W) (per Stegmann J); S v Shongwe 1999
(2) SACR 220 (O) (per Cillié J); S v Budaza 1999 (2) SACR 491 (E)
(per Smuts AJ); and S v Mangesi 1999 (2) SACR 570 (E) (per Van Rensburg
J, Pickering J concurring, Jennett J dissenting).
[4] See, for example, S v Mdatjiece
(a presently still unreported judgment of a full bench of the Transvaal High
Court delivered on 30 September 1998, per Marais J, Goldblatt
and Nugent JJ
concurring); S v Ibrahim 1999 (1) SACR 106 (C) (per Cleaver J, Lategan
and Foxcroft JJ concurring); and the dissenting judgment of Jennett J in S v
Mangesi above n 3.
[5] Above n 1 at 235I-J.
[6] Above n 1 at 236B-G.
[7] S v Zuma and Others [1995] ZACC 1; 1995
(4) BCLR 401 (CC); 1995 (2) SA 642 (CC) at para 16 per Kentridge AJ.
[8] See also, Sanderson v
Attorney-General, Eastern Cape 1997 (12) BCLR 1675 (CC); 1998 (2) SA 38 (CC)
at para 22.
[9] The expression employed in
Sanderson’s case id at para 20.
[10] See, amongst others, sections
1(a), 7(1), 36(1) and 39(1)(a) of the Constitution.
[11] In his instructive work Due
Process and Fair Procedures (Clarendon Press, Oxford 1996), DJ Galligan
points out (at 9-24) how the concept of appropriate procedures has moved away
from Bentham’s
view “that the object of procedures at the criminal
trial is to produce an accurate outcome” (at 9-10), because of the
“utility in the social stability which follows from the accurate and
regular application of the laws...”(at 8-10), towards
one that combines
accuracy of outcome with procedural fairness. While “legal processes
serve social ends and goods, they do
so through a distinct, normative, legal
structure” (at 13), which in turn is “based on the tiers of values
relevant to
that process which constitute the standards of fair treatment, so
that a person treated in accordance with them is treated fairly”
(at 52).
The learned author also observes that “procedures are fair or unfair only
by reference to standards of fairness,
and standards of fairness are in turn
based on values” (at 55). In relation to the controversy over whether the
adversarial
nature of the trial at common law is to be preferred to the more
inquisitorial procedures of continental Europe, Galligan says the
following:
“Each may be as effective as the other in leading to fair treatment, that
is, in reaching correct outcomes and in maintaining
respect for other values;
there is no evidence, moreover, to show that one is better than the other in
adhering to those ends. The
real debate in comparing the two approaches is not
about which will lead to more correct outcomes, but rather what values are
relevant,
with one tradition regarding an equal contest and the autonomy of the
parties as important, the other emphasizing the importance
of centralized
control and unrestricted investigation by the magistrate and judge. The real
difference, in other words, between
the two traditions is what standards of fair
treatment should govern the trial process; and because different answers are
given to
that question within each tradition, the procedures within them will
also naturally vary” (at 62-3).
[12] Above n 1 at 238E.
[13] Id at 238G-H.
[14] 1991 (1) SACR 163 (N) at
165i-j.
[15] 1994 (1) SACR 616 (N) at
619f-g.
[16] Above n 1 at 239F-240F.
[17] Id at 240G.
[18] [1990] ZASCA 38; 1990 (2) SA 802 (A) at
806H-807B.
[19] 1920 AD 56 at 57.
[20] See also the passage in the
High Court’s judgment, above n 1 at 244I.
[21] Id at 242I.
[22] Id at 243E-G.
[23] Id at 244F-G.
[24] 1992 (1) SA 18 (A) at
30D-31D.
[25] Above n 1 at 243J-244E.
[26] As stated by Ogilvie Thompson
JA in S v Whitehead 1970 (4) SA 424 (A) at 436C-E. See also S v
Salzwedel and Others 2000 (1) SA 786 (SCA) at paras 10-1.
[27] As to England see sections 9
and 11(3) of the Criminal Appeal Act 1968, section 36(1) of the Criminal Justice
Act 1988 and Richardson
et al Archbold’s Criminal Pleading, Evidence
and Practice 2000 (Sweet & Maxwell, London 2000) at paras 7 - 118-9,
126, 304. As to Canada see section 687(1) and (2) of the Criminal Code (R.S.C.
1985 c.C-46) and Salhany Canadian Criminal Procedure 6 ed (Canada Law
Book Inc., Ontario, loose leaf edition, November 1997) at para 9.640 and 9.860.
As to Australia see section 28(1)
and (5) of the Federal Court of Australia
Act 156 of 1976 and Gibbs et al (eds) Halsbury’s Laws of
Australia Volume 9 (Butterworths, Sydney 1995) at 251,260 to 251,261; para
[130-13965]. As to New Zealand see section 121 of the Summary Proceedings
Act
of 1957; Burston “Criminal Procedure” in Cooke et al (eds)
The Laws of New Zealand (Butterworths, Wellington 1995) at 257; para 290
and 278; 319; and Doyle and Hodge Criminal Procedure in New Zealand 3 ed
(The Law Book Company Ltd, Auckland 1991) at 220 and 227-8. As to India see
section 386(b) and (c) of the Code of Criminal
Procedure Act 2 of 1974; Mitra
Code of Criminal Procedure (Arup Kumar De Kamal Law House, Calcutta 1995)
at 1320, 1328 and 1337; Sham Sunder v Puran AIR 1991 SC 8 at paras 7-9;
Emperor v Kamal Dattatraya 1943 AIR Bom 304 at 306. As to France see
West et al The French Legal System (Butterworths, London 1998) at 268-9.
As to Germany see Sections 328 and 354 of the German Criminal Procedure Act
(Strafprozessordnung
- “StPO”). By contrast, in the case of the
Federal Courts in the United States of America, if a court of appeal finds,
under section 3742(f) of Title 18 of the United States Code (18 U.S.C.
3742) that a sentence was imposed in violation of an applicable statute, as a
result of an incorrect application of the sentencing guidelines,
outside the
range of the sentencing guidelines, or in cases where there is no guideline, was
plainly unreasonable, the court must remand the matter for further
sentencing proceedings with such instructions as the appellate court considers
appropriate. This also
appears to be the favoured procedure in state
jurisdictions; see O’ Shaughnessy “Appellate Review of
Sentences”
in “Twenty-Ninth Annual Review of Criminal
Procedure” (2000) 88 The Georgetown Law Journal 799 at 1637-45.
[28] 1969 (2) SA 537 (A) at
540G.
[29] See Du Toit Straf in
Suid-Afrika (Juta, Cape Town 1981) at 131; Terblanche The Guide to
Sentencing in South Africa (Butterworths, Durban, 1999) at 103 (para 4.3.2)
as well as S v Swarts 1983 (3) SA 261 (C) at 263B; S v Moorcroft
1994 (1) SACR 317 (T) at 320g and S v Jansen 1999 (2) SACR 368 (C) at
371a-e.
[30] Above n 1 at 237J-238A.
[31] Id at 237B.
[32] Id at 249F-G, read with
251J.
[33] [1998] ZACC 6; 1998 (7) BCLR 779 (CC); 1998
(3) SA 785 (CC) para 85.
[34] [1996] ZACC 2; 1996 (4) BCLR 449 (CC); 1996
(2) SA 751 (CC) paras 46 and 60.
[35] [1996] ZACC 6; 1996 (4) BCLR 592 (CC); 1996
(3) SA 562 (CC) paras 6 and 18.
[36] Case CCT 1/00, an as yet
unreported judgment of this Court, delivered on 25 August 2000, at paras
22-3.
[37] Above n 1 at 245E-F. Although
this passage occurs in the section of the High Court judgment dealing with
fragmentation, it is relevant
to the inquiry concerning section 52(3)(d).
[38] See the authorities cited in 29
above.
[39] Above n 1 at 247F-H.
[40] Id at 249F-G.
[41] Id at 247I.
[42] Id at 249E.
[43] Some of this case law is
collected in Du Toit et al Commentary on the Criminal Procedure Act
(Juta, Cape Town 1987, revision service update 24, 2000) Chapter 30 and
Kriegler Hiemstra Suid-Afrikaanse Strafproses 5 ed (Butterworths, Durban
1993) at 761 and following.
[44] As to which, see S v De
Jager 1965 (2) SA 612 (A) at 613A-F and compare S v Xaba 1983 (3) SA
717 (A) at 736E-737C and 737G-738F.
[45] Above n 1 at 251I, for the
reasons furnished at 249H-251H.
[46] Id at 250J-251B.
[47] Ferreira v Levine NO and
Others; Vryenhoek and Others v Powell NO and Others 1996 (1) BCLR 1 (CC);
1996 (1) SA 984 (CC) at para 44 and New National Party of South Africa v
Government of the Republic of South Africa and Others [1999] ZACC 5; 1999 (5) BCLR 489
(CC); 1999 (3) SA 191 (CC) at para 20.
[48] Above n 8.
[49] Id at para 23.
[50] Id at paras 20-2.
[51] Id at para 30.
[52] Id at paras 20-3.
[53] Mills v The Queen (1986)
21 CRR 76 at 143, as quoted with approval in Sanderson, above n 8 at para
23.
[54] Above n 1 at 251E-F.
[55] Above n 47 and the text to
which it relates.
[56] Above n 1 at
258F-G.
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