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Last Updated: 8 June 2005
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 65/04
245/04
In the matter between
WESTERN AREAS LIMITED
First Appellant
ROGER BRETT KEBBLE Second
Appellant
HENDRIK CHRISTOFFEL BUITENDAG Third
Appellant
ROGER AINSLEY RALPH KEBBLE Fourth
Appellant
and
THE
STATE
Respondent
________________________________________________________________________
CORAM: HOWIE P, SCOTT, FARLAM, MTHIYANE et CLOETE JJA
________________________________________________________________________
Date Heard: 1 March 2005
Delivered: 31 March 2005
Summary: Dismissal of objection to indictment – whether appealable before close of trial – interpretation of s 21(1) of the Supreme Court Act of 1959 – subsection can permit appeal before end of trial if interests of justice so require – not shown to be so required in the instant case.
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
HOWIE P
HOWIE
P
[1] A criminal trial cuts across a number of an accused person’s
fundamental rights. Attendance at the trial, even if on bail,
limits freedom of
movement and even the right to liberty is curbed to an extent. Those are some of
the negative consequences. On
the other hand the accused is afforded a number of
what are collectively called fair trial rights. One of these is the right to
appeal.
The primary question in the present instance is whether this Court has
jurisdiction to hear an appeal at this stage. The question
arises in the
following way.
[2] The four appellants, a company and three individuals, have
been charged in the High Court, Johannesburg on an indictment containing
twelve
counts alleging their commission of a variety of offences. Before pleading they
formally objected to each of seven counts
as disclosing no offence.
[3] Six
of the counts (counts 1, 2, 3, 4, 6 and 7 in the indictment) each comprises a
charge of fraud and some have alternative charges
of contravening the Riotous
Assemblies Act 17 of 1956 – conspiracy to commit fraud as one alternative
and incitement to commit
fraud as another. Each fraud count alleges, as an
element of the offence, the non-disclosure of facts which the State says it was
the appellants’ statutory and common law duty to disclose in respect of
certain share-dealings. The notice of objection points
to the fact that the
statutory and regulatory provisions which pertain to share-dealings and impose a
duty of disclosure, fail to
criminalise non-disclosure. The nub of the objection
is that non-disclosure in that situation cannot as a matter of law constitute
the misrepresentation element of fraud. (It is not disputed that non-disclosure
amounts to a misrepresentation that the undisclosed
facts do not exist.)
Consequently, so the objection continues, each of the six fraud charges in
question is bad in law. That being
so the alternative charges, being
inextricably linked to the alleged fraud, are also bad.
[4] The seventh count
objected to (count 12 in the indictment) alleges a contravention of s 2(1) of
the Insider Trading Act 135 of
1998, again with conspiracy and incitement
charges as alternatives. The objection is that s 4(1)(d) of that Act
creates a specific
defence and the conduct attributed to the appellants in the
charge is the very conduct which constitutes that defence.
[5] At the start
of the hearing in the High Court, but before plea, argument was heard on the
objection. The presiding Judge (Labuschagne
J) reserved his decision and
subsequently dismissed the objection. Later he granted leave to appeal to this
court and also granted
a certificate in terms of Rule 18 of the Constitutional
Court in respect of a possible appeal to that Court.
[6] Turning to the
jurisdictional issue, usually referred to in the present context as
appealability, the case for the appellants
is that this Court has jurisdiction
at this juncture, firstly, by reason of the provisions of s 168(3) of the
Constitution,[1] secondly, as a matter
of discretion and, thirdly, by virtue of the provisions of s 21(1) of the
Supreme Court Act.[2]
[7] Section
168(3) of the Constitution (omitting irrelevant words) reads as follows
–
‘The Supreme Court of Appeal may decide appeals in any matter.
It is the highest court of appeal except in constitutional matters,
and may
decide only –
(a) appeals;
(b) issues connected with appeals;
and
(c) ... ’
[8] The first submission by counsel for the
appellants in regard to this subsection is that it altered the pre-existing
position by
conferring plenary appellate jurisdiction. Before the coming into
operation of the constitution on 4 February 1997 this court’s
jurisdiction
had to be conferred by statute.[3]
Questions of appealability went to jurisdiction and had to be decided by
reference to the Supreme Court Act[4],
the Criminal Procedure Act[5] and
other legislation specifically material to appeals to this court. Now, said
counsel, the appealability questions that pre-dated
1997 have fallen away; every
High Court order is appealable in principle and no Rule of this Court restrains
that otherwise limitless
jurisdiction. In this regard counsel relied on
Chevron Engineering (Pty) Ltd v
Nkambule.[6]
[9] In evaluating
this contention the following considerations are of importance. First, there is
a significant background history.
The Interim
Constitution[7] specifically stated
that this Court had no jurisdiction in matters falling within the jurisdiction
of the Constitutional Court viz
constitutional
matters.[8] The intention in s 168(3)
was to remove that restriction. The words ‘any matter’ accord
jurisdiction not only in matters
that were subject to the court’s
jurisdiction before but, now, also constitutional matters. In effect the
jurisdiction bestowed
is to decide appeals on any subject matter. The words
‘any matter’ also appear in s 170 of the Constitution which empowers
magistrates’ courts and all other courts
[9] to decide ‘any matter
determined by an Act of Parliament’. Here, again, the intention in my view
is to refer to subject
matter because the section goes on to say that a court of
lower status than a High Court may not enquire into or rule on the
constitutionality
of any legislation or any conduct of the President. These are
instances of subject matter. The appellants’ reliance on Chevron
[10] is misplaced. The question
there was not whether the decision in issue was appealable but whether, in
respect of a decision that
clearly was appealable, an appeal lay to this
court.
[10] Secondly, nothing in the subsection suggests the conferment of
jurisdiction to hear as an appeal that which, by established statutory
construction and practice, is not appealable. On the contrary, quite apart from
subject matter, the words ‘decide appeals’
plainly means that the
cases to be decided are appeals. A decision which is not appealable is not
justiciable as an appeal. The subsection
therefore means an appeal properly
before the court as such.
[11] Thirdly, a dispute on the question of
appealability is not itself an appeal. It falls contextually and linguistically
within
the meaning of the words ‘issues connected with appeals’ in s
168(3)(b).
[12] Fourthly, no reason suggests itself why the framers of the
Constitution would have wanted to render decisions such as rulings
on evidence
or interlocutory procedure appealable. More importantly, if the argument under
consideration were right, the prosecution
could appeal against any acquittal.
Understandably that has never been regarded as the correct legal
position.
[13] Finally, s 171 of the Constitution states that all courts
function in terms of national legislation and their rules and procedures
must be
provided for in terms of national legislation. Here is a very clear indication
that the framers had no intention to speak
in s 168(3) of matters of forensic
rules, procedures and function. Appealability – when to appeal and what to
appeal against
– is essentially a subject within the ambit of rules,
procedures and function. The respondent does not argue that there is
no right to
appeal against the findings of the Court below. The question is: when to appeal?
That, as the Constitution shows, is
a question for legislative interpretation
and application, not for s 168(3).
[14] In conjunction with the
appellants’ argument on s 168(3) their counsel advanced certain
submissions in regard to Minister of Safety and Security v
Hamilton[11]. That case
concerned the appealability of an order dismissing an exception in a civil case.
In the majority judgment the following
statement appears
–
‘Though s 168(3) of the Constitution provides without
qualification that this court may decide “appeals in any matter”,
this must obviously be read in the light of the Supreme Court Act 59 of
1959.’[12]
(Nothing in the
minority judgment conflicts with this statement.)
[15] Counsel urged that the
quoted statement is clearly wrong. The reasons proffered for that contention
were that s 168(3) of the
Constitutions warrants no such qualification; that one
cannot employ the construction of a statute to interpret the Constitution;
and
that the Constitution contemplates a hierarchy of courts which would be
disregarded if an appeal would proceed to the Constitutional
Court without first
being dealt with in this court.
[16] Not only am I not persuaded that the
statement in Hamilton is wrong, I am satisfied it is right. The reasons
for my view have really been stated already. What the quoted statement in
Hamilton clearly meant was that one cannot look at s 168(3) alone because
it does not bear on appealability. One has to look at s 171 of the
Constitution
and that leads one inter alia to the Supreme Court Act. That approach does not
involve using statutory interpretation
to aid constitutional interpretation; it
is based solely on construction of the Constitution itself. Finally, in this
connection,
it is so that the Constitution contemplates a hierarchy of courts
but it has been recognised that a matter can be appealable to the
Constitutional
Court before being appealable to this
court.[13]
[17] For these reason
the appellants’ argument pertaining to s 168(3) of the Constitution cannot
be sustained.
[18] It was argued in the alternative to the appellants’
first submission that if this Court should find that it had a discretion
to
exercise its appellate jurisdiction then there were circumstances present which
warranted the exercise of that discretion in their
favour. I do not think that
there is a discretion in the context of this court’s jurisprudence based
on construction of the
relevant provisions of the Criminal Procedure Act and the
Supreme Court Act or any discretion conferred by those provisions themselves.
The only possibly relevant provision of the Criminal Procedure Act is s
319[14] which concerns reservation
of a question of law. It is true that ss (2) deems the grounds of objection to
an indictment to be questions
of law but in terms of the provisions of ss (3)
read with s 317(2),[15] application
for reservation of such a question can only be made after conviction or
acquittal.[16]
[19] As regards
the material provisions of the Supreme Court Act, they are contained in s
21(1).[17] They confer on this court
jurisdiction to hear and determine an appeal from ‘any decision’ of
a Provincial or Local Division
not conferred by s 20(1) of that Act. The latter
section, which does not apply to criminal proceedings, provides for appeals
against
a ‘judgment or order’ and does not refer to a
‘decision’. Nonetheless this court has construed
‘decision’
in s 21(1) to have the same meaning as that which it
has attributed to ‘judgment or
order’.[18]
[20] The
appealability decisions of this court are based on the ‘salutary general
rule that appeals are not entertained
piecemeal’.[19] Appeals are,
generally, precluded before final determination of a case unless the judicial
pronouncement sought to be appealed against,
whether referred to as a judgment,
order, ruling, decision or declaration, has three attributes. First, it must be
final in effect.
That means it must not be susceptible of alteration by the
court appealed from. Second, it must be definitive of the rights of the
parties,
for example, because it grants definite and distinct relief. Thirdly, it must
have the effect of disposing of at least a
substantial portion of the relief
claimed.[20] Clearly, whether these
criteria are met does not depend on judicial discretion.
[21] Counsel for the
appellants sought, then, to contend that the decision of the Court below was
final in effect because it was based
on the factual allegations contained in
detailed further particulars furnished by the prosecution and did not merely
decide an abstract
legal issue. Counsel went on to say that the learned judge
was seized with the trial and no purpose could be served by treating his
judgment as open to reconsideration. It was the intention of all the parties,
said counsel, that the decision of the judge should
be final and that had the
case been a civil one it would have lent itself to a separation of issues in
terms of rule 33(4) and therefore
an appealable
judgment.[21]
[22] Counsel for
the respondent adamantly disputed that the prosecution intended that the
decision of the Court below would be regarded
as final. Moreover, there is
nothing on record, or relied on by the appellants’ counsel, to show that
any such common intention
existed even assuming, in the appellants’
favour, that the existence of a mere intention, as opposed to a recorded
agreement
or stated case, could impose finality not imposed by law and further
assuming that a legal issue in criminal proceedings can indeed
be decided on
agreed facts or a stated case. In the circumstances the decision of the learned
judge was not final in law however
much he might be disinclined to alter his
view if he were to preside at the trial. His decision is open to reconsideration
at the
end of the trial. In addition, it must be borne in mind that his decision
was made before plea, that is to say, before the trial
commenced. It might have
been the intention that the learned judge should preside at the trial but, as a
matter of law, he is not
seized of the trial as yet. It follows that all the
requirements set in Zweni’s case are not met.
[23] The final
argument for the appellants was that if the case was not appealable on the
construction of s 21(1) adopted in Zweni and later cases that followed
it, the subsection had to be re-interpreted in the light of s 39(2) of the
Constitution.[22]
[24] Before
dealing with the effect of s 39(2) it should be observed that this court said in
Moch that the requirements for appealability laid down in Zweni
were not intended to be exhaustive or to cast the relevant principles ‘in
stone’.[23] In Moch the
trial judge refused to recuse himself. This court held, on appeal against such
refusal, that dismissing a recusal application
was comparable with dismissal of
an objection to jurisdiction. As the latter was clearly appealable, so was the
former.[24] The dismissal of an
objection to an indictment is not comparable with either. It is much the same as
dismissal of an exception in
a civil case and nothing said in relation to these
topics serves to indicate that an objection or an exception constitute, in
effect,
a challenge to jurisdiction.
[25] In
Khumalo[25] the
Constitutional Court observed that all the considerations which have led this
court to adopt a limited interpretation of ‘judgment
or order’ in
construing s 20 of the Supreme Court Act can be accommodated within the
expression ‘the interests of justice’.
That is the criterion set in
s 167(6) of the Constitution in relation to access on appeal to the
Constitutional Court. It is indeed
such interests which have led to the limited
interpretation in question. Long experience has taught that in general it is in
the
interests of justice that an appeal await the completion of a case whether
civil or criminal. Resort to a higher court during proceedings
can result in
delay, fragmentation of the process, determination of issues based on an
inadequate record and the expenditure of time
and effort on issues which may not
have arisen had the process been left to run its ordinary
course.[26]
[26] It is clear,
however, that the general rule against piecemeal appeals in criminal proceedings
could conflict with the interests
of justice in a particular case. The
possibility of such a conflict was recognised in Wahlhaus.
[27] As an instance when such
conflict might arise this court referred in that matter to the position where a
law point is involved which,
if decided in the accused’s favour, would
dispose of the criminal charge against him or a substantial portion of
it.[28] By that example I understand
it to be implied that there would be no trial or a substantially shortened
trial.
[27] Reverting to the provisions of s 39(2) of the Constitution and
its influence on the construction of s 21(1) of the Supreme Court
Act, it is, as
I have said, an inevitable consequence of a criminal trial that an
accused’s exercise of the right to liberty
and freedom of movement is
restricted. But those are not the only rights to be considered. It is in the
public interest that alleged
criminals be subjected to the criminal justice
process and that the prosecution and defence cases be fully ventilated. In the
tension
between these competing interests the restrictions on the accused which
I have mentioned remain in place, ameliorated where appropriate
by release on
bail. Those considerations by themselves do not warrant giving
‘decision’ a more extended meaning than
before. What does do so,
however, is the possibility of conflict between the general rule against
piecemeal appeals and the interests
of justice in a particular case even if the
Zweni requirements are not met. It is surely not in the interests of
justice to submit an accused person to the strain, expense and restrictions
of a
lengthy criminal trial if that can be avoided, in appropriate circumstances, by
allowing an appeal to be pursued out of the
ordinary sequence and so obviating
the trial or substantially shortening it.
[28] I am accordingly of the view
that it would accord with the obligation imposed by s 39(2) of the Constitution
to construe the
word ‘decision’ in s 21(1) of the Supreme Court
Act to include a judicial pronouncement in criminal proceedings
that is not
appealable on the Zweni test but one which the interests of justice
require should nevertheless be subject to an appeal before termination of such
proceedings.
The scope which this extended meaning could have in civil
proceedings is unnecessary to decide. It need hardly be said that what
the
interests of justice require depends on the facts of each particular
case.
[29] In the present matter the only information relevant to that
enquiry is provided in an affidavit deposed to by Mr GL Roberts SC,
a Deputy
Director of Public Prosecutions and one of the prosecution’s counsel in
the court below. The affidavit was filed in
support of the respondent’s
opposition to an application in that court by three of the appellants for leave
to appeal.
[30] What Mr Roberts says is that ‘most if not all of the
evidence that will be led to prove the counts against which the accused
object,
will have to be led in any event in respect of the remaining counts against
which the [appellants] have no objection. I refer
particularly to count 9, but
also the other counts’.
[31] The offence involved in count 9 is a
contravention of s 424 of the Companies Act 61 of 1973 by the individual
appellants in having
allegedly carried on the first appellant’s business
recklessly. Apart from the fact that the dates covered by this count include
the
dates stated in the other counts, the transactions which form the subject matter
of this count include the transactions which
form the subject matter of counts
1, 2, 3, 4 and 6. As far as count 12 is concerned it involves four transactions.
Two of them form
part the subject matter of count 1. A third forms part of the
subject matter of count 9.
[32] The prosecution of count 9 will alone involve
canvassing the facts relevant to all the counts objected to save for count 7. As
against that, argument at the end of the trial will obviously be longer if the
submissions presented to us on the merits of the objection
have to be repeated
before the trial judge.
[33] The appellants did not seek to contradict or
qualify the deposition by Mr Roberts to which I have referred and analysis of
the
dates and transactions referred to in the indictment supports what he
says.
[34] It is the view on all sides that the trial on the counts to which
there was no objection will be a lengthy one. In the circumstances
outlined
above it will not be extended by a material degree if the prosecution case
includes the counts objected to. Consequently
it cannot be said, on the record
before us, that the interests of justice require that appellants’ right of
appeal against
the findings of the Court below on their objection, be exercised
now rather than at the close of the trial.
[35] In concluding it must be
pointed out that if facts are present which point to the conclusion that the
interests of justice require
that an appeal against dismissal of an objection to
an indictment or charge be heard out of the ordinary sequence, the accused has
a
choice. The relevant facts can be canvassed before the court hearing an
application for leave to appeal against such dismissal.
Alternatively, a
declarator that a charge discloses no offence can be sought in terms of s
19(1)(a)(iii) of the Supreme Court
Act[29] as was done in the case of
Attorney-General, Natal v Johnstone & Co
Ltd.[30]
[36] For the reasons
given above the decision dismissing the appellants’ objection is not
appealable at this stage. The case
on the merits of the objection is
consequently not duly before us.
[37] The matter is struck from the
roll.
____________________
CT HOWIE
PRESIDENT
SUPREME COURT
OF APPEAL
CONCUR:
SCOTT JA
FARLAM JA
MATHIYANE JA
CLOETE JA
[1] The Constitution of the
Republic of South Africa, Act 108 of
1996.
[2] Act 59 of
1959.
[3] Moch v Nedtravel
(Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at
7D-G.
[4] Sections 20 and
2.
[5] Act 51 of
1977.
[6] 2003 (5) SA 206
(SCA).
[7] The Constitution of
the Republic of South Africa Act 200 of
1993.
[8] Section
101(5)
[9] Other, that is, than
superior courts and magistrates’
courts.
[10] Footnote
(6)
[11] 2001 (3) SA 50
(SCA)
[12] at 52B-E par 4 per
Cameron JA.
[13] Khumalo
and others v Holomisa 2002 (5) SA 401 (CC) at 409F-411B paras 6 to
8.
[14] Section 319
reads
‘(1) If any question of law arises on the trial in a superior
court of any person for any offence, that court may of its own
motion or at the
request either of the prosecutor or the accused reserve that question for the
consideration of the Appellate Division,
and thereupon the first-mentioned court
shall state the question reserved and shall direct that it be specially entered
in the record
and that a copy thereof be transmitted to the registrar of the
Appellate Division.
(2) The grounds upon which any objection to an
indictment is taken shall, for the purposes of this section, be deemed to be
questions
of law.
(3) The provisions of section 317(2), (4) and (5) and
318(2) shall apply mutatis mutandis with reference to all proceedings
under this section.’
[15]
Section 317(2) reads
‘(2) Save as hereinafter provided, an application
for condonation or for a special entry shall be made to the judge who presided
at the trial or, if he not available, or, if in the case of a conviction before
a circuit court the said court is not sitting, to
any other judge of the
provincial or local division of which that judge was a member when he so
presided.
[16] R v
Adams and others 1959 (3) SA 753 (A) at
760F-761G.
[17] Section 21(1)
of Act 59 of 1959 reads
‘(1) In addition to any jurisdiction
conferred upon it by this Act or any other law, the appellate division shall,
subject
to the provisions of this section and other law, have jurisdiction to
hear and determine an appeal from any decision of the court
of a provincial or
local division.’
[18]
Moch’s case, footnote
(3)
[19] Wahlhaus v
Additional Magistrate, Johannesburg 1959 (3) SA 113 (A) at
120E.
[20] Zweni v Minister
of Law and Order 1993 (1) SA 523 (A) at 532I-533B; Hamilton’s
case (footnote (11)) at 52E-F par
4.
[21] Cf Maize Board v
Tiger Oats Ltd and Others 2002 (5) SA 365 (SCA)
374A-B.
[22] Section 39(2)
reads
‘39(2) When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal of forum
must promote the
spirit, purport and objects of the Bill of
Rights.’
[23] Footnote
(3), at 10F
[24] At
10G-11B.
[25] Footnote (13), at
411A-B par 8.
[26] Cf R v
Duvivier 6 CCR (2d) 180 cited in S v Friedman (2) 1996 (1) SACR 196
(W) at 202e-f.
[27] Footnote
(19), at 119A-B.
[28] At
120.
[29] This gives the High
Court power –
‘in its discretion, and at the instance of any
interested person, to enquire into and determine any existing, future or
contingent
right or obligation, notwithstanding that such person cannot claim
any relief consequential upon the
determination.’
[30] 1946
AD 256.
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