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[2008] ZASCA 125
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Du Toit v Minister of Safety and Security and Another (467/07) [2008] ZASCA 125; 2009 (1) SA 176 (SCA) ; [2009] 1 All SA 322 (SCA); (2009) 30 ILJ 261 (SCA) (30 September 2008)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No: 467/07
W A L DU TOIT
Appellant
and
THE MINISTER OF SAFETY AND SECURITY
1
st
Respondent
THE NATIONAL COMMISSIONER OF THE SOUTH
AFRICAN POLICE SERVICE
2
nd
Respondent
Neutral citation:
Du Toit v The Minister of Safety and
Security
(467/07)
[2008] ZASCA 125
(30 September 2008)
Coram:
STREICHER, MTHIYANE, CLOETE JJA BORUCHOWITZ and
MHLANTLA AJJA
Heard:
12 SEPTEMBER 2008
Delivered:
30 SEPTEMBER 2008
Summary:
Section 36(1) of
South African
Police Service Act 68 of 1995
– appellant deemed to have been
discharged from SAPS because of conviction and sentence to
imprisonment – deemed dismissal
not undone by extinction of
conviction by granting of amnesty –
s 20(10)
of
Promotion of
National Unity and Reconciliation Act 34 of 1995
does not operate
retrospectively –
s 36(2)
of SAPS Act does not entitle person
to whom amnesty had been granted a right to be reinstated.
_________________________________________________________________________
ORDER
_________________________________________________________________________
On appeal from: the Pretoria High Court (Mynhardt J
sitting as court of first instance)
The appeal is dismissed with costs including the costs
of two counsel.
____________________________________________________________
JUDGMENT
____________________________________________________________
STREICHER JA (
MTHIYANE, CLOETE JJA
BORUCHOWITZ and MHLANTLA AJJA
concurring)
[1] The Pretoria High Court dismissed an application by
the appellant to be reinstated as a member of the South African
Police Services
(‘the SAPS’) but granted him leave to
appeal to this court.
[2] The appellant used to be the National Commanding
Officer: Technical Support Services with the rank of Director in the
SAPS.
On 14 June 1996 he was convicted on four charges of murder and
on 27 June 1996 he was sentenced to 15 years’ imprisonment.
As
a result and in terms of s 36 (1) of the South African Police
Service Act 68 of 1995 (‘the SAPS Act’), he was
deemed to
have been discharged from the SAPS with effect from the date
following the date of the sentence. The section reads as
follows:
‘36(1) A member who is convicted of an offence and is sentenced
to a term of imprisonment without the option of a fine, shall
be
deemed to have been discharged from the Service with effect from the
date following the date of such sentence: Provided that,
if such term
of imprisonment is wholly suspended, the member concerned shall not
be deemed to have been so discharged.’
[3] The appellant appealed against his conviction but
his appeal was postponed pending the finalisation of his application
for amnesty,
in respect of the offences of which he had been
convicted, in terms of the Promotion of National Unity and
Reconciliation Act 34
of 1995 (‘the Amnesty Act’).
Section 20 of the Amnesty Act provided for the granting of amnesty in
respect of offences
associated with a political objective and
committed in the course of the conflicts of the past. Pending the
determination of his
application for amnesty the appellant, on 22
December 1999, wrote to the National Commissioner of the SAPS in the
following terms:
‘4 Ingevolge artikel 20(10) van die Wet op die Bevordering van
Nasionale Eenheid en Versoening sal, indien die hersieningsaansoek
1
suksesvol is, ek ge-ag word nooit skuldig bevind te gewees het aan
die betrokke misdryf nie. Ek is geadviseer dat ingevolge hierdie
bepalings ek onmiddellik regtens terugwerkend in my pos as Nasionale
Bevelvoerder Tegniese Ondersteuningseenheid ge-ag te word.
5 Ek is voorts ge-adviseer, dat aangesien voormelde pos `n sogenaamde
skema-pos en die eenheid ‘n spesialis-eenheid is, ek
nie in
diens by enige ander vertakking geplaas kan word nie.
6 Ek het ook kennis geneem dat Direkteur TLA Steyn nie meer soos
aanvanklik in `n waarnemende hoedanigheid hierdie pos beklee nie.
7 Vanselfsprekend hou u besluit in hierdie verband vir myself en my
gesin `n wesenlike finanasiële implikasie in.
8 Ten einde my en my gesin se toekomsplanne te bepaal, word u
dringende uitsluitsel om my posisie in die SA Polisiediens, indien
my
hersieningsaansoek suksesvol sal wees, verlang.’
[4] In terms of s 20(10) of the Amnesty Act a
conviction in respect of which amnesty had been granted ‘shall
be deemed
to be expunged from all official documents or records and
the conviction shall for all purposes, including the application of
any
Act of Parliament or any other law, be deemed not to have taken
place’.
2
Section 36(2) of the SAPS Act provides that a person who is deemed to
have been discharged in terms of s 36(1) because he
was
convicted and sentenced to a term of imprisonment without the option
of a fine, and whose conviction is set aside ‘following
an
appeal or review’ and not replaced with a conviction for
another offence, ‘may, within a period of 30 days after
his or
her conviction has been set aside . . .
apply to the National Commissioner to be reinstated as a
member.’
3
[5] On 29 December 1999 the National Commissioner
replied to the appellant’s letter of 22 December as follows:
‘Die Regsafdeling van
die Suid-Afrikaanse
Polisiediens is ook van mening dat indien u suksesvol met u
hersieningsaansoek is, u geag sal word nooit skuldig
bevind te gewees
het nie, en u gevolglik nie ontslaan kon gewees het uit die SAPD nie,
en u posisie sal terugwerkend herstel word.
In so`n geval sal u uiteraard in u vorige pos, of
`n soortgelyke pos waarmee u akkoord gaan, in die SAPD geakkomodeer
word.’
[6] The appellant’s application
for amnesty was ultimately successful and on the
day that the proclamation granting amnesty to him was published,
namely 23 December 2005, he wrote to the National Commissioner:
‘I would urgently need to negotiate my re-instatement in the
SAPS in terms of section 36 of the Police Act (68/1995) and
section
20
of the
Promotion of National Unity and Reconciliation Act 34 of
1995
. In this regard I would like to draw attention to the fact that
due to my technical specific qualifications my employment in the
SAPS
was post specific. In order to protect the interest of the SAPS and
myself my employment history should subsequently be taken
into
consideration. In the event that re-instatement has been approved but
continuation of service poses a practical obstacle,
it is requested
that an adequate, mutually agreeable, severance package be
negotiated.’
[7] The Chief of Staff of the SAPS replied as follows:
‘[Y]our situation is not one contemplated in
section 36
of the
South African Police Service Act
. . . nor does
section 20
of the
Promotion of National Unity and Reconciliation Act
. . . provide for
re-instatement of employees discharged in terms of
section 36.
Your request for negotiation of your reinstatement can therefore not
be acceded to.’
[8] The appellant thereupon applied to the Pretoria High
Court for an order declaring that he was entitled to be reinstated in
his
employment with the SAPS in terms of the provisions of s 20(10)
of the Amnesty Act alternatively in terms of the provisions of s
36
of the SAPS Act, and further alternatively in terms of an agreement
with the National Commissioner of the SAPS, constituted
by the
Commissioner’s letter of 29 December 1999. I shall deal with
each of these grounds in turn.
[9] The court a quo held that s 20(10) extinguished
the appellant’s conviction and sentence but that it had not
undone
the consequences of such conviction and sentence. The
appellant submitted that the court a quo failed to give effect to the
section
in so far as it provides that the conviction of a person, to
whom amnesty had been granted, should be deemed, ‘for all
purposes,
including the application of any Act of Parliament’,
not to have taken place. The deeming provision in s 36(1) is
contained
in an Act of Parliament therefore the effect of the
provision is, so it was submitted, that because appellant is deemed
never to
have been convicted and sentenced, he was never discharged
from the SAPS by operation of the deeming provision in s 36(1).
The submission amounts to this: Section 20(10) provides that as at a
past date the law shall be taken to have been that which it
was not,
ie s 20(10) operates retrospectively.
4
[10] There is a presumption that a statute was intended
to operate prospectively and not retrospectively. In
Bellairs
v Hodnett and another
1978 (1) SA 1109
(A) at
1148F-G the court formulated the rule as follows:
‘There is a general presumption against a statute being
construed as having retroactive effect and even where a statutory
provision is expressly stated to be retrospective in its operation it
is an accepted rule that, in the absence of contrary intention
appearing from the statute, it is not treated as affecting completed
transactions and matters which are the subject of pending
litigation
. . ..’
The same principle is recognised by the law of England.
In
Sunshine Porcelain Potteries Pty Ltd v Nash
[1961] AC 927
at 938 Lord Reid said:
‘Generally, there is a strong presumption that a legislature
does not intend to impose a new liability in respect of something
that has already happened, because generally it would not be
reasonable for a legislature to do that . . ..’
The presumption ‘may be rebutted, either expressly
or by necessary implication, by provisions or indications to the
contrary
in the enactment under consideration’.
5
[11] The appellant submitted that the fact that the
deeming provision is said to be applicable ‘for all purposes’
indicates
that it also applies to consequences that have already
materialised. I do not agree. ‘For all purposes’ may in
theory
mean for past and future purposes but applying the presumption
against retrospectivity, it must be interpreted as meaning for all
future purposes, unless it can be said that the intention of the
legislature was that the section should be applied retrospectively
so
as to impose different rights and obligations in respect of events
that had already taken place. The phrase is therefore of
no
assistance in determining whether s 20(10) was intended to
operate retrospectively.
[12] But, submitted the appellant, s 20(10) would
be totally superfluous and of no effect unless it is interpreted to
have
retrospective effect. He submitted that s 20(7) and (8)
fully provide for the effects of amnesty with reference to future
situations. I do not agree with this submission. Sections 20(1) to
(6) deal with applications for amnesty and the granting of amnesty
whereas ss 20(7) to 20(10) spell out to what extent civil and
criminal proceedings would be affected by the granting of amnesty.
In
terms of subsection (7) the person to whom amnesty has been granted
shall not be criminally or civilly liable in respect of
the act in
question. Subsection (8) deals with persons against whom criminal
proceedings are pending and persons who have been
sentenced and who
are in custody for the purpose of serving such sentences. It provides
that such criminal proceedings would forthwith
upon publication of
the proclamation of the granting of amnesty in respect of the
relevant offences, become void and that such
sentences should upon
such publication lapse. Section 20(9) provides that if any person
has been granted amnesty in respect of
an act which formed the ground
of a prior civil judgment, the granting of amnesty shall not affect
the operation of that judgment
in so far as it applies to that
person. Subsection (10) deals with the expungement of the conviction
for the act in respect of
which amnesty has been granted, from
official documents and provides that the conviction shall be deemed
not to have taken place.
[13] The appellant submitted that s 20(9) indicates
that in so far as the legislature did not intend s 20 to operate
retrospectively,
it expressly stated that to be the case. In my view
the section indicates no more than that the legislature, having
stated that
no person would be criminally or civilly liable for an
act in respect of which amnesty had been granted, and having stated
that
sentences imposed in respect of people who were in custody would
lapse, wanted to make it clear that it had no intention of undoing
the civil judgments referred to in the section. The section affords
no indication of an intention that the deemed extinction of
criminal
convictions was intended to operate retrospectively.
[14] A fourth ground advanced by the appellant as a
basis for interpreting s 20(10) to operate retrospectively is
that s 20
is remedial in nature and should for that reason be
construed generously. In this regard he referred, amongst other
authorities,
to
Looyen v Simmer & Jack
Mines Ltd and another
1952 (4) SA 547
(A) at
554B-C where Schreiner JA said:
‘[T]he provision was certainly aimed at making the legal
position more equitable, or at least clarifying it so as to avoid
some apparently harsh results. It seems to me, therefore, that use
may properly be made of Lord Kenyon’s statement in
Turtle v
Hartwell
6 TR 426 at 429, that:
“In expounding remedial laws, it is a settled rule of
construction to extend the remedy as far as the words will admit.”’
No basis for considering s 20(10) to be remedial in
nature was however suggested. The section was not enacted to make the
existing
legal position more equitable or to avoid harsh results.
Convictions are in terms of the section deemed to have been expunged
from
official documents and not to have taken place, not in order to
correct inequitable or harsh results but in order to promote national
unity and reconciliation. See in this regard the preamble to the
Amnesty Act in which it is stated that the Act is enacted, amongst
other reasons:
‘[S]ince the Constitution states that the pursuit of national
unity, the well-being of all South African citizens and peace
require
reconciliation between the people of South Africa and the
reconstruction of society;
And since the Constitution states that there is a need for
understanding but not for vengeance, a need for reparation but not
for retaliation, a need for ubuntu but not for victimisation;
And since the Constitution states that in order to advance such
reconciliation and reconstruction amnesty shall be granted in respect
of acts, omissions and offences associated with political objectives
committed in the course of the conflicts of the past.’
[15] Lastly it was submitted by the appellant that it
would be absurd to deem the conviction not to have taken place but
still to
saddle the appellant with the negative results of such
conviction. The absurdity escapes me. The intention of the
legislature was
to provide a mechanism for forgiving transgressors
for what they had done in the past - not to undo what had happened in
the past.
The appellant was not wronged in any way by having been
convicted and discharged from the SAPS as a result of that
conviction.
To reinstate him and to treat him as if he had not been
discharged can therefore make no contribution to the object of the
Act
namely, to achieve reconciliation.
[16] In my view the Amnesty Act contains no indication
that the legislature intended s 20(10) to operate
retrospectively so
as to undo consequences that came into effect
before the granting of amnesty. To interpret the section to be
retroactive would
have far reaching financial and other effects as is
illustrated by the present case where the appellant had not rendered
any service
to the SAPS for years and where another person had been
appointed in his post. Such an interpretation would probably affect
many
other contracts and statutory relationships to the potential
detriment of people who had not committed any wrong. It seems to me
highly unlikely that the legislature intended such a result in
legislation aimed at improving future relationships.
[17] I therefore conclude that s 20(10) does not
affect consequences that came into effect before the granting of
amnesty.
In the result the discharge of the appellant from the SAPS
was not reversed by the granting of amnesty to him.
[18] In respect of the appellant’s reliance on
s 36(2) the court a quo held that the section deals with the
reinstatement
of a member as a result of the setting aside of a
conviction ‘on appeal or review’, that the appeal and
review processes
are not analogous to the process in terms of which
amnesty is granted and that there was therefore no basis for
interpreting s 36(2)
so as to entitle a person to whom amnesty
had been granted, to reinstatement.
[19] The appellant submitted that the interpretation of
the court a quo is grossly unjust and absurd. He submitted that if
appeal
or review in the phrase ‘conviction is set aside
following an appeal or review’ is interpreted so as to include
amnesty,
effect will be given to the intention of the legislature. In
my view there is no merit in this submission. Appeal and review
proceedings
are judicial proceedings whereas amnesty proceedings are
administrative in nature. In the case of an appeal or review a
conviction
is set aside by reason of the fact that the accused should
not have been convicted, either because his guilt had not been proved
or because his conviction was not in accordance with justice, ie
because he should in the circumstances not have been convicted.
When
amnesty is granted the conviction is deemed not to have taken place
but that is not because the accused should not have been
convicted.
It is, as stated above, in order to achieve a future objective. The
procedure, result and object of appeal and review
proceedings on the
one hand and amnesty proceedings on the other hand are therefore not
analogous at all. There is consequently
no basis whatsoever for
finding that the legislature intended that ‘appeal or review’
should be interpreted so as to
include amnesty. On the contrary, the
Amnesty Act gave effect to a requirement of the Interim Constitution
which preceded the SAPS
Act and both the SAPS Act and the Amnesty Act
were enacted during 1995. The Amnesty Act is numbered 34 and the SAPS
Act, 68. The
granting of amnesty would therefore have been foremost
in the mind of the legislature when it enacted the SAPS Act and had
it intended
s 36(2) to apply to amnesty as well it would have
worded the section accordingly.
[20] Dealing with the third ground advanced for
reinstatement the court a quo stated that the National Commissioner,
in his letter
of 29 December 1999, simply adopted a position on the
basis of legal advice that he obtained and considered to be correct
but which
turned out to be incorrect. The court a quo added that it
was not the appellant’s case that the SAPS was bound to
reinstate
him if the advice was found to be incorrect and concluded:
‘Gevolglik kan die onderneming, of ooreenkoms, nie teen die
twee respondente afgedwing word nie.’
[21] Before us the appellant submitted that the National
Commissioner entered into an agreement with the appellant as set out
in
his letter. The appellant conceded that he is relying on a written
agreement with the result that the evidence of the author of
the
letter, as to what his intention was, is irrelevant and inadmissible.
The affidavit of the National Commissioner annexed to
the appellant’s
papers setting out what he intended therefore falls to be
disregarded.
[22] The letter of 29 December 1999 was written in
response to the letter by the appellant dated 23 December 2005. In
that letter
the appellant informed the National Commissioner that
according to his advice he would be deemed to be reinstated in the
event
of his application for the review of the decision refusing him
amnesty succeeding, but that some other person had been appointed
in
his post. He accordingly wanted to know what would happen to him upon
his return. The National Commissioner replied that he
had received
similar advice and that in the event of the review succeeding the
appellant would naturally be reinstated in the post
that he used to
occupy or in a similar post acceptable to him. In my view the
National Commissioner was simply stating what he
understood the legal
position to be. He was not asked to bind himself contractually and
the letter does not evince an intention
to do so. In any event the
statement by the National Commissioner did not constitute an
acceptance of an offer and if it were to
be interpreted as an offer
it was never accepted by the appellant. Confronted with this problem
the appellant submitted that his
letter of 23 December 2005, some 6
years later, constituted an acceptance of what he contended to be an
offer. However, in that
letter the appellant did not claim to be
entitled to reinstatement in terms of an agreement; he claimed to be
so entitled in terms
of s 36 of the SAPS Act and s 20 of
the Amnesty Act. It is therefore apparent that not even the appellant
interpreted
the statement so as to constitute an offer with the
intention to contract. In short no contract to reinstate the
appellant was
concluded.
[
23] The
appeal is accordingly dismissed with costs including the costs of two
counsel.
__________________
P E STREICHER
JUDGE OF APPEAL
Appearances
:
For Appellant: J G Cilliers SC
M D du Preez
Instructed by
Wagener Muller, Pretoria
Bezuidenhouts Inc, Bloemfontein
For Respondent: T J Bruinders SC
B L Makola
Instructed by
The State Attorney, Pretoria
The State Attorney, Bloemfontein
1
The appellant’s application for amnesty was initially
dismissed but such dismissal was subsequently reviewed by a full
court of the Cape High Court and set aside.
2
Section 20(10) reads:
‘Where
any person has been convicted of any offence constituted by an act
or omission associated with a political objective
in respect of
which amnesty has been granted in terms of this Act, any entry or
record of the conviction shall be deemed to be
expunged from all
official documents or records and the conviction shall for all
purposes, including the application of any Act
of Parliament or any
other law, be deemed not to have taken place: Provided that the
Committee may recommend to the authority
concerned the taking of
such measures as it may deem necessary for the protection of the
safety of the public.
3
Section 36(2) reads
‘A person referred to in subsection (1), whose –
(a) conviction is set aside following an appeal or review and is not
replaced by a conviction for another offence;
(b) . . .
(c) . . .
may, within a period of 30 days after his or her conviction has been
set aside or his or her sentence has been replaced by a
sentence
other than a sentence to a term of imprisonment without the option
of a fine, apply to the National Commissioner to
be reinstated as a
member.’
4
West v Gwynne
[1911] 2 Ch 1 (CA) 11-12.
5
Workmen’s Compensation Commissioner v Jooste
[1997] ZASCA 58
;
1997 (4)
SA 418
(SCA) at 424G-H.