Thabete and Another v S [2006] ZAFSHC 170; [2006] ZAFSHC 140 (23 February 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2006
>>
[2006] ZAFSHC 170
|

|

Thabete and Another v S [2006] ZAFSHC 170; [2006] ZAFSHC 140 (23 February 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A30/2006
In the appeal between:
NKOSINATHI EMMANUEL
THABETE
1
st
Appellant
SEFISO
FUMESANE MKHIZE
2
nd
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MATHEBULA, AJ
_____________________________________________________
HEARD ON:
13 FEBRUARY 2006
JUDGEMENT:
RAMPAI, J
_____________________________________________________
DELIVERED ON:
23 FEBRUARY 2006
_____________________________________________________
[1] This appeal served
before us on Monday the 13
th
of February 2006. At the commencement of the hearing counsel for the
State, Miss Bester, raised a point
in
limine
whereby the procedure followed by the appellants was challenged.
Counsel for the appellant, Mr. Skibi, opposed her. After hearing
their argument on the point
in
limine
we reserved judgement and postponed the hearing of argument on the
merits of the appeal for later adjudication in the event of the
point
in
limine
not succeeding.
[2] The appellants were
arrested at Harrismith on the 9
th
September 1999 in connection with the hi-jacking of a cargo carrier
on the N3 highway at Van Reenen on that same day.
[3] Subsequent to their
arrest the appellants were charged with four criminal charges.
The 1
st
charge was robbery with aggravating circumstances as defined in
section 1 of the Criminal Procedure Act No. 51/77.
The 2
nd
charge was possession of an unlawful firearm in contravention of
section 2 Arms and Ammunition Act No. 75/69.
The 3
rd
charge was unlawful possession of ammunition in contravention of
section 36 Arms and Ammunition Act No. 75/69.
The 4
th
charge was possession of fake banknotes in contravention of section
1 Banking Act No. 90/39 and section 34(1)(1) The South African
Reserve Bank.
[4] Their trial commenced
in the Harrismith Regional Court on the 17
th
August 2000. Neither of them was legally represented. Both pleaded
not guilty to all the 4 charges. All in all 9 witnesses testified
during the course of the trial, 7 for the state and 2 for the
defence, namely the accused themselves.
[5] At the end for the
trial on the 18
th
October 2000 the 1
st
appellant was convicted in respect of the 1
st
,
2
nd
and 3
rd
charges. The 2
nd
appellant was similarly convicted. Both were acquitted in respect of
the 4
th
charge.
[6] The appellants were
sentenced on the same day, the 18
th
October 2000. In respect of the 1
st
charge each was sentenced to 15 years imprisonment. In respect of
the 2
nd
and the 3
rd
charges which were taken together for the purposes of sentence, each
was sentenced to 5 years imprisonment. The court below directed
that
the 5 year jail term should run concurrently with the 15 year jail
term. Therefore the effective sentence they have to serve
is 15
years imprisonment.
[7] Still on the same
day, the 18
th
October 2000, the appellants applied to the trial magistrate for
leave to appeal against their convictions and their sentences.
This
they did in terms of section 309B Criminal Procedure Act No. 51/77.
Both applications were dismissed.
[8] Section 309B Act No.
51/77 was applicable to the appellants at the time of their
convictions and sentences on the 18
th
October 2000. In terms of this section they were required to apply
to the magistrate in the court below for leave to appeal.
[9] The above section was
declared unconstitutional subsequent to the conviction of the
appellants – vide
S
v STEYN
[2000] ZACC 24
;
2001 (1) SACR 16
(CC) per Madlanga, AJ. The declaration of
constitutional invalidity was handed down on the 29
th
November 2000.
[10] The declaration of
invalidity was, however, suspended for six months from the date of
the said court order on the 29
th
November 2000. The suspension period of constitutional invalidity
expired on the 28
th
May 2001.
[11] Section 309C Act No.
51/77 prescribed the procedure to be followed in a case where an
accused was aggrieved by a magistrate’s
refusal to grant the
prerequisite leave to appeal. The section granted an accused person
an automatic right independent of the restrictive
route via the
magistrate to approach a judge president of a division concerned for
leave to appeal to a high court with jurisdiction.
This section
applied to the appellants at the time of their conviction on the 18
th
October 2000.
[12] Miss Bester, counsel
for the respondent, argued
in
limine
that the appellants had not sought and obtained leave to appeal from
a judge president of this division by way of a petition in terms
of
section 309C Act No. 51/77. She contended that since the appellants
were sentenced prior to the 28
th
May 2001 they did not have the automatic right of appeal from the
magistrate’s court to the high court. Section 309C, she contended
further, still applies to the appellant’s because its
constitutional invalidity only became operative from the 29
th
May 2001. From the 29
th
November 2000 when the constitutional invalidity was declared until
the 28
th
May 2001 when the suspension of a constitutional invalidity expired
it was business as usual. That business was governed by section
309B
and section 309C, so she contended. Therefore she submitted that the
appellants were not properly before us since they did
not have the
special leave of the judge president to come to this court.
[13] Mr. Skibi, counsel
for the appellants, disagreed. He responded by submitting that the
appellants were properly before us. His
contention was that the
appellants were not legally obliged first to seek and obtain from the
judge president of this division the
special leave to appeal by way
of a petition in terms section 309C Act No. 51/77. He contended that
the decision in
S
v STEYN
supra,
correctly interpreted, meant that section 309B and section 309C
became invalid not upon the expiring of the six months suspension
period but from the date those two sections were enacted on the 29
th
May 1999.
[14] For this proposition
he relied on the decision in
S
v DANSTER
2002 (2) SACR 178
CPD per Davis, J which was heard at the same time
with
S
v NQIDO
.
He urged us to follow that full bench decision and not the single
judge decision of this division in
S
v LESALA AND ANOTHER
2002 (2) SACR 8
(OPD) per Musi, J.
[15] As from the 29
th
May 1999 a person sentenced in the lower court but aggrieved by such
a decision was required to approach such lower court within
fourteen
days for leave to appeal against its decision (sec 309B). If leave
to appeal was granted then the accused was allowed to
proceed from
the lower court to the relevant high court. However, if leave to
appeal was refused an accused person concerned could
petition the
judge president of the high court having jurisdiction over the matter
for leave to appeal (section 309C).
[16] In
S
v DANSTER
and
S
v NQIDO
supra
at 181i – 182c Davis J said:
¡°
Had
the Constitutional Court not acted in terms of s 172(1)(b) of the
Republic of South Africa Constitution Act 108 of 1996 (the
Constitution)
and suspended the order of invalidity for a period of
six months, such a declaration of invalidity would have taken effect
immediately
from the date on which the impugned sections had been
introduced into the Act, that is from 28 May 1999.
In
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others
1996 (1) SA 984
(CC)
(1996 (1) BCLR 1)
the Court accepted the
principle of objective constitutional invalidity in terms of which a
law declared to be unconstitutional is
considered to be invalid from
the date of its enactment. See Ferreira (supra at paras [27] - [30]),
and National Coalition for Gay
and Lesbian Equality and Another v
Minister of Justice and Others
[1998] ZACC 15
;
1998 (2) SACR 556
(CC)
(1999 (1) SA 6
;
1998 (12) BCLR 1517)
at paras [84] - [96].
In recognition of the principle of
objective constitutional invalidity, 172(1) of the Constitution
empowers the Constitutional Court
to alter the effect of the
doctrine. Thus 172(1)(b) provides that the Court may make any order
that is just and equitable including
(i) an order limiting the
retrospective effect of the declaration of invalidity;”
[17] The principle of
objective constitutional invalidity as I understand it obtains that
the impugned provision immediately becomes
invalid upon the
pronouncement of the declaration of invalidity. The impugned
provision immediately ceases to have the force of
law. The
declaration invalidates the provision from the day it became
operative as law (Knoll J in
S
v BRANDT
as cited with approval by the full bench in
S
v DESAI
et
S
v NQIDO
supra
at 182 c – d read with 182 g – h).
[18] The two provisions
relating to the appeal procedure, namely section 309B and 309C became
law on the 29
th
May 1999 but were declared invalid on 29
th
November 2000 (
S
v STEYN
supra)
.
The appellants were sentenced on the 18
th
October 2000. According to the principle of objective constitutional
invalidity they had and had always had an unfettered right
to appeal
from the lower court to the high court in terms of the original
section 309(1) and section 309(2) before they were amended
on the
29
th
May 1999 (
S
v DANSTER
et
S
v NQIDO
supra
at 182 d – e).
[19] The second leg of
the court order in
S
v STEYN
supra
suspended the declaration which invalidated section 309B and section
309C for six months from the 29
th
November 2000. The practical effect of the suspension was that the
normal backward operation of the principle of constitutional
invalidity was reversed. The two impugned sections were in a sense
revived and their lifespan effectively extended by six more months.

During that period of suspension the impugned sections were
conditionally deemed to be valid. They were given the force of law
until the 28
th
May 2001 by the court in terms of section 172(1)(b) of the
constitution limiting the retrospective effect of the principle in
this
way meant that the sections which were no longer valid and
logically had never been valid were for practical considerations of
public
expediency and good governance deemed to be still valid and to
have always been valid. Of course this was an artificial device
designed
to expedite the administrative transition. The appellants
were therefore required to petition the judge president of this
division
in terms of section 309C seeing that they had already
applied unsuccessfully for leave to appeal (
S
v LESALA & ANOTHER
supra
).
But they did not. Compare
S
v NQIDO
supra.
[20] The suspension of
constitutional invalidity came to an end on the 28
th
May 2001. The condition of the suspension did not materialise. The
Minister of Justice and Constitutional Development did not have
the
Criminal Procedure Act No. 51/1977 amended by parliament. I suppose
he could have approached the Constitutional Court, if the
six month
suspension period was too short, for an extension of the period of
the suspension of the constitutional invalidity. The
practical
effect of the expiry of the suspension coupled with the executive
omission to take any remedial steps led to the final
demise of
section 309B and section 309C. The suspension did not destroy the
principle of constitutional invalidity. The result
of this was the
constitutional invalidity which was supposed to operate as from the
29
th
May 2001 after expiry of the six months suspension period, reverted
to its natural place and objective date of enactment of section
309B
and section 309C – in other words the 29
th
May 1999. In turn the retrospective invalidation of these two
sections revived section 309(1) and section 309(2) in their original
forms as they were on the 28
th
May 1999 (
S
v NQIDO
supra)
.
[21] In
S
v LESALA & ANOTHER
supra
at 12 i – j, Musi J correctly held:
¡°
I
conclude therefore that the declaration of invalidity in Steyn does
not have the effect of invalidating the pending application
for leave
to appeal and petition proceedings validly commenced under the
impugned provisions
during
the period of suspension of
invalidity.”
(my
emphasis)
While this passage is a
correct statement of law, the decision in
S
v DANSTER
et
S v
NQIDO
supra
went a step further beyond the period of suspention. In the latter
case unlike in the former the court also considered the practical
effects of the eventual expiry of the suspension of the 28
th
May 1999. The failure of the executive organ to take some remedial
measures timeously during the suspension period created the dilemma.
[22] Had the executive
taken appropriate steps between the date of declaration of
constitutional invalidity and the expiry date of
the suspension of
such constitutional invalidity the principle of constitutional
invalidity would not have shifted backwards but
would have remained
frozen on the 28
th
May 2001. The expiry of the suspension period would not have
triggered off the backward shifting of such principle again. The
pending applications for leave to appeal and the pending petitions
for special leave to appeal would then have remained on track
as
valid proceedings initiated before the expiry of the suspension in
terms of impugned sections and to be completed after the expiry
of
the suspension in terms of the same impugned sections. The accused
in those incomplete proceedings would not have had an automatic
right
of appeal from the lower courts to the high courts after expiry of
the suspension.
[23] In the instant case
the appeal process had not been completed as at the 29
th
May 2001. The application of the appellants in terms of section 309B
for leave to appeal which failed on the 18
th
October 2000 became a legal nullity on the 29
th
May 2001. This is so because it stemmed from a provision which was
subsequently declared invalid by the court decision on the 29
th
November 2000 and ultimately obliterated by the operation of the
principle of constitutional invalidity on the 28
th
May 2001. As on 29
th
May 2001 there was nothing in place to protect and to preserve the
pending processes initiated before or during the suspensions period
against the corrosive and retrospective operation of the principle of
objective constitutional invalidity.
[24] On the 3
rd
November 2000 and on the 7 March 2002 the second appellant and the
first appellant respectively intimated to the lower court that
they
were still aggrieved by the refusal of the trial court magistrate to
grant them leave to appeal. On the 21
st
November 2005 after considerable delays and comedy of errors by the
magistrate personnel the director of public prosecutions notified
the
appellants through their counsel, Advocate N. Skibi that their appeal
would be heard on Monday the 13
th
February 2006.
[25] For the reasons
advanced above I have come to the conclusion that the appellants were
not required to seek and obtain from the
judge president of this
division special leave to appeal by way of a petition in terms of
section 309C. I hold a firm view that
their appeal is properly
before us. As I see it their appeal falls to be determined in terms
of section 309 as it was before the
29
th
May 1999 when sections 309B and 309C were first introduced. The
appeal procedure as provided in the latter sections was erased by
the
operation of the aforesaid principle. In these circumstances I would
therefore dismiss the point
in
limine
.
[26] Accordingly I make
the following order:
The point raised
in
limine
by the respondent fails.
The appeal of each
appellant is properly before us.
______________
M.H. RAMPAI, J
I
concur.
__________________
M.A.
MATHEBULA AJ
On
behalf of the appellants: Adv. N. Skibi
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. A. Bester
Instructed
by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/em