Danster v S; Nqido v S (A519/01, A646/01) [2002] ZAWCHC 13 (8 March 2002)

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[2002] ZAWCHC 13
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Danster v S; Nqido v S (A519/01, A646/01) [2002] ZAWCHC 13; 2002 (4) SA 749 (C); 2002 (2) SACR 178 (C) (8 March 2002)

IN THE HIGH COURT
OF SOUTH AFRICA
(Cape of
Good Hope Provincial Division)
Case
nos: A519/01 and A646/01
In the
matters between:
Mei
Danster
Appellant
vs
The State

Respondent
and
Spashashe
Nqido
Appellant
vs
The State

Respondent
JUDGMENT: DELIVERED ON 8 MARCH 2002
DAVIS J:
Introduction.
On 2 May
2001 the appellant Danster (‘Danster’) was convicted on a charge
of rape and sentenced to a term of ten years’ imprisonment.
On
15 May 2001 he applied to the magistrate for leave to appeal against
his conviction but this was refused.
On 25 June
2001 he filed the following application:
‘(1) Ek het
reeds appèl aangeteken ingevolge art 309B & C;
Aangesien
art 309B & C onkonstitusioneel is en die appèlprosedure
verander het, dien ek nou weer ‘n Kennisgewing van Appèl
in’.
On 8 February
2002 the appeal was placed on the roll and for the first time the
question of an appeal against sentence was raised.
On 30 January
2002 Danster applied for condonation in respect of an amended ground
of appeal, that is appeal against sentence.
On 24
November 1998 the appellant, Nqido (‘Nqido’) and his co-accused
were arrested and charged with two counts of robbery in
the regional
court Cape Town. Nqido and his co-accused pleaded guilty. A plea
explanation in terms of section 112 of the Criminal
Procedure Act 51
of 1977 (‘the Act’) was accepted. On the same day Nqido was
convicted on the basis of his plea.
On 3 November
1999 he was sentenced to a term of fifteen years imprisonment in
terms of section 51(2)(a) of Act 105 of 1997, the court
having found
that no substantial and compelling circumstances existed to justify
the imposition of a lesser sentence.
On 22
November 1999 Nqido filed an application for condonation in respect
of appeal against sentence. The magistrate filed an undated
notice
saying that she had nothing further to add. On 8 February 2002 the
appeal was placed on the roll.
S v Steyn
Both these
appeals
concern the implication of the judgment handed down by
the Constitutional Court in
S v Steyn
2001(1) SA 1146(CC) in
terms of which sections 309B & 309C together with certain wording
of section 309(1) of the Act were declared
invalid. The order of the
Constitutional Court dated 29 November 2000 reads as follows:
‘1.
Sections 309B
and
309C
of the
Criminal Procedure Act 51 of 1977
are inconsistent with the Constitution and are declared invalid.
2. The
words ‘subject to s 309B’ in
s 309(1)
of the
Criminal Procedure
Act 51 of 1977
are inconsistent with the
Constitution and are declared invalid.
The
declarations of invalidity in paras 1 and 2 of this order are
suspended for a period of six months from the date of the order.
During
the period of such suspension, clerks of the court shall, when
submitting documents to a High Court in terms of
s 309C(3)
of the
Criminal Procedure Act 51 of 1977
, submit copies of the record of
proceedings in the magistrate’s court and the magistrate’s
reasons for the judgment appealed
against in every case in which –
the
applicant for leave to appeal has been –
sentenced,
without the option of a fine, to a prison sentence of which the
unsuspended portion is in excess of three months, or
given
an option of a fine but that fine has remained unpaid for a period
of two weeks from the date of sentence and the unsuspended
portion
of the alternative term of imprisonment is in excess of three
months; and
the
applicant for leave to appeal is prosecuting the application for
leave in person; and
there
is no automatic review in terms of
s 302
of the
Criminal Procedure
Act 51 of 1977
.
The
Minister of Justice and Constitutional Development may at any time
before the expiry of the period of suspension provided for
in para 3
above, apply to this Court for an order varying the terms stipulated
in para 4 or extending the period of suspension
provided for in para
3 or both.’
It is
common cause that upon the expiry of the six month period of
suspension, being 28 May 2001, the Ministry of Justice did not
initiate an amendment to the Act.
The
Implications of the Judgment.
Prior to the introduction of section 309B and
section 309C which were introduced into the Act in terms of Act 76 of
1997, section
309(1)(a) of the Act provided that an accused could
appeal to the High Court having jurisdiction against any conviction,
sentence
or order imposed by a lower court. In terms of section
309(2) the appeal was required to be prosecuted in terms of Rule 67
of the
Magistrate Courts Rules which provided that such an appeal
had to be noted within fifteen days. In terms of a proviso to
section
309(2), the High Court, having jurisdiction over the appeal,
could extend this period. In the event that the appeal was
prosecuted
outside of the prescribed time limit, a substantive
application for condonation had to be brought before the High Court
having such
jurisdiction.
In terms of
section 309B(1) and (2) (A) as from 29 May 1999, an accused was
required to apply to the trial court for leave to appeal
against that
court’s decision within fourteen days. Section 309C, provided
that in the event that the lower court refused leave
to appeal in
terms of s 309B, an accused could petition the Judge President of
the High Court having jurisdiction.
Had the
Constitutional Court not acted in terms of section 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
1996(1) SA 984(CC) 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 v
Minister of Justice
1999(1) SA (CC) at paras 84 – 96.
In
recognition of the principle of objective constitutional invalidity,
section 172(1) of the Constitution empowers the Constitutional
Court
to alter the effect of the doctrine. Thus section 172(1)(b) provides
that the court may make any order that is just and equitable
including
an
order limiting the retrospective effect of the declaration of
invalidity; and
an
order suspending the declaration of invalidity;
In the
context of the present dispute the effect of such an order has been
the subject of conflicting decisions in this division.
In
Brandt
and Others v S
(unreported case no. P44/2001)
Knoll J
(Selikowitz J concurring)
found that the suspension of the
invalidity had come to an end on 28 May 2001, that is at the end of
the six month period of suspension.
Thus sections 309B & 309C of
the Act were no longer valid (and had never been valid) and an
appellant had (and had always had)
a right to appeal in terms of the
provisions of the Act, read without the invalid provisions. In other
words section 309(1) and section
309(2) of the Act applied in their
original form. Thus appeals launched but not completed by 28 May
2001, stand to be governed by
ss 309(1) and (2) of the Act.
By contrast
in
Jaars & Others v S
(unreported judgment of the Cape
Provincial Division case No. A 710/01)
Thring J
(
Erasmus J
concurring) followed the approach of
Stafford DJP
in
Xhosa
v S
(unreported judgment of the Transvaal Provincial Division:
case No. A672/2001 L) and held that sections 309B and C of the Act
remained
in force until midnight on 28 May 2001, at which moment the
declaration of the Constitutional Court became effective. On this
basis,
appellants who were convicted and sentenced before 29 May
2001 were required to appeal in terms of ss 309B and C.
In my view,
the approach adopted by
Knoll J
in
Brandt, supra
is
correct. A suspension of invalidity does not destroy the doctrine of
objective invalidity. Were it to do so there would be no
point in
specifying a time limit for the suspension of an order which declared
a provision to be unconstitutional, as an order given
in terms of
section 172(1) of the Constitution to suspend the declaration of
invalidity would then render the doctrine of objective
invalidity
ineffective. Such an approach runs contrary to the purpose of section
172(1), which is to temper possibly harsh effects
of the doctrine of
objective invalidity by ensuring that, during a specified period as
contained in such order, Parliament would
be afforded the opportunity
to cure the constitutional defect. In the present case the Ministry
of Justice did not prepare any such
legislation for Parliament.
Accordingly the order of suspension lapses and the doctrine of
objective constitutional invalidity dictates
that the legislation is
rendered unconstitutional from the day from which such legislation
became operative.
This finding
has the following implications:
Completed
matters are not affected by the declaration of invalidity. In short,
the following matters can be considered to have been
completed:
an
application for leave to appeal which has been granted;
an
application for leave to appeal which has been refused but the
petition to the Judge President has either been successful or
was
refused before 29 May 2001.
an
application for leave to appeal has been refused and the time limit
for petitioning the Judge President had expired before
29 May 2001.
Where
an application for leave to appeal was launched and refused but a
timeous petition was not considered as at 29 May 2001, the
petition
lapses and the applicant now enjoys an automatic right of appeal.
In practice we rule that the application for leave
to appeal should
in general be considered as the notice of appeal.
Where
an application for leave to appeal was launched and refused and the
time limit for the petition expired after 29 May 2001,
the applicant
has an automatic right to appeal, irrespective of whether the
petition was actually brought. Again, the application
for leave can
be regarded as the notice of appeal.
Where
no application for leave to appeal had been launched before 29 May
2001, an applicant would need to apply for condonation
for bringing
an appeal out of time.
There is the
additional difficulty caused by the repeal of Rule 67(1) of the
Magistrates’ Courts Rules. Rule 67(1) had initially
provided that
an appeal had to be noted within 15 days. The new Rule which deals
with applications for leave to appeal and not
with notices of appeal
does not refer to any period; the applicable time limit for launching
an application for leave to appeal having
been prescribed by sec.
309B(1), namely, 14 days.
There is now
no period within which such appeal must be noted. Appeals of this
nature which are to be brought before the High Court
can, as far as
proceedings in the High Court are concerned, be properly regulated by
an appropriate Court Notice, the details and
publication of which
fall within the authority of the Judge President. This court has no
power to alter the Rules of the Magistrates
Court.
Application
to Appeals.
It is now
possible to return to the examination of the two appeals in question.
In the case of Danster, the suspension of invalidity
lapsed while he
still had time to petition the Judge President in terms of section
309C of the Act. Accordingly the appeal process
had not been
completed by the time the suspension of invalidity lapsed. Danster’s
appeal stands to be considered in terms of
section 309(1) and (2);
that is, the law as it applied before the introduction of the
impugned sections.
In my view,
the magistrate correctly found that the complainant had testified in
a satisfactory and candid fashion. Her evidence
was supported by that
of her thirteen year old child who also provided satisfactory
testimony. The magistrate correctly rejected
as false the denial of
the accused that he had no contact with the complainant. There is no
basis on which to interfere with the
conviction.
Turning to
the application for condonation in respect of the appeal against
sentence, the question arises as to whether there are
any prospects
of success in respect of such an appeal. Mr Caiger submitted that
the magistrate had not taken account of the personal
circumstances of
the accused. This is a manifestly incorrect submission, in that the
written reasons for sentence contain a fairly
detailed analysis of
the appellant’s personal circumstances. These circumstances
include a long list of previous convictions,
including a conviction
for assault on 30 May 1994 and a further conviction on 8 September
1994 for housebreaking. Given the record
of the accused together
with the serious nature of the crime of rape, there are no prospects
of a successful appeal. Accordingly
the application for condonation
should be dismissed.
Nqido
In the case of appellant Nqido, the appeal process
had not been completed as at 29 May 2001. On 22 November 1999 the
appellant filed
an application for condonation and leave to appeal
against the sentence. For an unexplained reason, nothing occurred
until 8 February
2002 when the appeal was placed on the roll. This
appeal also stands to be determined in terms of the provisions of
s309(1) read
without the words ‘subject to s 309B’.
As to the merits of the appeal, the court
sentenced the appellant on 2 November 1999. The record is
unfortunately rather incomplete.
It does not, for example, contain
the plea explanation of the appellant. It is thus not possible to
determine whether the appellant
carried any weapon or knew that one
of the other accused possessed such a weapon when they boarded the
train. For this reason it
is not possible to assess whether
appellant’s crime falls within the scope of s51(2)(a) of Act 105 of
1997 or if it does, to determine,
with sufficient exactitude, whether
there were substantial and compelling circumstances sufficient to
justify a reduction of the
prescribed sentence.
There is another difficulty: the appellant and his
co-accused was each sentenced to 15 years’ imprisonment. There
were, however,
two charges of robbery, and sentence should have been
imposed in respect of each charge. The sentence is incompetent and
should
be set aside
THE ORDER
For the
reasons given I would therefore make the following order:-
The
appeal of Danster against his conviction is dismissed.
The
application for condonation in respect of an appeal against sentence
by Danster is dismissed.
The
appeal against sentence by appellant Nqido succeeds and the sentence
is set aside The appeal is referred back to the magistrate
in
order to impose sentence afresh.
______________
DAVIS
J
I agree
and it is so ordered
_____________
NEL J
I agree
______________
CONRADIE J