About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
1995
>>
[1995] ZACC 4
|
|
S v Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867 ; 1995 (7) BCLR 793 (CC) (8 June 1995)
IN THE CONSTITUTIONAL COURT OF SOUTH
AFRICA
CASE NO CCT/25/94
In the matter between:
MHLUNGU AND FOUR OTHERS
Applicants
and
THE STATE
Respondents
HEARD ON : 23 February 1995
DELIVERED ON : 8 June 1995
JUDGMENT
[1]
MAHOMED J
: I have had the privilege of reading the judgment of
Kentridge AJ in this matter and the comments made thereon by some of my esteemed
colleagues. I respectfully agree that -
(a) section 102 of the Constitution of the Republic of South Africa, 1993
(“the Constitution”) did not entitle the Court
a quo
to refer
to this Court the issue of the proper interpretation of section 241(8) of the
Constitution;
(b) for the reasons given by Kentridge AJ the proper interpretation of
section 241(8) is relevant in the present proceedings and should
be determined
by this Court.
[2] I have, however, considerable difficulty with the proper interpretation
of section 241(8) which reads as follows:
"All proceedings which immediately before the commencement of this
Constitution were pending before any court of law, including any
tribunal or
reviewing authority established by or under law, exercising jurisdiction in
accordance with the law then in force, shall
be dealt with as if this
Constitution had not been passed: Provided that if an appeal in such
proceedings is noted or review proceedings
with regard thereto are instituted
after such commencement such proceedings shall be brought before the court
having jurisdiction
under this Constitution".
The attraction of the analysis of section 241(8) which Kentridge AJ has
made, is that it is consistent with the literal words of
the main part of the
sub-section which could, on that approach, simply be reduced to read as
follows:
"All proceedings which immediately before the commencement of this
Constitution were pending ............. shall be dealt with as
if this
Constitution had not been passed."
[3] This literal interpretation involves, however, a number of formidable
difficulties.
[4] In the
first
place it leads to some very unjust, perhaps even
absurd, consequences. Thus, merely because an accused person was served with an
indictment before 27 April 1994, (and even if no evidence whatever was lead
before that date) he could not contend that the provisions
of section
217(1)(b)(ii) of the Criminal Code were unconstitutional. In the result, the
Court could be compelled to convict him
(and in consequence thereof even to
imprison him for a substantial period) in circumstances where it has a
reasonable doubt whether
his confession was freely and voluntarily made and
therefore even if the Court has a reasonable doubt about his guilt. Another
accused
charged as his co-conspirator could be acquitted simply because the
indictment was served on him on 28
April 1994 in respect of an
offence arising from exactly the same incident and the same evidence.
[5] The right of each of these accused to a "fair trial" in terms of section
25(3) of the Constitution (including the right to counsel
in terms of section
25(3)(e)) could similarly be different because of the one day difference in the
date of the service of the indictment,
although both accused were equally
indigent and equally in need of counsel in order to avoid "substantial
injustice". The result
again may well be a conviction and resultant imprisonment
for one accused and the total acquittal of the other, based purely on arbitrary
circumstances, totally unjustified by any objective considerations.
[6] A Judge passing sentence on the accused charged with committing exactly
the same offence, on the same date and in exactly the
same circumstances, would
be entitled to sentence one accused to death, and may be disentitled to do so in
respect of the other accused
in the same trial, merely because when the
indictment was sought to be served on 26 April 1994, the one accused was at home
and the
other could not be located until the next morning. Exactly the same
irrational discrimination would be present if corporal punishment
was sought to
be imposed. Such a sentence would be competent in respect of the one accused and
might be incompetent in respect of
the other, on the sole ground that the one
indictment was served on the day before and the other on the day after the
commencement
of the Constitution.
[7] South African statutory law, prior to the enactment of the Constitution,
is replete with the most disgraceful and offensive legislation
which
discriminates against South Africans of colour and criminalizes arbitrarily and
purely on the grounds of race and colour, perfectly
innocuous acts of life and
living by such citizens. It is possible that a citizen charged with such an
offence before the commencement
of the Constitution could, on the literal
interpretation, be convicted and sentenced, even after 27 April 1994, for having
contravened
a law, which sought to punish him on racial grounds, if his case was
pending when the Constitution came into operation. This is
a plainly outrageous
consequence. It is suggested by Kentridge AJ that the legislature and the
executive can avoid such a consequence
by taking steps to repeal the law or to
cause the prosecution to be withdrawn. This is of scant comfort to the accused
person concerned,
who might have no means to compel such a decision or who might
be exposed to the risk of a conviction before the bureaucratic machinery
of the
State reacts to afford relief. He is entitled to say: "The Constitution
affords every person equal protection against unfair
racial discrimination. I
claim that right for myself and my family. You, the Court must protect me".
[8] What these and many other examples would suggest is that the approach
favoured by Kentridge AJ would remove the protection of
fundamental rights to
substantial groups of people in the country, simply because the proceedings in
which the protection of such
rights might be crucial for a person, had begun
prior to the commencement of the Constitution on 27 April 1994, although the
substance
of the proceedings takes place only after that date. I would be
extremely distressed to accept that this is what the Constitution
intended. It
seems to negate the very spirit and tenor of the Constitution and its widely
acclaimed and celebrated objectives.
Fundamental to that spirit and tenor was
the promise of the equal protection of the laws to all the people of this
country and a
ringing and decisive break with a past which perpetuated
inequality and irrational discrimination and arbitrary governmental and
executive action. The literal interpretation would invade all these objectives
in its arbitrary selection of one category of persons
who would become entitled
to enjoy the human rights guarantees of the Constitution and the arbitrary
exclusion of another group of
persons from such entitlement. The Courts must
strive to avoid such a result if the language and context of the relevant
provision,
interpreted with regard to the objectives of the Constitution,
permits such a course. What must be avoided, if this is a constitutionally
permissible course, is a result which permits human rights guaranteed by the
Constitution to be enjoyed by some people and denied
arbitrarily to others.
Such a consequence would effectively allow substantive parts of a disgraced and
unacceptable culture from
the past to continue into a future, protected by the
Constitution. In proceedings which might affect their lives and liberties,
large numbers of South African citizens would, on purely fortuitous grounds, be
unable to assert the expanding human rights guaranteed
by Chapter 3 of the
Constitution, including the fundamental right to a fair trial protected by
section 25(3). Such a result would
be inconsistent with the international
culture of constitutional jurisprudence which has developed to give to
constitutional interpretation
a purposive and generous focus. It seeks to avoid
what Lord Wilberforce called
"the austerity of tabulated legalism" (
Minister of Home Affairs (Bermuda)
v Fisher
1980 AC 319
at 328H).
This is because
"A Constitution is an organic instrument. Although it is enacted in the form
of a statute it is
sui generis
. It must broadly, liberally and
purposively be interpreted so as to avoid "the austerity of tabulated legalism"
and so as to enable
it to continue to play a creative and dynamic role in the
expression and the achievement of the ideals and aspirations of the nation,
in
the articulation of the values bonding its people and in disciplining its
Government." (
Government of the Republic of Namibia and Another v Cultura
2000 and Another
1994 (1) SA 407
at 418).
[9] An interpretation of section 241(8) which withholds the rights
guaranteed by Chapter 3 of the Constitution from those involved
in proceedings
which fortuitously commenced before the operation of the Constitution would not
give to that Chapter a construction
which is "most beneficial to the widest
possible amplitude” and should therefore be avoided if the language and
context of
the relevant sections reasonably permits such a course. (
S v Zuma
and Others
1995(4) BCLR 401 (SA) ;
James v Commonwealth of Australia
[1936] AC 578
at 614;
Minister of Defence, Namibia v Mwandingi
1992 (2)
SA 355
(NmS) at 361-3;
S v Acheson
1991 (2) SA 805
(Nm) at 813A-C;
S v Marwane
1982 (3) SA 717
(A) at 748-749G;
Ex parte Cabinet for the
Interim Government of South West Africa: In re Advisory Opinion in terms of s
19(2) of Proc R101 of 1985
(RSA) (supra
at 853C-G);
Hewlett v Minister
of Finance and Another
1982 (1) SA 490
(ZS);
Minister of Home Affairs
and Others v Dabengwa and Another
1982 (4) SA 301
(ZS) at 306E-H;
Minister of Home Affairs v Bickle and Others
1984 (2) SA 439
(ZS) at
447C-G;
Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd
1984 (2) SA 778(ZS)
; and
Bull v Minister of Home Affairs
1986 (3) SA 870
(ZH & ZS) at 872J-873C and at 880J-881C.)
[10] The
second
difficulty I have with the literal approach is that if
the death sentence or corporal punishment are held to be unconstitutional,
the
Court would be imposing sentences which could not lawfully be executed in terms
of section 7(2) of the Constitution. The lawmaker
should not lightly be imputed
with the intention to authorise the Court to impose sentences which could not
lawfully be executed.
Even if the Constitution had intended to vest in the
Court, irrationally, the authority to impose sentences which would not
constitutionally
be implemented, what happens to accused persons who have
received such sentences? No obvious and easy legal machinery is created
for the
substitution of a competent sentence after the implementation of the
constitutionally impermissible sentence has been restrained,
perhaps by a Court
order.
[11] There is
another
problem: if pending proceedings have literally
to be dealt with as if the whole of the Constitution had not been passed, by
virtue
of what law could the Court in such proceedings refer any question for
determination by the Constitutional Court? It could not rely
on section 102 to
do so because this is a provision of the Constitution and if it relied on it, it
would not be dealing with the
matter "as if this Constitution had not been
passed." It is true that if this Court makes a decision on the question so
referred
to it by the Supreme Court it would be exercising a jurisdiction given
to it in terms of the Constitution but that does not overcome
the difficulty
that its jurisdiction can only be exercised in the circumstances if there has
been a proper referral and if the Court
making the referral had no jurisdiction
to do so there could not have been a proper referral.
[12] On the interpretation favoured by Kentridge AJ the reference in section
241(8) to -
"any court of law, exercising jurisdiction in accordance with the law then in
force"
is quite incongruous and difficult to understand. If the intention of
the section was simply that all proceedings which were pending
before the
commencement of the Constitution before a Court of law or other tribunal should
be dealt with as if the whole of the Constitution
had not been passed, the
qualification that such a Court of law or tribunal had to be "exercising
jurisdiction in accordance with
the law then in force" would appear to be quite
unnecessary. If that phrase was absent, could it conceivably have been
contended
that the reference to "any court of law" or “tribunal”
included a reference to illegal tribunals such as informal kangaroo
courts? In
my view, "any court of law" or “tribunal” must mean one lawfully
exercising its jurisdiction. The qualification
that it must be a “court
of law” or “tribunal” "exercising jurisdiction in accordance
with the law then in
force" would therefore add nothing to the meaning of "any
court of law" or “tribunal” without any qualification.
[13] On the interpretation favoured by Kentridge AJ the relevant phrase
therefore serves no purpose. On the interpretation which I
favour and which I
will deal with later, it does serve an important purpose: it serves to
emphasise that the object of the section
is to preserve the authority of Courts
dealing with pending matters to continue to discharge their functions as such
Courts.
[14] In his analysis Kentridge AJ refers to various presumptions of
application in the interpretation of statutes and states that
"it is against this background that the purpose of section 241(8) can be
understood".
Included in the presumptions which he applies is the presumption that
"a statute is as far as possible to be construed as operating only on facts
which come into existence after its passing"
and the presumption that a new statute is
"not to effect matters which are the subject of pending legal
proceedings".
Kentridge AJ considers these presumptions to support the conclusion to which
he arrives in the proper construction of section 241(8).
I have no difficulty
with his views on the content of these presumptions but if the section simply
seeks to achieve what would in
any event be the result of these presumptions, it
would seem to me to be unnecessary. The presumptions do not have to be
statutorily
re-articulated in order to preserve their effect.
[15] None of these very serious difficulties can justify a refusal to give
effect to the words of the section if they were not reasonably
capable of an
alternative construction. Such an alternative construction would have to be
based not only on the literal meaning
of the words "as if this Constitution had
not been passed" in isolation but, in its proper context. The relevant context
would be
section 241(8) itself, section 241 as a whole and the larger context of
the Constitution regarded as a holistic and integrated document
with critical
and important objectives. The crucial question is whether, adopting this
approach, such an alternative construction
to section 241(8) is reasonably
available.
[16] In the decided cases in the Provincial and Local Divisions of the
Supreme Court at least three alternatives are suggested. The
first is the
approach adopted by Cloete J in
Shabalala and Others v The Attorney-General
of the Transvaal and Others
1994 (6) BCLR 85
(T);
1995 (1) SA 608
(T) and
followed in
Jurgens v The Editor, The Sunday Times Newspaper and Another
1995 (1) BCLR 97
(W). What it amounts to is that the reference to
“pending proceedings” in section 241(8) means simply the particular
proceedings within the case which were pending immediately before the
commencement of the Constitution. Thus, an application made
before the
commencement of the Constitution for legal representation at State expense, or
to admit a confession in terms of section
217 of the Criminal Code or even an
application to impose the death sentence or corporal punishment would have to be
dealt with as
if the Constitution had not been passed. Other applications made
after the commencement of the Constitution, would be dealt with
in terms of the
Constitution.
[17] Attractive as the consequences of this approach may otherwise be, I am
unable to support it. What section 241(8) applies to
is "all proceedings which
are pending". What the approach favoured by Cloete J effectively does is to
limit its application to interlocutory
procedures within such proceedings.
There seems scant justification for this either in the language of section
241(8) or its context.
Moreover it is inconsistent with the use of the word
"proceedings" in section 241(9) which provides that "any legal proceedings
instituted before or after the commencement of the Constitution" by or against
certain functionaries which ceased to exist after
such commencement, could be
continued by or against the relevant functionary which superseded the original
functionary. Clearly,
the ambit of "proceedings" in this regard cannot be
limited to interlocutory proceedings within the larger case. There is no
persuasive
reason why it should have such a limited meaning in section
241(8).
[18] The second approach is that favoured by the Cape Provincial Division in
S v W and Others
1994 (2) BCLR 135(C)
;
1994 (4) SA 126
(C).
Substantially what it amounts to is that there is a distinction between
fundamental rights of a procedural nature and those
of a substantive nature and
that the proper meaning of section 241(8) is that only fundamental rights of a
procedural nature sanctioned
by the Constitution would not be available to an
accused person in pending proceedings.
[19] A serious difficulty which I have with this approach is that there
is nothing in section 241(8) which seeks to distinguish between
rights of a
procedural nature from those of a substantive nature. Moreover, the distinction
made raises the complex problem of satisfactorily
classifying what right in
Chapter 3 can be said to constitute a procedural right as distinct from a
substantive right. (See
Yew Bon Tew v Kenderaan Bas Mara
[1982] 3 All ER
833
(PC) at 838f-g;
Industrial Council for the Furniture Manufacturing
Industry (Natal) v Minister of Manpower and another
1984 (2) SA 238(D)
at
242F;
Euromarine International of Mauren v The Ship Berg and Others
1984
(4) SA 647
(N) at 661I-662A.) Furthermore, this distinction assumes that a
right is either procedural or substantive. It could be a hybrid
right involving
both. What is the right set out in section 25(3) to "legal representation at
State expense if substantial injustice
would otherwise result"? Is it
procedural or substantive? If it involves both substantive and procedural
elements, what is the
dominant element? Is that the test to be applied in
classifying the right? If it is and the dominant element is procedural, how
does it help the argument that section 241(8) was never intended to take away
fundamental rights in pending proceedings? Is the
right to “legal
representation at State expense if substantial injustice would otherwise
result” any the less fundamental
for being procedural? I find it
difficult to accept that the law-maker intended to leave uncertain and
unresolved serious disputes
of this kind in the crucial area of fundamental
rights.
[20] A third alternative suggested by some of the cases in the Provincial and
Local Divisions of the Supreme Court is that the object
of section 241(8) is to
preserve the continuing territorial jurisdiction of the Courts in which the case
was pending immediately
before the commencement of the Constitution (
Qozoleni
v Minister of Law and Order and Another
1994 (1) BCLR 75
(E);
1994 (3) SA
625
(E);
S v Majavu
1994 (2) BCLR 56
(CKGD);
1994 (4) SA 268
(Ck);
Gardener v Whitaker
1994 (5) BCLR 19(E)
;
S v Shuma
1994 (2) SACR
486
(E)). In my view, the special emphasis on "territorial jurisdiction" is not
justified by section 241(8), but the emphasis on the
jurisdictional objectives
of the section provides a basis for an alternative approach to the meaning of
the section that can constitutionally
be defended.
[21] What the section seeks to preclude is an attack on the authority of any
Court of law or tribunal to continue dealing with proceedings
which were pending
before the commencement of the Constitution. What the section would then mean
is that:-
"All proceedings which immediately before the commencement of this
Constitution were pending before any Court of law, including any
tribunal or
reviewing authority, established by or under law, exercising jurisdiction in
accordance with the law then in force, shall
be dealt with as if the passing of
this Constitution had not impacted on that jurisdiction: provided that if an
appeal in such proceedings
is noted or review proceedings with regard thereto
are instituted after such proceedings, such proceedings shall be brought before
the Court having jurisdiction under this Constitution and the Court or tribunal
which might otherwise in terms of this section have
had authority to deal with
such appeal or review shall have no such authority."
(See, for example,
S v Smith and Another
1994 (1) BCLR 63
(SE);
1994
(3) SA 887
(SE);
S v Saib
1994 (2) BCLR 48
(D);
S v Sixaxeni
1994
(3) BCLR 75
(C);
1994 (3) SA 733
(C).)
[22] To appreciate why sections 241(8) had to be enacted to give effect to
this intention it is necessary to understand that what
the Constitution does is
to establish a new legal and political order involving a new Parliament, a new
Executive and a new Judiciary.
In terms of Chapter 7 of the Constitution, a new
Constitutional Court is established in section 98, a new Supreme Court is
established
in terms of section 101 and other new Courts are established in
terms of section 103. But, the mechanics of the contemplated establishment
of
the new Courts had to await the rationalisation process contemplated by section
242. That left a vacuum in the interim which
section 241 seeks to fill. It
does that in section 241(1) by providing that every Court of law which existed
immediately before
the commencement of the Constitution shall be deemed to have
been duly constituted by the Constitution or the laws in force after
such
commencement. The word "deemed" means that the Courts which existed before the
Constitution were in truth not Courts established
under the Constitution or any
law in force after its commencement but that they should fictitiously be assumed
to have been so constituted
(see
S v Voigt
1965 (2) SA (N) 749 at 752F-G;
Queen v Norfolk County Council
(1891) 60 L.J.Q.B. 379
;
Chotabhai v
Union Government (Minister of Justice) and Registrar of Asiatics
1911 AD 13
at 33).
[23] The effect of section 241(1) is that the pre-Constitution Courts are
legitimized as new post-Constitution Courts as if there
was a separate section
in the Constitution or in some law after the Constitution creating such Courts.
Section 241(1) therefore
would allow a pre-Constitution Court to exercise
jurisdiction in cases arising after the commencement of the Constitution but, it
might not be sufficient to authorize them to continue hearing cases which had
commenced before the Constitution came into operation.
It seems to me that it
is for that contingency that section 241(8) was enacted. I say this because
what section 241(1) “deems"
is that the pre-Constitution Courts are to be
taken to have been established in terms of the Constitution and this must
therefore
mean with effect from the date of the Constitution. It cannot mean
from some date prior to the Constitution because the Constitution
operates
prospectively in establishing new Courts and not retrospectively. The
Constitution does not contemplate that the new Legislature,
the new Executive or
the new Judiciary should be established at any date
before
the
commencement of the Constitution. Thus interpreted, a meaningful role is
determined for the phrase "exercising jurisdiction
in accordance with the law
then in force" in section 241(8). Its role is to make clear that in proceedings
which were pending before
the commencement of the Constitution, the authority
and jurisdiction conferred on the relevant Court or tribunal by "the law then
in
force", would continue unimpaired by the Constitution "as if this Constitution
had not been passed" and as if it had not impacted
upon that authority. This
interpretation gives to what is a substantial part of the section, a significant
purpose. The literal
interpretation, in my respectful view, does not. This
part could be omitted entirely without detracting in any way from the purpose
of
the section said to be protected on the literal approach.
[24] Kentridge AJ, in paragraph 69 of his judgment, agrees with my conclusion
that the reference to the relevant Court or tribunal
"exercising jurisdiction in
accordance with the law then in force" in section 241(8) was indeed intended to
preserve the authority
of a pre-Constitution Court to continue its function of
adjudication after the commencement of the Constitution in cases which were
pending before such commencement; but he suggests that section 241(8) has a
second purpose and that purpose is to ensure that such
pending cases should be
determined as if the Constitution had not been passed
at all
. I have
some difficulty with that suggestion. If Kentridge AJ is correct in concluding
that "another purpose" of section 241(8)
was to ensure that the whole of the
Constitution, including the protection of fundamental rights enshrined in
Chapter 3, would be
inapplicable in pending proceedings, both these suggested
purposes would have been achieved at the same time by providing that
"all proceedings which immediately before the commencement of this
Constitution were pending before any court of law ...shall be dealt
with as if
this Constitution had not been passed"
without including the phrase
"exercising jurisdiction in accordance with the law then in force"
to qualify the Court of law referred to. If pending proceedings were to be
dealt with as if the whole of the Constitution had not
been passed, the Courts
of law (or any other relevant tribunal) would in any event be "exercising
jurisdiction in accordance with
the law then in force" because the Constitution
which impacted upon that authority would have to be ignored and the authority
of
the pre-Constitution Courts to continue in pending matters would therefore
have remained "as if this Constitution had not been passed".
In my respectful
view, therefore, the language of section 241(8) is not, in the circumstances,
cogently supportive of the suggestion
that it had two purposes. The
proposition that its only purpose was to preserve the authority of
pre-Constitution Courts to continue
to function as Courts for the purposes of
adjudication in pending cases, appeals to me as a more persuasive interpretation
of the
section. At the very least it seems to me to be an interpretation of the
section which is reasonable and the fact that it is more
effective in securing
the equal protection of the Constitution for all persons makes it significantly
more attractive and defensible.
[25] Although, on this interpretation, a Court "exercising jurisdiction in
accordance with the law then in force" would have its
authority limited to the
territorial area in which it has jurisdiction in terms of that law, in my view,
the purpose of section 241(8)
is not simply to regulate the territorial
jurisdiction of the relevant Court before which proceedings are pending. That
issue is
sufficiently covered by section 241(1) and more particularly the
amendment thereto introduced by section 15 of Act 13 of 1994. This
amendment
introduces a proviso to section 241(1) which defines the areas of jurisdiction
of the Appellate Division, the Provincial
and the Local Divisions of the Supreme
Court of South Africa, any other Supreme Court or general division thereof and
any other Courts.
Section 241(8) was therefore not introduced specifically to
deal with the areas of jurisdiction of the Courts before which proceedings
were
pending at the commencement of the Constitution but to ensure that their
authority to deal with pending cases was not assailed
because of the fact that
the Constitution creates new Court structures with effect from the commencement
of the Constitution. Section
241(8) creates Constitutional legitimacy for a
pre-Constitution Court, to continue to operate as a Court after the commencement
of
the Constitution in respect of pending matters. Every Court needs such
Constitutional authority to function as a Court (see
Smith and Brazier:
Constitutional and Administrative Law
7th Ed (1994 Penguin p. 69);
Brown
v Leyds N.O
(1897) 4 OR 17
;
Madzimbamuto v Lardner Burke
1968 (2) SA
284
at 331-2 (AD);
Madzimbamuto v Lardner Burke
[1968] UKPC 2
;
(1969) 1 AC 645).
[26] This interpretation is also supported by the direction that pending
proceedings "shall be dealt with" as if the Constitution
had not been passed.
This is an unusually colloquial expression to be found in a formal statutory
instrument. If the intention
of the law-maker was to say that pending
proceedings should be adjudicated on the basis that the Constitution in all
respects should
be ignored, it could have used clearer language. Law-makers are
often concerned with the problem which arises when a new statutory
regime
replaces the old but there is a continuing residue of proceedings from the old.
This was the position when the
Criminal Procedure Act 51 of 1977
replaced the
previous Criminal Procedure Act of 1955. Section 344(3) of the 1977 Act sought
to protect the previous proceedings
which were still pending by directing that
if such proceedings had not been concluded at the commencement of the new Act
"they should
be continued and concluded" as if the previous Act had not been
repealed. Similar provisions appear in other statutes. This is
illustrated by
section 12(2)(e) of the Interpretation Act of 1957 which provides in clear
language that unless the contrary intention
appears the repeal of a law "should
not affect any investigation, legal proceeding, or remedy in respect of any such
right ... and
any such investigation, legal proceeding or remedy may be
instituted, continued and enforced ... as if the repealing law had not
been
passed". What this kind of phraseology emphasises is a desire by the
legislature to ensure that the provisions of the previous
regime will in the
relevant circumstances apply inexorably to the final end and determination of
the proceedings. "Deal with" is
a more protean, inherently more tentative idea.
The New Shorter Oxford English dictionary (Volume 1; page 601) discusses the
meaning
of the word "deal" when it is followed by the word "with" in the
following passage:
"
deal
... Foll. by
with:
be concerned with (a thing) in any
way; busy or occupy oneself with, esp. with a view to discussion or refutation.
Also, take (esp.
punitive or corrective) measures regarding, cope with, handle
(a difficult person, situation, etc.). ME.
11
v.i.
Foll. by
with
or
by:
behave towards, treat (a person etc.) (in a specified
way). Also
absol.,
act towards people generally (in a specified way),
conduct oneself. ME
12
v.i.
Take action, act, proceed (in a
matter).ME-M17.
13
v.i.
Set to work, practise (
up)on. arch.
rare.
L16".
The phrase therefore has different nuances but one of its well recognized
meanings is to "Take action, act, proceed (in a matter)
... Set to work,
practise". These are perfectly appropriate expressions to confer authority on a
Court or tribunal to
proceed with
or
take action
under the
authority vesting in it in terms of "the law then in force". The "Oxford
English Dictionary" to which Kentridge AJ refers
also includes in its discussion
of the phrase "to deal with" the meaning: "to grapple with" and it also refers
to "deal" as meaning
"to take action, act, proceed". These meanings are
consistent with my view of the purpose of the section. It is true that the idea
of "disposing" the matter is in some contexts also a permissible nuance in the
meaning of the phrase "deal with", but the very fact
that it ordinarily bears
the meaning of "setting to work" or "proceeding" demonstrates its inherently
fluid and uncertain content.
It is probably for this reason that it does not
ordinarily appear in statutes which seek to convey the idea that something
should
be "continued and concluded" as if the relevant law had not been passed.
If the intention of the Constitution was to say that pending
matters should be
"continued and concluded" as if the Constitution had not been passed it would
have been a simple matter to say
so in such a phrase of well-known usage in our
statute law instead of recourse being had to something so colloquial, flabby and
uncertain
as "deal with".
[27] I have examined the two cases mentioned by Kentridge AJ in which it is
said that the phrase "dealt with" is used synonymously
with "continued and
concluded" (
S v Thomas and Another
1978 (1) SA 329
(A) at 334;
Pinkey
v Race Classification Board
1968(4) SA 628 at 636 C-D). With respect, I do
not think they detract from what I have said. In
Pinkey's
case
(supra)
the Court was concerned with the effect of a statutory amendment
under the notorious race classification procedures of Act 30 of
1950 and
reliance had been placed on section 12 of the Interpretation Act of 1957 (which
provided that in the absence of a contrary
intention a repealing law shall not
affect any investigation, legal proceeding or remedy in respect of any right or
privilege and
"any such investigation, legal proceeding or remedy may be
instituted, continued or enforced ... as if the repealing law had not
been
passed"). The Court held that this protected Mr Pinkey from the statutory
change made by the subsequent statute. In the passage
referred to by Kentridge
AJ, Jansen JA stated that there was no contrary intention and that
"it follows that pending cases should be dealt with... as if the repealing
law had not been passed".
The Court was never called upon to apply its mind to the distinction between
"dealt with" and "continued and concluded". It was never
an issue in that case.
It could never be, because the relevant part of section 12(2) of the
Interpretation Act effectively included
both meanings. It allowed legal
proceedings to "be instituted, continued or enforced". The case of
S v
Thomas (supra)
similarly was not concerned with this distinction.
[28] Whatever be the exact phraseology used, however, the basic idea of
legitimizing the authority of the old to continue that authority
under a new
regime has a long and very well-established constitutional history. Thus,
section 116 of the South African Act, 1909,
provided that all appeals to the
King-in-Council which were pending at the establishment of the Union should
proceed as if that Act
had not been passed. The object was simply to legitimise
the authority of the Privy Council to continue to hear appeals which were
pending before it at the date of the commencement of the Constitution. This
same objective was sought to be achieved by section
1(2) of the Special Courts
for Blacks Abolition Act 34 of 1986 which provided that an action pending in the
Commissioner's Courts
or an Appeal Court for Commissioner's Courts on the date
identified should be dealt with as if the section had not been introduced.
The
purpose was to legitimize the authority of those Courts to deal with cases which
were pending before them. Substantially the
same formula is followed when
Parliament purports to create new States and Republics. Thus the Constitutions
of the Transkei, Bophuthatswana,
Ciskei and Venda all provide that proceedings
which were pending before the commencement of the relevant Constitutions in
certain
Courts (created by South African statutes in respect of its Black
citizens) should be continued and concluded as if that Constitution
had not been
passed. The object was again to legitimize the
authority
of such Courts
to deal with cases which were pending before them prior to the commencement of
the Constitution. (See section 54(c)(ii)
of the Republic of Transkei
Constitution Act 15 of 1976; section 91 of the Republic of Bophuthatswana
Constitution Act 18 of 1977;
section 52(1)(d) of the Republic of Venda
Constitution Act 9 of 1979 and section 76(1)(d) of the Republic of Ciskei
Constitution
Act 20 of 1981.)
[29] These kinds of statutory formulae were not confined to the TBVC States.
Apart from the provisions of the South African Act of
1909, they also appear in
section 116 of the Republic of South Africa Act 32 of 1961 which seeks to
sanction the authority of the
Courts to conclude pending proceedings which were
initiated before the Constitution in the name of the Queen who ceased to be the
Constitutional authority in South Africa in terms of the Constitution.
[30] It seems to me therefore that section 241(8) does no more than carry
on a well-established constitutional tradition that when
there is a change of
legal regimes, proceedings instituted but uncompleted in Courts under the
previous regime have to be protected
against a potential attack on the grounds
that they have no authority to dispose of such cases after the commencement of
the new
regime. It must be conceded, however, that in many of these statutes
the formula adopted for the purposes of allowing pending proceedings
to continue
after the change of the regime, created no comparable problems with regard to
whether or not such Courts could ignore
the provisions of the substantive law of
the new regime in disposing of their pending cases. This is because some of
these statutory
instruments contained no Bills of Rights and the other statutes
of the previous regime pertaining to substantive law were perpetuated
by
suitable provisions in the new statutes. This does not detract from the fact,
however, that the basic objective in sections analogous
to section 241(8) is to
confer authority on Courts to continue to hear cases pending before them prior
to the Constitution, notwithstanding
the fact that the Constitution itself
creates a new structure of Courts. This is the position in terms of statutes
which authorize
such Courts to “continue and conclude” pending
proceedings as if the Constitution had not been passed.
A fortiori
this
must be the position where the language is less tight such as in the expression
“dealt with” in section 241(8).
[31] It must also be remembered that although most of the Constitutions and
statutory instruments to which I have referred do not
create fundamental rights
and do not therefore involve the problem of deciding whether the relevant
sections also entitle the Courts
to ignore the substantive provisions of the
Constitutions guaranteeing such rights, some Constitutions do have such
fundamental rights
entrenched. The Constitution of Bophuthatswana does.
Significantly, however, the formula used is substantially the same and it
has
never been contended that in pending cases the Courts in that territory were
entitled to ignore the guarantees conferred by the
Chapter enacting fundamental
rights.
[32] My view of section 241(8) is also supported to some degree by the
proviso to section 241(8). A proviso qualifies the substantive
part (
Mphosi
v Central Board for Co-operative Insurance Ltd
1974 (4) SA 634
(A) at 645;
R v Dibdin
[1910] P 57
at 125). The ordinary consequence of the
substantive part of section 241(8) would have been that all appeals and reviews
in pending
proceedings would have had to be continued in the old Courts
established prior to the Constitution. The proviso reverses that consequence
by
directing that such appeals or reviews must (notwithstanding the substantive
provision) be instituted in the Courts which are
given jurisdiction in terms of
the Constitution and not the Courts which would have had jurisdiction under the
old law. On that
interpretation the proviso flows naturally and logically to
qualify the substantive provision in section 241(8), if the substantive
provision itself were to be limited in its purpose to a legitimization of the
old Courts and tribunals from the date when the proceedings
before such bodies
commenced. This is what attracted some of the local and provincial judges of the
Supreme Court when they said
that the literal interpretation of section 241(8)
did not involve a “rational connection” between the substantive part
of section 241(8) and the proviso (see, for example,
S v Sixaxeni
(supra)
, BCLR at 78D-E). I think there is merit in the suggestion that the
proviso in section 241(8) flows more easily and naturally if
the substantive
part is confined to the purpose of conferring authority on the Courts to
continue to function as such Courts and
tribunals in respect of matters pending
before them at the commencement of the Constitution. To that extent my
interpretation of
section 241(8) is supported by the proviso. But, it is not a
decisive consideration : there could be a logical if not particularly
natural
interpretation of the section which would break the substantive part of section
241(8) into two elements, the first dealing
with the jurisdiction or authority
of the Courts or tribunals to continue to function in pending cases and the
other dealing with
their right and capacity to ignore the Constitution in so
exercising their functions and the proviso could be interpreted so as to
limit
the first element and not the second. The argument based on the proviso is
therefore only one of many elements which must
be weighed in the proper
interpretation of section 241(8).
[33] The literal interpretation of section 241(8) involves a very radical
constitutional consequence because, as I have said, it would
deny to a
substantial group of people the equal protection of fundamental rights
guaranteed by Chapter 3. I would therefore expect
it to be articulated
conspicuously in Chapter 3 itself. But section 7, which deals with the
application of the Chapter on fundamental
rights, makes no such qualification.
It says in section 7(2), in rather peremptory and promissory terms, that this
Chapter shall
apply to
all
law in force and
all
administrative
decisions and acts performed during the period of the Constitution and it does
not contain any qualification or proviso
that the rights of persons in
proceedings pending at the commencement of the Constitution are not included in
the word “all”.
It does not make section 7(2) subject to section
241(8); nor does it say that section 7(2) shall apply save in cases which were
pending when the Constitution commenced. Instead, if the literal interpretation
is correct, that radical consequence is to be inferred
from an obscure
sub-section dealing with transitional arrangements for the
Judiciary
and
not even in section 229 which deals with the transitional provisions pertaining
the continuation of
Laws
. I feel no confidence in seeking to infer from
such a provision a meaning which would entail the radical consequences which
must
inevitably follow for so many people, if the literal approach is adopted. I
am also not persuaded that this would affect only a tiny
segment of the
community. The present Constitution has a limited life and a good deal of the
litigation in the Courts might indeed
be a residue of proceedings commenced
before the Constitution. Significantly, section 241(8) has become relevant for
this very reason
in the majority of the cases which the Constitutional Court has
so far heard. Kentridge AJ, in paragraph 83 of his judgment, suggests
that "the
tension between Chapter 3 and section 241(8) is likely to arise only in the
respect of the fair trial requirements of section
25(3)". I am respectfully
unable to agree. The Constitutional attacks on capital punishment, corporal
punishment, civil imprisonment
for debt and statutes founded on unfair racial
discrimination, for example, are legally vulnerable without any reliance on
section
25(3).
[34] My suggestion that the purpose of section 241(8) was indeed to provide
the authority for a Court in pending proceedings to continue
as a Court is also
supported by other sub-sections of section 241. Thus, the authority of the
Chief-Justice, the Judge President
and other judges to continue in office is
provided in section 241(2) and 241(3). The authority of the Attorney-General to
so continue
is provided in section 241(4). Their authority to continue to
receive remuneration, pension benefits, gratuities and similar privileges
is
sanctioned by section 241(5). Section 241(8) appears in that context. It is a
transitional arrangement to legitimize the authority
of important structures in
the judicial system in circumstances where that authority might otherwise have
been assailable. This
approach to the objectives of section 241 is consistent
with the objectives also apparent in the preceding transitional arrangements
pertaining to Legislative authorities in section 234, to Executive authorities
in section 235, to the Public administration in section
236 and to the Public
service commissions in terms of section 238.
[35] It must be readily conceded that the interpretation which I have
favoured in this judgment is not free from difficulties. One
difficulty with it
is section 241(10) which provides that the laws and other measures which
immediately before the commencement
of the Constitution regulated the
jurisdiction of the Courts of law, Court procedures and all other matters
pertaining to the establishment
and functioning of Courts of law, shall continue
in force subject to any amendment or repeal thereof by a competent authority.
It could be argued that the terms of this sub-section are wide enough to
preserve the authority of the old Courts in pending proceedings
to deal with and
dispose of such matters before them and that section 241(8) was therefore not
needed to confer such authority, as
I have suggested. That argument does have
merit but I think that the answer to it lies in the distinction between the
authority
of such Courts to continue as Courts at all in order to dispose of
pending matters after the commencement of the Constitution and
their authority
to continue in particular areas and over particular persons and in terms of
particular procedures (
if
they have authority to continue to function as
Courts). The former authority is not sanctioned by 241(10). The latter is. It
is
the former authority which is provided by section 241(8). Without it, it
could have been argued that the old Courts had no authority
to function in
pending cases although section 241(10) would have defined how and what they
could do
if
they had such authority.
[36] I am also alive to another difficulty in my interpretation of
section 241(8). Although it gives to the phrase “exercising
jurisdiction
in accordance with the law then in force” a meaning and a role which is
absent from the literal approach to the
section which I have described, it is
not necessarily inconsistent with the inference that when the section directs
that pending
proceedings “shall be dealt with as if this Constitution had
not been passed” it means that the whole of the Constitution,
including
the Chapter on fundamental rights, should therefore be ignored in such
circumstances. That observation is not without
weight, but it is necessary to
bear in mind that the relevant phrase is also not inconsistent with the
inference that the direction
is simply a direction to proceed with pending cases
as if the Constitution had not impacted on the authority of a pre-Constitution
Court to continue to function as a Court. Indeed, the phrase “exercising
jurisdiction in accordance with the law then in force”
makes this
inference more probable. What the phrase emphasizes is that the relevant Court
must exercise jurisdiction in accordance
with the law then in force, not that it
must, in the exercise of that jurisdiction, ignore the substantive law of the
Constitution.
This reference to the exercise of jurisdiction immediately
precedes the direction that it should deal with the proceedings as if
the
Constitution had not been passed. It therefore derives some flavour, colour,
substance and purpose from its neighbour. Such
an approach would also be
consistent with other well-known canons of construction such as the presumption
that the law giver must
not be imputed with the intention to enact irrational,
arbitrary or unjust consequences. (
Hleka v Johannesburg City Council
1949 (1) SA 842
(A) at 852;
Venter v R
1907 TS 910
at 914-915 and 921;
Lister v Incorporated Law Society Natal
1969 (1) SA 431
(N) at 434;
R v Sachs
1953 (1) SA 392
(A) at 399).
[37] I have considered whether there is perhaps another rule of
interpretation which might in the circumstances of this case justify
a result
different from the one which I have favoured. The rule I have in mind is the
presumption that, unless the contrary intention
appears, a statute does not
operate retrospectively to impact upon pending proceedings. (
Bell v
Voorsitter van die Rasklassifikasieraad en Andere
1968 (2) SA 678
(A) at
683;
Thom v Moulder
1974 (4) SA 894(A)
;
Bellairs v Hodnett and
Another
1978 (1) SA 1109
(A) at 1148.)
[38] On this approach it could be contended that since the Constitution was
not in operation when the proceedings became pending within
the meaning of
section 241(8), an interpretation which compels a Court to apply the Chapter on
Fundamental Rights to such proceedings
constitutes a breach of this presumption.
In my view, this is not a sound argument. In the first place the presumption is
not inflexible.
It operates only if there is no contrary intention. In a very
important sense a document as fundamental as a Constitution can itself
be the
basis for the inference of such a contrary intention. This is particularly true
of the Chapter on Fundamental Rights. The
presumption to which I have referred
is intended as a protection against an
invasion
of rights which might
have occurred in litigation; it is not intended to exclude the
benefits
of rights sanctioned by new legislation. Chapter 3 of the Constitution seeks
not to invade but to expand rights. The relevant presumption
can have scant
application in such circumstances (
R v Sillas
1959 (4) SA 305
(A) at 311;
S v Williams
1979 (3) SA 1270
(C);
Van Lear v Van Lear
1979 (3) SA
1162
(W) at 1167G-H;
Dys v Dys
1979 (3) SA 1170
(O)).
[39] I have also applied my mind to the criticism that the interpretation of
section 241(8) favoured by me might be open to the pragmatic
objection that it
could cause some measure of "dislocation" in the running of trials which were
pending on the date of the commencement
of the Constitution. This objection
undoubtedly has some merit, but the weight which must be attached to this
consideration must,
with respect, be balanced having regard to the degree of
"dislocation" involved, the capacity and the skill of the Court fairly and
sensibly to manage its effects and the grave consequences of any alternative
approach denying to an important and not insubstantial
sector of the citizenry,
the equal protection of fundamental rights guaranteed to all. Thus approached,
I am not convinced that
the "dislocation" factor is sufficiently compelling to
favour the literal approach to the interpretation of section 241(8). My
interpretation
of the section does not involve any re-opening of trials which
were completed before the commencement of the Constitution. Such
trials can be
eliminated as potential targets of "dislocation". Moreover, even in respect of
trials which had commenced but had
not been concluded before the date of the
commencement of the Constitution, no Constitutional challenge based on section
25(3) would
be competent in respect of any decision already made during the
trial but before the commencement of the Constitution. If, for
example, an
accused person had at the commencement of the trial and before the Constitution
came into operation, applied for and
been refused legal representation at State
expense, a challenge to that decision could not competently be proffered after
the Constitution
came into operation notwithstanding section 25(3)(e). What
could be asserted would be the right of the accused to be so represented
from a
date after the commencement of the Constitution. If the application is granted
and the legal practitioner seeks to recall
witnesses for cross-examination it
will not be on the grounds that the original decision to deny such
representation should be reviewed,
but simply another example of the experience
known to all practising lawyers when an attorney is engaged on the third day of
the
trial and then applies to recall witnesses. He does not assert a right, but
simply the invocation of a discretion in the interests
of justice. It is often
allowed by the presiding officer. It causes no "disruption". Indeed, it is
often welcomed because it assists
the Court.
[40] Other potential "disruptions" of this sort can sensibly be managed in
this kind of way by a balanced and mature judicial officer.
The danger of such
disruptions is limited and containable. In my view, it is not of a magnitude
sufficient to justify the plainly
untenable denial of fundamental human rights
to accused persons who were fortuitously charged just before the commencement of
the
Constitution but whose trials had not yet been concluded on that date.
[41] On my interpretation of section 241(8) appeals would not create any
"dislocation" either. Appeals arising from proceedings which
were commenced and
concluded after the Constitution came into operation should, in principle, be
determined in the ordinary course
on the basis that Chapter 3 of the
Constitution was clearly of application and if the protection of that Chapter
had wrongly been
denied to the Appellant, the Court on appeal would take that
into account in making its order. In respect of appeals arising from
proceedings
which had commenced before the Constitution came into operation but were only
concluded thereafter, there should again
be no "dislocation". If the
particular fundamental right relied on by the Appellant was of operation at the
relevant time of the
trial, the Appellant was entitled to rely on it and if it
had been wrongly denied to him he would be entitled to suitable relief
on
appeal.(
Regina v Antoine
4 CRR 126).
If it did not exist at the relevant
time, the Appellant would have no legitimate cause for complaint. The remaining
category concerns
appeals arising from trials which had commenced and were
completed before the Constitution came into operation. In my view such
appeals
must be disposed without applying Chapter 3 of the Constitution, because an
appeal inherently contains the complaint that
the Court
a quo
had erred
in terms of the law which was then of application to it and not in terms of a
law which subsequently came into operation.
There should therefore also be no
"dislocation" arising from this category of appeals. There is nothing in the
wording of section
241(8) which, on my interpretation, would entitle an
Appellant on appeal to rely on Chapter 3 if the proceedings against him had
been
concluded before the commencement of the Constitution. Such an Appellant would
have to confine himself to the substantive law
which applied during his trial.
The case of
S v Thomas (supra)
is not inconsistent with that conclusion.
That case was concerned with section 344(3) of Act 51 of 1977 which provided as
follows:
"Notwithstanding the repeal of any law under sub-section (1) [the Criminal
Procedure Act of 1955 was such a law] criminal proceedings
which have under such law at the date of the commencement of this Act been
commenced in any ... court ... and in which evidence has
at such date been led
in respect of the relevant charge, shall, if such proceedings have at that date
not been concluded, be continued
and concluded under such law as if it had not
been repealed".
It was held that the Appellant in that case was not entitled on appeal to
rely on the provisions of Act 51 of 1977 which provided
special machinery to
persons suffering from psychopathic disorder. It therefore confirmed the
approach that the law to be applied
on appeal was the law which was of
application at the time of the trial and not the law as it was amended at the
time of the appeal.
[42] In the result there are no "dislocations" arising from appeals or any
other considerations which would justify the plainly unequal
consequences of the
literal approach.
[43] I have also had regard to the fact that even on my interpretation of
section 241(8) not every anomaly is eliminated. Kentridge
AJ suggests some such
anomalies in paragraph 83 of his judgment. Included in that analysis is the
suggestion that the results of
appeals might depend on when they had been noted
or when they had been set down. For the reasons I have referred to, these are
not
anomalies resulting from my interpretation.
[44] What is nevertheless true is that there may be some residual anomalies
arising from the mere fact that some accused might fortuitously
have been
charged, convicted and sentenced just before the commencement of the
Constitution without the benefit of one or other fundamental
right identified in
Chapter 3 whilst other accused are fortuitously charged just after the
commencement of the Constitution and therefore
have the advantage of asserting
such rights. But that kind of anomaly is inherent in any situation where one
legal regime based
on human rights values replaces, on a particular date,
another legal regime which had denied such rights: it does not justify
extending
the anomaly to accused persons who were merely charged with offences
before the commencement of the Constitution, but who seek to
assert their
fundamental rights during their trials at a time when the Constitution is of
operation.
[45] I confess to considerable difficulties in all the theories which
have become manifest in the interpretation of section 241(8).
None of them are
without problems. Its controversial nature manifests itself in the diversity of
opinion which has agonized judicial
deliberations on the meaning of the section
almost from the very inception of the Constitution. In my view, the
difficulties involved
in the approach adopted by Cloete J in
Shabalala’s case (supra),
by the Cape Provincial Division of in
S v W and Others (supra)
and by the Eastern Cape Provincial Division of
the Supreme Court in the case of
Qozoleni (supra)
and other cases
following thereupon, are more formidable than the difficulties involved in the
interpretation based on the literal
approach and the interpretation which I have
favoured in this judgment. I have sought to deal with some of the difficulties
arising
from my interpretation and contrasted them with some of the difficulties
inherent in the literal approach. I am of the view, however,
that on a balance,
my interpretation is to be preferred because it gives force and effect to the
fundamental objectives and aspirations
of the Constitution, because it is less
arbitrary in its consequences and because it is more naturally in harmony with
the context
of section 241(8) itself and the Constitution as a whole.
[46] The literal interpretation, in my respectful view, has none of these
advantages and it is not compelled by the text of the section,
read in its
context and with regard to the objects of the Constitution. It is clear from the
express objectives of the Constitution,
that it seeks to articulate and to
guarantee the fundamental right to a fair trial to all persons; the literal
interpretation would
deny such right to many. The Constitution seeks to secure
for indigent persons the right to legal representation at State expense
if
substantial injustice would otherwise result; the literal approach would reserve
this for an arbitrarily delineated class. The
Constitution secures the right to
life and human dignity and guarantees protection from inhuman or degrading
treatment or punishment
to all persons; the literal approach would deny reliance
on this promise by those sought to be punished after the Constitution simply
because the proceedings against them commenced before the Constitution. The
Constitution expressly entrenches the presumption of
innocence allowing an
accused person the right to protection from laws which effectively reverse this
presumption; the literal approach
denies such protection to potentially large
classes of persons, including the very accused in this case. The contrast, in
every
area of legitimate concern for the ends of justice, is stark and
distressing. I am not persuaded that a proper reading of the Constitution
compels me to accept these distressingly anomalous consequences of the literal
approach.
[47] The result of this view is that the Applicants in the case before Page J
were entitled to invoke the protection of the Constitution
in the attack on
section 217(1)(b)(ii)
of the
Criminal Procedure Act of 1977
which this Court has
held to be invalid in its judgment (in the
Zuma
case (
supra
)) on 5
April 1995. Notwithstanding the fact that the trial of the accused in the
present matter was pending on the date of the commencement
of the Constitution,
they are entitled to contend that the onus was on the State to prove that their
confessions were freely and
voluntarily made and without any undue influence.
In my view, they are therefore still entitled to contend before Page J that in
his determination of their guilt or otherwise, he should proceed on the basis
that section 217(1)(b)(ii) is inconsistent with the
Constitution and therefore
invalid. The Applicants are therefore entitled to a declaration to that effect.
I think also that it
would be proper to make a declaration in terms of section
98(6) of the Constitution invalidating the application of section 217(1)(b)(ii)
of Act 51 of 1977 in any criminal proceedings in which the final verdict of the
relevant Court was or may be given after 27 of April
1994.
[48] These conclusions also make it necessary to deal with an issue which was
deferred by Kentridge AJ in the
Zuma
case
(supra)
in the following
passage (in paragraph 44):
"Whether an order under section 98(6) may and should encompass proceedings which
were pending before 27 April 1994, depends on the
proper interpretation of the
Constitution. As indicated at the beginning of the judgment that issue is
deferred for determination
in the Mhlungu case".
It
follows from what I have said that the question deferred in
Zuma's
case
(supra),
in the passage I have quoted, should be answered by saying that
an order in terms of section 98(6) may encompass proceedings which
were pending
immediately before 27 April 1994. Because of the issues left undecided in the
Zuma
case
(supra),
the order in that case invalidated the
application of section 217(1)(b)(ii) of Act 51 of 1977 only in respect of
criminal trials which
commenced on or after 27 April 1994 and in which the
verdict had not, at the date of the order, been given. It did not, however,
preclude an extension of these limits in the present case. In my view, the
declaration should also invalidate any application of
section 217(1)(b)(ii) of
Act 51 of 1977 in proceedings which were pending immediately before the
commencement of the Constitution.
It would also be arbitrary and irrational to
deny to an accused person the right to rely on such invalidity merely because
the declaration
of invalidity by the Court took place on a date subsequent to
the date when his pending trial was fortuitously completed. All accused
persons
whose trials either began after the Constitution or which were pending
immediately before the Constitution commenced, are
entitled to be treated
equally. I therefore make the following order:
1. It is declared that section 241(8) does not preclude an accused person in a
criminal trial from relying on any of the applicable
provisions of Chapter 3 of
the Constitution in proceedings which were pending before a Court of law
immediately before the commencement
of the
Constitution.
2. In terms of sub-section (6) of section 98 of the Constitution it is ordered
that the declaration of invalidity made by this Court
in the case of
S v Zuma
and Others
, 1995(4) BCLR 401 (SA) invalidates any application of
section
217(1)(b)(ii)
of the
Criminal Procedure Act, 1977
in any criminal trial,
irrespective of whether it commenced before, on or after 27 April 1994, and in
which the final verdict was
or may be given after 27 April
1994.
Langa J, Madala J, Mokgoro J and O'Regan J concur in the judgment of Mahomed
J.
[49]
KENTRIDGE AJ
: This case came before this Court by way of a
referral by Page J in the course of a criminal trial in the Natal Provincial
Division.
It was heard in this Court at the same time as the case of
S v
Zuma and Others
1995(4) BCLR 401(SA), in which judgment was given on
5
th
April 1995. Both referrals raised the question whether
section
217(1)(b)(ii)
of the
Criminal Procedure Act, 1977
, is inconsistent with the
provisions of the Constitution of the Republic of South Africa, 1993. The
referral by Page J also raised
the question of the proper construction of
section 241(8) of the Constitution, an issue which did not arise in the
Zuma
case. In the latter case we declared
section 217(1)(b)(ii)
of the
Criminal Procedure Act to
be invalid, but deferred the question relating to
section 241(8)
for consideration in this case. This question still requires
resolution, as the applicability of our declaration to the present
case may
depend on the interpretation of
section 241(8).
In order to explain why this is
so it is necessary to recount what took place at the trial before Page
J.
[50] The accused were charged with murder and other crimes alleged to have
been committed in April 1993. An indictment in Afrikaans
was served on all five
accused at Newcastle on 11
th
March 1994. Possibly because they did
not understand Afrikaans they requested a copy in English. An indictment in
English was
served on them, but only on 4
th
May 1994. The accused
appeared before the Circuit Court for remand on 11
th
May and on
18
th
May, 1994 and pleaded not guilty to the charges before Page J,
sitting with assessors. At an early stage of the trial, the prosecution
tendered evidence of confessions made by four of the accused, in each case
before a magistrate. In respect of three of them it relied
on the presumptions
created by proviso (b) to
section 217(1).
Defence counsel at once informed the
court that he would contend that sub-paragraph (ii) of proviso (b) was in
conflict with the
provisions of section 25 of the Constitution and therefore no
longer of any force or effect, and would if necessary ask for the referral
of
the issue to the Constitutional Court. As Page J said in his judgment, given on
28
th
October 1994, a question which arose at the outset of the
enquiry was whether, in view of section 241(8) of the Constitution, provisions
such as section 25 had any application to the case before him. Section 241(8)
reads as follows -
"(8) All proceedings which immediately before the commencement of this
Constitution were pending before any court of law, including
any tribunal or
reviewing authority established by or under law, exercising jurisdiction in
accordance with the law then in force,
shall be dealt with as if this
Constitution had not been passed : Provided that if an appeal in such
proceedings is noted or review
proceedings with regard thereto are instituted
after such commencement such proceedings shall be brought before the court
having
jurisdiction under this Constitution."
The
question raised by Page J was whether, in the first place, the proceedings
before him could be said to have been "pending" immediately
before the
commencement of the Constitution, i.e. 27
th
April 1994; and, if so,
whether on its proper construction section 241(8) rendered the Constitution
inapplicable to those proceedings.
Page J made no finding on either of these
questions.
[51] With regard to the first issue, further findings of fact may have been
necessary. The term "pending" in relation to proceedings
may have different
connotations according to its context. See
Noah v Union National South
British Insurance Co Ltd
1979(1) SA 330(T), 332 per Eloff J ;
Arab
Monetary Fund and others v Hashim, NO (No 4)
[1992] 1 WLR 553.
As Hoffmann
J said in the latter case at 558, in the normal meaning of the term proceedings
"are pending if they have begun but
not yet finished." It is clear enough that
a "pending" proceeding is one not yet decided. See
King v King
1971(2)
SA 630(O), 634;
Groenewald v Minister van Justisie
1972(4) SA 223(O),
225. What is not so clear is when a legal proceeding may be said to have
begun.
[52]
Section 144(4)
of the
Criminal Procedure Act 1977
, requires an
indictment to be served on an accused at least ten days before the date
appointed for trial, and
section 76
states that the proceedings at a summary
trial in a superior court shall be commenced by the serving of an indictment on
the accused
and the lodging thereof with the registrar of the court concerned.
There is nothing in the judgment of Page J to indicate whether
the Afrikaans
indictment was withdrawn or was lodged with the registrar and, in the latter
event, on what date it was lodged. These
matters and, in general, the date of
commencement of the proceedings, were and are questions for the trial court to
decide. All
that one can say at this stage is that unless a duly served
indictment was lodged with the registrar before the 27
th
April, there
would appear to be no basis on which it could be contended that on 27
th
April, 1994, the proceedings were "pending" in terms of
section
241(8).
[1]
But it does not follow
that, in the context of
section 241(8)
, proceedings are pending as soon as the
indictment is lodged. It may be that for the purposes of that section criminal
proceedings
are pending only on plea, or when the evidence has begun. (Compare
section 344
(3) of the
Criminal Procedure Act, 1977
.) That is a question we do
not now decide.
[53] At all events, at the trial before Page J the State
prima facie
established that in relation to at least two of the confessions tendered, the
requirements of
section 217(1)
(b)(ii) had been satisfied. But before any
further evidence was led, and after hearing argument, the learned judge decided
to refer
the constitutional issues to this Court. His reasoning, in essence,
was that fairness to the accused required that they knew with
certainty where
the onus lay before they decided whether to give evidence in the
voir
dire
. The parties in this case having made no agreement under section
101(6) of the Constitution, the learned judge considered that
the issue might be
decisive and held that it was in the interests of justice to refer the issue
immediately to the Constitutional
Court. He accordingly did so, and suspended
the proceedings before him in terms of section 102(2) of the
Constitution.
[54] In this case were it not for the issue under section 241(8), there would
be no reason to doubt the competence of the referral
of the issue of the
validity of section 217(1)(b)(ii). That issue entails an inquiry into the
constitutionality of a provision in
an Act of Parliament. In terms of
sub-sections (2) and (3) of section 98 of the Constitution, read with section
101(3) that enquiry
is within the exclusive jurisdiction of the Constitutional
Court. The course taken by Page J accords with the provisions of sub-sections
(1) and (2) of section 102 of the Constitution which read as follows-
(1) If, in any matter before a provincial or local division of the Supreme
Court, there is an issue which may be decisive for the
case, and which falls
within the exclusive jurisdiction of the Constitutional Court in terms of
section 98(2) and (3), the provincial
or local division concerned shall, if it
considers it to be in the interest of justice to do so, refer such matter to the
Constitutional
Court for its decision: Provided that, if it is necessary for
evidence to be heard for the purposes of deciding such issue, the provincial
or
local division concerned shall hear such evidence and make a finding thereon,
before referring the matter to the Constitutional
Court.
(2) If, in any matter before a local or provincial division, there is any issue
other than an issue referred to the Constitutional
Court in terms of subsection
(1), the provincial or local division shall, if it refers the relevant issue to
the Constitutional Court,
suspend the proceedings before it, pending the
decision of the Constitutional Court.
Page J found
that the issue was one which might be decisive of the case and that, for the
reasons which he gave, the referral to this
Court was in the interests of
justice. As to the proviso to section 102(1), there was no factual finding
which was necessary for
the determination of the validity of section
217(1)(b)(ii). As there were other issues remaining to be dealt with by the
trial
court the judge suspended the proceedings as required by sub-section
(2).
[55] What is open to doubt is the basis on which the issue arising under
section 241(8) was referred to this Court. This Court has
jurisdiction under
section 98(2) "over all matters relating to the interpretation... of the
provisions of this Constitution". But
that, it seems to me, cannot be an
exclusive jurisdiction. Although section 101(3) does not in terms give the
Provincial and Local
Divisions of the Supreme Court jurisdiction over matters
relating to the interpretation of the Constitution, such jurisdiction must
be
implied. Otherwise they could not exercise their undoubted jurisdiction under
paragraph (a) of section 101(3) to determine whether
there has been a violation
of a fundamental right entrenched in Chapter 3. It follows that Page J had
jurisdiction to interpret
section 241(8) of the Constitution and to determine
its effect on the case before him. He ought therefore to have made the
necessary
findings of fact to enable him to decide whether or not the case was a
"pending" one in terms of section 241(8). I may add that
there have been
numerous (and conflicting) decisions in Provincial and Local Divisions of the
Supreme Court on the interpretation
of section 241(8).
[56] What then of the competence of the learned judge's referral of that
issue? I cannot read section 102 as entitling the judge
to refer to this Court
a constitutional issue which is within his own jurisdiction. In my opinion
sub-section (2) of section 102
deals only with procedure on references under
sub-section (1). Under sub-section (2) the words "any issue other than an issue
referred
to the Constitutional Court in terms of subsection (1)" include other
constitutional issues as well as non-constitutional issues.
But no power to
refer those other constitutional issues is conferred on the judge. In contrast
to sub-section (1), sub-section
(2) contains no words granting such power. Nor
does it require any finding of fact relevant to those other constitutional
issues
- a requirement which one would expect if the power to refer such issues
were intended. A similar point arises in sub-section (3),
which reads as
follows -
"(3) If, in any matter before a provincial or local division, there are both
constitutional and other issues, the provincial or local
division concerned
shall, if it does not refer an issue to the Constitutional Court, hear the
matter, make findings of fact which
may be relevant to a constitutional issue
within the exclusive jurisdiction of the Constitutional Court, and give a
decision on such
issues as are within its
jurisdiction."
That sub-section is not well drafted,
but it too requires findings of fact only in relation to issues within the
exclusive jurisdiction
of the Constitutional Court, and it contains no words
which authorise any other reference. In spite of the lack of clarity in the
sub-section the only reasonable construction, it seems to me, is that the words
"if it does not refer an issue to the Constitutional
Court" must be read as
referring only to references under sub-section (1). Similarly, in sub-section
(2) the words "the relevant
issue" mean the issue referred under sub-section
(1).
[57] The only other provision authorising a reference by a Provincial or
Local Division is sub-section (8) of section 102, which provides
-
"(8) If any division of the Supreme Court disposes of a matter in which a
constitutional issue has been raised and such court is
of the opinion that the
constitutional issue is of such public importance that a ruling should be given
thereon, it may, notwithstanding
the fact that the matter has been disposed of,
refer such issue to the Constitutional Court for a
decision."
It may at some time have to be decided at
what stage it can be said that a court has disposed of a matter under that
sub-section.
In this case the sub-section plainly has no application.
[58] The referral of the issue of the proper interpretation of section 241
(8) was therefore not competent.
[59] It is convenient at this point to say something about the practice of
referrals to this Court under section 102(1) of the Constitution.
The fact that
an issue within the exclusive jurisdiction of this court arises in a Provincial
or Local Division does not necessitate
an immediate referral to this Court.
Even if the issue appears to be a substantial one, the court hearing the case is
required to
refer it only
(i) if the issue is one which may be decisive for the case; and
(ii) if it considers it to be in the interest of justice to do
so.
In section 103(4) of the Constitution, which deals with the referral to this
Court of matters originating in inferior courts, the
referring Provincial or
Local Division must in addition be of the opinion "that there is a reasonable
prospect that the relevant
law or provision will be held to be invalid." In
S v W and Others
1994(2) BCLR 135(C), 147G;
S v Williams and Five
Similar Cases
1994(4) SA 126(C), 139F, Farlam J said that although that was
not an express requirement of section 102(1) it was implicit therein.
I
respectfully agree. See also
Matiso and Others v The Commanding Officer,
Port Elizabeth Prison and Others
1994(3) BCLR 80(SE), 89G - 90D;
Matiso
and Others v The Commanding Officer, Port Elizabeth Prison and Another
1994(4) SA 592(SE), 599G - 600E. The reasonable prospect of success is, of
course, to be understood as a
sine qua non
of a referral, not as in
itself a sufficient ground. It is not always in the interest of justice to make
a reference as soon as
the relevant issue has been raised. Where the case is
not likely to be of long duration it may be in the interests of justice to
hear
all the evidence or as much of it as possible before considering a referral.
Interrupting and delaying a trial, and above all
a criminal trial, is in itself
undesirable, especially if it means that witnesses have to be brought back after
a break of several
months. Moreover, once the evidence in the case is heard it
may turn out that the constitutional issue is not after all decisive.
I would
lay it down as a general principle that where it is possible to decide any case,
civil or criminal, without reaching a constitutional
issue, that is the course
which should be followed. One may conceive of cases where an immediate
reference under section 102(1)
would be in the interests of justice - for
example, a criminal trial likely to last many months, where a declaration by
this Court
of the invalidity of a statute would put an end to the whole
prosecution. But those cases would be exceptional. One may compare
the
practice of the Supreme Court with regard to reviews of criminal trials. It is
only in very special circumstances that it would
entertain a review before
verdict. See Hiemstra,
Suid-Afrikaanse Strafproses
(5de uitgawe), 764.
In any event, the convenience of a rapid resort to this Court would not relieve
the trial judge from making his
own decision on a constitutional issue within
his jurisdiction.
[60] I should make it clear that these remarks are in no way intended as a
criticism of the decision of Page J to refer the issue
on section 217(1)(b)(ii).
At the stage when he did so this Court had not yet been convened, and no
guidelines for referrals had been
laid down. The issue was, moreover, one of
great and pressing concern to all criminal courts, and it was right that it be
resolved
as soon as possible.
[61] It may be asked at this stage why it is necessary or competent for this
Court to consider section 241(8) in this case. The
reason is that if the
proceedings before Page J were pending immediately before the 27
th
April 1994, and if that section means that the proceedings had to be completed
in all respects in accordance with the law as it
existed before that date, it
would follow that the judge would have to deal with the case in accordance with
the requirements of
section 217(1)(b)(ii), notwithstanding the fact that this
Court in the
Zuma
case declared that section to be invalid. In order to
answer the question whether Page J is to apply the ruling in the
Zuma
case when the trial resumes, the question left open in the
Zuma
case has
to be decided, namely, whether an order in terms of section 98(6) should
encompass proceedings pending on the 27
th
April. To answer that
question the meaning of section 241(8) has to be determined. Moreover, we know
that there are other criminal
cases which may have been pending on the
27
th
April 1994, in which the same question may arise, although of
course we have no way of knowing how many. We heard full argument
on this issue
and we are consequently able to deal with it, and it is appropriate that we
should do so.
[62] There have been a number of competing interpretations of section 241(8)
in Provincial and Local Divisions of the Supreme Court.
I shall not cite all
those decisions, still less attempt to analyse them. It will be sufficient to
identify in summary form the
differing interpretations placed on the
sub-section.
a) Some judges have held that section 241 (8) is intended to do no more than
preserve the territorial jurisdiction of the courts
in relation to cases pending
on 27
th
April 1994 and that the Constitution, including Chapter 3,
must otherwise be applied fully to those cases. See e.g. the judgments
of
Froneman J in
Qozoleni v Minister of Law and Order and Another
1994(1)
BCLR 75(E); 1994(3) SA 625(E) and
Gardener v Whitaker
1994(5) BCLR
19(E);
b) Other judges have held that section 241(8) preserves the existing law in
pending cases only in matters of procedure. Fundamental
rights of a substantive
nature are thus to be applied in pending cases. See e.g.
S v W and Others
supra
. In some cases it has been held that procedural rights which are
fundamental are not necessarily excluded by section 241(8), but
that where
existing procedures have been followed in pending cases they are to remain
undisturbed. See e.g.
Shabalala and Others v The Attorney-General of
Transvaal and Others
1994(6) BCLR 85(T);
Shabalala v Attorney-General,
Transvaal, and Another
1995(1) SA 608(T).
In all
the above cases the judges have concluded that, given the fundamental concerns
and values of the Constitution, it is unthinkable
that a court should after
27
th
April 1994 pronounce any verdict or sentence which has the
effect of violating a fundamental constitutional right of the person before
the
court.
c) The third line of decisions holds that section 241(8) excludes any
application of the Constitution in cases which were pending
at its commencement.
See e.g.
Kalla and Another v The Master and Others
1994(4) BCLR 79(T);
1995(1) SA 261(T).
[63] In interpreting section 241(8) I would accept that it would not be right
to ignore what Froneman J called the "fundamental concerns"
of the Constitution,
(
Qozoleni's
case BCLR at 86A), or "the spirit and tenor of the
Constitution" (
Shabalala's
case BCLR at 95F). A purposive construction
is as appropriate here as in other parts of the Constitution. Nonetheless, a
purposive
construction requires one to search for the specific purpose of
section 241(8) within its context in the Constitution. Its immediate
context is
a section headed "Transitional arrangements : Judiciary", in a chapter (chapter
15) headed "General and Transitional Provisions".
[64] As stated in the preamble, the Constitution creates a new legal order in
South Africa. The afterword recites
inter alia
that the Constitution is
a bridge from a past characterised by injustice to a future founded on the
recognition of human rights.
But the Constitution cannot wipe out all traces of
the past in one blow, and does not attempt to do so. It was necessary for the
Constitution to consider how far the new legal order, especially the fundamental
rights provisions of Chapter 3, should affect actions
taken or acts performed
under the old legal order before the Constitution came into force. This is a
perennial legal problem, which
arises whenever a new statute repeals an old one.
Sometimes repealing statutes contain provisions which give a clear answer to the
problem. All too often they do not, and canons of statutory interpretation have
been developed over the years to assist in solving
the problem. In general, our
courts have held that in the absence of a discernible contrary intention, it is
presumed that a new
statute is not intended to have retroactive or retrospective
effect. This is not the place for a detailed analysis of the presumption,
but
a reminder of its scope may help to explain the purpose of section
241(8).
[65] First, there is a strong presumption that new legislation is not
intended to be retroactive. By retroactive legislation is meant
legislation
which invalidates what was previously valid, or
vice versa
, i.e. which
affects transactions completed before the new statute came into operation. See
Van Lear v Van Lear
1979(3) SA 1162(W). It is legislation which enacts
that "as at a past date the law shall be taken to have been that which it was
not". See
Shewan Tomes & Co. Ltd. v Commissioner of Customs and
Excise
1955(4) SA 305(A), 311H per Schreiner ACJ. There is also a
presumption against reading legislation as being retrospective in the
sense
that, while it takes effect only from its date of commencement, it impairs
existing rights and obligations, e.g. by invalidating
current contracts or
impairing existing property rights. See
Cape Town Municipality v F. Robb
& Co. Ltd.
1966(4) SA 345(C), 351 per Corbett J. The general rule
therefore is that a statute is as far as possible to be construed as operating
only on facts which come into existence after its passing.
[66] There is a different presumption where a new law effects changes in
procedure. It is presumed that such a law will apply to
every case
subsequently tried "no matter when such case began or when the cause of action
arose" -
Curtis v Johannesburg Municipality
1906 TS 308
, 312. It is,
however, not always easy to decide whether a new statutory provision is purely
procedural or whether it also affects
substantive rights. Rather than
categorising new provisions in this way, it has been suggested, one should
simply ask whether or
not they would affect vested rights if applied
retrospectively. See
Yew Bon Tew v Kenderaan Bas Mara
[1983] 1 AC 553
(PC), 563;
Industrial Council for Furniture Manufacturing Industry, Natal v
Minister of Manpower and Another
1984(2) SA 238(D), 242.
[67] There is still another well-established rule of construction namely,
that even if a new statute is intended to be retrospective
in so far as it
affects vested rights and obligations, it is nonetheless presumed not to affect
matters which are the subject of
pending legal proceedings. See
Bell v
Voorsitter van die Rasklassifikasieraad en Andere
1968(2) SA 678(A);
Bellairs v Hodnett and Another
1978(1) SA 1109(A), 1148.
[68] Problems of retrospectivity may arise in relation to new Constitutions
as they do in relation to other new statutes. They arose
in relation to the
introduction of the Canadian Charter of Rights. See
R v Antoine
(1983) 4
CRR 126.
In the South African Constitution express provisions obviate at least
some of the major problems of retrospectivity. Section 4(1)
provides -
"This Constitution shall be the supreme law of the Republic and any law or act
inconsistent with its provisions shall, unless otherwise
provided expressly or
by necessary implication in this Constitution, be of no force or effect to the
extent of the inconsistency."
Section 7(2), which is part of Chapter 3, provides -
"This Chapter shall apply to all law in force and all administrative decisions
taken and acts performed during the period of operation
of this
Constitution."
These provisions mean that Chapter 3
prima facie
has effect as from
the commencement of the Constitution even if the result is to impair a vested
right. In that sense it is
retrospective.
[2]
The importance of
section 7(2) is that it enables any person to invoke the Constitution as a
protection against any unconstitutional
official action taken against him or
her, after 27
th
April 1994, even if that action arises from that
person's conduct before 27
th
April 1994. On the other hand it
follows from section 7(2) that official acts completed before 27th April 1994
are not invalidated
by anything in the
Constitution.
[3]
[69] It is against this background that the purpose of section 241(8) can be
understood. The purposes, I suggest, were twofold.
First, to ensure that
Courts which had derived their power to hear cases from the old Constitution,
could continue to hear them under
the new Constitution. Here I am in agreement
with Mahomed J, and broadly with the reasons which he has given for that
conclusion.
But that is not the only purpose of section 241(8). It is clear
from the language used, that there was another purpose, and that
was to ensure
that there would be an orderly transition from the old to the new legal order,
so as to avoid the dislocation which
would be caused by introducing a radically
different set of legal concepts in the middle of ongoing proceedings.
[70] There is no warrant for reading section 241(8) as merely preserving the
territorial jurisdiction of the courts in pending matters.
First, the
sub-section states no such limitation. Second, sub-sections (1) and (10) of
section 241, expressly preserve jurisdiction
of existing Courts, in all
proceedings. If section 241(8) merely preserved territorial jurisdiction in
pending cases it would be
entirely superfluous. The reliance which some
judgments place on the proviso is in my opinion misconceived. The effect of a
proviso
is to except something from the preceding portion of the enactment
which, but for the proviso, would be within it. It cannot be
construed as if it
were an enacting clause.
R v Dibdin
[1910] P 57
, 125;
Mphosi v
Central Board for Co-Operative Insurance Ltd.
1974(4) SA 633(A), 645.
"Pending proceedings" include an appeal from the original proceedings -
S v
Thomas and Another
1978(1) SA 329(A). The proviso to section 241(8) in my
view does no more than ensure that, notwithstanding the main enactment, appeals
may go to appeal Courts other than those to which they would have gone under the
old law.
[71] The words in section 241(8), "any court of law, including any tribunal
or reviewing authority established by or under any law"
are qualified by the
words "exercising jurisdiction in accordance with the law then in force". They
lend weight to the view that,
in the general context of section 241, sub-section
(8) is concerned with the
jurisdiction
of the Courts seized of pending
proceedings. I emphasise "jurisdiction", because "jurisdiction" is not limited
to "territorial jurisdiction".
The term embraces territorial jurisdiction but
in ordinary usage territorial limits are only a part of what is meant by a
Court's
jurisdiction. The accepted meaning of "jurisdiction" is -
"a lawful power to decide something in a case, or to adjudicate upon a
case".
Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in liquidation)
1987(4) SA 883(A), 886D.
It is -
" ... the power vested in a court by law to adjudicate upon, determine and
dispose of a matter."
Ewing McDonald & Co Ltd v M & M Products Co
1991(1) SA 252(A),
256G.
In
Garthwaite v Garthwaite
[1964] P 356
, Diplock L.J. said at 387
-
"In its narrow and strict sense, the "jurisdiction" of a validly constituted
court connotes the limits which are imposed upon its
power to hear and determine
issues between persons seeking to avail themselves of its process by reference
1) to the subject-matter
of the issue or 2) to the persons between whom the
issue is joined or 3) to the kind of relief sought, or to any combination of
these
factors. In its wider sense it embraces also the settled practice of the
court as to the way in which it will exercise its power
to hear and determine
issues which fall within its "jurisdiction" (in the strict sense)
...."
[72] If the broad purpose of section 241(8) is, as stated by Mahomed J to be,
"to ensure that the jurisdiction of Courts to deal with
pending cases was not
assailed because of the fact that the Constitution creates new Court structures
with effect from the commencement
of the Constitution", the drafters of the
Constitution would have to address two matters. First, courts and tribunals
would have
to be empowered to continue and complete pending cases. Second, they
would have to be told how to deal with cases heard partly under
one legal order
and partly under another. They could have been told to deal with pending cases
in the period after the new Constitution
comes into force, in accordance with
the provisions of that Constitution, or to deal with them as if the Constitution
had not been
passed. Rightly or wrongly the framers of the Constitution chose
the latter option, and we are required to give effect to that choice.
[73] With all respect to the judges who have taken a different view, I find
it difficult to see what other meaning can reasonably
be given to the language
used. Even if the language were to be read, as Mahomed J suggests it should be,
as "a direction to proceed
with pending cases as if the Constitution had not
impacted on the authority of the pre-Constitution Court to continue to function
as a Court ... [and] emphasizes ... that the relevant Court must exercise
jurisdiction in accordance with the law then in force",
the conclusion would not
in my view be any different. The power of the Court in accordance with the law
in force when it commenced
the proceedings did not include the power to strike
down an Act of Parliament. On the contrary, it was quite explicitly stated in
section 34(3) of the Republic of South Africa Constitution, Act 110 of 1983 that
no such power existed. The power to strike down
such legislation comes from the
1993 Constitution. It is, subject to section 101(6), a power which can be
exercised only by this
Court, but a challenge to the validity of an Act of
Parliament can be raised in proceedings before other Courts and Tribunals. It
is only pursuant to powers vested in the courts by the 1993 Constitution that a
challenge to the validity of
section 217(1)(b)(ii)
of the
Criminal Procedure Act
can
be raised; but
section 2
41(8) states in as many words that pending
proceedings shall be dealt with as if that Constitution had not been passed.
Consequently,
even if section 241(8) is to be read as meaning that a court or
tribunal before which proceedings were pending should exercise its
"
jurisdiction
" "as if this Constitution had not been passed", the result
would be the same. Its jurisdiction would not include the constitutional
jurisdiction conferred on the Supreme Court under section 101(3), because such
powers are derived from the new Constitution, and
did not exist under the old
one.
[74] Equally, I see no warrant for limiting the operation of section 241(8)
to the preservation of existing court procedure. Again,
there is no such
limitation in the sub-section, and existing "court procedures" are expressly
preserved by sub-section (10). Nor
can I find in section 25 or any other
section of the Constitution any meaningful distinction between procedure and
substance. If
the lawmakers had intended that those provisions of the
Constitution which had a procedural character were not to be applied in pending
proceedings, whereas purely substantive provisions were to be applied it would
not be easy to find less appropriate words than "...
shall be dealt with as if
this Constitution had not been passed".
[75] The words which I have just quoted from section 241(8) echo wording used
for over 100 years by legislators wishing to make it
clear that new statutes did
not affect pending proceedings. Thus the Interpretation Act, 1957 (like the
Interpretation Act, 1910
and the English Interpretation Act, 1889) provides in
section 12(2)(e) that the repeal of law shall not affect (
inter alia
) any
right or obligation accrued or incurred under the repealed law, and shall not
affect any legal proceedings in respect of such
right or obligation, and such
legal proceedings may be continued "as if the pending law had not been
passed."
Section 344(3)
of the
Criminal Procedure Act, 1977
provides
"(3) Notwithstanding the repeal of any law under subsection (1), criminal
proceedings which have under such law at the date of commencement
of this Act
been commenced in any superior court, regional court or magistrate's court and
in which evidence has at that date been
led in respect of the relevant charge,
shall, if such proceedings have at that date not been concluded, be continued
and concluded
under such law as if it had not been
repealed."
Similar words appear in section 115 of
the Magistrate's Courts Act 24 of 1944 (see
Janover v Registrar of Deeds
1946 TPD 35)
and in older statutes such as the Administration of Estates
Act, 1913. See
George Municipality v Freysen NO
1973(2) SA 295(C) 300.
Such provisions have often been judicially applied. It has never been suggested
that they relate only to
territorial jurisdiction or procedure. See e.g.
S v
Thomas supra
;
S v Swanepoel
1979(1) SA 478(A).
[76] As far as I am aware the words "shall be dealt with", used in section
241(8), are not found in the statutes to which I have referred.
In those the
words commonly used are "continued" or "concluded", or both. In at least two
cases in the Appellate Division judges
have used the phrase "dealt with" as
synonymous with "continued" and "concluded" as used in
section 344(3)
of the
Criminal Procedure Act and
section 12(2)(e) of the Interpretation Act. See
S
v Thomas supra
at 334H;
Pinkey v Race Classification Board and
Another
1968(4) SA 628(A), 636C-D. This accords with the ordinary meaning
of the words. "Dealt with" is not a term of art. The phrase
is part of
colloquial English usage. A judge, in ordinary parlance, deals with a case by
conducting the hearing in accordance with
the law of evidence, by finding the
facts, applying the law and finally pronouncing the decision. More shortly, he
exercises his
jurisdiction in the general sense explained above. A judge bound
to deal with a case as if the Constitution had not been passed
must exercise his
jurisdiction as if the Constitution had not been passed. By contrast, a court
does not "deal with" proceedings
simply by retaining its territorial
jurisdiction. There is no basis in law, language or logic for giving "dealt
with" some different
meaning in the context of section 241(8), even if a
different meaning could be found.
[77] I cannot accept that the words "dealt with" are words of uncertain
meaning. According to the Oxford English Dictionary the ordinary
meaning of
these words is "to act in regard to, to administer, handle, dispose in any way
(of a thing)". In the context of section
241(8) these words quite clearly
relate to the conduct of a "pending proceeding" in the period after the
Constitution has come into
force. There is nothing "tentative" or "uncertain"
in the injunction that "pending proceedings shall be dealt with as if this
Constitution
had not been passed"; nor, in my view, can these words reasonably
be understood as meaning that in the period after the 27
th
April 1994
courts and tribunals should deal with pending proceedings in terms of the law
then in force. On the contrary, they have
precisely the opposite meaning.
[78] There are limits to the principle that a Constitution should be
construed generously so as to allow to all persons the full benefit
of the
rights conferred on them, and those limits are to be found in the language of
the Constitution itself. Thus, in
Minister of Home Affairs (Bermuda) v
Fisher
and Another
[1980] AC 319
(PC) at 329E-F, Lord Wilberforce was
at pains to point out that a constitution is a legal instrument, and that
respect has to be
paid to the language used. This was accepted in the unanimous
judgment delivered by this Court in
S v Zuma (supra)
where it was
said:
"We must heed Lord Wilberforce's reminder that even a constitution is a legal
instrument, the language of which must be respected.
If the language used by
the lawgiver is ignored in favour of a general resort to "values" the result is
not interpretation but divination."
The existence of such limits is also recognised by section 4(1) of the
Constitution which provides that "...any law or act inconsistent
with [the
Constitution's] provisions shall,
unless otherwise provided expressly or by
necessary implication in this Constitution
, be of no force and effect to the
extent of the inconsistency." (my emphasis)
Section 241(8) of the Constitution provides expressly that pending cases
shall be dealt with as if the Constitution had not been passed.
When the
language is clear it must be given effect, and this has been stressed in cases
in several different jurisdictions. See
for example:
S v Marwane
1982(3)
SA 717(A) at 749D-G;
Bull v Minister of Home Affairs
1986(3) SA 870(ZSC)
at 881E-H;
Ex Parte Cabinet for the Interim Government of South West Africa:
In re Advisory Opinion in terms of S 19(2) of Proc R101 of 1985
(RSA)
1988(2) SA 832(SWA) at 853G;
Tam Hing Yee v Wu Tai Wai
(1992)
LRC
(Const.) 596
(Hong Kong) at 600;
Attorney-General v Moagi
1982 (2)
Botswana LR 124
,184.
With all respect to the judges who have taken a different view I find it
difficult to see what meaning other than that which I have
suggested can
reasonably be given to the language used.
[79] It follows that, although my reasoning is by no means identical, I agree
with the conclusion of van Dijkhorst J in
Kalla and Others v The Master and
Others supra
, BCLR at 88C, that section 241(8) excludes the application of
the substantive provisions of the Constitution in pending cases. The
courts in
the conflicting lines of cases to which I have referred have objected that this
interpretation would lead to anomalies
and injustices. Thus in
S v W and
Others supra
BCLR at 145H, Farlam J said that he was satisfied that the
framers of the Constitution could not have intended that cruel, inhuman
or
degrading punishment could be imposed even in pending cases. In
Qozoleni v
Minister of Law and Order and Another supra
BCLR at 86D, Froneman J asked
whether the Constitution could countenance any discrimination based on race even
in pending proceedings,
and answered his own question in the negative. The
example has been suggested of two accused on the same charge, with the
indictment
served on 26
th
April 1994 on the one and 27
th
April 1994 on the other. These apparent anomalies may arise in the limited and
reducing number of cases, civil and criminal, which
were pending on
27
th
April 1994. They are the inevitable result of a transitional
provision such as section 241(8). Nor are they as serious as the examples
given
may suggest. If it be assumed that a Court in some "pending proceeding" may
have felt compelled to pass a sentence of a type
which this Court may
subsequently hold to be cruel, inhuman or degrading, it certainly does not
follow that such sentence will be
carried out after such declaration has been
made. The carrying out of the sentence would be an unconstitutional executive
act which
this Court would restrain under section 98(7) of the Constitution, and
no court would knowingly impose a sentence which cannot lawfully
be carried out.
Issues arising out of racial or other discrimination in civil cases may involve
questions of public policy which
would depend, not on the enforcement of any
Constitutional provision, but on public policy prevailing at the time the case
is heard.
See
Magna Alloys and Research (SA) (Pty) Ltd v Ellis
1984(4)
SA 874(A).
[80] In his judgment Mahomed J contends that if pending proceedings are to be
dealt with literally "as if this Constitution had not
been passed" a Supreme
Court could not refer a matter to this Court in terms of section 102(1) because,
by utilising the provisions
of section 102(1) it would not in fact be dealing
with the proceedings as if the Constitution had not been passed. In my view
there
is a twofold answer to this contention. In the first place the Supreme
Court in referring the matter to this Court pursuant to the
provisions of
section 102(1) is not "dealing" with proceedings, it is seeking directions from
the Constitutional Court as to how
to deal with proceedings. In the second
place, even if the contention were correct, this would not end the matter; for
this Court
could still be seized with the matter on appeal after the Supreme
Court had construed the provisions of section 241(8), and deal
with the matter
in accordance therewith.
[81] It is in theory possible that as late as 26th April 1994, there could
have been a prosecution pending for the cotravention of
(for example) a racially
discriminatory local authority by-law which had somehow survived the process of
repeal of discriminatory
laws. A conviction on such a charge after
27
th
April 1994, would indeed seem to be extraordinary. But it must
not be forgotten that the courts are not the only organs of state
bound to
respect and enforce the Constitution. Legislative and executive organs of state
at all levels are similarly bound -
see
: sections 4(2) and 7(1) of the
Constitution. In the hypothetical case envisaged it would be open to Parliament
or the appropriate
Provincial legislature to repeal the offending by-law. And
one would expect the executive in the person of the Attorney-General
having
jurisdiction, to withdraw such a prosecution.
[82] It should be borne in mind that we are not concerned here with the
meaning of rights guaranteed under the Constitution, but with
whether guaranteed
rights can be claimed in pending proceedings; nor are we concerned with a
provision drafted with "an eye to the
future", requiring it to be interpreted
then in the light of changed conditions. Section 241(8) is a transitional
provision, intended
to deal with a limited number of cases, covering a defined
and comparatively short period of time. It is moreover a provision which
has
only limited and indirect application to the fundamental rights entrenched in
Chapter 3 of the Constitution. Chapter 3 governs
acts performed and decisions
taken
after
the Constitution comes into force, and there will not
ordinarily be such issues in litigation pending on the date the Constitution
came into force.
[83] The tension between Chapter 3 and section 241(8) is likely to arise only
in respect of the fair trial requirements of section
25(3). There will be
anomalies in the conduct of trials which flow from what I consider to be the
clear meaning of section 241(8).
But there will also be anomalies flowing from
the other constructions that have been suggested. The "day before" and "day
after"
anomalies exist where judgement has been reserved in comparable cases and
is given either immediately before or immediately after
the 27th April; the
outcome of cases in which convictions were correctly imposed before the
27
th
April on the basis of presumptions later to be declared
"unconstitutional", could depend on whether appeals had or had not been noted,
or on the dates when particular appeals were set down for hearing; proceedings
could be disrupted because of the need on the 27
th
April for
unrepresented accused in part-heard cases to exercise rights under section
25(3)(e); witnesses may have to be recalled
to be cross-examined by the newly
appointed counsel; prosecutions based on partially completed cases, involving
"unconstitutional
presumptions" may have to be re-opened to call evidence which
had previously been considered to be unnecessary, and so on. The point
is that
there are anomalies on both sides, and even if we were to think that the wrong
choice was made, or that on balance, there
would be fewer or less serious
anomalies if the framers of the Constitution had chosen differently, we would
not be entitled to depart
from the clear language of the section. Nor is it
strange, as some judges have suggested, to find that this choice is set out in
section 241(8) and not in Chapter 3. A transitional provision is precisely
where one would expect such a choice to be recorded,
because the intention is
not to limit rights generally, but to limit their application only in respect of
pending cases, affected
by the transition.
[84] The reluctance of some judges to give literal effect in particular cases
to the language of section 241(8) is no doubt understandable.
But I believe that
the anomalies which disturb them are the price which the lawmakers were prepared
to pay for the benefit of orderly
transition and for avoiding the disruption
which would be caused by changing the applicable law in the middle of a case.
In the
same way existing laws, although they may be held in due course to be
unconstitutional,
prima facie
continue to have effect until they are
actually struck down - see sections 98(6) and 229 of the Constitution. The
danger of regarding
a text as necessarily having a single objective meaning has
already been adverted to in the Zuma case. I am also fully aware that
it is a
Constitution and not an ordinary statute that we are expounding. One of the
distinctions between them is that a constitution
is drafted with an eye to the
future. Another is that a constitutional bill of rights should as far as
possible be read as protecting
individual rights, if necessary against the
public interest. I thus agree with the approach to constitutional
interpretation found
in the judgment of the Supreme Court of Canada in
Hunter
et al v Southam Inc.
(1984) 9 CRR 355
, at 364-5, and find the narrow
approach to the language of a constitution exemplified by
Government of the
Republic of Bophuthatswana and Others v Segale
1990(1) SA 434(B AD),
especially at 448-9, unacceptable. Nonetheless, there are some provisions, even
in a constitution, where the
language used, read in its context, is too clear to
be capable of sensible qualification. It is the duty of all courts, in terms
of
section 35, to promote the values which underlie a democratic society based on
freedom and equality. In the long run, I respectfully
suggest, those values are
not promoted by doing violence to the language of the Constitution in order to
remedy what may seem to
be hard cases.
[85] This, I fear, over-long consideration of section 241(8) is motivated, if
not excused, by the need to resolve the considerable
conflicts of judicial
opinion to which I have referred. The immediate result of it is that in my view
the retrospectivity which
we gave to our ruling in the
Zuma
case under
section 98(6) must remain limited to cases in proceedings which began on or
after 27
th
April 1994, i.e. which were not pending on that date. We
cannot override section 241(8). Since this is a minority judgment nothing
need
be said about the form of order.
Chaskalson P, Ackermann J and Didcott J concur in the judgment of Kentridge
AJ.
[86]
KRIEGLER J:
In another case argued contemporaneously with this
one,
[4]
we held that
section
217(1)(b)(ii)
of the
Criminal Procedure Act, 1977
is unconstitutional because it
assails the right of an accused to a fair
trial.
[5]
In this case the same
question arose but judgment was held over because the case raises the further
question whether an accused
whose case was pending when the Constitution came
into operation is entitled to the benefits it confers.
[87] The applicability of the Constitution to cases which were pending when
it came into operation has been considered in numerous
cases around the
country.
[6]
It would hardly be an
exaggeration to say that the cases produced as many answers as there were
judgments. The present case runs
true to form. There is manifestly a sharp
division of opinion among the members of this Court. On the one hand Kentridge
AJ, supported
by three colleagues, has concluded that the benefits of chapter 3
do not accrue to an accused whose case was pending on 27 April
1995. On the
other hand, my colleague Mahomed J, with the concurrence of a number of
justices, has come to the opposite conclusion.
Sachs J agrees with them, but
for different reasons. Although I have come to the same conclusion as the
latter group and subscribe
to the order formulated by Mahomed J, my reasoning is
somewhat different and ought to be recorded.
[88] If one asks the wrong question, one is likely to come up with the wrong
answer. And to my mind, the question in this case is
emphatically
not
:
What is the effect of section 241(8) of the Constitution. The correct question
is as I have formulated it in the opening paragraph
of this judgment.
[89] There is universal consensus that the Constitution ushered in the most
fundamental change in the history of our country. It
made everything new. The
country's national territory (section 1), its national symbols (section 2), its
languages (section 3),
and its citizenship (section 5) were created anew. The
Constitution gave birth to a new legislature (chapter 4), a new executive
(chapter 6), and a new judiciary (chapter 7). More significantly, in the
present context, it created justiciable fundamental rights
and freedoms (chapter
3). Above all, it established a constitutional democracy in which the
Constitution itself was to be the supreme
law of the land and would "bind all
legislative, executive and judicial organs of state" (section 4). It was a
fundamental metamorphosis.
[90] The aspect of that metamorphosis with which we are most directly
concerned is the recognition of fundamental rights and freedoms
in chapter 3.
That chapter recognises for every person a comprehensive set of rights and
freedoms enforceable in a court of law.
It commences with section 7, which
imperiously makes the chapter binding on "all legislative and executive organs
of state" and applicable
to "all law in force ... during the period of operation
of this Constitution". In terms of section 251(1) of the Constitution that
period of operation commenced on 27 April 1994. It must follow that on that day
every person became
entitled to claim the rights and freedoms contained in chapter 3.
[91] But - say the proponents of the opposite point of view - that isn't so.
The benefits so unequivocally recognized for all with
effect from 27 April 1994
are to be withheld from a certain category. Those accused persons whose trials
were pending when the Constitution
came into operation, somehow and
notwithstanding the unequivocal language of sections 4, 7 and 251(1), are not
entitled to share
in the bounty. If otherwise qualified, they became citizens
of the new South Africa, owe allegiance to its new institutions, pay
homage to
its symbols and are eligible for office in the executive, legislative and
judicial branches of the new state. Nevertheless,
they are not entitled to the
rights and freedoms conferred by chapter 3. That disentitlement is sought to be
founded on the fact
that they were accused persons whose cases were
pending.
[92] Such a startling proposition surely calls for very convincing support
indeed. But the sole justification is found in the vague
wording of an obscure
subsection of a prosaic transitional provision - namely section 241(8).
Although that subsection has been
quoted time without number, it is as well to
quote it again.
"All proceedings which immediately before the commencement of this Constitution
were pending before any court of law, including any
tribunal or reviewing
authority established by or under law, exercising jurisdiction in accordance
with the law then in force, shall
be dealt with as if this Constitution has not
been passed: Provided that if an appeal in such proceedings is noted or review
proceedings
with regard thereto are instituted after such commencement
such proceedings shall be brought before the court having jurisdiction under
this Constitution."
[93] It is also as well to
contextualize that subsection. Section 241 is part and parcel of chapter 15,
titled “General and
Transitional Provisions”. Save for section 229,
which provides for the continuation of existing laws until their repeal, and
section 230 (read with schedule 7) which repeals the panoply of Bantustan
legislation, the chapter has nothing to do with substantive
law. Section 231
keeps the country's international treaties extant and sections 232 and 233 deal
with interpretation and definitions.
From there up to section 248 the chapter
deals
seriatim
with the continuation of a variety of vital state
functions. Section 234 provides for the role of members of certain legislatures
to come to an end but for the staff of such bodies to remain in office. Then
sections 235 to 238 make provision for the incumbents
of executive authorities,
the civil service, and the Public Service Commission to continue functioning
until replaced by their successors.
Section 239 provides for continuity and
order in the disposition of state assets and liabilities and section 240 for the
continuation
of the State Revenue Fund. Then follows section 241, which deals
with transitional and continuity arrangements for the judiciary,
and section 242
which makes provision for its subsequent rationalization. Sections 243 to 246
make transitional arrangements regarding
the Ombudsman, the Auditor General,
local government structures, and the pensions of political office bearers. The
whole pattern
of the chapter is manifestly to ensure orderly continuity of
function and authority.
[94] That, then, is the light in which section 241 is to be read. Quite
logically it commences in subsection (1) with continuity
of the judiciary. This
is done by the simple stratagem of deeming the existing courts to be the new
courts constituted in terms
of the
Constitution.
[7]
It is followed by
three provisos and two substantive subsections which were inserted
later.
[8]
The amendments were aimed
at the orderly winding down of appellate tribunals that had been created in the
former TBVC territories.
Subsection (2), linking up with subsection (1), then
deems the erstwhile Supreme Court judges to have been appointed under the
Constitution.
We therefore have continuity of courts and of their judges.
Subsection (3) then keeps all other judicial officers in their posts,
subsection
(4) does the same for attorneys-general, while subsections (5) and (6) maintain
their salaries and pensions. Judges,
magistrates and attorneys-general of the
old regime having been kept in office, subsection (7) requires them to take a
fresh oath
of office. By-passing subsection (8) for the moment, we see that
subsections (9) and (10) are also concerned with continuity. Subsection
(9)
allows pending legal proceedings against a government body to be continued
against any successor while subsection (10) keeps
in operation for the time
being all pre-existing laws relating to the jurisdiction, procedures, powers,
establishment and functioning
of courts of law and judicial officers.
[95] Viewed in that matrix, subsection (8) of section 241, despite the
equivocal nature of its wording, should hold no terrors. It
has nothing to do
with the substantive law to be applied by courts. It nowhere mentions law,
substantive or otherwise. It talks
of "proceedings", i.e. court cases, and
seeks to organize their orderly and continued disposition. More specifically,
it is concerned
with proceedings which are "pending" when the Constitution comes
into operation, i.e. when the old courts die and the new courts
are born. With
regard to such cases, part heard or still awaiting their initial hearing, the
same question arises: Who deals with
them now that the old courts have gone?
All the subsection says is that, notwithstanding the judicial metamorphosis, all
cases that
were pending before the old courts are to be dealt with by those
courts as if they had not been reborn. The subsection does not
purport to
relate to the law to be applied by any court, it merely designates the court
which will deal with the case. The subsection
is concerned with the
administrative channelling, handling and hierarchical disposition of cases that
were on the rolls of courts
of the old South Africa. That is what the phrase
"any court of law ... exercising jurisdiction in accordance with the law then in
force" denotes. In other words, a proceeding "pending before any court" is to
be "dealt with as if [the] Constitution had not been
passed". In the context, I
suggest, there can be little doubt that the subsection simply and only means
that the tribunal having
jurisdiction under the old order has to deal with a
pending case. Completely logically, the proviso then says that an appeal or
review from such new court (wearing its old robes) has to be brought to the new
superior tribunal designated by the Constitution.
[96] There is no overlap between subsection (8) and any of the other
subsections of section 241. Subsection (8) deals with pending
cases only, says
by whom they are to be heard and it alone deals with that topic. More
importantly, though, there is no overlap
between section 241(8) and any
provision in chapters 2 or 3 of the Constitution. There is no tension between
them. Sections 4,
7 and 251(1) confer rights on the individual and prescribe
when they accrue. Section 241(8) merely prescribes which courts are to
dispose
of those cases that had not been concluded when the new Constitution came into
operation.
[97] Even assuming that there may be some tension between sections 4, 7 and
251(1) on the one hand and section 241(8) on the other,
the tension should be
resolved in light of the qualitative distinction between them. They deal with
clearly distinct matters of
fundamental constitutionalism and recognition of
rights. They operate at a wholly different level than does section 241(8). The
"international culture of constitutional jurisprudence which has developed to
give to constitutional interpretation a purposive and
generous
focus",
[9]
is applicable to chapters 2
and 3. It has no place in the interpretation of section 241(8). The former are
concerned with the broad
brush-strokes of the constitutional canvas. Peer at
them too closely and you lose focus, thus missing the picture. The latter has
a
narrow, technical and brief purpose and scope. To understand and correctly
apply it require close reading, not a generous perspective.
[98] The ultimate conclusion to which I come is therefore, that no accused
person whose case was pending on 27 April 1994 is precluded
from sharing in the
benefits bestowed by the new Constitution. Such an accused is entitled to claim
any one or more of the rights
conferred by chapter 3 and the presiding officer
is obliged to entertain such claim. In particular the accused in such a case
against
whom a confession had already been admitted under section 217(1)(b)(ii)
of Act 51 of 1971 is entitled to have its admissibility reconsidered
without the
application of that subsection by the court whether the decision to admit was
made before or after 27 April 1995. In
terms of section 98(6)(a) of the
Constitution
[10]
an order
invalidating an act of Parliament dating from the previous era does not
automatically invalidate anything done under such
old act before the declaration
of invalidity. However this Court is empowered to order otherwise if it is "in
the interests of justice
and good government" to do so. In
S v Zuma and
Others
,
[11]
we exercised that
power and effectively banned the use of
section 217(1)(b)(ii)
of the
Criminal
Procedure Act, 1977
in all uncompleted cases which had commenced on or after 27
April 1994. In my view a corresponding order should be made extending
the
prohibition to all criminal trials,
whenever they commenced
. In effect,
I therefore endorse the views expressed by Eloff JP in
Jurgens v Editor,
Sunday Times Newspaper, and
Another
:
[12]
"...
section 241(1)
legitimates all courts of law existing at the time when the
Constitution came into force. Section 241(10) provides that all measures
which
regulate the functions of courts of law shall continue to remain in force until
amended or repealed. Neither of these subsections
deal with the situation where
proceedings have already commenced before a Court which has been legitimised and
which is to continue
to function in terms of existing legislative measures in
terms of section 241(0). The purpose of the first part of section 241(8)
is
then to provide for the continuation of proceedings which were pending on 27
April 1994. The procedure then to be followed is
that prescribed by laws in
force up to 27 April 1994, even though the new Constitution may establish
principles inconsistent with
the old procedure.
"It is in my view significant that section 241 hardly deals with substantive
law; procedure and jurisdictional matters, and the status
and function of Judges
and judicial officers are in general dealt with. In that setting section 241(8)
has to be seen and interpreted."
I think the learned judge, in saying that the section "hardly" dealt with
substantive law, was resorting to understatement.
[99] I have not dealt with the debate concerning interpretive presumptions
regarding retroactivity and retrospectivity in the case
of statutory amendments.
To my mind the adoption of a Constitution which operates as a supreme law does
not fall to be interpreted
along such lines. It is not a case of one statute
repealing, amending or replacing one or more others. What we are concerned with
here is a supreme statute being superimposed on the whole of the existing legal
landscape, bathing the whole of it in its beneficent
light. In the true sense
of the words, it is not retroactive nor retrospective. What it does mean,
though, is that the moment when
the judicial officer has to deal with a claim
under chapter 3 he or she has to ask whether such right exists. Moreover, if
the particular
right or claim had already been disposed of in an interlocutory
order made before the Constitution came into operation, such ruling
would have
to reconsidered thereafter. If, in the instant case, the prosecution had
tendered the confessions and they had been admitted
under the authority of
section 217(1)(b)(ii) prior to 27 April 1994, the presiding judge would have had
to reverse such ruling if
a claim for such reversal were made after that date
but prior to verdict.
[100] To sum up:
1. I agree with Kentridge AJ (paragraphs 49-58 of his judgment) that the
referral in the instant case was not legally competent.
2. I also agree with his view (paragraphs 59-61 of his judgment) that the
possible effect of section 241(8) of the Constitution is
of such public
importance that we ought to consider and determine the issue.
3. I disagree with the conclusion regarding the interpretation of section
241(8) reached by Kentridge AJ and agree with that of Mahomed
and Sachs JJ,
although for different reasons.
4. The essence of my deviation from the reasoning of Mahomed J is that I
ascribe a more mundane function to section 241(8) than he
does. I agree with
him that the creation of the new courts, despite - and possibly to an extent
because of - the Phoenix-like emergence
of the old judiciary in new feathers,
gave rise to the risk of a gap being perceived between the old and the new.
However, as I
see it, that risk is fully met by subsections (1) to (3) and (10)
of section 241. Subsection (8) serves merely to designate the
fora to deal with
pending cases.
5. I agree with Sachs J that different parts of the Constitution need to be
read with different spectacles. I do not agree with him,
however, that section
241(8) is to be contrasted with or evaluated against chapter 3. On my
interpretation they have entirely different
fields of application. They are not
in conflict; on the contrary, they supplement one another, each in its own
field.
6. I share with Mahomed and Sachs JJ a profound disbelief that the framers
of the Constitution could conceivably have purported to
give, with one hand, the
fundamental rights and freedoms to all, only, surreptitiously with the other, to
withhold its benefits from
the many thousands of persons whose criminal cases
must have been pending on 27 April
1994.
[13]
[101] I therefore agree with the order formulated by Mahomed J.
[102]
SACHS J:
I share with Mahomed J a disbelief that the framers of
the Constitution intended a reading of section 241(8) which would produce
the
anomalous and unjust results to which he refers. I agree with his conclusion
and with the order he proposes. I arrive there
by a different route, however,
and because the issue of how to interpret our Constitution is one of general
importance, I will set
out my reasons in some detail.
[103] Almost all discussion on the subject has been dominated by the idea
that the issue is how to construe section 241(8). In my
view, this is an
incorrect starting point which leads to a false journey. The real question is
not what meaning to give to that
provision on its own, but how to interpret it
in relation to the enjoyment of Fundamental Rights as set out in Chapter 3.
This means
that not one but two sets of provisions must be interpreted, not
consecutively and independently, but simultaneously and in terms
of their
inter-relationship.
[104] I have had the advantage of reading lucid judgments by Kentridge AJ and
Mahomed J, each persuasively presented within its interpretive
framework. The
caveats that each introduces, result in outcomes that are not all that far
apart. Unfortunately, I am unable to
concur unreservedly in either
judgment.
[105] My disagreement with Kentridge AJ's judgment is that even if it bases
itself on the most natural and spontaneous reading of
the section, it gives far
too little weight to the overall design and purpose of the Constitution,
producing results which the framers
could never have intended. My difference
with the judgment of Mahomed J, on the other hand, stems from the feeling that
it unnecessarily
strips section 241(8) of its more obvious meaning, when the
overall intent of the framers, as manifested by the Constitution as a
whole, can
most satisfactorily be acknowledged by accepting the 'first sight' reading
proposed by Kentridge AJ, but cutting back
its full application in order to
accommodate the equally clear and peremptory provisions of Chapter 3.
[106] My approach is accordingly similar in spirit and outcome to that of
Mahomed J, but different in methodology. Instead of seeing
Chapter 3 as a
contextual aid to the interpretation of section 241(8), I regard it as an equal
part of the text to be interpreted.
In my view, the issue is how to reconcile
the two sets of provisions when they collide with each other, not how to
interpret each
on its own.
[107] The cases come before us in terms of Chapter 3, not section 241(8). In
practical terms, the issue is never how to construe
section 241(8) as an
independent clause, but how to apply it as a provision which qualifies another
section of the Constitution.
This means that the two sets of provisions must be
read together as part of the total constitutional scheme, not separately as
autonomous,
free
standing-clauses.
[14]
If there is
overlap and collision of material between the two provisions, the essential
purposes of each must be discerned and
weighed, so that an appropriate
resolution based on balance between the two can be achieved. This involves a
species of interactive
proportionality. It moves the nature of the enquiry from
the so-called plain meaning of words looked at on their own, or even in
context,
to the interactive purposes of different provisions, read
together.
[15]
[108] Discord and dissonance have their role to play in law as in music. To
be justified, however, they should not be accidental,
but intended, not
unfortunate but purposeful. A textual construction which harmonizes different
provisions within the overall design
of the Constitution is generally to be
preferred to one which, however coherent within its own terms, produces
disharmony. There
are indeed many provisions in the Constitution where it is
clear that, for reasons of inclusivity, compromise and smooth transition,
special arrangements were made and particular textures were introduced, not all
of them obviously consistent with the broad general
principles of the
Constitution. These would include the so-called sunset clauses and provisions
introduced on behalf of special
interest groups. For the purposes of the
present discussion, it is not necessary to identify them. In each case, the
wording and
the purpose go together: the provisions were inserted to deal with
special cases and special situations, and to go back on them
would be to
undermine finely honed texts of exceptional import to particular sections of the
community. In these cases, any departure
from the text produced by reference to
other sections of the Constitution, and any consequent strained interpretation
or cutting
down or extension of words, would require very strong and compelling
contextual justification indeed.
[109] Section 241(8) is of a totally different order. Its function is to be
functional. It is not there to protect any particular
interest, or to develop
any constitutional principle, or even nuance. It is as technical and dry a
provision as one can get; far
from being one of the letters of the
constitutional alphabet, it is at most a dot on the 'i' or a cross on the 't'.
The reason why
so many judges have resorted to so many strained interpretations
of its text
[16]
is that they simply
cannot credit that such a puny provision should be able to annihilate the
powerful provisions that make up the
heart of the constitution. Section 241(8)
David takes on Chapter 3 Goliath, but this time it is Goliath who is the
righteous one.
Incredulity, if constitutionally and not subjectively based,
should be a strong factor in the process of interpretive choice. It
credits the
framers with firmness of purpose and frailty of means, rather than frailty of
purpose and firmness of means.
[110] The rights enshrined in Chapter 3, on the other hand, are deeply
entrenched, not only in relation to Parliament, but in respect
of the rest of
the Constitution. In my view, the strength of the Chapter 3 rights and the
intensity of the values they promote are
central to the whole constitutional
scheme, and are fundamental to our role as defenders of the constitution. They
link up directly
with the oath we recently took to 'uphold and protect the
Constitution of the Republic and the fundamental rights entrenched therein
and
in so doing administer justice to all persons alike' [Schedule 3]. Only the
most compelling language would justify a departure
from such a clear
responsibility. The meaning of these words could not be plainer. Even on the
literalist extreme of the literalist/purposive
continuum, one is bound to ask
what happens when two sets of plain meaning come into conflict with each other,
that of Chapter 3
on the one hand, and that of section 241(8), on the
other?
[111] The introduction of fundamental rights and constitutionalism in South
Africa represented more than merely entrenching and extending
existing common
law rights, such as might happen if Britain adopted a Bill of Rights. The
Constitution introduces democracy and
equality for the first time in South
Africa. It acknowledges a past of intense suffering and injustice, and promises
a future of
reconciliation and reconstruction. It embodies compromise in the
form a Government of National Unity, and orderly reconstruction
of the
constitutional order in terms of the two-phase process of constitution-making
which it provides for. It is a momentous document,
intensely value-laden. To
treat it with the dispassionate attention one might give to a tax law would be
to violate its spirit as
set out in unmistakably plain language. It would be as
repugnant to the spirit, design and purpose of the Constitution as a purely
technical, positivist and value-free approach to the post-Nazi Constitution in
Germany would have been.
[17]
[112] The Preamble in particular should not be dismissed as a mere
aspirational and throat-clearing exercise of little interpretive
value. It
connects up, reinforces and underlies all of the text that follows. It helps to
establish the basic design of the Constitution
and indicate its fundamental
purposes.
[18]
(See too the
concluding passages)
[19]
This is
not a case of making the Constitution mean what we
like,
[20]
but of making it mean what
the framers wanted it to mean; we gather their intention not from our subjective
wishes, but from looking
at the document as a
whole.
[21]
[113] One way of dealing with the two sets of mutually contradictory
provisions would be to apply a variant of the presumption to
the effect that
general provisions do not trump, override or derogate from specific ones.
[
Generalia specialibus non derogant
- general provisions do not derogate
from special provisions]. This is normally applied when a new statute
containing general words
is applied to an old statute with specific provisions
that are not expressly repealed.
[22]
In the leading English case of
The Vera Cruz
Lord Selborne said:
"Now if anything is certain it is this, that where there are general words in a
later Act capable of reasonable and sensible application
without extending them
to subjects specially dealt with by earlier legislation, you are not to hold
that earlier and special legislation
indirectly repealed, altered, or derogated
from merely by force of such general words, without any indication of a
particular intention
to do
so."
[23]
[114] A later provision in the same document is not
the same as a later Act in separate legislative form, yet the principle of the
relative intensity of general and of special words could well be relevant, with
preference being given to the specific ones. The
technical difficulty would be
to decide which was general and which specific: Chapter 3 has a specific ambit
but is of general application;
section 241(8) is said to have unlimited ambit,
but has only specific application. Perhaps the answer would be to allow what was
specific from each to survive, namely, the specific ambit of Chapter 3 to
co-exist with the specific application of section 241(8).
Although I would
regard the result as satisfactory, the means are artificial and if employed in
other cases could lead to serious
constitutional deformation.
[115] In any event, a question mark has to be placed over the usefulness of
common law presumptions in interpreting the Constitution.
As Wilson J pointed
out in a notable dissent,
[24]
'such
presumptions can be inconsistent with the purposive approach to Charter
interpretation which focuses on the broad purposes
for which the rights were
designed and not on mechanical rules which have traditionally been employed in
interpreting detailed provisions
of ordinary statutes in order to discern
legislative intent'. Sir Rupert Cross suggests that even in relation to
ordinary statutes,
the increasing use of a purposive approach makes the role of
presumptions 'necessarily less important than in the days of more literal
interpretation'.
[25]
[116] The preferred approach, as I have indicated, is not to search for what
is general and what is specific, but rather to seek out
the essential purposes
and interest to be served by the two competing sets of provisions, and then,
using a species of proportionality,
balance them against each other. The
objective is to achieve appropriate weight for each and preserve as much as
possible of both.
To extend the analogy, there are no trumps, but there are
cards of higher and lower value.
[117] Another way of dealing with the tension between Chapter 3 and section
241(8) would be to regard Chapter 3 as part of the context
in which section
241(8) is to be construed, and, applying a purposive approach to interpretation,
cut back the wide meaning of the
section so as to avoid anomalies and
incongruities which the framers could never have intended. A well-known South
African example
of where 'the true intention' of the legislature, as determined
by the context, was used to cut down the wide language of a provision
is
R v
Venter
.
[26]
The text under
consideration in that case provided that
'any person entering [the Transvaal]
shall be guilty of an offence ..... if he has been convicted elsewhere .... of
.... theft'.
The court held that the words 'any person' could not be given
their ordinary full meaning, since this would result in Transvaal
residents
returning to the colony being guilty of an offence, when the context of the
statute made it clear that the mischief aimed
at was the influx of criminals
from abroad. Innes CJ said that
'the court may depart from the ordinary
effect of the words to the extent necessary to remove the absurdity and to give
effect to
the true intention of the
legislature'
.
[27]
Both Innes CJ
and Solomon J explain that their decision in that particular case to depart from
the plain meaning of the statute
is not based on absurdity but on identification
of the mischief aimed at, and the need to avoid repugnancy to the intention of
the
legislature.
[118] It is true that, as Dr L.C. Steyn points
out
[28]
the
Venter
principle
was subsequently watered down by most South African judges by restricting its
operation to what was called a small class
of extreme cases. Yet, as Dr Steyn
observes, the judgments were not all one way, and the Roman Dutch Authorities
strongly supported
the approach adopted in
Venter
(he quotes Donellus as
saying that
" Die wil behoort nie die woorde te dien nie, maar die woorde die
wil. By die sake, gevalle, tye en persone wat nie deur die bedoeling
van die
wet gedek word nie, hou die wet ook op, en daar en tot die mate maak die woorde
geen reg uit nie, hoe seer ook die algemene
woorde hulle almal
omvat"
).
[29]
[119] The issue now is not whether the
Venter
principle should be more
widely applied in relation to the interpretation of statutes, but whether the
approach it adopts should
be given appropriate scope in relation to the
construction of the Constitution. In my view, it should. By emphasising the
way in
which context can modify the plain meaning of words, it conforms to
overwhelming international
practice.
[30]
[120] It also corresponds to what academic commentators in South Africa have
long been arguing for, as part of their general critique
of legal
positivism.
[31]
[121] Finally, it would contradict as a premature lamentation, the prediction
of commentators on the new Constitution that South African
Courts are likely to
continue to manifest 'an almost slavish adherence to Anglocentric legal
traditions and
concepts'.
[32]
[122] Whatever Anglocentric legal tradition might be, contemporary
Anglo-centrism would in fact support rather than undermine a context-based,
purposive approach. Membership of the European Union has had its effect on
English judges. Lord Denning explained the approach
of European judges in the
following terms:
"[They] adopt a method which they call in English by strange words - at any
rate they were strange to me - the 'schematic and teleological'
method of
interpretation. It is not really so alarming as it sounds. All it means is
that the judges do not go by the literal meaning
of the words or by the
grammatical structure of the sentence. They go by the design or purpose which
lies behind it. When they
come upon a situation which is to their minds within
the spirit - but not the letter - of the legislation, they solve the problem
by
looking at the design and purpose of the legislature - at the effect it was
sought to achieve. They then interpret the legislation
so as to produce the
desired effect. This means they fill in gaps, quite unashamedly, without
hesitation. They ask simply: what
is the sensible way of dealing with this
situation so as to give effect to the presumed purpose of the legislation. They
lay down
the law
accordingly.
"
[33]
[123] Cross quotes Lord Wilberforce as denying 'the tired old myth' that
English judges are more literalist and narrow than continental
courts, and goes
on to say that at least nowadays, judges in England adopt a purposive approach
to statutory interpretation, rather
than a narrow literal
one.
[34]
"Of course", the book
observes "a literal approach need not be a particularly narrow one - an
unrestrictive construction of general
words may be excessively literal and
insufficiently purposive, but the usual charge under this head is one of narrow
literalism".
[124] The general approach adopted by Cross is to urge the judges to function
in an unapologetically purposive fashion and not be
afraid to acknowledge that
they can and do 'rectify' the text when the words used in a particular
formulation defeat or go against
the general purpose of the statute. He argues
strongly in favour of a contextual approach and quotes with approval the
observation
by Viscount Simonds that " .... words, and particularly general
words, cannot be read in isolation; their colour and content are
derived from
their context".
[35]
[125] A purposive and mischief-orientated reading as against a purely literal
one, always involves a degree of strain on the language.
In the present case,
the strain comes not so much from a counter-literal attempt to deal with
inherent ambiguity of words on their
own, or from the need to cut back the
meaning of open-ended words, but from the tension of counter-posing the broad
words of limited
application in section 241(8) with the narrower words of wide
application in Chapter 3. More concretely, it is established by the
need to
weigh the interest and purpose of section 241(8) read on its own, as against the
intent and purpose of Chapter 3. I accordingly
do not apply the
Venter
principle as such, but rather what I consider to be the modern and appropriate
judicial technique of proportionality.
[126] I realise that the approach I am suggesting is relatively new in South
Africa, and involves a utilization of proportionality
that is a little different
from its normal employment in other countries. Yet I find it particularly
helpful in dealing with cases
such as the present.
[127] We are a new court, established in a new way, to deal with a new
Constitution. We should not rush to lay down sweeping and
inflexible rules
governing our mode of analysis. We need to develop an appropriately South
African way of dealing with our Constitution,
one that starts with the
Constitution itself, acknowledges the way it came into being, its language,
spirit, style and inner logic,
the interests it protects and the painful
experiences it guards against, its place in the evolution of our country, our
society and
our legal system, and its existence as part of a global development
of constitutionalism and human rights.
[128] It is a matter of public record that the approach of acknowledging
problems and seeking consensual solutions based on a fair
balance of interests,
played a major role in the elaboration of the text of the Constitution; there
seems to me no objection in principle
to applying this approach to its
intra-textual interpretation as well. Although the two endeavours are quite
different in nature,
both are based on the notion of using a balanced approach
to deal with competing interests, so that there are no outright winners
and
losers.
[36]
[129] I might add that I regard the question of interpretation to be one to
which there can never be an absolute and definitive answer
and that, in
particular, the search of where to locate ourselves on the literal/purposive
continuum or how to balance out competing
provisions, will always take the form
of a principled judicial dialogue, in the first place between members of this
court, then between
our court and other courts, the legal profession, law
schools, Parliament, and, indirectly, with the public at large.
[130] The objective of my approach in the present case is to preserve the
essential functional core of section 241(8), while causing
the minimum
disturbance to the fundamental rights entrenched in Chapter 3. In other words,
instead of mechanically applying section
241(8) and then lamenting, ignoring or
minimizing the injustices which follow, the court gives effect to the gravamen
of the section,
but construes it in such a way as best to harmonize with Chapter
3 and so avoid needless incongruity and eliminate unnecessary postponement
of
enjoyment of fundamental rights.
[131] From its wording and in the context of transitional arrangements,
section 241(8) makes eminent sense as a stop-gap measure designed
to prevent
undue uncertainty about the continuity of ongoing court business. It
simultaneously serves to establish the legitimacy
of the judicial order and to
deal with cases that have already started in a manner which minimises
disruption. It also functions
to remove unfair prejudice in relation to people
who had already instituted proceedings to vindicate their rights under the law
as
it stood. It obviates the necessity of having to start trials all over again
from the beginning, insofar as the courts will continue
to have jurisdiction in
each case. It means not only that what has already transpired need not be
repeated, but that the validity
of what was done before 27 April 1994 will be
judged by the pre-April 27 law.
[132] These are worthwhile and uncontroversial objectives totally consistent
with the goal set out in the Preamble to provide for
the restructuring and
continued governance of South Africa. Furthermore, the provision would, in my
view, confirm that proceedings
already initiated before April 27 to secure
then-existing rights, would not be nullified. None of the above is problematic
- in
simple lay language, what was, was. (In this respect I agree fully with
both Kentridge AJ and Mahomed J on the question of the non-retroactivity
of
Chapter 3.)
[133] A straightforward reading of the section, accordingly, convinces me
that the basic objective of the framers of the Constitution
was to provide
jurisdictional continuity and prevent operational chaos. In order to do so,
they employed, with minor modifications,
a well-worn formula used extensively in
statutes that gave new rights and imposed new liabilities. The use of an
off-the-shelf formula
strengthens my view that the matter was not specifically
adverted to with full awareness of and intention to achieve the drastic
and
incongruous results which will be referred to below. Rather, as far as court
business was concerned, the objective was a functional
one and a functional
clause was introduced to achieve it. The reference to pending proceedings
should be interpreted in a functional
way, in the light of, and not in
opposition to Chapter 3.
[134] There is nothing stated expressly or necessarily implied in the text,
save the open-endedness of the language used, to indicate
that the framers
intended that this provision should lead to:
a denial of fundamental
rights after April 27;
dislocation between the judicial power [to impose certain punishments] and
the executive power [to carry them out];
making the fundamental rights of accused persons dependent on fortuitous
factors of no constitutional merit in themselves, relating
to when the trial
became a pending one; and
requiring courts to engage in trivial, time-consuming and at times elusive
enquiries into such fortuitous factors before deciding
on whether to acknowledge
fundamental rights or not in the particular case.
[135] On the interpretation which I propose, none of these problems arise and
none of these time-wasting enquiries should be necessary.
That is not merely a
consequence of the purposive and proportionate interpretation but an element of
it.
[136] Even if the cases are relatively few, that is, they only potentially
affect some tens of thousands of people, and in practice
only relate to a few
dozen people who have actually raised constitutional points, the impact can be
quite severe. It could affect
whether or not to impose the death sentence,
corporal punishment and imprisonment for civil debt. It could involve a court
convicting
someone even though it had a reasonable doubt as to his or her guilt,
and causing substantial injustice by denying counsel to an
indigent
person.
[137] Mahomed J has dealt trenchantly with these incongruities and
injustices. I merely add that these are not hypothetical cases
conjured up for
the purposes of a classroom debate or a late night television programme. Each
and every one of the above issues
has come before this court. In each case we
have been haunted - unnecessarily on my version - by section 241(8). In each
case,
the rights of an accused person in a profound way stood to be affected.
In my view, the potential damage goes further. The narrow
literal view [with
its broad implications] of section 241(8) that divines its purpose from its
words alone and effectively excludes
the rest of the Constitution, underplays
the symbolical importance that a decisive break with the past has for millions
of people,
and flattens the resonance for the public at large of the promise
implicit in and the hope inspired by Chapter 3.
Conclusion
[138] There are circumstances of transition where a certain measure of
incongruity and even injustice is inevitable. In the present
case, however, the
incongruity flows not from the nature of the process itself, as contemplated by
the framers, but from the mode
of interpretation, as adopted by sections of the
judiciary.
[139] If one applies a strict literal test of section 241(8) on its own, and
if one believes as Lord Halsbury did a century ago, that
the lawmaker is an
ideal person who never makes a
mistake,
[37]
then one might have no
option but to accept that the framers actually intended the above consequences,
in the sense of deliberately
casting the linguistic net as wide as possible so
as to cover all these situations.
[140] Even accepting the less idealized vision which I am sure the framers of
today would have of themselves, there could, of course,
be circumstances where
the only correct interpretation would be that section 241(8) must be taken to
override Chapter 3. These circumstances
would include the situation where it is
clear from the language and the context that the framers consciously adverted to
and accepted
such a necessity. If this drastic consequence was manifestly the
inevitable price of avoiding judicial disruption, then I could
accept that the
framers contemplated it, made their calculation and, if the expression is not
too undignified, bit the constitutional
bullet.
[141] Yet it seems to me that there is no intrinsic reason why the functional
objectives of avoiding unnecessary disruption to court
proceedings cannot be
harmonized with the fundamental rights of Chapter 3 and with the protective
jurisdiction given to this court
in Chapter 7. Put another way, there is no
reason why the mischief of disruption to the administration of justice should
not be
countered without producing the counter-mischief of nullification of the
principles that lie at the heart of the constitution.
[142] In reality, the language of section 241(8) is open-ended rather than
compelling on this score. If the framers had intended
a Constitution which in
effect bit off its own leg, they would have developed a text that left no doubt
of such a drastic intention.
[143] The issue in the present case cannot be reduced to one of deciding
which interpretation gives rise to the greater or lesser
number of anomalies.
Rather, we must discern which produces anomalies most at variance with the
character and design of the Constitution.
In this respect, functional
difficulties will count for far less than what I might call 'fundamental rights'
anomalies. Practical
problems can always be dealt with in a practical way.
Rights are of a different order, and it is our duty to uphold them wherever
possible.
[144] The approach I adopt therefore purposefully applies a restrictive
interpretation to the further reaches of section 241(8) so
as to: balance it
against the specific rights guaranteed in Chapter 3; avoid incongruous results
to which the framers had not adverted
and which they could not reasonably be
thought to have intended; obviate consequences that are not necessary for the
achievement
of the objective the provision was intended to serve; and express
rather than go against the intent of the Constitution looked at
as a whole. In
relation to Chapter 3, my interpretation also involves a limitation, namely, to
its reach in time, in the sense that
it is not applied retrospectively to
undermine the validity of proceedings up to 27 April 1994, or to negate rights
which had already
accrued at that date.
[145] More specifically, I find that a proper interpretation of section
241(8) in its constitutional context requires that the phrase
'shall be dealt
with' must be construed as if it stated 'subject to the provisions of Chapter 3'
and not as if it stated 'notwithstanding
the provisions of Chapter 3'.
[146] In this way, the two sets of provisions are harmonized, and, if I
might put it that way, David and Goliath refrain from mortal
strife.
CASE NO :
CCT/25/94
COUNSEL FOR APPLICANTS
: A E POTGIETER (PRO DEO)
COUNSEL FOR RESPONDENTS
: J W S DE VILLIERS
J H DU PLESSIS
I STRETCH
INSTRUCTED BY
: THE ATTORNEY GENERAL: NATAL
[1]
In parenthesis, I
point out that section 241(8) applies to civil as well as criminal proceedings.
In Roman Dutch law there was some
controversy whether civil proceedings were
pending only upon
litis contestatio
or upon service of the summons.
Modern authority favours the latter view.
Michaelson v Lowenstein
1905
TS 3241
;
Van As v Apollos and Others
1993(1) SA 606(C), 609. See also
S v Saib 1
994(2) BCLR 48(D), 53; 1994(4) SA 554(D), 559 per Thirion
J.
[2]
As Chapter 3 for
the most part confers rights on individuals rather than removes them there will
not be many instances where retrospectivity
in the sense explained will arise.
A theoretical example would be the invalidation of a statute which conferred
rights on a section
of the population on a discriminatory basis. This might
destroy the vested rights of those previously favoured.
[3]
For that reason it
seems to have been unnecessary to invoke section 241(8) in
Kalla v Master of
the Supreme Court, supra
: the case could have been decided in the same way
be reference to section 7(2).
[4]
S v Zuma and
Others
[1995] ZACC 1
;
1995 (4) BCLR 401
(SA).
[5]
The offending
section casts the onus on an accused in certain circumstances to establish the
involuntariness of an extra-curial confession.
This was found to be an
unwarranted infringement of the right to a fair trial guaranteed by section
25(3) of the Constitution.
[6]
The law reports
reflect no less than 18 cases reported up to March 1995. Several further cases
did not make their way to the law
reports. The gist of these cases is discussed
by Kentridge AJ.
[7]
This was sensible
because chapter 7, titled "The Judicial Authority and the Administration of
Justice", commences with the following
provision:
"96.(1) The judicial authority of the Republic shall vest in the courts
established by this Constitution and any other law."
[8]
By section 15 of
the Constitution of the Republic of South Africa Third Amendment Act, No. 13 of
1994.
[9]
If I may quote the
vivid description of Mahomed J in paragraph 8 of his judgment.
[10]
Subsection
98(6)(a) reads as follows:
"(6) Unless the Constitutional Court in the interests of justice and good
government orders otherwise, and save to the extent that
it so orders, the
declaration of invalidity of a law or a provision thereof-
(a) existing at the commencement of this Constitution, shall not
invalidate anything done or permitted in terms thereof before the
coming into
effect of such declaration of invalidity."
[11]
Supra
note 4.
[12]
1995 (1) BCLR
97
at 102H-103B (W).
[13]
The various
criminal courts in the country deal with more than 2,5 million cases each year.
It can safely be postulated that the
number of cases that were pending when the
Constitution came into operation ran to tens of thousands.
[14]
See Cachalia et
al Fundamental Rights in the New Constitution Juta 1994 Chapter 1 especially at
p5.
[15]
See Du Plessis
and Corder, Understanding South Africa's Transitional Bill of Rights, Juta 1994
Chapter 3.
[16]
The different
'plain meanings' are summarised in Kentridge AJ's judgment.
[17]
Davis,
Chaskalson and de Waal in Rights and Constitutionalism ed van Wyk, Dugard, de
Villiers and Davis, Juta 1994 at p85.
[18]
c/f Manfred
Nowak, U.N. Covenant on Civil and Political Rights - CCPR Commentary, Engel
Verlag, Kehl 1993, intro XXII p2.
[19]
The last
unnumbered passages of the Constitution, specifically given full constitutional
weight [see Section 232(4)]. Variously
referred to as: Postcript, Afterword,
Afteramble, Postamble and Epilogue.
[20]
See the
cautionary remarks of Kentridge AJ in
S v Zuma
and Others
BCLR
4041 (SA)
[21]
This is the
approach argued for in all the many commentaries on the new Constitution. It is
not necessary to cite them all.
[22]
See Cross,
Statutory Interpretation, Butterworths 1987 2nd ed p77-8.
[23]
(1884) 10 App
cas 59 at 68.
[24]
Thomson
Newspapers v Canada
67 DLR (4th) 161 at p192.
[25]
At
p189-90.
[26]
1907 TS
910.
[27]
At
p915.
[28]
Die Uitleg van
Wette, Chapter 11, 5th Edition p22 to 55. The whole chapter is devoted to
'afwyking van letterlike uitleg'.
[29]
At p25. See
too p55.
[30]
Summaries of
the approach to interpretation in Canada, Germany and India are given in the
chapter by Davis, Chaskalson and de Waal
in Rights and Constitutionalism, ed van
Wyk, Dugard, de Villiers and Davis, Juta 1994; for the approach generally in
Europe, see
Lord Denning's summary set out below; for interpretation of
treaties, see Art. 31 of the Vienna Convention on the Law of Treaties
and
commentary by Nowak op cit.
[31]
See, generally,
Devenish, Interpretation of Statutes, Juta 1993, where the courts are urged to
adopt a value-coherent theory of interpretation
involving interpretation that is
not merely technical, but rational and just - Professor Devenish informs us that
the oath we recently
swore can be construed as 'a cogent legislative injunction
for a teleological methodology'; and also Mureinik
(1986) 103 SALJ 615.
Special
attention should be paid to the pioneering, thoughtful and well-researched
studies by DV Cowen published in
1976 TSAR 131
and
1980 (43) THRHR 374]
, and the
path-breaking critiques by Professor Dugard in Human Rights and the South
African Legal Order, Princeton University 1973
p369 and 381.
[32]
Davis et al op
cit p11; see too du Plessis and Corder, Understanding South Africa's
Transitional Bill of Rights 1994 p65 - they criticise
the fact that language is
elevated to the foremost structural element of a legislative text and other
elements are reckoned with
only when language fails; Cachalia et al, Fundamental
Rights in the New Constitution 1994 p5, where it is emphasized that a
constitution
cannot be read clause by clause, nor can any clause be interpreted
without an understanding of the framework of the instrument.
Their main point
is the need to distinguish between grammatical exegesis and constitutional
analysis.
[33]
James Buchanan
& co Ltd v Babco Forwarding & Shipping (UK) Ltd
(1977) 2 WLR 107
at 112;
c/f the comment by F.A.R. Bennion, Statutory Interpretation 2nd ed,
Butterworths, London 1984 p659 ff.
[34]
Rupert Cross,
op cit p189-90.
[35]
A-G v Prince
Ernest Augustus of Hanover
[1957] AC 436
AT 461.
[36]
c/f Dugard op
cit p381.
[37]
Income Tax
Special Purposes Commissioner v Pemsel
[1891] UKHL 1
;
(1891) AC 531
at 549