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[1990] ZASCA 4
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S v Tieties (620/88) [1990] ZASCA 4; 1990 (2) SA 461 (AD); (1 March 1990)
620/88 N v H
JOSEF TIETIES and THE STATE
SMALBERGER, JA :-
620/88 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
JOSEF TIETIES
Appellant
and
THE STATE
Respondent
CORAM
: HOEXTER, BOTHA, SMALBERGER, MILNE,
et F H GROSSKOPF, JJA
HEARD
: 24 NOVEMBER
1989
DELIVERED
: 1 MARCH 1990
/
JUDGMENT
SMALBERGER, JA :-
This appeal concerns the proper interpretation of s 123 (b) of Act 51 of 1977
("the Act"). In particular it raises the question whether
an attorney-general is
competent to convert the
.../2
2
proceedings at a criminal trial in a magistrate's or regional court into a
preparatory examination
after
conviction.
The appellant originally
appeared before a magistrate at Stampriet in terms of s 119 of the Act. He was
charged with the murder of
his wife ("the deceased"). He pleaded not guilty to
the charge, whereupon he was questioned by the magistrate under the
provisions|of
s 115 of the Act. The appellant made a detailed statement in which
he set out his version of the evênts immediately preceding
the deceased's
death.
Thereafter the proceedings were adjourned pending the decision of the
attorney-general. In due course the attorney-general directed
that the appellant
be tried in the magistrate's court at Stampriet on a charge of culpable
homicide. . (It is common cause that at
the time there was no regional court in
South West
/3
3 Africa.) The trial duly proceeded, and at its conclusion
the appellant was convicted of culpable homicide. The presiding magistrate
found, on the evidence, that the appellant had unlawfully and intentionally
killed the deceased (and was thus guilty of murder),
but convicted him of
culpable homicide on
the strength of the decision of this Court in
Sv
Ngubane
1985 (3) SA 677
(A).
After the appellant had been convicted, but
before sentence was passed, the State prosecutor,
acting on prior instructions obtained from the
attorneyrgeneral, caused the proceedings to be
converted into a
preparatory examination. In issuing
the necessary instruction to convert the
proceedings
into a preparatory examination the attorney-general
purported to act in
terms of s 123(b) of the Act. The
preparatory examination proceedings were
concluded
/4
4 without any further evidence having been lead. In due
course the attorney-general elected to arraign the appellant for trial in
the
Supreme Court of South West Africa on a charge or murder. The appellant
eventually appeared before HENDLER, J. No special plea
was entered, and the
trial proceeded in the normal way. At its conclusion the appellant was duly
convicted of murder with extenuating
circumstances, and sentenced to 7 years'
imprisonment. He was later granted leave to appeal to this Court by the judge
a
quo
. Such leave was limited to issues surrounding
the competence of the attorney-general to convert the
original trial into a preparatory examination after the
appellant's conviction. It is not disputed that the
evidence at the trial before HENDLER, J, established
that the appellant was in fact guilty of murder.
/5
5
The relevant provisions of s 123 of the
Act
read as follows:
"If an attorney-general is of the opinion that it is necessary for the more
effective administration of justice -
(a)
(b) that a trial in a magistrate's
court or a regional court
be
converted into a preparatory
examination, he may at any stage of
the
proceedings, but before
sentence is passed, instruct that
the trial be
converted into a
preparatory examination."
On a literal interpretation thereof the
meaning of s 123 (b) would seem to be clear. The
words "before sentence is
passed" signify that the
attorney-general (once he has formed the required
opinion) may instruct
that the proceedings be converted
into a preparatory examination at any stage prior to
sentence - which necessarily implies the power to do so
both before and after conviction. The crisp issue is
whether this is what the legislature intended, or
/6
6 whether it only had in mind to empower the attorney-general
to act in the manner prescribed by s 123 (b)
before
and not
after
conviction. To arrive at the latter conclusion would necessarily involve
substituting the words "before conviction" for the words
"before sentence is
passed" in s 123 (b). This would not only amount to a radical departure from
the
literal meaning of the actual words used, but in effect
constitute a, redrafting of s 123 (b). Does our law
permit such a course?
The primary rule in the construction of
statutory provisions is to ascertain the intention of the legislature. In
order to do so one attributes to the words of a statute
their ordinary, literal,
grammatical meaning. Where the language of a statute, so viewed, is clear and
unambiguous effect must be
given thereto, unless to do so "would lead to
/7
7 absurdity so glaring that it could never have been
contemplated by the legislature, or where it would lead to a result contrary
to
the intention of the legislature, as shown by the context or by such other
considerations as the Court is justified in taking
into
account " (per
INNES, CJ, in
Venter v R
1907
TS 910
at 915). (See also
Shenker v
The Master and Another
1936 AD 136
at 142;
Summit
Industrial
Corporation v Claimants Against the Fund Comprising
the
Proceeds of the Sale of the MV Jade Transporter
1987
(2) SA 583 (A) at 596 G - H. ) Where the ordinary
grammatical meaning of the words used would not reflect the legislature's
true intention (as gleaned from other relevant considerations)
"it is within the
powers of a court to modify the language of a statutory provision where this is
necessary to give effect to what
was clearly the legislature's intention" (per
SCHREINER,
.... /8
8 JA, in
Durban City Council v Gray
1951 (3) SA 568
(A) at 580 B).
(See also the remarks of WARD, J, in
Skinner v Palmer
1919 WLD 39
at 44
that "if a proper case arose the Court could delete one word and read in
another. But the Court will not reject a word of clear
meaning unless it is
forced to do so".) Before a court can modify or alter the words of a statute in
terms of the above principles
"the intention of the legislature must be clear,
and not a mere matter of
surmise or probability" (per DE VILLIERS, JA in
Shenker 'v The Master
(
supra
) at 143). One must heed the
warning of CORBETT, JA, in the
Summit Industrial Corporation
case
(
supra
) at 596 J - 597 B that "it is dangerous to speculate on the
intention of the Legislature (see eg the reference in
Savage v Commissioner
for Inland Revenue
1951 (4) SA 400
(A) at 409 A) and the Court should be
cautious about thus
/9
9 departing from the literal meaning of the words of a
statute (see remarks of SOLOMON, JA, in
Dadoo Ltd and Others v Krugersdorp
Municipal Council
1920 AD 530
at 554-5). It should only do so where the
contrary legislative intent is clear and indubitable (see Du
Plessis v
Joubert
1968 (1) SA 585
(A) at 594 - 5.)" Or in the words of DAVIS, J, in
De Villiers v Cape Law
Society
1937 CPD 428
at 432 "I must...be
certain
that the result of any alteration that I may make will
be to carry out the
intention of the lawgiver
It is n6t enough to come to the conclusion that the
amendment 'probably' expresses the intention : in my opinion the Court must
be certain that it does so : otherwise, as
Ulpian
says, it is better to
adhere to the strict wording of the law".
It follows from the above
principles that whereas a court may in appropriate cases depart from
/10
10
the ordinary meaning of the words used in a statute, or
even modify or
alter such words, it may only do so
where this is necessary to give effect to
what can with
certainty be said to be the true intention of
the
legislature. Once such intention has been
established the court should
not hesitate to give
effect thereto. The correct approach in this
regard
is, in my view, that set out in
Steyn
: Die Uitleg van
Wette:
5th Edition: p 68 as follows:-
"Binne die beperkte gebied waarin die
,afwykende wetgewende
wil wel met sekerheid
vasgestel kan word, bestaan daar egter
geen
genoegsame rede om terug te deins vir 'n
woordverandering wat daardie
wil sal uitvoer
nie. Die beswaar dat dit nie die taak van
die regbank is
om wette te maak nie, vloei
voort uit h foutiewe opvatting aangaande
die
werklike aard van 'n wet. Die mening van
Donellus dat die wil, en nie
die woord nie,
die wet maak, lyk gesond. Vir wie daardie
mening
onderskryf, tree 'n hof nie wetgewend
op as hy woordwysigende uitleg toepas
nie,
maar wel wanneer hy 'n woord wat nie die
bedoeling weergee nie en
daarom geen wet is
nie, tot wet verhef."
/11
11
The principles enunciated above have been consistently followed and applied
in our courts. Instances thereof are to be found in the
cases conveniently
collected and referred to in
Steyn
op
cit
at pp 58 - 61, including
footnote 133. It is clear from these principles, and the cases that have applied
them, that provided it can
be indisputably established that the legislature
intended something different from the ordinary meaning conveyed by the words
used
in a
statutory enactment, a departure from such meaning is
justified, even if it involves an alteration or
substitution of the words used. The key requirement is that the legislature's
contrary intention must be clearly established with
regard to such circumstances
as the court may properly take into account. If therefore it can be established
in the present matter
that the legislature intended no more than that the
/12
12
attorney-general should have the power to convert a
trial into a
preparatory examination
before
but not
after
conviction, effect
can be given thereto by
reading the words "before sentence is passed" as
"before conviction".
Prior to the enactment of s 123 (b) of the
Act the procedure for converting a trial into a
preparatory examination
was goyerned by
s 93
of the
Magistrates' Courts Act 32 of 1944
, the
relevant
provisions olf which read:
"(1) When in the course of any trial it
appears that the
offence under
trial is from its nature or
magnitude only subject to
the
jurisdiction or more proper for the
cognizance of a superior court,.
or
when the public prosecutor so
requests, the presiding
judicial
officer shall stop the trial, and
the proceedings shall thereupon
be
those of a preparatory examination.
(2) If upon conviction of an accused person after summary trial
it is
/13
13
brought to the notice of the presiding judicial officer before sentence is
passed, that the accused has previous convictions which
in the opinion of that
officer, would justify a sentence in excess of his jurisdiction he
may set aside his finding
and the proceedings shall thereupon
be deemed to have been
a
preparatory examination
(3) "
As appears from the provisions of
s 93
(1),
the
attorney-general (acting through the public
prosecutor) could at any stage
during the course of a trial in/a magistrate's or regional court request the
presidihg magistrate to
stop the trial and convert it into a preparatory
examination. The request could be made without the necessity for stating any
reasons,
and the magistrate was obliged to grant it (
Bham v Lutge N 0
1949 (3) SA 392
(T) at 396). This was the only power which the attorney-general
could exercise to have
/14
1 4 proceedings converted into a preparatory examination.
Apart from the attorney-general's power in this regard, the presiding magistrate
could
mero motu
stop a trial where it appeared that the offence charged
was "from its nature or magnitude only subject to the jurisdiction or more
proper for the cognizance of a superior court", in which case the trial was
converted into a preparatory examination. The powers
conferred upon an
attorney-general and presiding magistrate respectively under
s 93
(1) arose "in
the course of any trial". The word "trial" in similarly worded earlier
enactmehts was widely held to mean the proceedings
before the pronouncement by
the presiding magistrate of his verdict i e, before conviction or acquittal.
(See
R v Boon
1912 T P D 1136
at 1138/9;
R v Kissinq
1926 SWA 61
at 62;
R v Keeves
1926 A D 410
at 413, 415, 418;
R v Mcingwane
1930 EDL 244.)
It was clearly
/15
15 used in the same sense in
s 93
(1). Thus an
attorney-general could only request that proceedings be stopped
before
conviction, but not thereafter.
The only circumstances in which the
proceedings after conviction could be converted into a preparatory examination
were those provided
for in
s 93
(2). The provisions of that subsection could
only be invoked where in the opinión of the presiding magistrate the
previous
convictions of the accused were such that a sentence was justified in
excess of the magistrate's jurisdiction. They were therefore
relevant only to
the guestion of sentence. Furthermore, provision was specifically made for a
magistrate invoking the provisions
of
s 93
(2) after conviction to "sêt
aside his finding" (i e, the conviction).
/16
16
Section 123 (b) of the Act brought about a number of changes in the position
as it previously existed. It is now only an attorney-general
who may take action
which results in a trial being converted into a preparatory examination. A
magistrate is bereft of the authority
he previously had under
s 93
(1) of the
Magistrates' Courts Act to
convert,
mero motu
, a trial into a preparatory
examination before conviction. Nor can he act, after conviction, in the manner
previously authorised
by
s 93
(2). He can, however,/achieve the same result by
invoking the provisions of
s 114
and s 116 of the Act, and committing an accused
to a regional court for sentence, but this does not require the conviction to be
set aside.
There are a number of pertinent considerations which in my view point
inexorably to the
/17
17 conclusion that despite the wording of s 123(b) of the
Act the legislature did not intend to clothe an attorney-general with authority
to instruct that a trial be converted into a preparatory examination after
conviction. At no stage prior to the enactment of s 123
(b) was an
attorney-general so empowered. He could only take steps to convert a trial into
a preparatory examination
before
'conviction. There is no apparent reason
why the attorney-general's powers in this respect should have been extended to
the stage
beyond cónviction. There have been no radical changes
or devélopments in the criminal procedure system which
necessitate this. As I have pointed out, in relation to problems of
sentencing that might arise in a magistrate's court, the position
is
satisfactorily dealt with by sections 114 and 116 of the Act. Nor would there
normally be any need, for the proper
/18
18
exercise by an attorney-general of his powers under s 123 (b), for such
powers to be exercised after conviction.
Hiemstra
: Suid-Afrikaanse
Strafproses: 4th Edition, at p 302 mentions two instances where an
attorney-general can utilise the provisions of
s 123 (b). They are :
(a) Where he adjudges the offence to be
too serious to be tried in an
ihferior court. He can
then convert the trial into a preparatory
examination,
and thereafter invoke the provisions of s 139 of the Act to
bring the matter before a superior court for trial.
(b) Where he resorts to the legally
permissible tactic of converting a
trial into a
preparatory examination in order to remedy any
shortcomings
in the State case.
/19
19
Both these courses of action would normally commend themselves before
conviction, thereby enabling appropriate action to be taken
at that stage. The
purpose of section 123 (b) would therefore not be stultified if the power to act
in terms thereof could only be
exercised prior to conviction.
Secondly, if s
123(b) authorises the attorney-general to act after conviction, what is to
become of the conviction which has been
recorded? A conviction has important
consequences for as long as it
stands. For one, it precludes a further trial against
the person convicted in respect of the same or a
similar offence based on substantially the same facts. Furthermore, in the
context of the present matter, it would render inoperable
or inapplicable many
of the provisions relating to preparatory examinations (see s 124 et
seg
of the Act). Unless specific legislative
/20
20 provislon is made for it to be dealt with in some other
manner, a conviction stands until set aside by a competent court with review
or
appellate jurisdiction. If, therefore, the legislature had intended the
attorney-general to have the power to act under s 123(b)
after conviction one
would have expected specific provision to have been made for setting aside the
conviction. Yet the Act, and
particularly s 123(b), is completely silent on the
point. It makes no specific provision for the conviction to be set aside either
by the authorised act of the presiding magistrate (as was the case previously
under the now repealed s 93(2) of the Magistrates'
Court Act where the presiding
magistrate was authorised after conviction to "set aside his finding"), or by
reference to a court
of review or appellate jurisdiction (as provided for in the
case where s 116 (3)(a) of the Act
/21
21 applies).
It was contended on behalf of the respondent
that the conviction would as a matter of necessary implication fall away as a
result
of the attorney-general's intervention. The primary function of the
attorney-general is to institute prosecutions on behalf of the
State. He is not,
and never has been, invested with any judicial powers. The setting aside of
a
conviction is pre-eminently a judicial function. I
cannot conceive that
in enacting s 123(b) the legislature intended to clothe an attorney-general with
the power. to nullify a conviction
in a trial regularly and properly conducted.
This would constitute so drastic and radical a departure from principle and
normal procedure
that if the legislature so intended one would at least have
expected it to deal with the matter explicitly. I would echo the view
expressed
by
/22
22
DIDCOTT, J, in
S v Mabaso and Another
1980(2) SA 20 (N)
at 22 E
that "Statutes which make radical changes in the law seldom do so by mere
implication, and the intention to accomplish them
by such means is not easy to
impute to the Legislature".
Counsel for the respondent sought to support the
argument in favour of a necessary implication by reference to s 113 of the Act.
That
section provides
that if the oourt at any stage of the proceedings urfder
s 112 and before
sentence is passed is in doubt whether the accused is in law guilty of the
offence to which he has pleaded guilty,
the court shall record a plea of not
guilt.y and require the prosecutor to proceed with the prosecution. Section 112
covers the situation
where an accused pleads guilty at a summary trial. Provided
the provisions of s 112(1)(a) are satisfied, an accused may be convicted
on a
plea of guilty alone.
/23
23
Section 113 clearly contemplates the possibility of a convictlon having been
recorded before the accused's plea of guilty is changed
to one of not guilty. It
was held in
S v Lukele
1978 (4) SA 450
(T) that the alteratlon of a plea
from guilty to not guilty in terms of s 113 automatically results in any
recorded conviction falling
away (as a matter of necessary implication).
Although
Lukele's
case has subsequently, been followed in a number of
decisions doubts were voiced about its correctness in
S v Mabaso and
Another
(
supra
) at 22 B - 24 A. (The problem which confronted
DIDCOTT, J, in that case also centered on the words "before sentence is passed".
He
ultimately stated "No way of restricting the operation of s 113 to the period
before the conviction occurs to me, I confess, unless
those words are ignored
altogether or read as being 'and before verdict is
/24
24
entered'. Either would be an extreme solution".) Assuming the correctness of
the decision in
Luleke's
case, the situation there is clearly
distinguishable from the present. Under s 113 one is dealing with the exercise
of a judicial
function by a judge, regional magistrate or magistrate in
circumstances materially different from those pertaining under s 123(b).
Section
113 is more readily susceptible to an implication ,than s 123(b). Its
provisions, and the interpretation thereof, do not
assist in ascertaining the
legislature's intention under the enactment of s 123(b).
The third relevant consideration relates to the use of the word "trial" in s
123(b). (Contrast s 113 and various other sections where
reference is made to
"proceedings".) Section 123(b) refers specifically to "a trial in a magistrate's
court ...."
/25
25
and provides that an attorney-general may "instruct that the trial be
converted into a preparatory examination". As I have pointed
out, "trial" under
the previously applicable legislation meant the proceedings up to the time of
conviction. This is the ordinary
juristic sense of the word (
R v Keeves
(
supra
) at 414-5). Broadly speaking it is used in that sense
throughout the Act. There is no reason why the legislature should have sought
to
use the word in a different sense in s 123(b). In addition, the meaning of the /
word "trial" as used in the preceding legisla'tion
was well settled and well
recognised, and the legislature must be taken to have known what such meaning
was. Yet it chose to use
the word "trial" without qualification in s 123(b).
This further points to the conclusion that in enacting s 123(b), the legislature
had in mind the proceedings before
/26
26
and not after conviction.
Fourthly, to hold that s 123(b) empowers an
attorney-general to convert proceedings into a
preparatory examination
after conviction would offend
against certain basic tenets of our system of
criminal
justice. It is a fundamental principle of that
system that a person should be protected from the
inconvenience of repeated prosecutions in respect of
the same cause of action. This principle is enshrined
in the maxim
nemo debet bis vexari pro una
et
eadem
causa
. To permit the conversion of proceedings into
a
preparatory examination after conviction would run counter to this. It will
inevitably result in the accused being tried again,
presumably (but not
necessarily) in a different forum. Theoretically there could upon conviction
again be a conversion into a preparatory
examination. There would be nothing
to
/27
27
preclude a succession of trials in relation to the same criminal conduct. The
repetition of prosecutions is also inimical to the principle
that the proper
administration of justice requires finality in the criminal process -
interest reipublicae ut sit finis litium
. In my view the legislature must
be taken not to have intended an enactment with conseguences inconsistent with
these fundamental
principles and the policy of our criminal law (cf.
R v
Rose
1937 AD 467
at 476).
Finally, to permit an attorney-general to
convert proceedings into a preparatory examination after conviction is to confer
on him
in an obligue way review or appellate jurisdiction,as this would
certainly be the effect of his conduct. One instinctively recoils
from such a
notion, which is entirely foreign to our criminal system.
/28
28
Dissatisfaction with the outcome of a prosecution, albeit on factual or legal
grounds, could result in a conviction being set aside
and proceedings ultimately
being commenced afresh. In this manner a challenge can be directed at factual
findings, which the State
would otherwise be precluded from doing. The only
requirement is that in the attorney-general's opinion such a course must be
"necessary
for the more effective administration of justice". This is a very
broad concept. Furthermore, once formed, the attorney-general's
opinion would be
susceptible to challenge on limited grounds only. The temptation to remedy
errors or defects in the prosecution
would be great. As BQTHA, JA, remarked in
S v Xaba
1983 (3) SA 717
(A) at 738 H "justice also demands that the
accused should not be unfairly harassed as the result of an error made in his
prosecution
...."
/29
29
Having regard to the historical perspective, the context of s 123(b),
particularly the failure to make provision for any conviction
to be set aside,
and the principles to which I have referred, the conclusion in my view is
inevitable that the legislature could
not have intended an attorney-general to
have the power to convert the proceedings at a trial into a preparatory
examination after
conviction. To give effect to such intention the words "before
sentence is passed" must be read as "before conviction". Although
this in effect
amounts to a re-drafting of s 123(b), the result is consonant with what I
perceive to be the true intention of the
legislature.
It follows that the
appellant's conviction in the magistrate's court at Stampriet on a charge of
cuplable homicide must stand. The
appellant should have raised a plea of
autrefois convict at his trial
/30
30
before HENDLER, J. There is authority for the proposition that an appeal of
autrefois convict cannot be raised for the first time
on appeal (
S v Kgatlane
1978 (2) SA 10
(T)). However, in
S v Mgilane
1974 (4) SA 303
(THC),
MUNNIK, CJ, held that to apply the rule that a plea of autrefois acquit cannot
be raised for the first time on appeal rigidly
would be repugnant to fair play
and justice. The same principle should, in my view, apply to a plea of autrefois
convict. I accordingly
hold that the appellant is not
debarred from raising such plea for the first time on
appeal, which in effect is what he has done.
In the result the appeal succeeds, and the
following order is made:
1) The appellant's conviction of murder with extenuating circumstances, and
sentence of 7 years imprisonment, are set aside.
/31
31
2) The appellant's conviction of culpable homicide in the Magistrate's Court,
Stampriet is confirmed, and the matter is remitted to
that court for the
imposition of a suitable sentence.
J W SMALBERGER JUDGE OF APPEAL
HOEXTER, JA )
BOTHA, JA ) CONCUR
MILNE, JA )
F H GROSSKOPF, JA )