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[1992] ZASCA 77
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Chidi v Minister of Justice (402/91) [1992] ZASCA 77; 1992 (4) SA 110 (AD); (22 May 1992)
Case No 402/91 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
JOSEPH CHIDI
Appellant
and
THE MINISTER OF JUSTICE
Respondent
Case No 402/91 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
JOSEPH CHIDI
Appellant
and
THE MINISTER OF JUSTICE
Respondent
CORAM
: CORBETT, CJ, SMALBERGER, KUMLEBEN,
VAN DEN HEEVER, JJA, et VAN COLLER, AJA
HEARD
: 4 MAY 1992
DELIVERED
: 22 MAY 1992
JUDGMENT
SMALBERGER, JA:
This appeal involves the proper
interpretation of s 323 of Act 51 of 1977 ("the Act") as substituted by s 14 of
Act 107 of 1990 ("the;
amending Act") . For convenience I shall refer to s 323,
as substituted, as "the amended s 323". The circumstances giving rise to
2
the appeal are the following. On 16 September 1987 the appellant was
convicted of murder in the Witwatersrand Local Division by LE
GRANGE J and two
assessors. No extenuating circumstances were found and he was accordingly
sentenced to death. The appellant was
refused leave to appeal against his
conviction and sentence by the trial Judge, but was subsequently granted such
leave by this Court.
Shortly before the hearing of the appeal the only
witness who had directly implicated the appellant in the commission of the
offence,
one Chabedi, deposed to an affidavit in which he sought to retract his
previous testimony. This gave rise, at the hearing of the
appeal, to an
application for an order setting aside the appellant's conviction and sentence
and remitting the matter to the trial
Court for further evidence. The
application was granted. At the resumed hearing the trial Court, having heard
further evidence, again
3
convicted the appellant of murder. In the absence of extenuating
circumstances he was once again sentenced to death. The appellant
was refused
leave to appeal against his conviction and sentence by the trial Judge and on 18
October 1989 his petition to this Court
seeking such leave was dismissed. On 12
December 1989 the appellant petitioned the State President for mercy in terms of
the relevant
provisions of the Act. His plea for clemency was granted on 24
April 1990 and his sentence was commuted to one of 20 years'
imprisonment.
The amending Act came into operation on 27 July 1990. The
provisions of the amended s 323 (to which I shall refer in detail later)
caused
the appellant, through his attorney, to write to the respondent ("the Minister")
on 24 August 1990. In his letter the appellant
sought to prevail upon the
Minister to refer the question of the correctness of his conviction to this
Court for its consideration.
His
4
request was founded on the premise that the Minister ought to entertain a
doubt as to the correctness of his conviction (for the reasons
stated in his
letter), as well as on the assumption that the amended s 323 empowered the
Minister to act as requested. The Minister's
response (acting through the
Director-General: Justice) was that the amended s 323 was not applicable to the
appellant as he was
not "a person
sentenced to death" as envisaged in the section.
This led to an
application by the appellant in the Witwatersrand Local Division, in terms of
Rule 53 of the Uniform Rules of Court,
to bring the Minister's refusal to invoke
the provisions of the amended s 323 under review.
The matter came before
ZULMAN J. After hearing argument the learned Judge a
quo
dismissed the
application with costs. He held that the appellant "was not a person who
qualified, as a matter of law, to
5
require the respondent to exercise the powers given to the respondent in
terms of the new section 323". The basis for his conclusion
was that the amended
s 323 is only applicable in the case of a person under an existing death
sentence and does not apply to someone
whose death sentence has been commuted.
The matter now comes before us in consequence of leave granted by the Judge a
quo
.
The appellant failed to lodge his notice of appeal timeously. He
now applies for condonation of his failure in this regard. The respondent
does
not oppose the application. However, it does not follow as a matter of course
that condonation should be granted. The necessary
prerequisites for condonation
must still be established. The appellant's attorney was at fault in failing to
lodge the notice of
appeal timeously. The reasons for such failure appear from
his affidavit in the condonation application. He was not seriously
6
at fault, and his conduct would be no bar to the granting of condonation
provided there are reasonable prospects of success on appeal.
If there are no
such prospects of success there would be no point in granting condonation
(
Melane v Santam Insurance Co Ltd
1962(4) SA 531 (A) at 532 D;
Louw v
W P Koöperasie Bpk
1991(3) SA 593 (A) at 597 C).
The central issue
in the present appeal is whether the amended s 323 is capable of being invoked
by the Minister in the particular
circumstances of this matter. If not,
cadit
quaestio
. The determination of this issue depends upon the correct
interpretation of the amended s 323 within its proper contextual
framework.
Prior to the amending Act coming into operation the imposition of
the death sentence was mandatory where a person over the age of
18 years was
convicted of murder without extenuating circumstances
7
(s 277(1) (a) read with s 277(2) of the Act). A person so convicted had no
automatic right of appeal. He could only appeal to this
Court with leave of the
trial Judge (or any other Judge of the provincial or local division concerned if
the trial Judge was not
available) or, if such leave was refused, with leave of
this Court on petition to the Chief Justice (s 316(1) and (6) of the Act).
A
refusal by this Court to grant leave to appeal was final (s 316(9)(a)). Save
perhaps in cases where leave to appeal was sought
solely in respect of sentence
(including a finding of absence of extenuating circumstances), a refusal of
leave to appeal by this
Court would necessarily have involved a consideration of
the merits of the petitioner's conviction. In cases where the convicted
person
did not seek leave to appeal, or having sought and obtained such leave did not
prosecute the appeal, there was no procedure
(apart from that provided for in s
323 of the Act) whereby the
8
correctness of his conviction could be considered and
pronounced upon by
this Court before the sentence of
death was carried out.
Prior to its amendment s 323(1) of the Act
provided as follows:
"If the Minister, in any case in which a person has been sentenced to death, has
any doubt as to the correctness of the conviction
in question, and such person
has not in terms of section 316(1) applied for leave to appeal against the
conviction or has not prosecuted
an appeal after leave to appeal against the
conviction has been granted or has not submitted an application to the Chief
Justice
in terms of section 316(6) for condonation or for leave to appeal
against the conviction, the Minister may, on behalf and without
the consent of
such convicted person, refer the relevant record, together with a statement of
the ground for his doubt, to the Appellate
Division, whereupon that court shall
consider the correctness of the conviction in the same manner as if it were
considering an appeal
by the convicted person against the
conviction."
The effect of the section was that
where the correctness
of the conviction of a person sentenced to death had
not
received the attention of this Court either on appeal or
9
by way of petition the Minister was authorised, if he had any doubt about the
correctness of such conviction, to initiate an appeal
to this Court. The power
so conferred was a salutary one conducive to the proper administration of
justice insofar as it provided
a safeguard against the danger of a wrong
conviction. The manifest purpose of the section was "to ensure that in
appropriate cases
an appeal is prosecuted to reduce
the risk of a serious miscarriage of justice" (S v
Malinga
1987(3)
SA 490 (A) at 494 C - D). However, the Minister had no authority, where the
correctness of the conviction had already been
considered and pronounced upon by
this Court (either on appeal or in response to a petition) to refer the matter
to this Court for
its reconsideration. The Legislature was presumably satisfied
that once this Court had pronounced upon the merits of a conviction,
such
pronouncement should be accepted as correct and taken to
10
be final.
As far as the appellant is concerned, he had, prior to the
amending Act coming into operation, exhausted all legal procedures open
to him
to challenge the correctness of his conviction. His case would not have
qualified for referral under the then s 323 as he
had already sought and been
refused leave by this Court to appeal against his later conviction. The
conditions precedent for the
exercise by the Minister of his power under that
section were not satisfied, and he could therefore not have been required by the
appellant to invoke such power. The appellant's case had effectively and finally
been concluded (leaving aside the question of any
further evidence which might
have justified its re-opening - see s 327 of the Act, as amended).
The
amending Act brought about two fundamental changes in the law relating to death
sentence matters.
11
Firstly, in terms of s 4 (which amended s 27 7 of the Act), it did away with
the mandatory death sentence and substituted a discretionary
death sentence
which may be imposed provided certain prerequisites are satisfied. Secondly, in
terms of s 11 (which inserted a new
section, s 316A, into the Act), it granted
an automatic right of appeal against conviction or sentence to an accused
sentenced to
death (s 316A(1)). It further made provision for the Chief Justice
to initiate "review proceedings" designed to ensure that in a
death sentence
case the correctness of the conviction and the propriety of the sentence would
be considered by this Court, or at
least two of its Judges, in the event of the
convicted person failing to avail himself of his right of appeal (s 316A(4), (5)
and
(6)). The amending Act furthermore contained certain transitional provisions
(1) dealing with cases commenced but not yet finalized
(s 20) and (2) providing
for the recon=
12
sideration of the sentences of certain persons under sentence of death (s
19).
Against this background I turn to consider the meaning of the amended s
323, and whether it would have been competent for the Minister
to invoke its
provisions in the present instance. If he did not have the authority to do so
the appellant would clearly not be entitled
to the relief sought in the Court a
quo
. There are in my view a number of grounds (on which I shall elaborate
in due course) for holding that the amended s 323 has no application
to the
facts of the present matter.
The amended s 323 reads as follows:
"If the Minister, in any case in which a person has been sentenced to death, has
any doubt as to the correctness of the conviction
in question or the propriety
of the sentence of death, the Minister may, on behalf and without the consent of
the convicted person,
refer a statement of the ground for his doubt to the
Appellate Division, and that court shall consider that statement at the
appeal
13
or review proceedings contemplated in section
316A."
Logically the first enquiry should be whether the amended s 323 was
intended to apply to a matter concluded before the amending Act
came into effect
and in respect of which the person sentenced to death has exhausted all his
legal remedies. It is a well-known rule
of interpretation that a statute, unless
a contrary intention appears, is prospective in its operation - it regulates
future conduct
and does not apply to past events (
Jockey Club of SA v
Transvaal Racing Club
1959(1) SA 441 (A) at 451 F - G). The rule is subject
to certain exceptions, none of which is relevant in the present instance. There
is nothing in the wording of the amended s 323, or in any of the other
provisions of the amending Act, to suggest that the legislature
intended the
amended s 323 to be of application to matters which had been disposed of finally
before the
14
amending Act took effect. On the contrary, there are
strong indications
that the amended s 323 was only
intended to apply to cases in which a person was
sentenced to death on or after the date on which the
amending Act came
into operation.
Cases which had not been finalized when the
amending Act came into operation are specifically dealt
with in s 20(1).
It provides:
"Any criminal case which commenced before the date of commencement of this
section, and any appeal, application or proceedings in
or in connection with
such a case -
(a)
shall be continued and concluded as if sections 4 and 13(b) had at
all relevant times been in operation;
(b)
shall, if sentence in the case concerned is passed on or after that
date, be continued and concluded as if section 11 had also been
so in
operation."
It follows from the
wording of s 20(1) that
certain provisions of the amending Act apply to cases
not concluded before
its commencement or where sentence
15
is passed on or after its commencement. By contrast there is nothing in the
amending Act which makes any of its provisions applicable
to concluded matters,
save those which fall to be dealt with under s 19 (which relate solely to the
question of sentence - see
Mamkeli v The State
, an unreported judgment of
this Court delivered on 20 March 1992). This strongly suggests that it was
intended to exclude completed
matters such as the present from the ambit of the
amending Act. Furthermore, s 11 (which is referred to in s 20(1)(b)) is the
section
which inserted s 316A in the Act. For reasons which appear more fully
below, the amended s 323 is concerned only with the correctness
of a conviction
subject to appeal or review proceedings contemplated in s 316A. Such appeal or
review proceedings only lie at the
instance of a person sentenced to death on or
after the date on which the amending Act came into operation. It follows that
the amended
s 323 does not contemplate a
16
matter where sentence of death was passed before such date. It accordingly
does not cover the appellant's case. On this ground alone,
therefore, the appeal
should fail.
There are further obstacles in the way of the appellant. The
Minister's powers under the amended s 323 are in respect of "any case
in which a
person has been sentenced to death". It was contended by Mr Unterhalter, for the
appellant, that this wording did not
exclude from the ambit of the section a
person whose sentence of death had later been commuted. While the section does
not specifically
provide that the death sentence should be extant, this is
implicit in the words used seen in their proper context. In this respect
it is
permissible to have regard to the heading of the section (which has been
expressly incorporated into the amending Act) in order
to elucidate the meaning
of the section (
Turffontein Estates Ltd v Mining Commissioner,
17
Johannesburg
1917 A D 419
at 431). The heading reads: "Submission by
Minister to Appellate Division on behalf of person sentenced to death". This
presupposes
that the person concerned should be under sentence of death when the
submission is made. And the fact that such submission requires
to be considered
at appeal or review proceedings "contemplated in s 316A" (which deals
specifically with death sentence cases) reinforces
the conclusion that the
section only applies to a person still under a death sentence and not to
someone, such as the appellant,
whose death sentence has been commuted. On this
ground too (which, as previously mentioned, was the basis on which the Judge a
quo
dismissed the appellant's application) the appeal must fail.
Even
if one assumes in the appellant's favour that he is "a person [who] has been
sentenced to death" within the meaning of that phrase,
the concluding words
18
of the amended s 323 place the appellant's case beyond the reach of the
section. They provide for any referral by the Minister, where
he has a doubt as
to the correctness of the conviction in question, to be considered by this Court
"at the appeal or review proceedings
contemplated in section 316A". In order to
ascertain the intention of the legislature those words must be given their
ordinary, grammatical
meaning (
S v Toms; S v Bruce
1990(2) SA 802 (A) at
807 H - J). The words are unambiguous and their meaning is clear. What is
envisaged is that this Court must
consider any statement by the Minister at the
actual hearing of the appeal against the conviction in question (consequent upon
the
provisions of s 316A (1), (2) and (3)) or at the relevant stage of the
actual review proceedings initiated by the Chief Justice (as
provided for in s
316A(4), (5) and (6)). In the case of the appellant there cannot be any such
appeal or review proceedings
19
either now or in the future bearing in mind that s 316A only has application
to a person sentenced to death on or after the date on
which the amending Act
came into force. It is therefore impossible for the Minister to act in
accordance with the clear meaning of
the amended s 323.
The main thrust of Mr
Unterhalter's argument, as I understood it, is that the amended s 323 should be
interpreted to confer a separate
right of referral on the Minister irrespective
of whether there are actual appeal or review proceedings pending in terms of s
316A.
He contended that the Minister could exercise such right in any death
sentence case in which he entertained a doubt about the correctness
of the
conviction or the propriety of the death sentence, and at any time, whether or
not such case had previously been dealt with
and disposed of by this Court on
appeal or in the course of review proceedings in terms of s 316A. It would
20
then be for the Chief Justice to initiate proceedings along the lines
indicated in s 316A (4), (5) and (6) in order to bring the matter
before this
Court. The argument is untenable for a number of reasons.
There is nothing
ambiguous about the words used in the amended s 323. Nor does their ordinary,
grammatical meaning give rise to any
absurdity or illogicality which would
justify seeking another meaning for them. There is accordingly no justification
for reading
more into the section than the actual words of the section convey.
No proper basis therefore exists for the interpretation contended
for by Mr
Unterhalter. Apart from that his submissions, if accepted, would give rise to an
extraordinary anomaly. Not only would
the amended s 323 apply when there were
actual appeal or review proceedings contemplated by s 316A (as Mr Unterhalter
was obliged
to concede), but also when (according to him) there were not. He
therefore seeks
21
to rely upon the same language in the section to cover two essentially
different situations. It is inconceivable that this could be
the case.
Furthermore, if Mr Unterhalter's submissions are correct, it would mean that the
otherwise inappropriate language of s
316A(4) would have to be adapted and
unduly strained to meet the exigencies of the case. There is no justification
for following
such a course. What Mr Unterhalter is seeking to do is to persuade
us to interpret the amended s 323 in an artificial manner in order
to vest both
the Minister and this Court with powers not conferred by the section. This Court
does not have an implied residual jurisdiction
beyond that expressly conferred
by statute (
Sefatsa and Others v Attorney-General, Transvaal, and Another
1989(1) SA 821 (A) at 833 E - 834 F). If the legislature had intended to vest
this Court with a special jurisdiction to hear matters
falling beyond the ambit
of the amended
22
s 323 it would have done so in express terms.
Mr Unterhalter's contention,
if correct, would also mean that it would be open to the Minister to refer a
matter to this Court for
reconsideration despite the fact that this Court had
already pronounced upon the merits of the conviction or the propriety of the
death sentence. Not only would this clothe the Minister with a power he did not
previously have, it would also amount to a radical
departure from the principle,
previously adhered to in the Act, that this Court's decisions are final. If the
legislature had intended
so drastic a change it would have effected such change
by the use of more direct and appropriate language.
Mr Unterhalter referred
to s 19 of the amending Act as providing an example of legislative approval for
the reconsideration of matters
on which this Court has previously given a
decision. That is a
23
totally different situation. Section 19 only deals with sentence. The reason
why the reconsideration of death sentences previously
confirmed by this Court is
provided for and permitted is because of the subsequent introduction of a new
and more favourable sentencing
regime. This necessitated, as a matter of policy
and fairness, the reconsideration of all outstanding death sentence cases in the
light of the new approach and the new principles applicable to death sentence
matters.
Mr Unterhalter further contended that the amended s 323 would serve
no useful purpose unless given the wider meaning for which he
contended. He
claimed that a referral by the Minister of a statement recording the grounds for
his doubt to this Court for its consideration
at appeal or review proceedings in
terms of s 316A would not add anything to what counsel was likely to raise in
argument. In a sense
this is so, and the Minister's power is more circumscribed
than
24
before. But this is because under the amending Act, unlike the position
previously, every conviction in a death sentence case must
inevitably came
before and be adjudicated upon by this Court or at least two of its members.
There is no longer any need for the
wider power of referral previously given to
the Minister in order to ensure as far as possible that every death sentence
matter in
respect of which there was a doubt would come before this Court. But
even so, there is no gainsaying the fact that, in an appropriate
case, the
exercise by the Minister of his more limited powers under the amended s 323, in
order to place his doubts pertinently before
this Court, can still serve a
useful purpose.
For the reasons enumerated above the appellant was clearly
not entitled to the relief which he sought in the Court a
quo
. It also
follows that he had no reasonable prospects of success on appeal.
25
The application for condonation consequently falls to be dismissed, with
costs. Such costs will include the respondent's costs of
appeal. It is ordered
accordingly.
J W SMALBERGER JUDGE OF APPEAL
CORBETT, CJ )
KUMLEBEN, JA ) CONCUR
VAN DEN HEEVER, JA )
VAN
COLLER, AJA )