S v Mercer (CCT43/03) [2003] ZACC 22; 2004 (2) SA 598 (CC); 2004 (2) BCLR 109 (CC) (24 November 2003)

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[2003] ZACC 22
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S v Mercer (CCT43/03) [2003] ZACC 22; 2004 (2) SA 598 (CC); 2004 (2) BCLR 109 (CC); 2004 (1) SACR 1 (CC) (24 November 2003)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 43/03
CHRISTOPHER LANCE MERCER                                                                       Â
Applicant
                                                                                                                                        Â
versus
THE STATE                                                                                                           Â
Respondent
Decided on     :           24 November 2003
JUDGMENT
THE COURT:
[1]
This is an
application for leave to appeal against a judgment of the Northern Cape High
Court (the High Court).  The applicant
was convicted in the Kuruman
Magistrates’ Court in September 2001 of contravening sections 31(1) and
44(1)(a) of the Nature and
Environmental Conservation Ordinance 19 of 1974 (Cape)
(the 1974 Ordinance) which prohibit the harbouring of certain animals without
a
permit.  On several occasions prior to his conviction the applicant had been
denied permits to harbour three caracals at the
Kalahari Raptor Centre which he
ran with his partner. The refusal was premised on the fact that the caracals were
earmarked as
potential problem animals to farmers in the region in terms of the
Problem Animal Control Ordinance 26 of 1957 (Cape) (the 1957
Ordinance).
[1]
[2]
The applicant appealed
to the High Court against both his conviction and sentence and, in addition,
challenged the constitutionality
of the 1974 Ordinance in its entirety.  After
being set down for hearing on 9 September 2002 in the High Court, the matter
was
postponed to 3 March 2003.  Before this hearing, the applicant applied
directly to this Court for relief.  This Court dismissed
that application,
holding that it would be premature for this Court to hear the matter before the
High Court had dealt with it,
notwithstanding the delay involved in the hearing
of the appeal.
[2]
[3]
At the second
hearing in the High Court,
Kgomo
JP dismissed the appeal.
[3]
 With regard to sentence, Kgomo JP noted that the applicant and his partner had
spent large sums of their own money to set up
and operate the Kalahari Raptor
Centre, that they worked for no reward but for the love of the animals and that
they rendered splendid
community service.  In the circumstances, Kgomo JP set
aside the sentence of a substantial fine and replaced it with a caution
and a
discharge.Â
[4]
The applicant thereupon
unsuccessfully applied to the Supreme Court of Appeal for leave to appeal
against the High Court’s confirmation
of his conviction.  He now applies in
terms of rule 18 of the Rules of this Court for leave to appeal against the confirmation

of his conviction by the High Court, and also for condonation of his failure to
comply with the prescribed time periods for the
lodging of appeals to this
Court.
[4]
Â
An application for condonation of this sort will not be granted unless it is in
the interests of justice to do so.
[5]
Â
Two of the key factors relevant to the interests of justice in a condonation
application will be the explanation given by the
applicant for his or her delay
and the prospects of success on the merits.  Another important factor will be
the question whether
there is a public interest that the matter be heard and
determined. Â
[5]
In submissions to
this Court, the State Attorney indicates that a National Environmental
Management: Bio-Diversity Bill will shortly
be introduced into Parliament.  One
of its purposes is to give effect to environmental rights in section 24 of the
Constitution.Â
More specifically it makes provision for a controlled permit
system for carrying out restricted activities regarding certain listed
species,
which include the possession or transporting of any species on the list.  In such
circumstances, we are doubtful if there
is any pressing public interest in the
determination of the appeal. Â
[6]
In determining the
prospects of success, three arguments raised by the applicant must be
considered.  In the first instance the
applicant seeks an order declaring the
1957 Ordinance unconstitutional and invalid.  The applicant was not convicted
under this
Ordinance and has not demonstrated any legally relevant relationship
between the 1957 Ordinance and the 1974 Ordinance under which
he was convicted.Â
As the 1957 Ordinance was not before the High Court an appeal cannot lie to
this Court from the High Court
to challenge that Ordinance.  The applicant is
in effect seeking to obtain direct access to challenge the 1957 Ordinance under

the guise of an appeal, which he is not permitted to do.
[6]
 There is accordingly no possibility that the applicant’s conviction will be
set aside on this basis.
[7]
The applicant
also contends that the 1974 Ordinance is unconstitutional.  He does not,
however, seek any specific relief in this
regard.  His argument is that the
1974 Ordinance should provide for an exemption for wildlife sanctuaries, such
as the Kalahari
Raptor Centre, rather than for a system of permits.  The High
Court dealt thoroughly with this challenge and dismissed it in the
following
terms:
“The impugned provisions simply require
that people who transport or keep in captivity certain specified species of
animals or
birds acquire a certificate or permit or license to do so.  The days
of the biblical Garden of Eden are no more during which its
inhabitants could
pick and choose from the abundance of its fauna and flora.  The Northern Cape
Nature Conservation Services has
been instituted as a statutory body to issue
the requisite permits etc to deserving applicants.  To the extent to which Sections

31(1) and 44(1)(a) of NEC Ordinance 1974 may have limited or restricted the
appellants’ rights to deal with or handle or dispose
of the caracals in the
manner of their choice such limitation is unquestionably justified having
regard to the nature of the right
and its importance to an open and democratic
society based on freedom and equality.”
[7]
Â
In this Court the applicant does not challenge
any part of the High Court’s reasoning in respect of the 1974 Ordinance.  His inchoate

challenge to the 1974 Ordinance in his proposed appeal is without substance and
does not disclose any prospects of success. Â
[8]
In the second
place, the applicant seeks to have the decision of the Northern Cape Nature Conservation
Services denying him a permit
to keep caracal set aside.  This is not an
appropriate matter to be raised under the guise of a criminal appeal.  The
correct
procedure would be to seek the review of that decision in the High
Court.Â
[9]
The applicant’s third
and final complaint is that he did not receive a fair trial.  He bases this
allegation on the decision
of the prosecuting authorities to charge him under
the 1974 Ordinance, a decision which he claims was unfair and
unconstitutional.Â
He was convicted in the Magistrates’ Court under the 1974
Ordinance and this conviction was upheld on appeal.  We are not persuaded
on
the record before us that the institution of the prosecution was
unconstitutional, unlawful or unfair.  We express no opinion
as to whether a
conviction otherwise properly obtained could ever be set aside on such grounds.Â
Accordingly there is no merit
in this point.
[10]
There being no
prospect that any of the applicant’s challenges will result in success in his
proposed appeal, the application
for condonation must be and is dismissed.
By the Court: Chaskalson CJ, Langa
DCJ, Ackermann J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O’Regan J, Sachs J
and Yacoob
J.
For the applicant:                                                      Moss

Morris Attorneys
For the respondent:                                                   The
State
Attorney
[1]
Both the Nature and Environmental Conservation Ordinance, 1974 and
the Problem Animal Control Ordinance, 1957 are ordinances of
the former
province of the Cape of Good Hope.
[2]
Ex Parte Mercer and Another
2003 (1) SA 203 (CC)
[3]
S v Mercer and Another
2003 (6) BCLR 616 (NC)
[4]
The application in this Court was lodged some 21 days out of time.Â
In his application in the High Court for a certificate granting
leave to appeal
to this Court an affidavit was lodged which stated the constitutional matters
as follows:
“(a)         The constitutional validity of the Northern Cape
Problem Animal Control Ordinance, No. 26 of 1957, in terms
of which the
caracals involved are defined and classified as problem animals;
(b)           Whether the question about the unlawfulness of the
administrative actions of the nature conservation officials
dealing with and
refusing the applicant’s permit application, in not affording the applicant the
opportunity to make representations
relative to the permit applications, could
only be raised in another court by way of review proceedings in terms of rule
53 of
the Rules of Court, and not raised as a defence to the criminal charges
against the applicant; and
(c)           Whether the applicant, in view of all the
circumstances of the case, received a fair trial and was being
allegedly unfairly
prosecuted in terms of the aforesaid provisions of the particular ordinance.”
[5]
Brummer v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3;
Xinwa and Others v
Volkswagen SA (Pty) Ltd
[2003] ZACC 7
;
2003 (6) BCLR 575
(CC) at para 17.
[6]
Shongwe v S
[2003] ZACC 9
;
2003 (8) BCLR 858
(CC) at para 4.
[7]
Above note 3 at para 10.