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[2004] ZACC 13
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S v Basson (CCT 30/03) [2004] ZACC 13; 2005 (1) SA 171 (CC); 2004 (6) BCLR 620 (CC); 2004 (1) SACR 285 (CC) (10 March 2004)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 30/03
THE STATE                                                                                                               Â
Applicant
                                                                                                                                        Â
versus
WOUTER BASSON                                                                                              Â
Respondent
Heard on         :           4 and 5
November
2003
Decided on     :           10 March 2004
JUDGMENT
ACKERMANN J, MADALA J, MOKGORO J, MOSENEKE
J, NGCOBO J, and O’REGAN J:
[1]
The state has applied to this Court for special
leave to appeal against a judgment of the Supreme Court of Appeal (the SCA) in
terms
of rule 20 and, simultaneously, for leave to appeal directly to this
Court against a judgment of the High Court in Pretoria (the
High Court) in
terms of rule 18.Â
The respondent, Dr Wouter
Basson, opposes both applications.
Background
[2]
During 1999, the respondent, an employee of the
South African National Defence Force, was charged in the High Court on 67
counts
including murder, fraud, conspiracy to commit various crimes and drug
offences.  All the offences were allegedly committed before
1994 when the
respondent worked in a division of the Defence Force called the Civil
Co-operation Bureau.
[3]
During 1997 the accused was arrested, first on
charges of contravening the Medicines and Related Substances Control Act, 101 of
1965, and later in the same year on charges of fraud.  In relation to both sets
of charges, bail hearings were held and the accused
was granted bail.  In
relation to the fraud charges, the bail hearing was held during October and
November 1997.  The trial on
all 67 charges (which now included charges of
murder and conspiracy to commit various offences) commenced on 4 October 1999
before
Hartzenberg J.
[4]
Before the accused was called upon to plead, the
trial was postponed to enable the respondent’s legal representatives to apply

for the quashing of certain charges in the indictment in terms of section
85(1)(c) of the Criminal Procedure Act, 51 of 1977 (the
Criminal Procedure Act)
href="#_ftn1" name="_ftnref1" title="">
class=MsoFootnoteReference>
[1
]
and to challenge the
admissibility of the October and November bail record (the bail record).  The
question of the admissibility
of the bail record was argued on 6 October 1999
and, on 15 November 1999, the judge ruled that the bail record was inadmissible

in evidence in the criminal trial.
[5]
The respondent objected to nine counts in the
indictment on various grounds.  On 12 October 1999, the judge upheld the
objections
in respect of six of the counts ─ charges 31, 46, 54, 55, 58
and 61.  All these charges were based on section 18(2) of the
Riotous
Assemblies Act, 17 of 1956 (Riotous Assemblies Act).
[2]
  The judge held that, properly
interpreted, this provision did not criminalise conspiracies entered into in
South Africa to commit
crimes beyond the borders of South Africa.
[3]
  To the extent therefore that
the charges related to conspiracies in South Africa but in relation to crimes
to be committed beyond
our borders, the charges did not, so the judge reasoned,
disclose an offence.
[6]
On 25 October 1999, the accused was asked to
plead and the trial commenced.  On 14 February 2000, the state applied for the
recusal
of Hartzenberg J on the grounds that he was biased and had prejudged
the case.  On 16 February 2000, Hartzenberg J dismissed this
application,
holding that a reasonable person would not have believed that he was biased
against the state.
[4]
[7]
The trial then proceeded and lasted for more
than a year.  More than 140 state witnesses were called and evidence was taken
on
commission outside South Africa.  On 1 March 2001, the state closed its
case.  The accused then applied for a discharge in terms
of section 174 of the
Criminal Procedure Act.  This application succeeded in respect of some of the
charges.  The accused was
the only witness for the defence. He gave evidence
for about two months and the defence closed its case on 26 September 2001.Â
On 11
April 2002, the accused was acquitted on all the remaining charges.
[5]
[8]
The state immediately launched an application in
terms of
section 319(1)
of the
Criminal Procedure Act to
have certain questions
of law reserved for consideration by the SCA.
[6]
Â
It also sought, in terms of the Constitution, leave to appeal to the SCA
against the trial court judge’s refusal to recuse
himself.
[9]
On 3 May 2002, the High Court handed down
judgment on this application.  It reserved a single question of law in terms of
section
319(1) for consideration by the SCA.  That question was whether the
state was barred from seeking reservation of the question of
law as to whether
the trial court judge ought to have recused himself in February 2000 because it
had failed to indicate in February
2000 that it intended to seek such
reservation.  In the event that this question was answered in favour of the
state, Hartzenberg
J conditionally reserved three further questions of law.Â
They were the following:
·
whether Hartzenberg J had erred in law in
refusing to recuse himself on the grounds of bias;
·
whether Hartzenberg J had erred in law when he
heard argument regarding the admissibility of the bail record, before the
accused
had been called upon to plead; and
·
whether Hartzenberg J had erred in law when he
ruled that the bail record was inadmissible in the trial.
The judge refused to reserve the
other questions of law sought by the state, including the question relating to
the quashing of
some of the charges.
[10]
In June 2002, the state appealed to the SCA on
the question of law reserved by the High Court.  Simultaneously it petitioned
the
SCA in terms of section 319(3), read with section 317(5) of the
Criminal
Procedure Act, for
the reservation of the questions of law that Hartzenberg J
had declined to reserve, including the question of the quashing of the

charges.  In the alternative, the state applied to the SCA for leave to appeal
to it in terms of the Constitution against the
trial court judge’s refusal to
recuse himself.
[11]
In November 2002, the Registrar of the SCA wrote
to the state’s lawyers indicating that its petition for the reservation of
further
questions of law and its accompanying application for leave to appeal
were not in order.  The following month, the state filed
a further affidavit
seeking to rectify the situation and sought condonation of its non-compliance
with the rules.
[12]
The matter was argued before the SCA in May
2003.  In its judgment, the SCA held that the question whether the trial judge
should
have recused himself was one of fact, not law, and could therefore not
be reserved under the provisions of section 319 of the Criminal
Procedure Act.Â
It accordingly held that the question reserved by the High Court raised purely
academic issues and struck the
question from the roll, as well as the first
conditionally reserved question.  The question conditionally reserved
concerning
the admissibility of the bail record was also struck from the roll
because, according to the SCA, it raised questions of fact and
not of law.  In
the circumstances, the second conditional question was considered to be
academic and was struck from the roll
on that basis.  The SCA also dismissed
the application for condonation with regard to the reservation of additional
legal questions,
including the question of the quashing of the charges.  The
application for leave to appeal in terms of the Constitution was held
not to be
properly before the SCA and therefore also dismissed.
[7]
[13]
The state now seeks special leave to appeal to
this Court against the judgment of the SCA on the following grounds:
·
the SCA ought to have set aside the acquittal on
the basis that the judge was biased or could reasonably be perceived to have

been biased;
·
the SCA ought to have set aside the acquittal on
the basis that the judge erred in finding that the bail record was inadmissible

in the trial; and
·
the SCA ought to have reversed the decision of
the High Court quashing the charges based on the Riotous Assemblies Act.
The application is out of time, in
that it was filed more than 15 court days after the SCA handed down its
judgment
[8]
and the state has accordingly applied for condonation of the late filing of the
application.  The reasons given for the delay
are the complexity of the matter
and the voluminousness of the record.
[14]
After filing its application for special leave
to appeal, the state also lodged an application in terms of rule 18 for leave
to
appeal directly to this Court against the High Court’s judgment acquitting
the respondent on the ground that the proceedings were
vitiated by the actual
or perceived bias of the judge against the state during the criminal
proceedings.  As indicated above,
the respondent opposes both applications.
[15]
On 20 August 2003, the Chief Justice gave
directions requesting the parties to lodge argument on the following
preliminary issues
raised by the applications:
“2.1      Was the accused in jeopardy
of being convicted at his trial?  If so, and if the appeal were to succeed,
would
a further prosecution be competent if regard is had to the provisions of
section 35(3)(m) of the Constitution.
2.2        If a further prosecution
would not be competent is it in the interests of justice for leave to appeal to
be granted?
2.3        If a further prosecution
would be competent, then bearing in mind the nature of the charges against the
accused,
the fact that the trial commenced in October 1999 and the provisions
of section 35(3)(d) of the Constitution, that every accused
person has a right
to have their trial begin and conclude without unreasonable delay, is it in the
interests of justice to hear
an appeal directed to setting aside the acquittal
of the accused, which if successful, might expose him to the possibility of
being
required to stand trial again several years after the first trial
commenced?
2.4        Is a decision by the Supreme
Court of Appeal as to what constitutes a question of law for the purposes of
section 319
of the
Criminal Procedure Act a
constitutional matter?
2.5        Is a refusal by the Supreme
Court of Appeal to exercise its discretion to reserve a question of law, a
constitutional
matter?
2.6        Is a refusal by the Supreme
Court of Appeal to condone a failure to comply with its rules, a constitutional
matter?
3.       Â
With regard to the first
ground of appeal
Is the finding by the Supreme Court of
Appeal in the present case, that the trial judge’s refusal to recuse himself
raises questions
of fact and not of law, subject to appeal to the
Constitutional Court?
4.       Â
With regard to the second
ground of appeal:  the bail record
4.1        Is section 35(3) of the
Constitution applicable to the State?  If not, is the decision of the Supreme
Court of
Appeal on this issue a constitutional matter?  In particular, is the
finding by the Supreme Court of Appeal that the trial judge’s
ruling on the
bail record, raises questions of fact and not of law, subject to appeal to the
Constitutional Court?
5.       Â
Third ground of appeal:Â
Conspiracy to commit murder abroad
.
5.1        Does section 168(3) of the Constitution,
read with section 21(1) of the Supreme Court Act, confer a competence
on the
Supreme Court of Appeal to hear an appeal against the upholding of the
exception to charges 31, 46, 54, 55, 58 and 61, if
such an appeal is not
otherwise subject to appeal to the Supreme Court of Appeal under
section 319
of
the
Criminal Procedure Act, or
any other law?
5.2        Bearing in mind that the
conspiracies said to fall within the scope of section 18(2) of the Riotous
Assemblies
Act, are all alleged to have been entered into during the period
1981–1989, prior to the coming into force of the Constitution,
1996 or the
interim Constitution, 1993, are the issues raised concerning the interpretation
and application of section 18(2) of
the Riotous Assemblies Act within the
jurisdiction of the Constitutional Court?
5.3        Is the question whether the
state may appeal to the Supreme Court of Appeal against a decision in a
criminal trial
to uphold an exception to the indictment, a constitutional
matter?  If so, is it competent to raise that question in the Constitutional

Court by way of an appeal against a decision of the Supreme Court of Appeal,
when the state would have been unable to raise that
question in the Supreme
Court of Appeal, by reason of its failure to comply with the rules of that
Court?”
[16]
On 25 August 2003, the Chief Justice directed
that a further question be considered by the parties, namely, whether South
Africa’s
international obligations are relevant to any of the questions in the
directions given on 20 August 2003.  After the application
for leave to appeal
directly against the decision of the High Court had been lodged, the Chief
Justice directed that three further
questions be considered:
“(a)  whether the State is entitled to
appeal to the Supreme Court of Appeal against an acquittal in a criminal case
on the basis
that a constitutional matter is raised by a refusal of an
application for recusal, where such appeal would not raise a question
of law
and would deal only with findings of fact;
(b)  if the state is entitled to appeal the
decision referred to in (a) above, is it in the interests of justice for this
Court
to grant leave to appeal directly to it in circumstances where the
applicant could have raised the issue before the Supreme Court
of Appeal but
failed to do so timeously and in a proper manner; and
(c)  whether it is in the interests of
justice for leave to appeal to be granted in the present case, having regard to
the matters
referred to in (a) and (b) above, to the delay in applying for the
rule 18 certificate and the lodging of the application for leave
to appeal, and
to the issues raised in the previous directions issued on 20 August 2003 and 25
August 2003 by the Chief Justice.”
These preliminary questions were
set down for argument and heard on 4 and 5 November 2003.
[17]
This Court may decide only constitutional
matters and issues connected with decisions on constitutional matters.
[9]
  If an application is concerned
with a constitutional matter, then the criterion for determining whether to
grant leave or not
is whether the Court is satisfied that it is in the
interests of justice to do so.
[10]
Â
In considering an application for leave to appeal against a decision of the SCA
in terms of rule 20, the first question that
has to be answered therefore is
whether the application concerns a constitutional matter.
[11]
  Many of the questions put to
the parties by the Chief Justice go to this issue (see in particular questions
2.4, 2.5, 2.6, 3,
4.1, 5.2, 5.3 of 20 August 2003).  For reasons that will
become plain, it is necessary to consider each ground of appeal separately
in
answering this question.
1.  Does the application for
special leave to appeal raise a constitutional matter?
1(a) The application for special
leave to appeal against the SCA’s decisions on the refusal by the trial court
judge to recuse
himself
[18]
As we have seen, the trial judge reserved one
question of law for consideration by the SCA, namely, whether the state was
barred
from appealing against the recusal decision on the ground that it had
failed to appeal immediately against that decision.
[19]
The SCA found that the decision of the trial
judge refusing to recuse himself involved a finding of fact and not one of law
and
could therefore not be reserved under section 319 of the Criminal Procedure
Act.  It further held that the first question conditionally
reserved should
accordingly also not have been reserved as it did not involve a question of
law.  The SCA therefore struck these
questions from the roll.
[20]
The question that has to be considered is
whether the decision by the SCA that the trial judge’s refusal to recuse
himself was
not appealable under section 319, because it raises a question of
fact and not of law, itself raises a constitutional matter.Â
In our view it
does.
[21]
The question whether a judicial officer should
recuse himself or herself is a constitutional matter.  In
SACCAWU v Irvin
& Johnson,
[12]
this Court held that “the question of judicial recusal is a constitutional
matter”
[13]
and that an appeal on judicial bias is “competently directed to this Court.”
[14]
  Recusal is a constitutional
matter because the impartial adjudication of disputes in both criminal and
civil cases is a “cornerstone
of any fair and just legal system”.
[15]
  A judge who sits in a case
who ought not to do so by reason of actual or perceived bias “acts in a manner
that is inconsistent
with s 34 of the Constitution,
[16]
and in breach of the
requirements of s 165(2)
[17]
and the prescribed oath of office.”
[18]
Â
While this statement was made in relation to civil proceedings, it applies
equally to a criminal trial.
[22]
It follows that the question whether the trial
judge should have recused himself is a constitutional matter which is properly
directed
to this Court.  As the question whether the trial judge should have
recused himself is a constitutional matter, legal and factual
issues that need
to be decided in order to determine that matter will themselves be issues
connected with a decision on a constitutional
matter. The question whether the
refusal by the trial judge to recuse himself involves a finding of fact and not
of law is an issue
that needed to be determined by the SCA in order to
determine the recusal question.
[19]
Â
It is accordingly an issue connected with a decision on recusal, which is a
constitutional matter.
[20]
[23]
One further issue requiring consideration is the
question whether the state is entitled to complain of bias on the part of a
judge.Â
The state prosecutes crime on behalf of all citizens, and it would be
incompatible with our Constitution to hold that the state
acting in such
capacity is not entitled to an impartial court.  In our view, the state has a
right to an impartial judge and a
fair trial.  The Constitution obliges the
courts to apply the Constitution and the law “impartially and without fear,
favour
or prejudice”,
[21]
as does a judge’s oath of office.  Nothing precludes the state from alleging
actual or perceived bias in a criminal trial.
[24]
In this, we agree with the views expressed by
Cory J (Iacobucci J concurring) in the Supreme Court of Canada, who put the
matter
thus:
“Usually, in a criminal trial, actual
or perceived judicial bias is alleged by the accused.  However, nothing
precludes the Crown
from making a similar allegation.  Indeed it has a duty to
make such a submission in appropriate circumstances.  Even in the absence
of
explicit constitutional protection, it is an important principle of our legal
system that a trial must be fair to all parties
— to the Crown as well as to
the accused.”
[22]
[25]
We accordingly conclude that the application for
special leave to appeal on the question of recusal raises a constitutional
matter.Â
The question whether the SCA was correct in holding that such issue
was not appealable to it under
section 319
of the
Criminal Procedure Act,
because
it involved a question of fact and not law, is therefore “an issue
connected with a decision on a constitutional matter” within
the contemplation
of
section 167(3)
of the Constitution.  It will be dealt with in paragraphs 42
to 53 below.
1(b) The application for special
leave to appeal against the SCA’s decision on whether the admission of the bail
record by the
High Court was appealable to it
[26]
The question whether a bail record should be
admitted involves the exercise of a discretion by the High Court judge.  In the
exercise
of its discretion, the trial court must have regard to what is fair in
the circumstances.
[23]
Â
Section 35(3) of the Constitution guarantees to every accused person “a right
to a fair trial.”  Fairness during a trial
is a requirement of the
Constitution.  Therefore, the question whether the admission of the bail record
would be fair to the accused
is a constitutional matter and falls within the
jurisdiction of this Court.  In the light of this conclusion, we consider it
unnecessary
to deal with whether section 35(3) applies to the state.
[27]
To the extent that the question of the
admissibility of the bail record gives rise to a constitutional question, the
question whether
the SCA should have entertained an appeal in that regard is an
“issue connected with a decision on a constitutional matter”
within the wording
of section 167(3).  We conclude then that the application for special leave to
appeal on this ground does raise
matters which fall within the jurisdiction of
this Court.
1(c) The application for special
leave to appeal against the decision of the SCA refusing to overturn the High
Court’s decision
upholding the objection to the charges under the Riotous
Assemblies Act
[28]
The judge upheld an objection to six charges
raised by the respondent prior to plea.  All of these charges concerned
offences in
terms of section 18(2) of the Riotous Assemblies Act. This
provision states that:
“(2) Any person who –
(a) conspires
with any other person to aid or procure the commission of or to commit; or
            (b) incites, instigates,
commands, or procures any other person to commit,
 any offence, whether at common law or
against a statute or statutory regulation, shall be guilty of an offence and
liable on conviction
to the punishment to which a person convicted of actually
committing that offence would be liable.”
At the end of the trial, the state
sought to reserve the correctness of this decision as a question of law in
terms of section 319
of the Criminal Procedure Act.  The High Court refused to
do so.  The state then petitioned the SCA to reserve this question of
law for
consideration by the SCA.  The petition filed by the state was procedurally
flawed, and the state applied for condonation.Â
After considering the
application, the SCA concluded that it should not be granted.
[24]
[29]
In addition, however, the SCA held that the
issue sought to be reserved  that is the decision upholding the
objection to
various charges  was not a question of law within the
meaning of section 319 of the Criminal Procedure Act.  In reaching
this conclusion,
the SCA relied on a line of earlier decisions that concluded that section 319,
properly construed, did not permit
the prosecution to reserve a question of law
for decision by the SCA in circumstances where an objection to a charge is
upheld
by a trial court.
[25]
[30]
The SCA, moreover, held that it would not
exercise its discretion to reserve this as a question of law, even if it were
to be construed
as a question of law within the terms of section 319, for the
following reasons.  It held that the state had failed to pursue the
matter
within a reasonable time, because it had delayed until the end of the criminal
trial to seek reservation of the question
of law.  The SCA held that such delay
had been unnecessary because once the objection had been upheld, the case in
relation to
those charges had been concluded.
[26]
Â
Furthermore, it held that at the time that the objections had been upheld, the
state had not indicated that it intended to appeal,
but merely mentioned that
it might pursue its remedy under
section 333
of the
Criminal Procedure Act.
href="#_ftn27" name="_ftnref27" title="">
class=MsoFootnoteReference
>
[27]
  Another factor relevant to
its decision was the fact that the state had not, in its application to the
SCA, advanced any argument
against the correctness of the High Court’s
interpretation of
section 18(2)
of the Riotous Assemblies Act.  Finally, the
SCA took into account the fact that some of the evidence the state wished to
lead
to establish the
section 18(2)
charges had been rejected by the High Court
in relation to other charges.
[31]
The question that arises is whether the quashing
of the charges gives rise to a constitutional matter.  In our constitutional
state
the criminal law plays an important role in protecting constitutional
rights and values.  So, for example, the prosecution of murder
is an essential
means of protecting the right to life, and the prosecution of assault and rape
a means of protecting the right
to bodily integrity.  The state must protect
these rights through, amongst other things, the policing and prosecution of
crime.
[28]
Â
[32]
The constitutional obligation upon the state to
prosecute those offences which threaten or infringe the rights of citizens is
of
central importance in our constitutional framework.  The effect of the High
Court’s judgment in this case, given the interpretation
of
section 319
by the
SCA and its previous jurisprudence, is that the state will be prevented from
prosecuting the accused on the charges which
were quashed, without the state
being given an opportunity to appeal the correctness of that decision.
[29]
  This case is different from
those in which a charge is quashed, but where the state is able to supplement
the charge sheet in
a manner that enables the prosecution to take place.  This
course is not open to the state here.
[33]
The importance of the state’s duty to prosecute
crime is implicit in section 179(2) of the Constitution which provides that:
“The prosecuting authority has the power to
institute criminal proceedings on behalf of the state, and to carry out any
necessary
functions incidental to instituting criminal proceedings.”
By providing for an independent
prosecuting authority
[30]
with the power to institute criminal proceedings, the Constitution makes it
plain that the effective prosecution of crime is an
important constitutional
objective.  Where, therefore, a court quashes charges on the ground that they
do not disclose an offence
with the result that the state cannot prosecute that
accused for that offence, the constitutional obligation of the prosecuting

authority and the state, in turn, is obstructed.  The constitutional import of
such a consequence is particularly severe where
the state is in effect
prevented from prosecuting an offence aimed at protecting the right to life and
security of the person.Â
In these circumstances the quashing of a charge in an
indictment will raise a constitutional matter.
[34]
In this case, the High Court quashed the charges
against the respondent on the ground that section 18(2) of the Riotous
Assemblies
Act does not criminalise conspiracies to commit crimes beyond the
borders of South Africa.  The court reached this conclusion by
holding that the
interpretation of the Act should be adopted which imposes least burdens on
citizens.
[31]
Â
This finding raises a constitutional matter because it is an impediment to the
performance by the state and the prosecuting authority
of their duties to
protect fundamental rights under the Constitution, analysed above.  In
determining the elements of any charge,
not only the interests of the accused
come into play, but also the state’s obligations to protect the Constitution
and its fundamental
values.
[35]
In our view, therefore, the proper
interpretation of section 18(2) of the Riotous Assemblies Act raised in the
special application
for leave to appeal gives rise to a constitutional matter
within the terms of rule 20 and section 167(3) of the Constitution.Â
It must be
emphasised, however, that not all cases concerned with the quashing of charges
will necessarily raise constitutional
matters.  In particular, the charge may
be quashed for technical reasons, such as the fact that it lacks sufficient
particularity
for the purposes of
section 85(1)(d)
of the
Criminal Procedure
Act.
class=MsoFootnoteReference>
style='font-size:13.0pt;font-family:"Times New Roman"'>[32
]
Â
In such cases where the court is considering the factual adequacy of the
pleading of the charge, no constitutional issue will
arise.
[36]
One further question needs to be considered.Â
That is whether, because the alleged offences took place before the
Constitution
came into force, the quashing of the charge does not raise a
constitutional issue.  The Constitution cannot render unlawful something
that
was formerly lawful.
[33]
Â
The corollary must also follow. The Constitution cannot retrospectively make
lawful something that was formerly unlawful.  In
this case, however, we are not
concerned with an argument that a statutory offence means something different
now, in the constitutional
era, to what it meant before 1994.  No party
suggests that the meaning of section 18(2) of the Riotous Assemblies Act has
changed
as a result of the coming into force of the Constitution.  The only
question that arises is what section 18(2) of the Riotous Assemblies
Act,
properly construed, means.  In our view, that question needs to be considered
in the light of the ordinary and existing principles
of statutory
interpretation.
[37]
Moreover, the state’s obligation to prosecute
offences is not limited to offences which were committed after the Constitution
came into force but also applies to all offences committed before it came into
force.  It is relevant to this enquiry that international
law obliges the state
to punish crimes against humanity and war crimes.
[34]
  It is also clear that the
practice of apartheid constituted crimes against humanity and some of the
practices of the apartheid
government constituted war crimes.
[35]
  We do not have all the
details before us but it does appear that the crimes for which the accused was
charged may well fall within
the terms of this international law obligation.Â
In the circumstances, it may constitute an added obligation upon the state.Â
We
conclude therefore that the question of the quashing of the charges in this
case also raises a constitutional matter.
[38]
We also agree with the
reasoning and conclusion of Chaskalson CJ that the interpretation of
section
319
of the
Criminal Procedure Act also
raises a constitutional matter and falls
within this Court’s jurisdiction in terms of section 167(3) of the Constitution.
2.  Is it in the interests of
justice to grant the application for special leave to appeal?
[39]
We have concluded that all three of the
substantive grounds upon which the state wishes to appeal raise constitutional
matters.Â
Therefore the question whether they could or should have been
entertained by the SCA raises issues connected with a decision on

constitutional matters, within the jurisdiction of this Court.  The next
question that arises is whether it is in the interests
of justice to grant both
the application for condonation for the late filing of the application for
special leave to appeal and
the application itself.  In determining what is in
the interests of justice, each case has to be considered in the light of its

own facts
[36]
and all the relevant circumstances of a particular case.
[37]
  It is necessary to take into
account, amongst other considerations, the following: the importance of the
constitutional issue
raised, the nature of the crimes concerned, the rights of
accused persons as entrenched in section 35 of the Constitution and the

interests of the victims of the crimes, the prospects of success and the public
interest in a determination of the constitutional
issues raised.
[38]
  In
Islamic Unity
Convention v Independent Broadcasting Authority and Others
[39]
this Court held that:
“A resolution . . . would have distinct
implications for the interests of justice, going beyond the immediate needs of
the applicant
and the respondents.  It would further contribute to certainty,
on the part of both the general public . . . .”
In relation to the application for
condonation, of course, other factors will also be relevant.  The most
important of these is
the reason given for the late filing of the application.
[40]
Several of the questions raised by the Chief
Justice in his directions to the parties were concerned with issues related to
the
interests of justice (see, in particular, questions 2.1, 2.2 and 2.3 of the
directions of 20
August 2003, and the question posed on 25 August
2003, as well as questions (b) and (c) posed in the directions of the 21
October
2003).
[40]
Â
The Court is however not, at this stage of the proceedings, in a position to
consider all the factors relevant to the interests
of justice, as it does not
have the record before it, nor has it had the benefit of full argument on all
relevant issues.  In
particular, we are unable to consider the prospects of
success on the merits of the grounds of appeal.Â
Â
[41]
However, the issues that we can deal with are
the following:
(a)
whether the SCA was correct that the questions which the state wished to
reserve for determination by the SCA concerning the
refusal of the trial judge
to recuse himself and to permit the bail record to be admitted as evidence in
the trial were not questions
of law as contemplated by
section 319(5)
of the
Criminal Procedure Act;
(b
) the
relevance of section 35(3)(m) of the Constitution to the interests of justice
in the application for leave to appeal.  Section
35(3)(m) provides that accused
persons have the right “not to be tried for an offence in respect of an act or
omission for which
that person has previously been either acquitted or
convicted”  (see questions 2.1 and 2.2 of the directions of 20 August

2003); and
(c) the
relevance of section 35(3)(d) of the Constitution to the interests of justice
in the application for leave to appeal.Â
Section 35(3)(d) provides that accused
persons have the right “to have their trial begin and conclude without
unreasonable delay”
─ (see question 2.3 of the directions of the 20
August 2003).
Each of these issues will be dealt
with separately.
2(a) Do the recusal and
admissibility challenges raise questions of law?
[42]
A consideration of the interests of justice of
an application for leave to appeal ordinarily commences with a consideration of
the
prospects of success.  In this case, the ultimate relief sought by the
state is the overturning of the respondent’s acquittal
by the High Court on the
grounds that the proceedings before the High Court were vitiated by bias and
that the High Court erred
in not admitting the bail record.  It will be
recalled that the bail record was ruled to be inadmissible before the
respondent
pleaded and that the state applied early in the trial for the judge
to recuse himself, but that that application was refused.Â
Upon the acquittal
of the accused at the end of the trial, the state sought the reservation of
both these issues.  The High Court
reserved one question in terms of
section
319
of the
Criminal Procedure Act, which
was whether the state could still seek
to reserve the question of the High Court’s failure to recuse itself in the
light of the
fact that the state did not immediately prosecute an appeal.  It
then conditionally reserved three other questions of law, including
the
question whether the judge had erred in refusing to recuse himself and the
question whether the bail record was wrongly not
admitted at the trial.
[43]
The SCA held that neither the recusal challenge
nor the admissibility challenge raised a question of law within the
contemplation
of
section 319
of the
Criminal Procedure Act, but
that each
raised questions of fact alone.  As the state’s application for leave to appeal
to this Court in this respect is based
on
section 319
, the correctness of these
conclusions would constitute an insuperable bar to the state’s application for
special leave to appeal
to this Court on the recusal issue or the admissibility
issue.
[44]
The directions issued by the Chief Justice
before the hearing did not encompass the issue whether the recusal challenge
and the
admissibility challenge raised a question of law or a question of fact;
so the directions did not envisage a decision on this issue
as a preliminary
issue in this application.  The state, however, dealt with the issue in
considerable detail in its written submissions.Â
Although the respondent did
not deal with the matter in any depth in his written submissions, the issue was
dealt with in some
detail by counsel in argument before this Court.  The
respondent’s counsel was given an opportunity to address the issue in further

written submissions.  Both parties have now filed these and the matter can now
be dealt with.
2(a)(i) The recusal challenge
[45]
The respondent contended that the drawing of
inferences from facts raises only factual issues.  He relied on the cases of
Magmoed
v Janse van Rensburg and Others
[41]
and
S v Coetzee
[42]
and contended that once the legal standard for the way in which a relevant
determination has been settled, the application of that
standard to particular
facts does not raise a question of law.  He thus submitted that the recusal decision
was one of fact despite
involving the application of a legal standard.  He
contended that there is no difference in substance between the nature of the

assessment that has to be made in a recusal decision and that that has to be
made in the process of coming to a conclusion that
the state has proved its
case beyond a reasonable doubt.  Both kinds of decisions, said the respondent’s
counsel, entail the
application of a legal standard to a set of facts.  They
are all therefore decisions on fact.  Counsel for the state, on the other
hand,
drew a distinction between those decisions that require the application of a
legal standard and those that do not.  He contended
that the recusal decision
falls in the first category and raises a question of law.
[46]
For the purpose of
section 319
of the
Criminal
Procedure Act, the
state is limited to what may, for practical purposes, be
termed an appeal against an acquittal on a question of law.  We are therefore

concerned with the distinction between a question of law and a question of fact
in that context.
[47]
The approach of our courts to this
classification may for present purposes be summarised as follows:
(a)
A finding by a court that facts that must be proved in a given case
have been proved beyond a reasonable doubt is a finding of fact.Â
It is true,
as contended by the respondent, that the process of arriving at the finding of
fact involves the application of a standard
determined by law: the facts must
be proved beyond a reasonable doubt.  The legal rule applicable defines the
degree of probability
or certainty that must exist in the mind of the trier of
fact before the fact in question can be said to be proved.  The fact that
a
legal rule defines how certain a court must be about a fact before that fact
can be said to be proved does not render the finding
one of law.  The reason
for this is that the legal rule is intrinsic to the process by which a fact is
proved, embodies no further
definition and is not in dispute.  It has nothing
to do with the evaluation of facts already proved for the purpose of deciding

whether some legal standard has been observed.
(b)
Trial courts often draw inferences from existing facts according to
given rules.  Not all inferences of this kind are questions
of law.  As Botha J
said in
S v
Petro Louise Enterprises (Pty) Ltd and Others
:
[43]
“I am unable to accept counsel’s
widely-based and generalised proposition that in all cases the question whether
a particular
inference is the only reasonably possible inference to be drawn
from a given set of facts is a question of law.  To accede to the
proposition
in such general terms would, I consider, open the door to the possibility of
large numbers of appeals being brought
under
sec. 104
of Act 32 of 1944,
contrary to the limited scope of that section which I conceive the Legislature
contemplated.”
It is relevant in this connection
that
section 319
of the
Criminal Procedure Act is
also aimed at limiting
appeals by the state.
[48]
Corbett CJ in
Magmoed
[44]
made a helpful distinction
between, on the one hand, an enquiry into whether the facts found to be proved
established the offence
charged, and, on the other, one that seeks to decide if
the proved facts establish a factual ingredient of the offence.  He said:
[45]
“It is a genuine question of law
(a)
whether the evidence against an accused was such that there was a case to go to
the jury or that there were grounds upon which
the jury could legally convict
the accused of the crime charged; or
(b)
whether the proven facts bring
the conduct of the accused within the ambit of the crime charged. . . category
(b)
involves an enquiry as to the essence and scope of the crime charged by asking
whether the proven facts in the particular case
constitute the commission of
the crime.  This is clearly a question of law.  But, in my opinion, a question
of law is not raised
by asking whether the evidence establishes one or more of
the factual ingredients of a particular crime,
where there is no doubt or
dispute as to what those ingredients are
.” (emphasis supplied)
[49]
This distinction highlights the importance of
the purpose of the enquiry in the sense of whether the enquiry is aimed at a
conclusion
of law or the determination of what is really a fact.
(a)
If the inferential process is directed at determining a fact (often
referred to as a secondary fact) no question of law arises.
[46]
  Thus, inferences drawn as to
whether the accused had paid money as an inducement or reward in a statutory
corruption charge,
[47]
that the accused may have acted in self-defence based on a factual
misdirection,
[48]
and that the accused was party to a common purpose
[49]
with others have all been held
to be inferences of fact.  In none of these cases can it be said that the proof
of any of these
matters involves the decision as to whether the proved primary
facts measure up to an objective legal norm or standard.  Thus,
Corbett CJ in
Magmoed
[50]
agreeing with Botha J in
Petro
Louise
[51]
said:
“I cannot imagine for one moment that
the Attorney-General will have a right of appeal upon the footing that an
intent to do grievous
bodily harm was the only reasonable inference to be drawn
from the facts.”
(b)
On the other hand, challenges to findings which are in reality
conclusions of law have been held to raise issues of law for purposes
of
section 319.Â
It was held in
R v Patel
that an issue as to the
correctness of the interpretation of the definition of “official functions” and
the application of
that definition to the facts of the case was a question of
law.
[52]
Â
As pointed out in
Magmoed,
[53]
the judgment in
Patel
indicates that an issue of law “involves an
enquiry as to the essence and scope of the crime charged by asking whether the
proven
facts in a particular case constitute the commission of the crime”.
(c)
The determination of certain issues requires both factual findings
(whether on a balance of probabilities or beyond a reasonable
doubt) as well as
legal conclusions on the basis of factual findings.  These are mixed
conclusions of fact and law.  In cases
of that kind, appeals that challenge the
basis of factual conclusions alone raise issues of fact while those that raise
a question
whether the primary and secondary facts found are sufficient to
justify the legal conclusion raise questions of law.
[50]
These principles are now considered in the
context of the reservation of the question of law relating to the refusal by
the trial
judge to recuse himself.  The SCA held, as previously pointed out,
that the High Court had made a factual finding that the conduct
of the judge
would not create a suspicion of bias in the mind of the reasonable litigant.Â
The SCA gave no reasons for this finding.Â
We may add that no authority has
been referred to us nor have we been able to find any that seeks to answer this
question directly.Â
A finding that the conduct of a judge in fact created a
suspicion
in the mind of a particular person
that the judge concerned
was or was not biased may well be one of fact.  Whether that finding is arrived
at by inference makes
no difference, because the issue relates to what, in
fact, the state of mind of a particular person is.  However, a conclusion
in
relation to the suspicion created in the mind of a hypothetical reasonable
litigant goes beyond a mere inference of fact.
[51]
It entails, in the first instance, a
determination of what the facts are.  In the second place, it requires an
assessment of what
a reasonable litigant would think in the circumstances.Â
Judicial officers must apply an objective standard and measure the facts

against that standard.  In
S v Shackell
the SCA articulated the test for
reasonable apprehension of bias as follows:
[54]
“The ultimate test is whether, having
regard to (all the relevant facts and considerations) the reasonable man would
reasonably
have apprehended that the trial Judge would not be impartial in his
adjudication of the case.  The norm of the reasonable man is,
of course, a
legal standard”.
The test for recusal on the grounds
that a reasonable person would reasonably have apprehended that the trial judge
would not be
impartial in his adjudication of the case is not a factual
determination.  The application of this test is different from the process
by
which a court decides whether a case has been proved beyond a reasonable doubt.
In that case, the relevant facts are found only
if they are proved beyond a
reasonable doubt.  The standard of proof, which is undisputed, is applicable to
the fact-finding process.Â
In recusal cases, the facts are first established by
the application of the standard of proof.  Only after that has been done are

the facts measured against the objective legal standard of the reasonable
person.Â
[52]
Support for this approach is to be found in the
judgment of
S v Bochiris
.
[55]
Â
In dealing with a conviction of culpable homicide, the Appellate Division
considered the requirement of
culpa
which involves a failure of the
accused to observe the degree of care which a reasonable person would have
observed.  In dealing
with the assessment of what the reasonable person would
do in particular circumstances, the following was stated:
“The reasonable man in the embodiment of
the social judgment of the Court, which applies ‘common morality and common
sense to
the activities of the common man’.”
[56]
[53]
It must follow that a recusal challenge also
involves a virtually identical enquiry, namely “the social judgment of the
Court”
applying “common morality and common sense” in deciding whether the
reasonable person, in possession of all the relevant facts,
would reasonably
have apprehended that the trial judge would not be impartial in his
adjudication of the case.  A similar approach
was adopted by Olivier JA in
Betha
v BTR Sarmcol, a Division of BTR Dunlop
[57]
where he reasoned as follows:
“The question of the reasonableness or not
of Sampson’s attitude is not a question of fact by which this Court is bound,
but
a juristic evaluation, ie a matter of law.”
[58]
Where the reasonable apprehension of
the reasonable person in a recusal issue is in dispute,
[59]
as it invariably must be, and
is in the present case, this clearly involves a normative evaluation on the
part of the court.Â
The correctness of such evaluation must, for all the above
reasons, raise a question of law.  It must be concluded, therefore,
that in
this regard the SCA erred.
2(a)(ii) The admissibility of the
bail record challenge
[54]
The state seeks to challenge the decision of the
High Court that the bail record was inadmissible as evidence in the criminal
trial.Â
In essence, the High Court found that the admission of the evidence
against the respondent would, in all the circumstances, be unfair.Â
The SCA
correctly held that an accused was entitled to a fair trial, that it was
necessary for the High Court to determine what
would be fair under the
circumstances and that section 35(3) of the Constitution justifies the
exclusion of evidence the admission
of which would be unfair to an accused.Â
However, the SCA, relying on certain reasoning in
Attorney-General,
Transvaal v
Kader
,
[60]
held that the determination of the High Court as to what was fair raised an
issue of fact and not an issue of law.  It is now necessary
to consider whether
this decision was correct.
[55]
The issue discussed in that part of the judgment
in
Kader
relied upon by the SCA was whether the finding by a provincial
division that it would have been “humanly intolerable” for a witness
to testify
in a regional court case was a finding of fact and not one of law.  In the
process of concluding that the issue raised
only a finding of fact, E M Grosskopf
JA, in the passage cited by the SCA, relied on the following passage from
Morrison
v Commissioner for Inland Revenue
:
[61]
“A question that depends for its answer
on matters of degree, on what weight is to be given to this and that variable
factor…
seems to me to be ordinarily answerable only for the particular case
and to be therefore a question of fact.”
The court typified the nature of
the assessment that had been required in that case as being one aimed at
determining how serious
the consequences of giving evidence would have been for
the respondent.  A decision whether it would have been intolerable for
the
respondent to give evidence is a decision on a factual issue and does not
entail the application of any legal norm or standard
to the facts found.
[56]
The quotation from Morrison above must be
understood in the context of the decision in that case.  In the process of
defining the
issue involved there as a question of fact, Schreiner JA said that
the finding with which that court was concerned was:
“…a finding that the appellant’s
betting activities ‘constituted an essential feature of his racing as a
business’.Â
It followed upon a finding that the appellant’s purpose in betting
was to increase the profits from his racing and it rested upon
an estimate of
the closeness of the association of his betting and his racing.  It was
essentially a question of a degree, and
was incapable of being cast into the
form of a general rule.  It seems to me to have been a finding of fact which
there was evidence
to support and with which…the Supreme Court has no jurisdiction
to interfere.”
[62]
[57]
As the court said in that case, the finding
involved an assessment of degree and was incapable of being cast into a general
rule.Â
Both Kader and Morrison were concerned with factual findings, findings
which did not require the measurement of proved facts against
a legal
standard.  The admissibility challenge raises a different issue.  The ruling of
the High Court was in effect that the
evidence of the bail record was not
admissible.  The part of the judgment in Magmoed,
[63]
which dealt with admissibility challenges, is instructive.  In
determining whether the High Court’s refusal to admit evidence
given in inquest
proceedings by the accused raised a question of law, the court held:
“The admissibility of evidence may well
turn solely on an issue of fact.  An obvious example of this is the case where
the admissibility
of an extra-curial statement by the accused is in issue and
this depends on whether it was made freely and voluntarily and without
undue
influence or whether it was induced by some form of physical coercion.  This is
a question of fact; and the only way in
which it could be raised by an accused
person as a point of law reserved would be to pose the question as to whether
there was
any legal evidence upon which the Judge could properly have found
that the prosecution had discharged the onus on this issue (see
R v
Nchabeleng
1941 AD 502
at 504;
R v Ndhlangisa & Another
1946 AD
1101
at 1103-4).  Admissibility may, on the other hand, turn purely on a
question of law, for example whether a certain statement constitutes
a
confession (see
R v Becker
1929 AD 167
at 170;
R v Viljoen
1941
AD 366
at 367).  Furthermore, in a particular case admissibility may depend
upon both law and fact.
It seems to me that the decision of
Williamson J on the admissibility of the inquest evidence falls into the
last-mentioned category.Â
In effect he found (i) that the failure, after a
certain stage in the proceedings, on the part of the respondents (and their
counsel)
to object to answering incriminating questions was the result not of a
free election to do so, but of their having been discouraged
or inhibited from
so objecting by the general ruling of the magistrate and his approach to this
issue; and (ii) that this rendered
the evidence of the respondents
inadmissible.  Finding (i) is clearly one of fact or of factual inference;
whereas finding (ii)
is a matter of law.”
[64]
[58]
It is apparent from this passage that there is a
two-step process in the adjudication of issues concerning the admissibility of
evidence.  The first is to determine the facts.  These may be primary facts
provable by direct evidence or secondary facts established
by inference.  The
determination of the facts is essentially separate from the second enquiry.Â
The second stage is concerned
with whether, on the basis of the facts
determined in the first stage, it is fair for the evidence to be admitted.
[59]
This is demonstrated in the second admissibility
challenge at issue in Magmoed.  That challenge related to a High Court ruling
that evidence given by the accused as a state witness in a criminal trial was
not admissible at the subsequent criminal trial.Â
The witness in the previous
trial was the accused in the subsequent trial.  Referring to the reasons of the
trial court for its
ruling that the evidence was not admissible the court said,
“The reasons seem to me, with respect, to misinterpret and misapply
Lwane's
case and, therefore, to contain errors of law.”
[65]
  The test formulated in
S v Lwane
[66]
to determine whether evidence given by an accused in an earlier
case without a warning concerning the right against self incrimination
was
admissible in a subsequent criminal trial was stated as follows:
“The effect of non-observance of that
rule upon the admissibility in subsequent proceedings of an incriminating
statement made
by an uncautioned witness falls, in my judgment, to be
determined upon the particular facts of the case.  In any such enquiry,
the
nature of the incriminating statement and the ascertained, or presumed,
knowledge of his rights by the deponent will always
be important factors.”
[67]
The Appellate Division in
Magmoed
held that the challenge to the admissibility decision in that case raised a
question of law.  It thereafter measured the facts
applicable against the test
that it set out in
Lwane
and concluded that the trial court ought to
have admitted the evidence.
[60]
The reasoning in
Magmoed
in relation to
admissibility is sound both in principle and in law.  It is moreover directly
applicable to the admissibility challenge
in this case.  The High Court in
considering the admissibility challenge did two things. In the first place, it
determined the
facts.  In the second place, it measured the facts against the
test of fairness in order to determine whether the evidence was
admissible. The
second enquiry raised a question of law.  We conclude therefore that in this
regard, as well, the SCA erred.
2(b) Double jeopardy
[61]
Section 35(3)(m) of the Constitution guarantees that ─
“[e]very accused person has a right to a
fair trial, which includes the right –
. . .
(m) not to be tried for an offence in
respect of an act or omission for which that person has previously been either
acquitted or
convicted”.
The plea of double jeopardy, whether in the form of a
previous conviction or acquittal, is –
“based in English law on the maxim nemo
debet bis vexari si constat curiae quod sit pro una et eadem causa and,thi
maxim is derived
from the Roman law exceptio rei judicatae and … a pleas of
autrefois acquit ‘is in fact equivalent to a plea of the exception
rei
judicatae in our law’.”
[68]
The plea of double jeopardy also forms part of the
English common law and was recorded by Blackstone as a “universal maxim of the

common law of England, that no man is to be brought into jeopardy of his life,
more than once, for the same offence”.
[69]
Â
The constitutional protection against double jeopardy is part of the right to a
fair trial.  Both the individual and the state
have interests in the prevention
of double jeopardy.  The individual must be protected against abuse by the
state and be given
the benefit of a final decision in any criminal
prosecution.  The process of prosecution is disruptive and there must be the
prospect
of and timely receipt of finality in a prosecution.  Moreover, an
accused has a right to rely on an acquittal, when he or she has
been at risk of
conviction, and the accompanying right not to face further prosecutions.
[62]
Sections 106(1)(c)
and (d) of the
Criminal
Procedure Act provide
for the pleas of
autrefois convict
or
autrefois
acquit
.  These pleas provide the legal remedy which enables an accused to
rely on his or her
section 35(3)(m)
right and they must accordingly be
interpreted in the light of that right.  The pleas are based on the common law
principles referred
to above.
[63]
Once an accused has pleaded to a charge, he or
she is entitled to demand to be acquitted or convicted.
[70]
  Where, however, a conviction
and sentence are overturned by a review or appellate court on grounds that the
court lacked competence
to convict the accused; or that the indictment on which
the accused was convicted was invalid or defective; or that there was some

other fatal technical defect in the procedure,
section 324
of the
Criminal
Procedure Act provides
that an accused may be recharged on the same offence.
[71]
[64]
For the plea to be sustained, the accused must
show that he or she was in jeopardy of conviction in the first prosecution.
[72]
  An accused will have been in
jeopardy if the previous court had jurisdiction to try him or her; the trial
was based on a charge
on which a conviction could have been obtained; and the
acquittal was on the merits.
[73]
[65]
The question whether the accused was in jeopardy
on the first charge is approached objectively and irrespective of what the
verdict
was, whether at first instance or on appeal.  This implies that the
charge will be inspected to see whether it could support a
valid conviction.Â
If the charge did not disclose an offence it does not mean that the accused was
not in jeopardy, because a
conviction might validly have been obtained by
invoking
sections 86(4)
and
88
of the
Criminal Procedure Act.
name="_ftnref74" title="">
class=MsoFootnoteReference>
[74
]
[66]
In
McIntyre en Andere v Pietersen en ‘n Ander
[75]
it was held that the purpose of the right contained in
section 35(3)(m)
was
to protect citizens against the possibility of repeated prosecutions for the
same conduct.  The court held that such protection
was necessary in the
interests of fairness and also because of the public interest in the finality
of judgments.  It follows that
in the circumstances where a retrial does not
give rise to double jeopardy the retrial will not amount to an unfair trial in
violation
of section 35(3)(m) of the Constitution.
[67]
The question we must now consider is the relevance of the
constitutional proscription on double jeopardy to the interests of justice
in
the application for special leave to appeal.  It is clear that it is only of
any relevance to the first two grounds in the
special application for leave to
appeal: that against the trial judge’s decision not to recuse himself; and that
against the
trial judge’s refusal to admit the record of the bail proceedings
as evidence in the trial.  The accused did not plead to the
charges that were
subsequently quashed and was therefore never in jeopardy of conviction upon
them.
[68]
If the state were to succeed in its appeal on the bias ground, it
may well be that the accused will be held not to have been in jeopardy
of
conviction on the indictment.  But we do not need to decide that question now.Â
In relation to the admission of the bail record, the situation
may well be different.  That too need not be decided now.
[69]
In the circumstances, we conclude that this factor is not
sufficient on its own at this stage to conclude that it is not in the interests

of justice for the application for leave to appeal to be granted.  It is a
relevant factor, but not a determinative one.
2(c) The relevance of section
35(3)(d) to the interests of justice
[70]
A further question relevant to the interests of
justice is that raised by section 35(3)(d) of the Constitution which provides
that
accused persons are entitled to have their trial begin and conclude
without unreasonable delay.  At this stage of the proceedings
it is not clear
whether the state’s appeal will succeed, and even if it did, whether the state
would decide to re-prosecute the
respondent.  If it did, the question whether
that prosecution would be in breach of section 35(3)(d) would have to be
determined
at that stage by the trial court.
[71]
The question of whether such a prosecution would
infringe the respondent’s right to a trial without unreasonable delay has not

been canvassed on the papers before us.  It raises complex constitutional
issues in its own right.
[76]
Â
What is clear, however, is that although it may be a factor relevant to the
determination of the interests of justice, on its
own it is not determinative
of the interests of justice.  It will have to be considered when all the other
relevant factors have
been identified and analysed.
[72]
These are the only issues relevant to the
interests of justice that we can explore at this stage.  In particular, the
question
of the prospects of success on all three applications needs to be
considered fully in due course.
3. Application for leave to appeal
against the judgment of Hartzenberg J in terms of rule 18
[73]
We must now consider the rule 18 application for
leave to appeal directly to this Court against the High Court judgment on the
grounds
that it was vitiated by bias.  This application was lodged in this
Court after the rule 20 application for special leave to appeal
against the
decision of the SCA.  The state did apply to the High Court for a certificate
in terms of rule 18, and Hartzenberg
J issued a negative certificate.
[74]
The state says it has lodged the application in
order to ensure that the consideration of the merits of the recusal
application,
if they are to be considered, should be on the basis that the
record of the trial read as a whole discloses bias on the part of
the presiding
judge, or a reasonable apprehension of bias.  It will be recalled that the
state originally applied for the trial
judge to recuse himself shortly after
the beginning of the trial, and that application was refused.  The trial then
continued
and at the end of the trial, the state applied for the question as to
whether the trial judge should have recused himself to be
reserved in terms of
section 319
of the
Criminal Procedure Act.
lang=EN-ZA>[75
]
That application too was refused by the High
Court, but one question of law was reserved.  That question was whether the
state
was barred from seeking reservation of this question of law because of
the delay in seeking its reservation.  The High Court conditionally
reserved
three further questions of law for consideration by the SCA, if this
preliminary question was answered in the state’s
favour.  One of those
conditionally reserved questions was whether the trial judge had erred in
failing to recuse himself because
of bias.
[76]
This issue cannot be determined in this
judgment, but the question arises whether − if it has to be resolved – it
is to
be decided on the whole record or only on the record up to February 2000
when the initial application for recusal was made.  The
state argued that one
should look at the whole record in order to determine “bias at the end of the
day”.  The question of
bias, so the state submitted, had to be determined on
this basis.  The state described its
rule 18
application as part of a
“belt-and-braces” strategy to ensure that the recusal issue, if it is to be
determined, be determined
on the basis of bias at the end of the day.  The
state submitted that its only purpose was to prevent a contention that the
recusal
issue should be determined as at February 2000 and not on the full
record.
[77]
In our view, the state must stand or fall by its
rule 20
application for special leave to appeal.  It is quite undesirable for a
litigant to be given two bites at the appeal process.Â
In this case, the state
opted to pursue its relief to the SCA under
section 319
of the
Criminal
Procedure Act and
under the Constitution.  The SCA refused it relief.  The
state then sought to approach this Court in terms of
rule 20
, as it was
entitled to do.
[78]
It would be wrong to permit a litigant who
perceives that there are shortcomings in its appeal to the SCA to rectify those
shortcomings
by allowing a direct appeal under
rule 18
, read with section
167(6)(a) of the Constitution.
[77]
Â
Either the application for rule 20 does raise bias at the end of the day, or it
does not, which is a matter we cannot determine
today.  If it does not, that is
not something that can be cured by permitting a litigant to change horses
midstream and commence
an application for leave to appeal directly to this
Court as if it had not already pursued relief before the SCA.  It is not in
the
interests of justice, therefore, to grant the rule 18 application and it must
therefore be dismissed.  As this is a criminal
matter, an order as to costs is
inappropriate.
Conclusion
[79]
At this stage of the proceedings, we conclude
that the grounds of appeal upon which the rule 20 application is based all
raise constitutional
issues.  We cannot however decide in this judgment whether
it is in the interests of justice for that application to be granted.Â
Further
directions will thus have to be given by the Chief Justice for the further
disposal of the matter.
[80]
The issues that still have to be considered
include –
(a)  the
question initially reserved by the trial judge, namely, whether in delaying its
application to reserve the question of
law relating to the recusal issue, the
state became barred from seeking the reservation of that question;
(b) the
question whether, if the recusal issue is to be considered, it should be
considered on the basis of the full record, or
only on the record up until
February 2000;
(c) the
question whether the state has made out a case for the condonation of the late
filing of its application; and
(d) the
merits of the application for leave to appeal.
[81]
In considering the merits of the application, it
will be important for the parties to bear in mind that this is an application
for
special leave to appeal against a decision of the SCA.  In refusing the
application to reserve the questions of law that the High
Court had refused to
reserve, the SCA exercised its discretion.  The application for special leave,
therefore, requires a consideration
of the circumstances in which this Court
will uphold an appeal in respect of the exercise of such a discretion.
The order
[82]
The following order is made:
1.         The
application, for leave to appeal directly to this Court against the judgment of
the High Court in terms of
rule 18 is dismissed.
2.         It
is declared that the grounds of appeal upon which the rule 20 application is
based all raise constitutional
matters or issues connected with decisions on
constitutional matters, for purposes of section 167(3)(b) of the Constitution.
CHASKALSON
CJ:
[83]
I agree with the order proposed by the other
members of the Court, and with their judgment save for paragraphs 28 to 38 which
deal
with the objection to indictment.
[84]
The objection to the charges under the Riotous
Assemblies Act raises an issue of considerable importance.  Can a South African
court put one of its citizens on trial for conspiring to commit murders and
other offences during the period 1981 to 1989 in a territory,
then under South
African administration but beyond the territorial borders of the country?  The
answer given by the High Court
was, no.  The reason, so the court held, was
that such matters are not crimes according to South African law.  This, despite
the fact that the conspiracy is alleged to have been entered into in South
Africa, and the crimes, which if proved may amount to
war crimes, are alleged
to have been committed in the course of a conflict involving the South African
armed forces and those fighting
against it.
[85]
If that answer was wrong, there is a second
question raised by the High Court judgment.  The High Court held that the
respondent
was in any event entitled to the benefit of an amnesty granted by
the former Administrator General of Namibia.  The question whether
that amnesty
protects the respondent against prosecution in a South African court against
the grave charges laid against him is
also a matter of great importance,
involving not only the terms of the amnesty, but its implications for a South
African court,
bearing in mind the values of our Constitution and South
Africa’s obligations under customary international law.
[86]
The state wanted to appeal against the decision
of the High Court.  It sought to do so by asking for a question of law to be
reserved
in terms of section 319 of the Criminal Procedure Act.  This was
refused because, according to a line of decisions in the Appellate
Division,
[1]
which were followed by the
Supreme Court of Appeal (the SCA) in the present case, it is not competent to
invoke
section 319
of the
Criminal Procedure Act to
appeal against the
upholding of an objection to an indictment in a criminal case.  The procedures
followed by the state in attempting
to pursue the appeal were flawed but that
does not arise at this stage of the proceedings.
[2]
[87]
Whether such an appeal could have been brought
under the provisions of section 21(1) of the Supreme Court Act, 59 of 1959,
[3]
which confers additional
jurisdiction on the SCA to hear appeals from other courts, does not arise
directly in the present case,
for the state did not pursue or attempt to pursue
an appeal under that section.
[88]
The question that has to be decided now does not
concern the correctness of the decision of the High Court on the quashing of
the
charge, or the correctness of the decision of the High Court and the SCA on
the meaning of
section 319
of the
Criminal Procedure Act, or
the consequences
of the delays and other irregularities in the steps taken by the state to
pursue its appeal.  What is in issue
is whether an appeal on the issues raised
by the quashing of the charge is within the jurisdiction of this Court.  That
issue
arises not because of the place at which the alleged crimes were to be
committed, but because section 167(3)(b) of the Constitution
provides that:
“The Constitutional Court . . . may decide
only constitutional matters, and issues connected with decisions on
constitutional
matters . . . .”
[89]
Thus the question: Would an appeal against the
decision by the SCA in the circumstances of the present case be a
constitutional
matter, or involve a decision on an issue connected with a
decision on a constitutional matter?  If not, this Court has no jurisdiction
to
hear the appeal.
[90]
There can be no doubt that this Court has an
extensive jurisdiction.  The Constitution is the supreme law of the Republic
and law
or conduct inconsistent with it is invalid.
[4]
  All legislation must be made,
and all public power must be exercised, in accordance with its provisions.
[5]
  It is the source of the power
of the courts, and the power of the prosecuting authority.
[6]
  Chapter 2 of the Constitution
which contains the Bill of Rights applies to all law and binds the legislature,
the executive,
the judiciary and all organs of state.
[7]
  It binds also “a natural or a
juristic person if, and to the extent that, it is applicable”.
[8]
 It is relevant to the
interpretation of all legislation and to the development of customary law and
the common law.
[9]
Â
It is also relevant to disputes which are subject to legislation such as the
Labour Relations Act, 66 of 1995
,
[10]
the
Promotion of Access to Information Act, 2 of 2000
,
[11]
the
Restitution of Land Rights
Act,
22 of
1994
,
[12]
  the
Maintenance Act, 99 of 1998
[13]
Â
and other laws connected with constitutional rights.  Issues connected with
such matters will almost always be “constitutional
matters” for the purpose of
167(3)(b).
[91]
This jurisdiction, though extensive,
[14]
is not all embracing.  Where
no constitutional right is engaged, a challenge to a decision of the SCA or any
other court, on the
basis only that it is wrong on the facts, is not a
constitutional matter.
[15]
Â
And a dispute that does not impact upon or give effect to an entrenched right
or other constitutional provision, will not ordinarily
be a constitutional
matter.  Where does the present case fit within this broad framework?
[92]
The mere fact that this is a criminal case in
which the accused’s liberty is threatened, does not make it a constitutional
matter.Â
That is clear from the decision of this Court in
Boesak
’s case,
[16]
where it was held that if all
criminal cases are said to be constitutional matters, “the distinction drawn in
the Constitution
between the jurisdiction of this Court and that of the SCA
would be illusory.”
[17]
[93]
The prosecution of crime is a matter of
importance to the state.  The state can justifiably feel aggrieved if a judge
mistakenly
acquits an accused person when on the facts of the case that person
should have been convicted. But that does not mean that it can
necessarily
appeal to this Court against such a decision.  If, as this Court held in
Boesak
’s
case, the conviction and imprisonment of an accused person who has a
constitutional right to a fair trial, is not in itself
a constitutional matter
for the purpose of section 167(3) of the Constitution, it could hardly be
suggested that the acquittal
of an accused because of an error alleged to have
been made by the High Court or the SCA in their assessment of the facts is a
constitutional matter.
[94]
The same holds good for findings of law.  If a
finding of law is inconsistent with the Constitution, or is made on a
constitutional
issue which arises in a criminal case, as for instance was the
case in
S v Thebus and Another
,
[18]
then this Court has jurisdiction to hear an appeal against such finding.  But
if this is not so,  the fact that the decision
may be wrong does not in itself
give rise to a constitutional issue that would bring the matter within the
jurisdiction of this
Court.
[19]
[95]
The charges against the accused concern events
that are alleged to have taken place some years before the Constitution came
into
force.  This Court held in
Du Plessis and Others v De Klerk and Another
[20]
that the Constitution does not
have a retroactive impact.
“It does not enact that, as at a date prior
to its coming into force, ‘the law shall be taken to have been that which it
was
not’.”
[21]
As pointed out, however, by
Kentridge AJ in
Du Plessis
’ case this is not necessarily an invariable
consequence of the coming into force of the Constitution.  Special
considerations
may apply to criminal cases where the interests of the accused
may be relevant.  There may also be cases
“where the enforcement of previously
acquired rights would, in the light of our present constitutional values, be so
grossly unjust
and abhorrent that it could not be countenanced, whether as
being contrary to public policy or on some other basis.”
[22]
[96]
The prosecution under the Riotous Assemblies Act
in the present case failed because of the view that the High Court took on the
interpretation of the relevant provisions of that Act.  If there is another
basis on which the alleged conspiracy can be prosecuted,
then the quashing of
the charge will not in itself preclude such a prosecution.  I will assume for
the purposes of this judgment
that there is no other basis on which such a
prosecution can be brought.
[97]
If the conduct with which the accused was
charged did not constitute an offence under South African law at the time it
was committed,
then in the light of
Du Plessis’
case,
[23]
the state cannot
contend that it has become an offence because of the provisions of the
Constitution.  Thus section 39(2)
[24]
of the Constitution which might have been material to the interpretation of the
relevant provisions of the Act if the Constitution
had been applicable, and if
invoked would have made the case a constitutional matter, cannot be invoked for
that purpose in the
present case.
[98]
The decision of the High Court deals with the
essential elements of the offence created by section 18(2) of the Riotous
Assemblies
Act. It holds that the conspiracy charged in the indictment does not
fall within the purview of the section.  That is a finding
of law on an issue
to which the Constitution has no application.  In the circumstances, the
contention that the finding is wrong
is not in itself a constitutional matter.
[99]
The majority hold that if the interpretation is
wrong it has, in effect, obstructed the constitutional obligation of the
prosecuting
authority, and that is a constitutional matter. I do not agree. In
Lane
and Fey NNO v Dabelstein and Others,
[25]
this Court said: “The Constitution does not and could hardly ensure that
litigants are protected against wrong decisions.”
[26]
I can see no difference
between a wrong decision that leads to the failure of a prosecution and a wrong
decision that leads to
the conviction and imprisonment of an accused person.Â
Although there is a connection between the error and the Constitution, in
the
light of the decision of this Court in
Boesak’s
case, that connection is
in my view too remote to warrant the decision being classified as a
constitutional matter.
[100]
That, however, is not the end of the matter.  Counsel for the state
submitted that, according to our common law, statutes should
where possible be
interpreted in conformity with international law.  That principle has now been
incorporated into our Constitution.Â
Section 233 of the Constitution provides
that:
“When interpreting any legislation, every
court must prefer any reasonable interpretation of the legislation that is
consistent
with international law over any alternative interpretation that is
inconsistent with international law”.
The High Court judgment does not
deal with international law.  The state contends that if consideration had been
given to international
law, the judge would have reached a different
conclusion.
[27]
Â
The failure to do so was thus not only an error, but an error that is
inconsistent with a requirement of the Constitution.
[101]
If the submission that the High Court should have had regard to
international law for the purposes of interpreting section 18(2)
of the Riotous
Assemblies Act is correct, it may well be that the failure to have done so
implicates the Constitution in a way
sufficient to make this a constitutional
matter. The argument on the relevance of international law to the
interpretation of section
18(2), raises complex and difficult issues.  I prefer
to leave that question open at this stage of the proceedings, and to say
no
more on the topic than is necessary for the purposes of this judgment. I do so
because of the view that I take on the interpretation
of
section 319
of the
Criminal Procedure Act, which
makes it unnecessary for me to express a firm
opinion on that question.
[102]
I have come to the conclusion for reasons that follow, that the interpretation
of
section 319
of the
Criminal Procedure Act is
a constitutional matter.  If
this is so, then a decision on the interpretation of section 18(2) of the
Riotous Assemblies Act
would be connected with a decision on a constitutional
matter.  This Court would then have jurisdiction to deal with the application

for leave to appeal.
[103]
The powers of the various courts in South Africa are derived from
the Constitution.  Chapter 8 of the Constitution deals with the
courts and the
administration of justice.  The SCA, which has taken the place of the Appellate
Division and, subject to the Constitution,
has all the powers that the
Appellate Division used to have.  Its place in the hierarchy of courts and its
authority is dealt
with in section 168 of the Constitution which provides in
subsection (3) that:
“The Supreme Court of Appeal may decide
appeals in any matter.  It is the highest court of appeal except in constitutional
matters,
and may decide only-
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred
to it in circumstances defined by an Act of Parliament.
[104]
Chapter 8 must be read with item 2 of Schedule 6 of the Constitution,
which provides that:
“All law that was in force when the new
Constitution took effect, continues in force, subject to -
(a) any amendment or repeal; and
(b) consistency with the new Constitution”.
This in turn must be read with item
16 of Schedule 6 which deals with courts, and the interim Constitution which
dealt with the
law in force when the new Constitution took effect.
[105]
Item 16 of Schedule 6 of the Constitution provides that:
“(1) Every court,
including courts of traditional leaders, existing when the new Constitution
took effect, continues to function
and to exercise jurisdiction in terms of the
legislation applicable to it, and anyone holding office as a judicial officer
continues
to hold office in terms of the legislation applicable to that office,
subject to -
(a)
any amendment or repeal of that legislation; and
(b)
consistency with the new Constitution”.
[106]
Section 241(1) of the interim Constitution made provision for
existing courts to continue to function in accordance with the laws
applicable
to them until changed by a competent authority,
[28]
and section 241(10) dealt
with the jurisdiction of courts and the powers of judicial officers.  It
provided that:
“The laws and other measures which
immediately before the commencement of this Constitution regulated the
jurisdiction of courts
of law, court procedures, the power and authority of
judicial officers 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”.
This provides the legal framework
within which the powers of the SCA must be determined.  Basically, subject to
the provisions
of the Constitution, it adopts and continues the legal framework
that existed before the interim Constitution was adopted.
[107]
Two well-established principles are relevant to the powers of the
state to note an appeal to the SCA, and the powers of the SCA to
hear appeals.
[108]
The first principle is that in the absence of a special statutory
provision enabling it to do so, the state has no right of appeal
against an
acquittal of an accused in a criminal case.
[29]
Â
The relevant history of the provisions regulating appeals by the state is
discussed by Corbett CJ in
Magmoed v Janse Van Rensburg and Others
.
[30]
  The state may not appeal
against an acquittal based on findings of fact.  Prior to 1948 it could also
not appeal against a finding
of law made in a trial before a judge which
resulted in the acquittal of an accused person.
[31]
  In 1948 the
Criminal
Procedure Act then
in force was amended to make provision for the reservation
of questions of law at the instance of the state in terms substantially
similar
to
section 319
of the present Act.
[32]
 These provisions have been interpreted by the Appellate Division to exclude
from their ambit appeals against the upholding of
an exception to an indictment
by a judge.
[33]
 The SCA considered itself bound by these decisions in the present case.
[109]
The second principle is that the SCA has no jurisdiction to hear an
appeal against a decision of another court unless such a right
is conferred on
it by the Constitution or by statute.
[34]
Â
The Constitution makes provision, as part of the fair trial right of accused
persons, for a right of appeal to or review by a
higher court.
[35]
  No corresponding right is
made in favour of the state and it was not suggested in argument that the
Constitution requires that
there should be such a right.
It was, however, contended on behalf
of the state that section 168(3) of the Constitution is relevant because it
provides that the
“Supreme Court of Appeal may decide appeals in any matter”.  The
state does not challenge the constitutionality of section
319 of the Criminal
Procedure Act.  It contends, however, that section 168(3) of the Constitution
is relevant to the proper construction
of section 319.  That raises a
constitutional issue within the jurisdiction of this Court.
[111]  The Constitution is also
implicated in another way.  Section 319 deals with the powers of the SCA to
hear appeals in criminal
cases.  The power of the courts is derived from the
Constitution.  In
Bannatyne v Bannatyne
[36]
this Court held that “any
issue as to the nature and ambit” of the powers of the High Court “necessarily
raises a constitutional
question”.
[37]
Â
This applies equally to issues concerning the nature and ambit of the powers of
the SCA.  An interpretation of
section 319
of the
Criminal Procedure Act, which
precludes an appeal to the Supreme Court of Appeal against a decision of the
High Court quashing a charge in an indictment, has
a material bearing
on the powers of the SCA.  The
interpretation of that section is accordingly a constitutional matter.
[112]  It follows that although my
reasons are different as far as the objection to the indictment is concerned, I
concur in the
order that is made.
Langa DCJ and Yacoob J concur in the
judgment of Chaskalson CJ.
SACHS J:
[110]
I concur in the majority judgment, but wish to add supplementary
reasons on one aspect.  It concerns the quashing by the trial court
of certain
charges against the respondent, Dr Basson, and deals with the question of the
constitutional significance of conduct
amounting to a war crime.
[111]
The questions before us have to be determined in the complex
historical and jurisprudential situation in which the South African
state has
moved from perpetrating grave breaches of international humanitarian law to
providing constitutional
protections against them.
[1]
  Issues which in another
context might appear to be purely technical concerning the interpretation of a
statute or the powers
of a court on appeal, in my view, take on profoundly
constitutional dimensions in the context of war crimes.
[112]
Nothing shows greater disrespect for the principles of equality,
human dignity and freedom than the clandestine use of state power
to murder and
dispose of opponents.  It follows that any exercise of judicial power which has
the effect of directly inhibiting
the capacity of the state subsequently to
secure accountability for such conduct goes to the heart of South Africa’s new
constitutional
order.  When the depredations complained of are of such a
dimension as to transgress the frontier between ordinary state-inspired

criminal violence and war crimes, the engagement with the core of the
Constitution becomes even more intense.
[113]
It is in this context that the interim Constitution provided for the
establishment of the Truth and Reconciliation Commission (the
TRC).  Its
objective was to build a bridge between the past and the present and enable an
appropriate balance to be achieved between
all the public and private interests
involved.  The respondent has not chosen to have recourse to the TRC process.  We
are accordingly
left to deal with this matter on the basis of applying the
ordinary principles of law and statutory interpretation as viewed and
developed
in the light of the Constitution.
[114]
The very enormity and intricacy of the legal issues requires that
the analysis be undertaken with the utmost rigour and dispassion.Â
The need for
objectivity is eloquently highlighted by Cassese in the Preface to his seminal
work on international criminal law:
[2]
“[O]ne should never forget that this body
of law, more than any other, results from a myriad of small or great
tragedies.  Each
crime is a tragedy, for the victims and their relatives, the
witnesses, the community to which they belong, and even the perpetrator,
who,
when brought to trial, will endure the ordeal of criminal proceedings and, if
found guilty, may suffer greatly, in the form
of deprivation of life, at worst,
or of personal liberty, at best.  Law, it is well known, filters and rarefies
the halo of horror
and suffering surrounding crimes.  As a consequence, when
one reads a law book or a judgment, one is led almost to forget the violent
and
cruel origin of criminal law prescriptions.  One ought not to become oblivious
to it.  To recall it may serve as a reminder
of the true historical source of
criminal law.  This branch of law, more than any other, is about human folly,
human wickedness,
and human aggressiveness.  It deals with the darkest side of
our nature.  It also deals with how society confronts violence and
viciousness
and seeks to stem them as far as possible so as ‘to make gentle the life on
this world’.  Of course the lawyer
can do very little, for he is enjoined by
his professional ethics neither to loathe nor to pity human conduct.  He is
required
to remain impassive and simply extract from the chaos of conflicting
standards of behaviour those that seem to him to be imposed
by law.”
[115]
In the present case our country’s relatively rapid transformation
from predator state to protector state has intensified “the
chaos of
conflicting standards” to which Cassese refers.  The resolution of the
conceptual tensions involved can only be found
in the Constitution
[3]
and its values and in the
duty imposed on the state to protect those values.
[4]
  In a fraught area like this
it is particularly important to avoid forms of consequential reasoning which
lack a principled foundation.
 The crucial question is not whether consequences
influence reasoning but the nature of the consequences which may be involved.Â
In
my view, if the desire to avoid potentially painful consequences results in the
filling in of gaps in legal reasoning, or places
unacceptable strain on
principled legal logic, the integrity of the law is imperilled.  But if the
consequences at issue relate
to the constitutional legal order itself or to
rights protected by that order, they become integral to rather than destructive
of rigorous legal analysis.  In the present case I believe the consequences of
the decision of the trial court to quash the charges,
and the subsequent refusal
of the Supreme Court of Appeal (the SCA) to entertain an appeal against that
decision, do impact directly
on the legal order as envisaged by the
Constitution, particularly insofar as war crimes may be involved.
[5]
 They touch on central
features of our constitutional democracy.  As such they are determinative of
the issue before us at this
stage, namely whether the questions raised in the
application for leave to appeal, are constitutional matters.
[116]
I believe that three substantial, sequential and interrelated constitutional
questions arise in connection with the quashing of the
charges and the refusal
of the SCA to entertain an appeal from the trial judge’s decision.  The first
is whether the conduct
charged could be characterised as a war crime as
understood by international humanitarian law.  If the answer is affirmative,
the second question is whether and to what extent this could impose a special
constitutional responsibility on the state to prosecute
the respondent.  The
third is whether the quashing of the charges by the trial court followed by the
refusal of the SCA to entertain
an appeal against this decision, without
reference to the fact that the prosecution of war crimes was involved,
manifested a failure
to give effect to South Africa’s international obligations
as set out in the Constitution.
[117]
I deal first with the question of whether the conduct alleged in the
charges that were quashed should be seen as constituting war
crimes.  Cassese
[6]
defines a war crime as
follows:
“War crimes are
serious violations
of customary or, whenever applicable, treaty rules belonging to the corpus of
the international humanitarian law of armed conflict.
 As the Appeals chamber
of the ICTY [International Criminal Tribunal for the former Yugoslavia] stated
in
Tadić (Interlocutory Appeal)
, (i) war crimes must consist of ‘a
serious infringement’ of an international rule, that is to say ‘must constitute
a breach
of a rule protecting important values, and the breach must involve
grave consequences for the victim’; (ii) the rule violated
must either belong
to the corpus of customary law or be part of an applicable treaty; (iii) ‘the
violation must entail, under
customary or conventional law, the individual
criminal responsibility of the person breaching the rule’ (§ 94); in other
words,
the conduct constituting a serious breach of international law must be
criminalized.
. . . Â
War crimes may be perpetrated in the course
of either
international
or
internal
armed conflicts, that is,
civil wars or large-scale and protracted armed clashes breaking out within a
sovereign State.”
[7]
[118]
The charge sheet against the respondent alleged in count 31 that he
had been involved in a conspiracy in Pretoria to murder members
of South West
African People’s Organisation (SWAPO) in Namibia (then referred to as South
West Africa), in contravention of section
18(2)(a) of the Riotous Assemblies
Act, 17 of 1956.  The material facts which accompany the charge sheet provide
the substance
of the allegations against him.  Count 31 reads:
[8]
“1. In 1979/1980 it was found that as a
result of pseudo-operations which the SADF carried out in the then South West
Africa (Namibia),
there was an overpopulation of captive SWAPO members in the
detention facilities.  A decision was taken in defence headquarters
in Pretoria
that SWAPO members who had become too many to be handled and represented a
security risk, should be killed and their
bodies gotten rid of.  It was decided
that an aeroplane (PIPER SENECA) should be bought clandestinely and that it
would be employed
to cast the remains of the SWAPO captives who were killed
into sea.
2. As a result of problems encountered with
the first SWAPO members whose deaths were engineered, Dr. Basson was instructed
to help
kill the persons.
3. The accused began to supply JJ Theron
with TUBERINE and SCOLINE (both muscle-relaxants).  The accused explained that
if a person
is injected with these agents such person in this situation
basically asphyxiates.  His lungs do not function because the lung
muscles are
inactive because of the agents.  Later KETALAAR (a narcotic agent) was also
provided.  In most cases the Accused
provided these agents to JJ THERON, but in
his absence other doctors who worked under him and on his instructions provided
the
agents to other persons involved in the operation.  The SWAPO members and
persons from their own forces, who had to be killed,
were overdosed with the
above agents which brought about their death.
4. Theron went ahead to kill a large number
of SWAPO members who had been identified (about 200 persons) in the above
manner and
to get rid of their remains in the sea.
5. The accused also provided THERON with
cool-drink with sedatives to surreptitiously cause people to fall asleep.Â
THERON, on
his part, gave the cool-drinks with the sedatives to co-workers such
as DJ PHAAL, T FLOYD and ICJ KRIEL.
6. The accused informed THERON that they
had experimented with various cool-drinks.  THERON personally bought the
cool-drinks and
delivered them to the accused.  The accused showed THERON where
a small hole was drilled into the cool-drink.  The sedative was
injected with a
thin syringe into the cool-drink.  With the use of skilful soldering process
the little hole was covered so that
it would be invisible.  The accused on ten
occasions delivered contaminated cool-drink to THERON.  From time to time there
was
to be feedback to the accused about the effectiveness of the cool-drink.
7. Contaminated beer was also delivered to
THERON in a similar manner.  The beer also contained a sedative and THERON
received
such beer on about twelve occasions.
8. The accused also delivered to THERON
pills that were indented with a deep V.  Usually 10-15 of the pills were handed
over and
the accused delivered them five or six times.  These pills also caused
potential victims to fall asleep if they took them.
9. In furtherance of the above conspiracy a
series of incidents took place.  The state will inter alia rely on the occasion
where
the accused and THERON killed 5 black male persons (hereafter called the
deceased) who were in detention at Fort Doppies, SWA.
10. The accused gave the above-mentioned
detainees the pills to drink.  The five refused to take the pills and hid them
away in
the legs of the chairs in the place where they were being held.
11. The accused and Theron looked through a
one-way window in a neighbouring observation room, and saw the deceased hide
the pills.
12. The accused went into the cell again
and persuaded the five persons to take the pills, which they did.
13. As a result of the medicine the five
persons fell asleep.  The accused and THERON injected them with tuberine and
scoline which
the accused supplied.
14. The accused used the opportunity to see
if THERON administered the injections correctly.
15. When the five were dead the accused,
THERON, and other persons unknown to the State, helped load the bodies onto an
aeroplane.
16. While the accused sat in front of the
aeroplane, they flew out to sea, and went on to throw the five bodies into the
sea.”
[119]
The charge sheet further alleged in count 61 that in 1989 the
respondent furnished cholera bacteria to poison the water supply of
a SWAPO
refugee camp in order to manipulate the outcome of pending elections in
Namibia.  The material facts appended to count
61 read:
“1. Before the election in Namibia/South
West Africa, the CCB decided that all forces must be brought together to
influence the
outcome of the election.  All the different regions of the CCB
members were told to direct their activities to South West Africa/Namibia.
2. RNL had the capacity to cultivate the
Vibrio Cholera-Bacterium.  This pathogenic organism was packed in bottles.  On
4 August
1989 A IMMELMAN handed to the operator “Koos”, 16 bottles containing
the Cholera bacterium.  On 16 August another 6 bottles
of Cholera germs were
handed over to the medical coordinator of the CCB (Koos).  This bacterium was
supplied through the instruction
and agency of the accused to the medical
coordinator of the CCB.  Immelman also reported to the accused.
3. BOTES, a CCB member who by rights worked
in Region 2, had a clandestine member who had access to a camp in Windhoek that
accommodated
mainly SWAPO members.  On the instruction of PJ VERSTER a project
was launched, which included the contamination of the water supply
of the
refugee camp where mainly SWAPO members were staying near Windhoek.
4. BOTES received from VERSTER four bottles
containing Cholera germs.  BOTES handed it over to his operator, J DANIELS for
it to
be thrown into the water supply of the camp at Windhoek.
5. After the operator carried out his
instruction, Botes destroyed the bottles.
6. The state alleges that the Cholera germs
were handed over to the CCB on the instructions and through the agency of the
accused.”
[120]
If the allegations contained in counts 31 and 61 could be proved, it
would be difficult to argue that, accepting Cassese’s definition,
they did not
constitute war crimes.
[121]
The next question relates to the constitutional significance of a
finding that the charges if proved could establish the commission
of war
crimes.  Would such a finding signify a constitutionally-commanded need to take
account of international law in determining
the issues?
[9]
 In particular as far as the
present case is concerned, would it require that in relation to the
interpretation of the Constitution
and our law of criminal procedure, special
consideration be given to South Africa’s international law obligations?  This
is
a relatively new area in our jurisprudence, and requires appropriate
circumspection.  At this stage, however, we are not called
upon to make
definitive determinations.  Rather, we must decide the limited question of
whether or not the possible impact on
the case of South Africa’s international
law obligations raises a constitutional question.  In this respect I am of the
opinion
that the materials before us are sufficiently substantive to propel
this question from the realm of the purely speculative into
the universe of the
real.
[122]
Section 232 of the Constitution states:
“Customary international law is law in the
Republic unless it is inconsistent with the Constitution or an Act of
Parliament.”
The rules of humanitarian law
constitute an important ingredient of customary international law.  As the
International Court of
Justice [the ICJ] has stated, they are fundamental to
the respect of the human person and “elementary considerations of humanity”.
[10]
  The rules of humanitarian
law in armed conflicts are to be observed by all states whether or not they
have ratified the Conventions
that contain them because they constitute
intransgressible principles of international customary law.
[11]
  The ICJ has also stressed
that the obligation on all governments to respect the Geneva Conventions in all
circumstances does
not derive from the Conventions themselves, but from the
general principles of humanitarian law to which the Conventions merely
give
specific expression.
[12]
[123]
The duty of states to provide effective penal sanctions today for
persons involved in grave breaches of humanitarian law, whenever
committed, is captured
and expressed in Article 146 of the Fourth Geneva Convention of 1949 (articles
146-147 appear with different
numbering in all four conventions).  It states:
“The High Contracting Parties undertake to
enact any legislation necessary to provide effective penal sanctions for persons
committing,
or ordering to be committed, any of the grave breaches of the
present Convention defined in the following Article.”
Article 147 of the Geneva
Convention goes on to indicate what sort of conduct would constitute grave
breaches of international humanitarian
law.  These include:
“(A)ny of the following acts, if committed
against persons or property protected by the present Convention: wilful
killing, torture
or inhuman treatment, including biological experiments,
wilfully causing great suffering or serious injury to body or health”.
[124]
This brings me to the third question.  It concerns the failure of
the SCA, when dealing with the proposed appeal against the decision
to quash
the charges, to take account of South Africa’s international law obligations as
outlined above.  It should be repeated
that at this stage we are not called
upon to make any definitive determinations as to whether the trial court was
correct or not
in quashing the charges.  Nor is it necessary to decide whether
the SCA should or should not have entertained the appeal against
the decision.  The
only issue in these preliminary proceedings is whether the fact that at no
stage was any attention paid to
South Africa’s international obligations as
mandated by the Constitution raises a constitutional issue.  In
Bannatyne v
Bannatyne (Commission for Gender Equality as Amicus Curiae)
[13]
this Court held that a
dispute as to whether a decision by the SCA gave paramountcy to the best
interests of the child, and enquiries
into gender equality, both raised
constitutional issues, properly before this Court.  Similarly, enquiries into
whether the SCA
failed to give sufficient or any weight to the state’s
obligations under international law, raise constitutional questions, properly

before this Court.
[125]
This Court is accordingly entitled to hear the application for leave
to appeal against the SCA’s decision refusing to entertain
the appeal against
the trial court’s quashing of the charges.
[126]
In conclusion, it should be emphasised that none of the above should
be taken as suggesting that because war crimes might be involved,
the rights to
a fair trial of the respondent as constitutionally protected are in any way attenuated.
 When allegations of such
serious nature are at issue, and where the exemplary
value of constitutionalism as against lawlessness is the very issue at stake,

it is particularly important that the judicial and prosecutorial functions be
undertaken with rigorous and principled respect for
basic constitutional
rights.  The effective prosecution of war crimes and the rights of the accused
to a fair trial are not antagonistic
concepts.  On the contrary, both stem from
the same constitutional and humanitarian foundation, namely the need to uphold
the
rule of law and the basic principles of human dignity, equality and freedom.
For the applicant:                                                   W
Trengove
SC, P Mtshaulana
                                                                               Â
and
A Cockrell instructed by the
                                                                               Â
State
Attorney.
For the respondent:                                                JG
Cillers and
MMW van Zyl
                                                                               Â
instructed
by Adolf Malan &
                                                                      Â
      Â
Vermeulen Inc.
[1]
Section 85(1)(c) provides:
“An accused may, before pleading to
the charge under section 106, object to the charge on the ground—
. . .
(
c
)  that the charge does not
disclose an offence . . . .”
[2]
The full text of the provision is cited at para 28 below.
[3]
S v Basson
[2000] 1 All SA 430
(T) at 441 d-e.
[4]
S v Basson
[2000] 3 All SA 59
(T). at 75
b-d.
[5]
The judgment is long, and is unreported.
[6]
Section 319(1) and (2) provide that:
(1)
“If any question of law arises on the trial in a superior court of any person
for any offence, that court may of its own motion
or at the request either of
the prosecutor or the accused reserve that question for the consideration of
the Appellate Division,
and thereupon the first-mentioned court shall state the
question reserved and shall direct that it be specially entered in the record

and that a copy thereof be transmitted to the registrar of the Appellate
Division.
(2)  The grounds upon which any
objection to an indictment is taken shall, for the purposes of this section, be
deemed to be questions
of law.”
[7]
S v Basson
[2003] 3 All SA 51 (SCA).
[8]
Rule 20(2) of the Rules of Court.
[9]
Section 167(3)(b) of the Constitution.
[10]
Section 167(6)(b) of the Constitution provides that:
“National legislation or the rules of
the Constitutional Court must allow a person, when it is in the interests of
justice and
with leave of the Constitutional Court –
. . .
(b) to appeal directly to the
Constitutional Court from any other court .”
[11]
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at
paras 10-11.
[12]
South African Commercial Catering and Allied Workers Union and
Others v Irvin and Johnson Ltd (Seafoods Division Fish Processing)
2000 (3)
SA 705 (CC); 2000 (8) BCLR 886 (CC).
[13]
Id at para 2.
[14]
Id at para 2;
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) at para 30 where this Court held that the
application for recusal raised a constitutional matter.
[15]
Id at para 35.
[16]
Section 34 provides that:
“Everyone has the right to have any
dispute that can be resolved by the application of law decided in a fair public
hearing before
a court or, where appropriate, another independent and impartial
tribunal or forum.”
[17]
Section 165 (2) provides that:
“The courts are independent and
subject only to the Constitution and the law, which they must apply impartially
and without fear,
favour or prejudice.”
[18]
SARFU
above n 14 at para 30.
[19]
The question of whether the refusal by the trial judge to recuse
himself is a finding of fact and not of law is dealt with in detail
later in
this judgment, see paras 41-49 below.
[20]
Section 167(3)(b) provides that:
“The Constitutional Court –
. . .
(b) may decide only constitutional
matters, and issues connected with decisions on constitutional matters . . . .”
[21]
Section 165(2)  provides that:
“The courts are independent and
subject only to the Constitution and the law, which they must apply impartially
and without fear,
favour or prejudice.”
[22]
R v S (RD)
[1997] 3 SCR 193
(SCC) at para 96.
[23]
S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at paras 97-8.
[24]
Above n 7 at para 42.
[25]
R v Adams and Others
1959 (3) SA 753
(A) at 764G;
S v
Mene
1978 (1) SA 832
(A) at 838 B-C;
S v Seekoei
1982 (3) SA 97
(A)
at 101D-E;
S v Khoza en Andere
[1990] ZASCA 142
;
1991 (1) SA 793
(A) at 795J-796C.
[26]
Above n 7 at para 70(a).
[27]
Section 333
of the
Criminal Procedure Act provides
:
“Whenever the Minister has any doubt
as to the correctness of any decision given by any superior court in any
criminal case on
a question of law, or whenever a decision in any criminal case
on a question of law is given by any division of the Supreme Court
which is in
conflict with a decision in any criminal case on a question of law given by any
other division of the Supreme Court,
the Minister may submit such decision or,
as the case may be, such conflicting decisions to the Appellate Division of the
Supreme
Court and cause the matter to be argued before that Court in order that
it may determine such question of law for the future guidance
of all courts.”
[28]
Carmichele v Minister of Safety and Security and Another
(Centre
for Applied Legal Studies intervening)
[2001] ZACC 22
;
2001 (4) SA 938(CC)
;
2001 (10) BCLR
995
(CC) at paras 61-2.
[29]
Above n 25;
R v Manasewitz
1933 AD 165
at 169;
R v Pope
and Le Roux
1952 (3) SA 409
(C) at 413;
S v Vermeulen
1976 (1) SA
623
(C) at 630-4;
S v Delport alias Boucher
1984 (1) SA 511
(O) at
514-5.
[30]
See section 179(4) of the Constitution.
[31]
Above n 3 at 441e.
[32]
Section 85(1)
of the
Criminal Procedure Act provides
:
“An accused may, before pleading to
the charge under
section 106
, object to the charge on the ground –
. . .
(d) that the charge does not contain
sufficient particulars of any matter alleged in the charge: Provided that such
an objection
may not be raised to a charge when he is required in terms of
section 119
or
122A
to plead thereto in the magistrate’s court”.
[33]
Du Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 20.
[34]
See Dugard “Is the Truth and Reconciliation Process Compatible with
International Law?  An unanswered question”
13 (1997)
SA Journal on
Human Rights
258 at 263.  See also
Prosecutor v Dusko Tadic
(ICTY)
(1996) 35 ILM 32 at 72.
[35]
Id at 263.  See also Convention on Suppression and Punishment of
the Crime of Apartheid, 1973, article 1; Convention on the Non-Applicability
of
Statutory Limitations to War Crimes and Crimes Against Humanity, 1968.
[36]
Member of the Executive Council for
Development Planning and Local Government, Gauteng v Democratic Party and
Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para 32.Â
[37]
Ingledew v Financial Services Board: In Re Financial Services
Board v Van Der Merwe and Another
[2003] ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC) at para 30.
Â
[38]
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8)
BCLR 771
(CC) at para 14.
[39]
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) at para 18.
[40]
See para 15 above.
[41]
1993 (1) SA 777 (A); 1993 (1) SACR 67 (A).
[42]
1977 (4) SA 539 (A).
[43]
1978 (1) SA 271
(T) at 280B.
[44]
Above n 41.
[45]
Id at 807I-808B.
[46]
A helpful analysis of the difference between questions of
law and fact is to be found in
Magmoed
above n 41 at 806 and following.
[47]
Petro Louise
above
n 43.
[48]
Coetzee
above n 42
[49]
Magmoed
above n 41 at 811A.
[50]
Above n 41 at 809A.
[51]
Above n 43 at 280D.
[52]
1944 AD 511.
[53]
Above n 41 at 808A.
[54]
2001 (2) SACR 185
(SCA) at para 25.
[55]
1988 (1) SA 861 (A).
[56]
Id at 865G, per Nicholas AJA.
[57]
1998 (3) SA 349 (SCA).
[58]
Id at 358A-B.
[59]
See the emphasised phrase in the quotation from
Magmoed,
para
44, above.
[60]
[1991] ZASCA 135
;
1991 (4) SA 727
(A) at 740F-J.
[61]
1950 (2) SA 449
(A) at 455.
[62]
Id at 457.
[63]
Magmoed
above n 41.
[64]
Id at 823B-G.
[65]
Id at 825F-G.
[66]
1966 (2) SA 433 (A).
[67]
Id at 440H-441A.
[68]
S v Moodie
1962 (1) SA 587
(A) at 596C.
[69]
Blackstone
Commentaries on the Laws of England
15 ed
( Professional Books Limited, England 1982) at 335-336.
[70]
There are exceptions to this rule.  For example, when the accused
pleads that a court has no jurisdiction, or where a court enters
a plea of not
guilty on behalf of an accused.  See
Moodie
above n 68.
[71]
Section 324
provides that:
“Whenever a conviction and sentence
are set aside by the court of appeal on the ground –
(a) that
the court which convicted the accused was not competent to do so; or
(b) that
the indictment on which the accused was convicted was invalid or defective in
any respect; or
(c) that
there has been any other technical irregularity or defect in the procedure,
proceedings
in respect of the same offence to which the conviction and sentence referred
may again be instituted either on the original
charge, suitably amended where
necessary, or upon any other charge as if the accused had not previously been
arraigned, tried and
convicted: Provided that no judge or assessor before whom
the original trial took place shall take part in such proceedings.”
[72]
Above n 29
at 173-174.
[73]
See
Moodie
above n 68 at 595F-G.
[74]
Section 86(4)
provides that:
“The fact that a charge is not
amended as provided in this section, shall not, unless the court refuses to
allow the amendment,
affect the validity of the proceedings thereunder.”
Section 88
says that:
“Where a charge is defective for the
want of an averment which is an essential ingredient of the relevant offence,
the defect
shall, unless brought to the notice of the court before judgement,
be cured by evidence at the trial proving the matter which should
have been
averred.”
[75]
1998 (1) BCLR 18 (T).
[76]
See the discussion in
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC);
Wild and Another v Hoffert NO
and Others
1998 (3) SA 695 (CC); 1998 (6) BCLR 656 (CC).
[77]
Section 167(6)(a)
provides that:
“National legislation or the rules of
the Constitutional Court must allow a person, when it is in the interests of
justice and
with leave of the Constitutional Court —
                (a)  to bring a
matter directly to the Constitutional Court . . . .”
[1]
See n 33 below.
[2]
This is dealt with in para 28 of the majority judgment.
[3]
Section 21(1)
provides:
“In addition to any jurisdiction
conferred upon it by this Act or any other law, the appellate division shall,
subject to the
provisions of this section and any other law, have jurisdiction
to hear and determine an appeal from any decision of the court of
a provincial
or local division”.
[4]
Section 2 of the Constitution.
[5]
Executive Council of the Western Cape and Others v President of
the Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10)
BCLR 1289
(CC);
Fedsure Life Assurance Ltd and Others v Greater Johannesburg
Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998
(12) BCLR 1458 Â
(CC);
Pharmaceutical Manufacturers Association of SA and
Another: In Re Ex Parte President of the Republic of South Africa and Others
2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).
[6]
Chapter 8 of the Constitution.
[7]
Section 8(1) of the Constitution.
[8]
Section 8(2) of the Constitution.
[9]
Section 39(2) of the Constitution which provides: “When interpreting
any legislation, and when developing the common law or customary
law, every
court, tribunal or forum must promote the spirit, purport and objects of the
Bill of Rights.”
[10]
National Education Health and Allied Workers Union v University
of Cape Town and Others
2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC).
[11]
Ingledew v Financial Services Board: In Re Financial Services
Board v van der Merwe and Another
2003 (4) SA 584 (CC); 2003 (8) BCLR 825
(CC).
[12]
Alexkor Ltd and Another v The Richtersveld Community and Others
CCT 19/03, 14 October 2003, as yet unreported.
[13]
Bannatyne v Bannatyne (Commission of Gender Equality as Amicus
Curiae)
2003 (2) SA 363 (CC); 2003 (2) BCLR 111 (CC).
[14]
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at
para 14.
[15]
Id at para 15(a);
Phoebus Apollo Aviation CC v Minister of
Safety and Security
[2002] ZACC 26
;
2003 (2) SA 34
(CC);
2003 (1) BCLR 14
(CC) at para 9.
[16]
Above n 14.
[17]
Id at para 15.
[18]
[2003] ZACC 12
;
2003 (6) SA 505
(CC):
2003 (10) BCLR 1100
(CC).  The case dealt
with two constitutional matters: first, whether the doctrine of common purpose
was inconsistent with the
Constitution and secondly, whether the inferences
drawn by the lower courts infringed the accused’s right to silence.
[19]
Lane and Fey NNO v Dabelstein and Others
[2001] ZACC 14
;
2001 (2) SA 1187
(CC);
2001 (4) BCLR 312
(CC) at para 4;
Van Der Walt v Metcash Trading Ltd
[2002] ZACC 4
;
2002 (4) SA 317
(CC);
2002 (5) BCLR 454
(CC) at para 14; cf
S v Boesak
above
n 14 at para 23.
[20]
1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC).
[21]
Id at para 20.
[22]
Id
[23]
Above n 20.
[24]
Above n 9.
[25]
Above n 19 at para 4.
[26]
See also
Metcash
above n 19 at para 14.
[27]
In support of this contention the state relied on the case of
Nduli
v Minister of Justice
and Others
1978 (1) SA 893
(A) at 906B.
[28]
Section 241(1) of the interim Constitution provided as follows:
“Every court of law existing
immediately before the commencement of this Constitution in an area which forms
part of the national
territory, shall be deemed to have been duly constituted
in terms of this Constitution or the laws in force after such commencement,
and
shall continue to function as such in accordance with the laws applicable to it
until changed by a competent authority”.
[29]
Magmoed v Janse Van Rensburg and Others
[1992] ZASCA 208
;
1993 (1) SA 777
(A)
at 816 D-H.
[30]
Id at 812B-817A.
[31]
R v Herbst
1942 AD 434.
[32]
This was done by sections 10 and 12 of the Criminal Procedure
Amendment Act 37 of 1948.
[33]
R v Adams and Others
1959 (3) SA 753
(A) at 764F-G;
S v
Mene
1978 (1) SA 832
(A) at 837H-838C;
S v Seekoei
1982 (3) SA 97
(A) at 101 D-E;
S v Khoza en Andere
[1990] ZASCA 142
;
1991 (1) SA 793
(A) at 795J-796C.
[34]
Sefatsa and Others v Attorney-General, Transvaal and Another
1989
(1) SA 821
(A) at 834 E-F;
Moch v Nedtravel (Pty) Ltd t/a American Express Travel
Service
1996 (3) SA 1
(A) at 7 D-I;
S v Pennington
and Another
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC) at para 20.
[35]
Section 35(3)(o).
[36]
Above n 13.
[37]
Id at para 17.
[1]
The previous era was strikingly captured by Mahomed DP in the
following terms:
“The legitimacy of law itself was
deeply wounded as the country haemorrhaged dangerously in the face of this
tragic conflict which
had begun to traumatise the entire nation.”Â
Azanian
Peoples Organisation (AZAPO) and Others v President of the Republic of South
Africa
and Others
[1996] ZACC 16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC) at
para 1.
By way of contrast, the Constitution
today provides for control over actions of the security forces as follows:
“199. Establishment, structuring and
conduct of security services —
(5) The security services must act,
and must teach and require their members to act, in accordance with the
Constitution and the
law, including customary international law and
international agreements binding on the Republic.
(6) No member of any security service
may obey a manifestly illegal order.
. . . .
200. Defence force —
(2) The primary object of the defence
force is to defend and protect the Republic, its territorial integrity and its
people in accordance
with the Constitution and the principles of international
law regulating the use of force.”
For a discussion on
the need for inter-state cooperation in this area and the effect of South
Africa’s adherence to the Rome Statute
on the International Criminal Court see
de Wet and Strydom “Implementing international humanitarian law: developments
in South
Africa and other jurisdictions with special reference to international
war crimes tribunals” (2000) 25
SA Year in International Law
42.
[2]
Cassese
International Criminal Law
(2003) at xv-xvi.
[3]
Thus in
AZAPO
(above n 1), Mahomed DP pointed out that every
decent human being must feel grave discomfort in living with a consequence
which
might allow the perpetrators of evil acts to walk the streets of this
land with impunity, protected in their freedom by an amnesty
immune from
constitutional attack.  He went on to explain, however, that by envisaging the
setting up of the TRC, the Constitution
itself provided the foundation for such
an amnesty, in terms of which the consequences, although painful for many, had to
be accepted.
[4]
See the Preamble, the Founding Provisions in section 1 and the duty
on the state to protect the rights in the Bill of Rights in
terms of section
7(2).
[5]
The directions issued by the Chief Justice invited the parties to
consider the matter in the light of South Africa’s international
law
obligations, which received some degree of attention before this Court.
[6]
Above n 2 at 47.
[7]
Cassese adds: “In the same decision the Appeals Chamber gave the
following example of a non-serious violation: ‘the fact of
a combatant simply
appropriating a loaf of bread in an occupied village’ would not amount to such
a breach, ‘although it may
be regarded as falling foul of the basic principle
laid down in Art. 46(1) of the [1907] Hague Regulations [on Land Warfare] (and

the corresponding rule of customary international law) whereby “private
property must be respected” by any army occupying an
enemy territory’ (§ 94).”Â
Id
[8]
Rough literal translation from Afrikaans by myself.
[9]
The question in this matter is not whether the respondent could or
should be prosecuted for commission of a war crime.  That would
be a
jurisdictional question for an international war crimes tribunal.  The issue is
to investigate how, if at all, South Africa’s
international law obligations
impact on the manner in which South African criminal procedure should be
understood and applied.
[10]
Legality of the Threat of or Use of Nuclear Weapons
1996
ICJ
Reports
228 at para 79.
[11]
Above n 2 at 47.
[12]
Case Concerning Military and Paramilitary Activities in and
Against Nicaragua
(
Nicaragua v USA)
1986 ICJ 14
at para 220.
[13]
[2002] ZACC 31
;
2003 (2) SA 363
(CC);
2003 (2) BCLR 111(CC)
at para 17.