Brief Summary

Constitutional Law — Death penalty — Constitutionality of legislation replacing death sentences — Applicants challenged provisions of an Act that replaced death sentences with alternative punishments — Court held that the provisions were consistent with the Constitution, but expressed concern over delays in replacing outstanding death sentences — Respondents ordered to report on progress and compliance with the replacement of sentences, with an extension granted for filing reports due to complexities involved in obtaining necessary information.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment of the Constitutional Court concerned post-judgment supervisory proceedings arising from an earlier constitutional challenge relating to the replacement of pre-constitutional death sentences with constitutionally permissible alternative sentences. The immediate matter before the Court was an application by the second and third respondents (the Minister of Justice and Constitutional Development and the President of the Republic of South Africa) for an extension of time to comply with a prior order of the Court requiring the filing of a comprehensive report and supporting affidavit.

The applicants were Willy Aaron Sibiya, Purpose Khumalo, Jacobus Petrus Geldenhuys, and David Nkuna, who were among those historically subject to death sentences imposed before the decision in S v Makwanyane and Another. The respondents were the Director of Public Prosecutions: Johannesburg High Court, the Minister of Justice and Constitutional Development, the President of the Republic of South Africa, and the Minister of Correctional Services.

Procedurally, the Court had previously delivered a “first judgment” in the matter, in which it dismissed the constitutional challenge to aspects of legislation establishing a mechanism for replacing death sentences, but simultaneously expressed concern about systemic delay in implementing substitutions. In that earlier judgment (25 May 2005), the Court issued a detailed supervisory order directing the respondents to take steps to ensure that all death sentences imposed before 5 June 1995 were set aside and replaced, and requiring the filing of a detailed report and affidavit by 15 August 2005. The respondents did not file on time and instead applied on 12 August 2005 for an extension to 15 September 2005. After hearing argument on 18 August 2005, the Court granted the extension and stated that reasons would follow. The present judgment supplies those reasons and then evaluates the report and affidavit eventually filed on 15 September 2005, with a view to issuing further directions if necessary.

The general subject-matter of the dispute was therefore the enforcement and supervision of the process by which death sentences imposed before 5 June 1995 were to be set aside and replaced under the statutory mechanism previously upheld as constitutional, and the Court’s role in ensuring compliance with its supervisory order through reporting obligations and further directions.

2. Material Facts

In the earlier judgment, the Court recorded that a substantial number of persons were estimated to have been on death row at the time of Makwanyane, and that by the time of argument in the constitutional challenge, the death sentences of 62 people had not yet been replaced. Against that backdrop, the Court made an order requiring the respondents to ensure substitution “as soon as possible” and to file, by 15 August 2005, a report and affidavit containing detailed case-by-case information about (i) all persons detained under sentence of death as at 5 June 1995, (ii) those whose sentences had been replaced and how, and (iii) those still detained pursuant to death sentences, including what steps had been taken and what obstacles existed.

It was undisputed that the respondents did not file the report or affidavit by the deadline. Instead, on 12 August 2005, the second and third respondents filed an application seeking an extension of time to 15 September 2005 to comply with the reporting requirements. The Court heard oral argument on 18 August 2005 and granted the extension.

The explanation advanced in the supporting affidavit for the delay was that personnel within the Department of Justice and Constitutional Development began to obtain and collate the necessary information only after oral argument had been heard in the Court, and that the magnitude of the task, together with limited cooperation from court officials, made timely compliance impossible. The affidavit suggested that the Department had under-estimated the magnitude and complexity of the information-gathering task, and it asserted that, in relation to cases not yet converted, “strictly speaking” the process was out of the Department’s hands.

After the extension was granted, the second and third respondents filed a report and affidavit on 15 September 2005. The report included annexures arranged in four tables. Table 1 listed the names of people on death row when Makwanyane was decided. Table 2 provided names and details (in most cases) of persons whose death sentences were substituted in terms of section 1(1) to 1(5) of the relevant Act. Tables 3A to 3C provided names and details (in most cases) of persons whose sentences were substituted under section 1(7) to 1(10); Table 3D addressed substitutions by the Supreme Court of Appeal under section 322 of the Criminal Procedure Act; and Table 3E recorded persons who were deceased before substitution. Table 4 listed those whose death sentences had not yet been substituted.

From the affidavit’s summary of outstanding matters, the Court recorded that 40 people remained whose death sentences had not yet been substituted. Of these, 16 cases had not yet been considered by a judge, with a significant portion of that group falling within the jurisdiction of the Mmabatho High Court. The remaining 24 cases had been considered by a judge and were awaiting the President’s decision. The affidavit anticipated that 7 of the 40 would be completed by the end of September, and 33 after that.

The Court identified inaccuracies and omissions in the report and affidavit concerning three individuals. Mr B W Pule was listed as a person whose sentence had been substituted under section 1(7) to 1(10), but the report gave no information on the date of substitution, the judge involved, or the substituted sentence, noting only that his file had gone to the National Archives. Mr D N Bezuidenhout appeared in Table 1 but did not appear in Tables 2, 3, or 4, leaving uncertainty whether his sentence had been substituted or remained outstanding. Mr P L Kadiege was treated in the affidavit as a person requiring substitution, but Table 3E and an annexed letter indicated he was deceased, creating inconsistency and non-compliance with the order’s reporting requirements as to reasons for non-substitution.

3. Legal Issues

The first central legal question was the proper approach to an application for an extension of time to comply with an order of the Constitutional Court requiring the filing of information and explanations. This primarily raised a question of law and judicial evaluation, namely the standard to be applied and how it should be applied in context.

The second central issue was the assessment of compliance with the Court’s earlier supervisory order after the extended deadline. This involved the application of the order’s requirements to the facts disclosed in the report and affidavit, and a value-laden supervisory judgment about whether additional directions were required to secure compliance and completion of the substitution process.

4. Court’s Reasoning

On the extension of time, the Court reasoned that the governing criterion is whether granting the extension is in the interests of justice. It located this standard in the Court’s established approach to analogous procedural applications, including applications for leave to appeal, postponements, and condonation, all of which are granted when the interests of justice so require. The Court held that this same standard appropriately applies to applications for an extension of time to comply with a court order.

The Court emphasised that the interests-of-justice inquiry is context-dependent and should consider the nature of the order in respect of which the extension is sought. Here, the order required the furnishing of detailed, extensive information, potentially difficult to obtain and not necessarily in the respondents’ possession. The Court distinguished the present situation from that in Minister of Justice v Ntuli, where the “extension” sought in substance concerned extending a period during which the declaration of invalidity of legislation had been suspended; in that kind of matter, a more cogent case would ordinarily be required, and timing considerations (bringing the application before expiry) operate differently. Nonetheless, the Court stressed that compliance with court orders timeously is important and that extensions should not be granted lightly.

The Court then articulated the core balancing exercise: it described the interests-of-justice determination as requiring a balance between the cogency of the explanation for the delay and the reason for the extension, on the one hand, and the prejudice consequent upon granting the extension, on the other, having regard to all material circumstances. It identified relevant circumstances as including the complexity of the information, the difficulty of obtaining it, whether the applicant had undertaken to comply by the original date, efforts already made to comply, and the probability that the order would be complied with if the extension were granted. The Court further stated that an applicant must take care that compliance will be possible within the extended period sought, and framed the inquiry as akin to assessing a “balance of convenience” between granting and refusing the extension.

Applying these principles, the Court accepted that the report required by the order was extensive and potentially difficult to compile, and that it was not necessarily information already held by the respondents. It also took into account that the second and third respondents had not undertaken to provide the information by the original deadline, and that considerable progress had been made by the time of the extension application, including collating at least 400 files corresponding to persons sentenced to death. The Court treated this as demonstrating an intention to comply, and it accepted counsel’s assurance that compliance would be achieved. The Court regarded the requested period of one month as not unreasonable and considered it probable that the undertaking to file by 15 September 2005 would be met.

On prejudice, the Court reasoned that the principal potential prejudice from granting an extension would be to those persons whose death sentences had not yet been set aside, but it held that granting the extension would not necessarily cause further delay in the substitution process. It considered it in the public interest that the substitution process be completed as soon as possible and that the public be informed of it, and concluded that such supervision and information-sharing depended on the required report being furnished. The Court reasoned that inability to supervise would likely be more prejudicial to affected prisoners than granting the extension and continuing supervision.

The Court did, however, identify a difficulty in the respondents’ explanation, arising from an earlier assurance given by counsel during argument on 10 March 2005 that 62 death sentences still needed to be replaced and that all would be substituted by the end of June 2005. The Court considered it reasonable to infer that this assurance was based on complete information and suggested some inconsistency with the later affidavit’s assertion that the Department had no control and only began collating information after oral argument. Despite this difficulty, the Court held that the explanation remained satisfactory overall. It cautioned that parties should ensure information conveyed by counsel is verified and undertakings are fulfillable, but found that this concern was not sufficient, in the circumstances, to outweigh the interests of justice in granting the extension.

Turning to the evaluation of the report and affidavit filed on 15 September 2005, the Court held that the report (read with annexures) set out in reasonable detail the steps taken to ensure substitution and therefore complied with paragraph 3 of the earlier order. It further found that, subject to two exceptions later identified, the report encompassed the information envisaged in paragraph 4. The affidavit was found to deal in more detail with outstanding cases, provide broad reasons for non-substitution, and detail steps and anticipated timeframes, amounting to substantial compliance with the relevant reporting obligation; the Court noted that no further order of the kind contemplated in paragraph 4(b) of the earlier order was required.

However, the Court identified specific non-compliance and inaccuracies requiring correction. It held that information about Mr Pule’s substituted sentence had to be obtained (including from the National Archives, if necessary) and furnished to the Court. It held that the omission of Mr Bezuidenhout from the tables recording substituted and unsubstituted cases meant that paragraph 3 had not been complied with in relation to him, and that the affidavit’s handling of Mr Bezuidenhout further underlined this non-compliance. It also found that the affidavit’s treatment of Mr Kadiege as requiring substitution conflicted with the report indicating that he was deceased, meaning the affidavit did not comply with the order’s requirements in that respect.

Given the continuing outstanding substitutions and the identified reporting defects, the Court concluded that continued supervision was appropriate until the substitution process was complete, and that the second and third respondents should be directed to file a further progress report by a specified date that would also cure the outstanding non-compliances.

5. Outcome and Relief

The Court confirmed that it had granted, on 18 August 2005, an extension of time extending the date for the respondents to file the required reports and affidavit to 15 September 2005, and provided reasons for having done so on the basis that the extension was in the interests of justice.

After evaluating the report and affidavit filed on 15 September 2005, the Court issued further supervisory relief. It ordered the second and third respondents to ensure that a report is filed in the Constitutional Court on or before 7 November 2005 addressing progress in the substitution process by 31 October 2005, and specifically complying with the terms of the Court’s order of 25 May 2005 in relation to Mr D N Bezuidenhout, Mr P L Kadiege, and Mr B W Pule.

No costs order is recorded in this judgment.

Cases Cited

Sibiya and Others v Director of Public Prosecutions: Johannesburg High Court and Others 2005 (8) BCLR 812 (CC).

S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

Minister of Justice v Ntuli 1997 (3) SA 772 (CC); 1997 (6) BCLR 677 (CC).

Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC).

Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3; 2000 (2) SA 837 (CC); 2000 (5) BCLR 465 (CC).

National Police Service Union and Others v Minister of Safety and Security and Others [2000] ZACC 15; 2000 (4) SA 1110 (CC); 2001 (8) BCLR 775 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 167.

Criminal Law Amendment Act 105 of 1997, section 1(1) to section 1(5), and section 1(7) to section 1(10).

Criminal Procedure Act 51 of 1977, section 322.

Criminal Procedure Act 51 of 1977, section 309(4)(a).

Rules of Court Cited

No rules of court are cited in the judgment.

Held

The Constitutional Court held that an application for an extension of time to comply with an order of the Court should be decided according to whether granting the extension is in the interests of justice, assessed contextually by balancing the explanation for delay and the reasons for the extension against the prejudice and consequences of granting it.

The Court held that, given the extensive and complex information required by the earlier supervisory order, the progress made by the respondents in collating records, and the limited prejudice that would follow relative to the prejudice of inadequate supervision, the extension to 15 September 2005 was in the interests of justice and was properly granted.

The Court further held that the report and affidavit filed on 15 September 2005 substantially complied with the earlier order, but that there were specific instances of non-compliance and inconsistency concerning Mr D N Bezuidenhout, Mr P L Kadiege, and Mr B W Pule. It therefore held that ongoing supervision was appropriate and directed the second and third respondents to file a further report by 7 November 2005 curing these defects and reporting on progress.

LEGAL PRINCIPLES

The Constitutional Court applies the interests of justice standard to procedural applications, including applications for extensions of time to comply with Court orders, in a manner that is sensitive to context and the nature of the order concerned.

In assessing whether an extension is in the interests of justice, the Court undertakes a balancing exercise that considers the cogency of the explanation for delay and the purpose of the extension against the prejudice and consequences of granting it, taking into account factors such as the complexity of what is required, the feasibility of obtaining the information, steps already taken towards compliance, and the probability of compliance within the extended period.

The judgment affirms the importance of timely compliance with court orders, while recognising that supervisory orders requiring extensive information may justify extensions where necessary to enable meaningful compliance and effective judicial supervision.

Where reporting intended to facilitate judicial supervision is substantially compliant but defective in particular respects, the Court may continue supervision and issue further directions to ensure full compliance and to correct omissions or inconsistencies that impede accountability and completion of the underlying process.

Sibiya and Others v Director of Public Prosecutions: Johannesburg High Court and Others (CCT 45/04) [2005] ZACC 16; 2006 (2) BCLR 293 (CC); [2005] JOL 15699 (CC) (7 October 2005)