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[2005] ZACC 22
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Veldman v Director of Public Prosecutions (Witwatersrand Local Division) (CCT19/05) [2005] ZACC 22; 2007 (3) SA 210 (CC); 2007 (9) BCLR 929 (CC); 2006 (2) SACR 319 (CC) (5 December 2005)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 19/05
DONALD VELDMAN Applicant
versus
THE DIRECTOR OF PUBLIC
PROSECUTIONS:
(WITWATERSRAND LOCAL
DIVISION) Respondent
Heard on : 18 August 2005
Decided on : 5 December 2005
JUDGMENT
MOKGORO J:
Background
Mr
Donald Veldman (the applicant) was convicted for a number of
offences including murder and was sentenced by the regional

magistrate’s court (regional court) to 15 years’ imprisonment
for the murder.
1
At the time he committed the offences, and when he entered his
plea of not guilty, the maximum penal jurisdiction of the regional
court for murder under section 92(1)(a) of the Magistrates’
Courts Act 32 of 1944 (the Act) was 10 years’ imprisonment.
On 7
October 1998, after he had pleaded, but before he was sentenced,
legislation was passed increasing the regional court’s
maximum
penal jurisdiction for murder from 10 years’ imprisonment to that
of 15 years.
2
Prior
to the amendment, the relevant parts of section 92(1)(a) provided:
“
(1) Save as otherwise in
this Act or in any other law specially provided, the court, whenever
it may punish a person for an offence−
(a)
by
imprisonment, may impose a sentence of imprisonment for a period not
exceeding twelve months, where the court is not the court
of a
regional division, or not exceeding ten years, where the court is
the court of a regional division”.
The
amended section 92(1)(a) provides:
“
(1) Save as otherwise in
this Act or in any other law specially provided, the court, whenever
it may punish a person for an offence−
(a) by imprisonment, may impose
a sentence of imprisonment for a period not exceeding three years,
where the court is not the court
of a regional division, or not
exceeding 15 years, where the court is the court of a regional
division”.
Another
relevant legislative change which occurred after the applicant had
pleaded was the promulgation of section 51 of the Criminal
Law
Amendment Act 105 of 1997 (often referred to as the Minimum
Sentences Act),
3
which prescribes a minimum sentence for murder.
The
applicant appealed to the Johannesburg High Court (High Court)
against his conviction and sentence. Citing the horrific nature
of
the offence, the High Court held that “the personal circumstances
of the accused become of less importance”
4
and accordingly found that the sentence was not disproportionate to
the offences. The High Court further held that sentencing
was a
matter within the discretion of the trial court, and absent any
misdirection or gross disproportionality, it would not
intervene.
The
applicant applied for leave to appeal to the Supreme Court of
Appeal (SCA), which dismissed the application without providing
any
reasons. The applicant now applies for leave to appeal to this
Court for an order setting aside the decision of the SCA,
more
specifically, an order setting aside the 15-year term of
imprisonment and replacing it with a 10-year custodial sentence
on
the basis that the more severe sentence of 15 years’ imprisonment
is an infringement of his constitutional right to a fair
trial, as
set forth in section 35(3)(n) of the Constitution.
Application for condonation
In
this Court, the applicant applies for condonation for the late
filing of his application on the basis that he was not aware
of the
dismissal of his application in the SCA in 2003 due to the failure
of his attorneys to inform him of progress in the matter.
He avers
that the dismissal only came to light on enquiring about the case
from the Registrar of the SCA. The respondent does
not oppose the
application.
The
question whether to condone the late filing of an application is
within the discretion of the Court,
5
after having considered a number of relevant factors including: the
degree of non-compliance with the rules; the explanation
for the
lateness tendered by the applicant; the importance of the issue in
the matter; the prospects of success; the respondent’s
interest
in the finality of the matter; the convenience of the Court; and
the avoidance of unnecessary delay in the administration
of
justice.
6
In
the present matter, the applicant failed to comply with the time
limits set out in the rules regarding appeals from the SCA
to this
Court. He has tendered an explanation which, if viewed in
isolation, might not seem sufficient. However, the prospects
of
success in this matter and the fact that the respondent does not
oppose the application for condonation tilt the scales in
the
applicant’s favour. Moreover, the matter is of particular
importance to the applicant in circumstances in which, overall,
it
has not been shown that the delay caused any prejudice. For these
reasons, the application for condonation is granted.
Nature of the application
The
applicant applies for special leave to appeal under Rule 19
7
against what he terms the judgment and order of the SCA which had
dismissed his appeal from the High Court. What the SCA actually
dismissed was the application for an appeal against the order of
the High Court, which had dismissed the applicant’s appeal
against his conviction and sentence by the regional court. The
applicant did not raise a constitutional issue before any of
the
earlier courts, nor was any constitutional issue considered or
decided. The constitutional question emerges for the first
time
before this Court. Against this background, the respondent argues
that this application should have been one for direct
access under
Rule 18 rather than for leave to appeal. During oral argument, the
applicant’s counsel indeed applied for direct
access from the
bar.
The
decision to grant leave to appeal is a matter of the discretion of
this Court. Important considerations are whether the applicant
raises a constitutional issue and whether it is in the interests of
justice to grant leave to appeal.
8
Factors to be considered in determining the interests of justice
include: whether there exist reasonable prospects of success;
9
the time it would take for the appeal to be remitted to and be
heard by the SCA before reverting to this Court; the costs of
that
prolonged procedure;
10
and the nature of the issue which is the subject of the appeal.
11
Although
the constitutional issue in the present case was raised here for
the first time, this Court is nevertheless inclined,
in the
interests of justice, to grant the application for leave to appeal
directly from the High Court. Legal questions similar
to the
present have been dealt with previously in earlier cases before
other courts and views in that regard have been divergent.
12
It is thus incumbent upon this Court to provide guidance and bring
some certainty to these issues.
13
Furthermore, this is not a matter that involves the development of
the common law and is well within the jurisdiction of this
Court to
determine. Although the constitutional issue was not raised in the
earlier courts, the right to a fair trial is sufficiently
connected
to the question of the competence of the sentence imposed, which
forms the basis of the appeal brought before this
Court.
14
It is therefore more appropriate, for the reasons set out above,
to grant the applicant leave to appeal directly from the decision
of the High Court rather than direct access.
15
The
central issues raised before this Court
The
first question raised in this matter is whether the regional court
in imposing a 15-year term of imprisonment did so in terms
of
section 51 of the Minimum Sentences Act or under its increased
penal jurisdiction provided for in the amended section 92(1)(a)
of
the Act. Secondly, whether the regional court’s retrospective
application of the relevant legislation, resulting in the
imposition of the 15-year sentence, violated the applicant’s
right to a fair trial protected under section 35(3)(n) of the
Constitution, regardless of the provision under which sentence was
imposed.
In
his written submissions, the applicant argued that the regional
court had applied section 51 of the Minimum Sentences Act.
He
argued that at the time he committed the offences and at the time
he tendered his plea, the penal jurisdiction of the regional
court
for murder was limited to 10 years. At the time of sentencing,
however, the jurisdiction of the court had been increased
to 15
years under the Minimum Sentences Act. He argued that in
sentencing him, the regional court retrospectively applied the
Minimum Sentences Act, thereby infringing his right to a fair
trial. The infringement, he submitted, arose as a result of the
retrospective imposition of the increased sentence, introduced
during the course of his trial, a sentence which was more severe
than that to which he had been exposed at the time of the offence
and at the time of plea. The applicant contended that section
51
of the Minimum Sentences Act should not have been applied
retrospectively.
In
oral argument, the applicant’s contentions were expanded to
include an alternative argument based on section 92(1)(a) of
the
Act. He stated that the mid-stream increase in the regional
court’s penal competence, applied retrospectively, adversely
affected his substantive rights to a fair trial under section
35(3)(n) and his freedom of movement under section 12(1) of the
Constitution. According to the general rule developed in
Cape
Town Municipality v F. Robb & Co. Ltd.
,
16
and confirmed in
S v Mhlungu and Others
,
17
he argued, the amended penal competence of the regional court
should have been applied prospectively and not retrospectively.

Thus, the imposition of the new maximum penal competence of 15
years for murder rather than the previous maximum penal competence
of 10 years violated his rights. He now urges this Court to reduce
the 15-year term of imprisonment imposed by the regional
court to
the earlier maximum sentence of 10 years’ imprisonment.
Was
section 51 of the Minimum Sentences Act or section 92(1)(a) of the
Act applied by the regional court?
No
specific mention was made by the regional court as to whether
section 51 of the Minimum Sentences Act or section 92(1)(a) of
the
Act was applied in sentencing the applicant. The applicant
conceded that the court may indeed not have applied section 51.
He
averred, however, that section 51 could have informed the court’s
decision.
Regardless
of whether section 51 or section 92(1)(a) had been applied, counsel
for the applicant submitted, section 35(3) would
be implicated to
some degree, as once the applicant had pleaded, it would have been
unfair for him to have been sentenced in
a manner that amounted to
“moving the goalposts”. At the time of plea, he further
averred, neither the applicant nor his
legal representatives nor
the magistrate for that matter, were under the impression that the
applicant could have been sentenced
to more than 10 years.
There
is indeed nothing on the record indicating that section 51 of the
Minimum Sentences Act was applied. Nor was there any
specific
indication pointing to the fact that sentencing was in terms of
section 92(1)(a) of the Act. As it turned out, both
pieces of
legislation were passed after the commission of the offence, during
the course of the proceedings in the regional court.
18
The construction of section 51 is such that in circumstances like
the present, a court is obliged to impose a minimum sentence
unless
the court is satisfied that there are “substantial and compelling
circumstances” to justify a lesser sentence.
19
There is no mention at all in the judgment of “substantial and
compelling circumstances”. Furthermore, if the court had
applied
section 51, it would be expected that the applicant would have been
warned of the effect on him of this drastic mid-stream
legislative
change. It is therefore unlikely that section 51 was applied.
Considering that the application of section 92(1)(a)
also exposed
the applicant to a sentence more severe than that which had been
applicable at the time of plea, it is also expected
that the
applicant would have been accordingly informed. Thus, the logical
explanation for the silence of the regional court
in this regard
could be due to the fact that the application of section 92(1)(a)
is generally regarded as routine procedure.
It therefore seems
more plausible, and I so hold, that in sentencing the applicant,
the provisions of section 92(1)(a) rather
than those of section 51
were applied. As will appear later in this judgment, I determine
that this interpretation and application
of section 92(1)(a) is
flawed.
Whether
section 35(3)(n) of the Constitution is applicable
Section
35(3)(n) of the Constitution provides:
“
Every accused person has a
right to a fair trial, which includes the right to the benefit of
the least severe of the prescribed
punishments if the prescribed
punishment for the offence has been changed between the time that
the offence was committed and the
time of sentencing”.
When a punishment is prescribed
by legislation for specific crimes, an increase in that punishment
entitles an accused person to
the benefit of the prescribed
punishment applicable before the increase took effect if the change
occurred after the commission
of the crime but before sentencing.
Therefore, the application of that increase can only be prospective.
The
applicant submitted that section 35(3)(n) of the Constitution was
sufficiently broad to apply to the retrospective application
of
section 92(1)(a) of the Act. The respondent, however, argued that
the wording of section 35(3)(n) of the Constitution, by
its use of
the phrase “prescribed punishment for the offence”, indicated
that its application was limited to prescribed punishments
and was
not so broad as to extend its protection to increases in a court’s
penal jurisdiction. Section 35(3)(n), respondent
averred, was
aimed at ensuring that accused persons who committed the same
offences on the same date but were convicted and sentenced
on
different dates, received equal treatment under the law.
Unlike
section 51 of the Minimum Sentences Act, the respondent stated,
section 92(1)(a) did not prescribe sentences that a regional
court
must impose but merely delineated the bounds within which a
regional court may impose a sentence it deemed to be appropriate.

In the circumstances, it was competent for the regional court to
impose a 15-year jail term, as the applicant’s sentence was
attributable only to the court’s exercise of its discretion, not
to an increase in the prescribed punishment for the offence.
Section
35(3)(n) protects an accused person against the retrospective
application of increased prescribed punishment, as in section
51 of
the Minimum Sentences Act.
20
Whereas prescribed punishment is a peremptory measure relating to
the applicable punishment for specific crimes, penal jurisdiction
under section 92(1)(a) is a discretionary power with upper limits.
21
Penal jurisdiction is therefore not peremptory in nature and does
not create a prescribed sentence as alleged by the applicant.
To
read “prescribed punishment” in section 35(3)(n) as inclusive
of penal jurisdiction under section 92(1)(a) is to give
it an
unduly strained meaning. Section 35(3)(n) of the Constitution, for
these reasons, does not provide protection against
the
retrospective application of section 92(1)(a) as the applicant has
averred.
Protection
under a general fair trial right
As
recognised by this Court in
S v Zuma and Others
,
22
the idea of a fair trial right extends beyond the specific grounds
listed in section 35(3) of the Constitution. The Court stated:
“
The right to a fair trial
conferred by [section 25(3) of the Interim Constitution] is broader
than the list of specific rights set
out in paras (a) to (j) of the
subsection. It embraces a concept of substantive fairness which is
not to be equated with what
might have passed muster in our criminal
courts before the Constitution came into force.”
23
This is so in view of the
open-ended nature of the list of rights protected in section 35(3).
In
S v Dzukuda and Others; S v Tshilo
24
Ackermann J, citing
Zuma
with approval held:
“
Elements of this
comprehensive right are specified in paras (a) to (o) of [section
35(3)]. The words ‘which include the right’
preceding this
listing indicate that such specification is not exhaustive of what
the right to a fair trial comprises. It also
does not warrant the
conclusion that the right to a fair trial consists merely of a
number of discrete subrights, some of which
have been specified in
the subsection and others not. The right to a fair trial is a
comprehensive and integrated right, the content
of which will be
established, on a case by case basis, as our constitutional
jurisprudence on [section] 35(3) develops.”
25
With regard to sentencing, he
further commented:
“
. . . a
fair trial would also have to ensure that, in the process of the
sentencing court being put in possession of the factors
relevant to
sentencing, the accused is not compelled to suffer the infringement
of any other element of the fair trial right.”
26
Although
in a different context, Kriegler J, in
Sanderson v
Attorney-General, Eastern Cape
,
27
also emphasised that in our constitutional democracy criminal
trials had to be conducted in accordance with open-ended notions
of
fairness and justice and to avoid narrow approaches to legal
interpretation.
28
In
S v Jaipal
,
29
V
an
der Westhuizen J furthermore stated:
“
The basic requirement that a
trial must be fair is central to any civilised criminal justice
system. It is essential in a society
which recognises the rights to
human dignity and to the freedom and security of the person, and is
based on values such as the
advancement of human rights and
freedoms, the rule of law, democracy and openness.”
30
(Footnotes omitted.)
The
Constitution endorses this holistic approach to criminal justice in
section 39(2), urging the promotion of the spirit, purport
and
objects of the Bill of Rights by courts when interpreting or
developing law. Thus, having decided that the right against
the
retrospective application of section 92(1)(a) is not protected
under section 35(3)(n) of the Constitution, I hold that the
comprehensive or general right to a fair trial under
section 35(3) is nevertheless applicable.
The
general presumption against retrospectivity
Generally,
legislation is not to be interpreted to extinguish existing rights
and obligations. This is so unless the statute
provides otherwise
or its language clearly shows such a meaning.
31
That legislation will affect only future matters and not take away
existing rights is basic to notions of fairness and justice
which
are integral to the rule of law, a foundational principle of our
Constitution. Also central to the rule of law is the
principle of
legality which requires that law must be certain, clear and
stable.
32
Legislative enactments are intended to “give fair warning of
their effect and permit individuals to rely on their meaning
until
explicitly changed.”
33
As
Innes CJ reasoned in
Curtis
:
34
“
The general rule is that, in
the absence of express provision to the contrary, statutes should be
considered as affecting future
matters only; and more especially
that they should if possible be so interpreted as not to take away
rights actually vested at
the time of their promulgation”.
35
The respondent acknowledged the
presumption but urged that an increase in sentencing jurisdiction
was merely a procedural change
which did not trigger the presumption
against retrospectivity, therefore, it did not apply to legislation
that is procedural in
nature. In support of this contention, the
respondent cited
Curtis
where it was held:
“
Every law regulating legal
procedure must, in the absence of express provision to the contrary,
necessarily govern, so far as it
is applicable, the procedure in
every suit which comes to trial after the date of its promulgation .
. . it must regulate all such
procedure even though the cause of
action arose before the date of promulgation, and even though the
suit may have been then pending.”
36
Accordingly, the respondent
argued, the presumption against retrospectivity in this case would
be applicable only if the relevant
legislation was substantive in
nature, either creating a new form of punishment or imposing a new
prescribed minimum sentence after
the commission of the offence.
The
distinction between procedural and substantive provisions cannot
always be decisive in the operation of the presumption against
retrospectivity. As Marais JA recognised in
Minister of Public
Works v Haffejee NO
:
37
“
[I]t does not follow that
once an amending statute is characterised as regulating procedure it
will always be interpreted as having
retrospective effect. It will
depend upon its impact upon existing substantive rights and
obligations. If those substantive rights
and obligations remain
unimpaired and capable of enforcement by the invocation of the newly
prescribed procedure, there is no reason
to conclude that the new
procedure was not intended to apply. Aliter if they are not.”
38
Although
courts have recognised that section 92(1)(a) regulates procedure,
decisions have diverged on the issue of whether the
section falls
within the presumption against retrospectivity.
In
S v Ndevu
,
39
albeit dealing with other legislation, it was held that a statute
pertaining to the penal jurisdiction of a magistrate’s court
is
procedural and applies retrospectively. The court distinguished
the legislation from that concerning prescribed sentences
for
specific crimes, which, it held, was substantive and therefore only
prospectively applicable.
In
its examination of section 92(1)(a), the court in
Mnisi
40
disagreed with
Ndevu
. Relying on
R v Sillas
,
41
the court in
Mnisi
held that a magistrate in a district
court could not sentence accused persons under the increased penal
jurisdiction where the
offences had been committed before the
legislation increasing the penal jurisdiction had come into force.
A majority of the
full bench of the Transvaal High Court held in
Mbuyane
42
that the reliance in
Mnisi
on
Sillas
was mistaken in
that
Sillas
dealt with prescribed punishments and not
sentencing jurisdiction.
43
The
Cape High Court in
Arendse
44
agreed with
Ndevu
and held that the provisions of
section 92(1)(a) could be applied by a district magistrate to
sentence an accused even though
the accused person had pleaded
before the provisions came into force.
45
To reach this conclusion, the court relied on section 116 of the
Criminal Procedure Act 51 of 1977 (CPA).
46
The section permits a district court, on conviction of an accused,
to refer the accused for sentencing in the regional court
which has
a higher penal jurisdiction when the seriousness of the offence
requires a sentence beyond the penal jurisdiction of
the district
court.
47
Accordingly, the court in
Arendse
found that there was no
prejudice flowing from the application of the amended section
92(1)(a) of the Act because the accused
had always been exposed to
the maximum penal jurisdiction of the regional court due to the
existence of section 116.
48
The
same court in
John
49
held, however, that in that case the accused did suffer prejudice
and therefore section 92(1)(a) could not be applied
retrospectively.
Since the regional court was not equipped with a
procedural mechanism similar to section 116 of the CPA, the accused
suffered
substantive harm despite the procedural nature of section
92(1)(a). This substantive harm flowed from the absence of a
referral
mechanism similar to section 116. Such mechanisms are
significant because they forewarn accused persons that they may be
remitted
to a higher court where a more severe sentence may be
imposed on them.
50
There is, therefore, no element of surprise, causing uncertainty,
which may be prejudicial to an accused person.
This
contradictory line of case law demonstrates the illusory
distinction between substance and procedure insofar as the
retrospective
application of legislation is concerned. The fact
that section 92(1)(a) regulates a court’s procedure is not
determinative
of its retrospective application. The correct
approach to this question was properly constructed in
John
where it was concluded that a procedural law may apply
retrospectively unless the application would adversely affect an
applicant’s
substantive rights.
51
In the words of Comrie J:
“
To hold that the
procedural
nature of the general increase in the trial court’s penal
jurisdiction
in res medias
afforded a valid basis to enable
the trial magistrate to impose a higher sentence than she could
competently have done when the
appellant pleaded, would be to ignore
the very material
substantive
consequence of the procedural
amendment . . . . It would at the very least be unfair to the
appellant.”
52
In a constitutional democracy,
if new legislation affects a person in a manner that is detrimental
to his or her substantive rights,
the application of that law will
not escape scrutiny simply on the grounds that it is procedural in
nature.
53
The
effect of the retrospective application of section 92(1)(a)
Based
on
Arendse
, the respondent submitted that even though
section 92(1)(a) was applied retrospectively, the applicant did not
suffer any prejudice
in that in any event a sentence in excess of
15 years, including life imprisonment, could have been imposed if
he had been arraigned
in the High Court. The respondent further
contended that section 123 of the CPA
54
which permits the prosecution to convert a part-heard matter in a
regional court into a preparatory examination, with a view
to
having the matter tried in the High Court, could have been invoked.
The circumstances of this case are, however, different
from those
in
Arendse
, as here, the prosecution did not adopt the
referral strategy. For that reason the penal competence of the
regional court was
confined to the maximum penal jurisdiction at
the time of plea.
The
penal jurisdiction of a court is prescribed by legislation, the
purpose of which is to enable courts to impose appropriate
sentences for offences that fall within the jurisdiction of those
courts. In this case, the respondent did not proffer any

explanation why the applicant was not arraigned in the High Court.
Therefore, the respondent cannot be heard to say that the
seriousness of the crime had, from the beginning, exposed the
applicant to a more severe sentence than that which could have
been
imposed had the applicant been arraigned before a court of higher
penal jurisdiction. If available legislation is not invoked,
and
consequently, an accused person is not so referred where he or she
could have been tried before a court with higher penal
jurisdiction, the boundaries of the trial court’s discretionary
sentencing powers are clearly delineated. Failing to prosecute
an
offence in a court with appropriate penal jurisdiction that allows
for a sentence proportionate to the offence limits the
discretion
of the trial court to impose the most competent sentence, thereby
prohibiting the effective prosecution of crimes.
This
should not be understood to imply that an accused person has a
vested right to a particular sentence. However, he or she
does
have a legally valid interest in the certainty that his or her
sentence will not exceed the maximum penal jurisdiction of
the
trial court in terms of the applicable law at the time of plea. An
accused could possibly plead guilty to expedite the trial,
or for
other reasons, based on the court’s maximum penal jurisdiction,
in which case it would be unfair, after conviction,
to expose him
or her to a higher sentence. Once an accused has pleaded, the
constitutionally enshrined principle of the rule
of law requires
that certainty as to the boundaries of the prosecution and the
penal risk should be upheld consistently throughout
the trial, for
it is at the time of plea that the state and the accused join issue
and the parameters of the trial are defined.
To retrospectively
apply a new law, such as section 92(1)(a), during the course of the
trial, and thereby to expose an accused
person to a more severe
sentence, undermines the rule of law and violates an accused
person’s right to a fair trial under section
35(3) of the
Constitution.
Conclusion
It
is important to emphasise that the unfairness to the applicant does
not arise from his inability to devise trial strategies
to escape
moral blameworthiness. That is not the purpose of section 35(3).
The unfairness derives from the uncertainty created
by the
retrospective application of the amended section 92(1)(a) during
the course of the trial, which exposes the applicant
to a sentence
more severe than that which was competent when he tendered his
plea. Whether the applicant deserved a lighter
or heavier sentence
is also not at issue in this matter. The crime committed is
heinous, no doubt, and a conviction could have
carried a life
sentence had the applicant been arraigned before the High Court.
The seriousness of the offence itself should
have served as an
indicator that the applicant should have been arraigned before the
High Court. It may be that from the perspective
of the community
and in view of the facts of this case, the applicant’s sentence
of 15 years was too lenient and for that reason
not
unfair.
However, the guarantee of the right to a fair trial applies in all
criminal trials, notwithstanding the heinous nature
of the offence.
The
unfairness of the trial is furthermore not assessed with regard to
the proportionality between the seriousness of the offence
and the
severity of the sentence imposed. The unfairness is founded in the
retrospective application of legislation, rendering
the sentence
imposed by the regional court unauthorised and a violation of the
rule of law. That, in turn, violates the applicant’s
right to a
fair trial under section 35(3) of the Constitution.
Having
decided this matter on the basis of the violation of the right to a
fair trial under section 35(3) of the Constitution,
it is not
necessary to decide the question of the infringement of the
applicant’s right to freedom of movement under section
12(1).
Remedy
In
his submissions, the applicant urged this Court to exercise its
discretion substituting the 15-year sentence of imprisonment
imposed by the regional court with that of 10 years’
imprisonment, being the applicable maximum penal jurisdiction of
the
regional court before the Act was amended. Ordinarily, this
Court would have preferred to remit the matter to the trial court
to give effect to this judgment. However, even if this Court did
remit the matter for sentencing, in view of this judgment,
the
maximum sentence that the regional court would be competent to
impose is 10 years’ imprisonment. That said, considering
the
nature of the offence and the fact that the applicant has already
served almost seven years of his sentence, it is unlikely
that the
regional court will impose a sentence of less than 10 years’
imprisonment. Furthermore, even if the respondent sought
to invoke
section 52 of the Minimum Sentences Act to remit the matter to the
High Court for sentencing, that would be precisely
the kind of
retrospective application of legislation proscribed by this
judgment. Moreover, replacing the 15-year sentence of
imprisonment
with that of 10 years’ imprisonment, merely entails substituting
one maximum sentence with another. As a result,
the 15-year
sentence of imprisonment imposed by the regional court is
substituted with that of 10 years’ imprisonment, being
the
equivalent of the applicable maximum penal jurisdiction of the
regional court prior to 7 October 1998 when section 92(1)(a)
came
into operation. Therefore, under the circumstances of this case
and in the interests of justice, it is necessary for this
Court to
be practical and itself effect the replacement of sentence.
Counsel
for the applicant, Mr Bava, appointed by the Society of Advocates
(Witwatersrand Local Division) acted pro bono on behalf
of the
applicant. This Court is indebted to him and the Society.
Order
Central
to considerations of the interests of justice in a particular case
is that a successful applicant should obtain the relief
she or he
seeks.
55
There will have been others in a similar situation to Mr Veldman.
Yet it would not be just and equitable in this judgment to
seek to
deal with the sentence of any other person, particularly as we have
not made any finding of constitutional invalidity
which can be
applied to those similarly situated. The only order that could
apply the reasoning of this judgment to others similarly
situated
would be a general substitution of sentences. Sentencing is an
important and subtle task that requires a consideration
of the
circumstances of an accused and his or her offence. Accordingly it
will be rare that a general substitution of sentences
of
imprisonment will be just and equitable. The case differs from the
case where the execution of the sentence itself has become
unconstitutional as in the death penalty case
56
and the corporal punishment case.
57
There is another consideration which renders it inappropriate to
make an order which would substitute the sentences of those
similarly situated to Mr Veldman. We do not know the number or
whereabouts of those people who would be affected by a general
order and such an order might cause great dislocation and
uncertainty to the administration of prisons, and in particular to
the parole system.
58
In my view, for this reason too it should be avoided. These
factors make it plain that those who wish to rely on the reasoning
in this judgment to have their sentences diminished will have to
approach a competent court for relief.
In
the result, the following order is made:
The
application for condonation is granted.
The
application for leave to appeal is granted and the appeal succeeds.
The
sentence of 15 years’ imprisonment imposed by the regional court
on the applicant for murder is set aside and replaced with
that of
10 years’ imprisonment.
There
is no order as to costs.
Moseneke
DCJ, Sachs J, Skweyiya J and Van der Westhuizen J concur in the
judgment of Mokgoro J.
O’REGAN J:
I
have had the opportunity of reading the judgment written in this
matter by my colleague, Mokgoro J. I also reach the same

conclusion as she does, but consider that the matter needs to be
approached in a manner different from that which she adopts.
I
commence by observing that I agree with her that in this case the
regional magistrate sentenced the applicant on the basis
of the
penal jurisdiction conferred on regional courts by
section 92(1)(a)
of the
Magistrates’ Courts Act, 32 of 1944
, as amended by the
Magistrates Amendment Act, 66 of 1998
, and not on the basis of
section 51
of the
Criminal Law Amendment Act, 105 of 1997
.
59
My reason for this conclusion is simple.
Section 51
of the
Criminal Law Amendment Act requires
a judicial officer to consider
before imposing a minimum sentence, whether substantial and
compelling reasons exist to impose
a different sentence. It is
quite clear from reading the judgment of the regional magistrate in
this matter that he did not
consider the question whether
substantial and compelling reasons existed to impose a sentence
different from the prescribed minimum
sentence. Nor does the
regional magistrate anywhere mention that he is imposing a minimum
sentence. Accordingly, it must be
concluded from the terms of his
judgment that the sentence was not imposed in terms of
section 51
of the
Criminal Law Amendment Act but
rather in terms of
section
92(1)(a)
of the
Magistrates’ Courts Act.
In
my view, the question that needs to be answered in this case is
whether, properly and constitutionally interpreted,
section
92(1)(a)
of the
Magistrates’ Courts Act authorised
the regional
magistrate to impose a sentence of 15 years in this case given that
the crime had been committed, and the accused
had pleaded, before
the legislation introducing
section 92(1)(a)
came into force. The
proper interpretation of the section needs to be undertaken in the
light of the provisions of the Constitution
and particularly
section 35(3) – the right of accused persons to a fair trial.
This question however is not to be answered
by considering whether
Mr Veldman had an unfair trial in this case. It is in this respect
that this judgment differs from that
of my colleague.
Section
92(1)(a) reads as follows:
“
Save as otherwise in this
Act or in any other law specially provided, the court, whenever it
may punish a person for an offence–
(a) by imprisonment, may
impose a sentence of imprisonment for a period not exceeding three
years, where the court is not the
court of a regional division, or
not exceeding 15 years, where the court is the court of a regional
division”.
This provision was introduced
into the Act by the
Magistrates Amendment Act and
was brought into
operation by proclamation on 7 October 1998.
The ordinary rule of our law
is that statutes operate prospectively only, as Innes CJ reasoned
in
Curtis v Johannesburg Municipality
1906 TS 308
at 311:
“
The general rule is that, in
the absence of express provision to the contrary, statutes should be
considered as affecting future
matters only; and more especially
that they should if possible be so interpreted as not to take away
rights actually vested at
the time of their promulgation. The
legislature is virtually omnipotent, but the courts will not find
that it intended so inequitable
a result as the destruction of
existing rights unless forced to do so by language so clear as to
admit of no other conclusion.”
Courts have often relied on a
distinction between substance and procedure and stated that only
rules which affect procedural matters
will operate retrospectively,
but rules which affect substantive issues will operate prospectively
only.
60
The
distinction between substance and procedure, however, is not always
easy to draw, as courts have often observed.
61
Some procedural provisions can have a fatal effect on the ability
to launch a cause of action or to raise a defence and so have
a
material substantive effect. In these circumstances, courts have
been slow to take the view that the statute should operate
with
immediate effect on all pending claims. As Marais JA commented in
Minister of Public Works v Haffejee NO
[1996] ZASCA 17
;
1996 (3) SA 745
(A)
at 753:
“
In other words, it does not
follow that once an amending statute is characterised as regulating
procedure it will always be interpreted
as having retrospective
effect. It will depend upon its impact upon existing substantive
rights and obligations. If those substantive
rights and obligations
remain unimpaired and capable of enforcement by the invocation of
the newly prescribed procedure, there
is no reason to conclude that
the new procedure was not intended to apply.”
62
The
issue of retrospectivity must therefore not be determined by sole
regard to whether the provision in question is procedural
or not.
All the more so in our constitutional order. The Constitution, and
the Bill of Rights in particular, provides a framework
in terms of
which legislative provisions must be interpreted. Section 92 must
now be construed in the light of them. In each
case, the question
is a matter of interpretation. And that is the question we have to
consider in relation to section 92(1)(a)
– does it, properly
construed, have application to proceedings that were pending at the
time that it came into force? This
exercise of construction must,
of course, seek to “promote the spirit, purport and object of the
Bill of Rights.”
63
Before
the Constitution came into force, there were at least two dicta
from our courts asserting that the increase in the penal
jurisdiction of a magistrate’s court was purely procedural and
came into force immediately.
64
In both cases, this was contrasted with provisions that affected
the prescribed sentences applicable to particular offences
and
which were held not to affect crimes that had been committed before
these provisions had come into force.
There
can be no doubt that there is a constitutionally significant
difference between provisions which regulate prescribed sentences,
and provisions which establish the general sentencing jurisdiction
of a particular court. Under our constitutional order,

retrospective operation of the former is prohibited by section
35(3)(n).
65
The question that arises in this case is whether a provision of
the latter sort, properly construed in the light of the
Constitution,
can operate in proceedings that have already
commenced when the provisions had come into force.
Since
the Constitution came into force, this question has been considered
with specific reference to section 92(1)(a) in several
decisions of
the High Court. The section has been considered in two judgments
of the Pretoria High Court. In the first such
decision,
S v
Mnisi en Ander
1999 (1) SACR 189
(T),
the court relying
on
R v Sillas
1959 (4) SA 305
(A), held that a magistrate in
a district court could not sentence accused persons under the
increased penal jurisdiction where
the offences had been committed
before the legislation increasing the penal jurisdiction had come
into force.
In
a subsequent full bench decision of the Pretoria High Court,
S v
Mbuyane; S v Nkitle
1999 (1) SACR 458
(T), a majority of the
court held that the decision in
Mnisi
was wrong.
66
In particular, the majority correctly held that the reliance upon
the decision of
R v Sillas
was mistaken because that
decision dealt with prescribed punishments rather than the question
of sentencing jurisdiction.
67
A minority held that the decision in
Mnisi
was correct but
for reasons different to those given in
Mnisi
. Prinsloo AJ
held that the constitutional prohibition on the retrospective
application of prescribed punishments in section
35(3)(n) included
the increase of sentencing jurisdiction
68
and that section 92(1)(a), properly construed in the light of
section 35 of the Constitution, did not constitute a purely
procedural
provision capable of retrospective application.
69
In
the Cape, too, there have been two decisions dealing with the
question. In
S v Arendse and Another
1999 (1) SACR 454
(C),
the court held that the provisions of section 92(1)(a) could be
used by a district magistrate to sentence an accused even
where the
accused had committed the offence and pleaded before the provisions
came into operation.
On
the other hand, in
S v John
2003 (2) SACR 499
(C), the court
held that the section could not be used by a regional court
magistrate to impose a higher sentence on an accused
where the
accused had pleaded before the new section came into operation. In
that case, the court distinguished the decision
in
Arendse
’s
case on the basis that
Arendse
’s case dealt with the
district court whereas
John
’s
case, as does this
one, dealt with the regional court. The court observed that
section 116
of the
Criminal Procedure Act permits
a district
magistrate who has convicted an accused, and considers the offence
to merit a punishment in excess of the district
court’s
sentencing jurisdiction, to commit the accused to the regional
court for sentence.
70
There is no directly equivalent provision which permits the
regional court to commit an accused for sentence to the High
Court.
71
This distinction, the court held, meant that a regional court was
not entitled to rely on
section 92(1)(a)
in matters in which an
accused had pleaded before the section came into force.
The
court in
John
concluded that even though an increase in
sentencing jurisdiction did not fall within the constitutional
prohibition contained
in
section 35(3)(n)
, it would nevertheless be
unfair to interpret the section to permit an accused to be
subjected to a higher sentence than could
have been imposed by that
court at the time of plea.
An
increase in sentencing jurisdiction does not fall within the
prohibition contained in section 35(3)(n) of the Constitution
because it does not constitute a “prescribed punishment”. In
this case, for example, the accused could clearly have been
arraigned in the High Court which would have been able to sentence
him to life imprisonment for the murder that he had committed.
At
the time that the accused committed the crime, therefore, the
sentence that could have been imposed for the crime was any
period
of imprisonment up to life imprisonment. There can be no question
that section 92(1)(a) increased the prescribed punishment
that
could be imposed for the crime concerned.
On
the other hand, if section 92(1)(a) is interpreted to permit a
court to use its extended sentencing jurisdiction to sentence
an
accused who had pleaded before the legislation came into effect, it
might result in some cases in procedural unfairness to
the accused.
In particular, an accused who pleads guilty on the basis of the
maximum sentencing jurisdiction of the regional
court and in the
absence of any legal provision permitting the regional court to
commit that accused to the High Court for sentencing,
could have
found that he or she was subjected to a considerably higher
sentence than expected given the increase in the court’s
sentencing jurisdiction.
It
is true that an accused does not have a vested right to a sentence
no higher than the maximum sentencing jurisdiction of the
court at
plea, as Comrie J held in the case of
John
at paragraph 30.
Nevertheless, there is an element of fairness which should prevent
the rules upon which the trial proceeds being
varied once the
accused has pleaded, particularly where the effect of that
variation is to the substantive disadvantage of the
accused to the
extent that he or she becomes liable for a period of imprisonment
half as long again.
There
is a heightened expectation of procedural fairness in criminal
trials. Our Constitution recognises this by entrenching
the right
of an accused to a fair trial and provides a non-exhaustive list of
the requirements of a fair trial.
72
An important aspect of that right, it seems to me, is that the
process to be followed should be regulated by law and should
not be
changed to the detriment of the accused during the course of the
trial. The accused has an expectation that the law will
not alter
and that decisions he or she makes concerning the conduct of the
trial may be made on the reliance that the law will
not alter in a
manner which will be disadvantageous to the accused during the
course of the trial.
This
principle, of course, is based on the rule of law, which is a
foundational value of our Constitution.
73
Law should be certain and accessible. Changing the rules midway
through a criminal trial defeats that certainty and accessibility
in a manner which may be unfair to an accused.
For
similar reasons, English courts have regularly held that it is an
abuse of process for a judge to make a statement promising
an
accused a non-custodial sentence, and then, to retract and impose a
custodial sentence. They have held that to do so constitutes
an
abuse of process.
74
If
one applies these constitutional considerations to an
interpretation of section 92(1)(a), it becomes clear that the
section
should not be interpreted to affect criminal trials that
commenced before it came into force. Once accused persons have
pleaded,
they are entitled to know that the rules of the trial will
not be altered to prejudice them materially either in the conduct

of their case or in some other substantive manner. Were section
92(1)(a) to be read to permit an accused who had pleaded to be
subjected to the greater sentencing jurisdiction of the court, that
may well wreak unfairness in individual cases. It accordingly
can
and should be interpreted to avoid such a result.
I
conclude therefore that section 92(1)(a) of the Act properly
interpreted did not authorise the magistrate in this case to impose
a sentence of more than ten years upon
the
accused because the accused had pleaded before 7 October 1998 when
the Act came into force. I emphasise that the individual
conduct
of the trial of this accused, however, cannot affect the
interpretation of section 92(1)(a). Its meaning must be
established
for all trials on an objective basis in the light of
the normative principles of our Constitution. In my view, as
appears from
the discussion above, an objective and principled
interpretation of section 92(1)(a) does not permit the extended
penal
jurisdiction
to be employed in cases where an accused pleaded before the law
extending the court’s penal jurisdiction came into
force.
Langa
CJ, Ngcobo J and Yacoob J concur in the judgment of O’Regan J.
NGCOBO
J:
I
concur in the judgment prepared by O’Regan J. I do so for
substantially the reasons she advances. However, I write
separately
to emphasise the proper approach to constitutional
interpretation.
This
case concerns the proper interpretation of
section 92(1)(a)
of the
Magistrates’ Courts Act, 32 of 1944
as amended by the Magistrates
Amendment Act, 66 of 1998. In particular, the question presented
is whether the provisions of
section 92(1)(a) should be construed
to apply to criminal trials which commenced prior to its coming
into operation. The statute
itself is silent on the matter. For
convenience, section 92(1)(a) provides:
“
(1) Save as otherwise in
this Act or in any other law specially provided, the court, whenever
it may punish a person for an offence—
(a) by imprisonment, may impose
a sentence of imprisonment for a period not exceeding three years,
where the court is not the court
of a regional division, or not
exceeding 15 years, where the court is the court of a regional
division.”
Under
common law there is a presumption that statutes apply to future
matters only. This presumption was premised on the assumption
that
the legislature does not intend to take away existing rights,
including fundamental rights. This presumption developed
into a
rule of statutory construction and came to be referred to as the
presumption against statutory retrospectivity. And it
became an
important tool used by the courts to protect fundamental rights
from interference by the legislature. However, this
presumption
could not be invoked where it is clear from the unambiguous
language of the statute that the legislature intended
to interfere
with the fundamental rights. This general rule was expressed as
follows by Innes CJ in
Curtis v Johannesburg Municipality
:
“
The general rule is that, in
the absence of express provision to the contrary, statutes should be
considered as affecting future
matters only; and more especially
that they should if possible be so interpreted as not to take away
rights actually vested at
the time of their promulgation. The
legislature is virtually omnipotent, but the courts will not find
that it intended so inequitable
a result as the destruction of
existing rights unless forced to do so by language so clear as to
admit of no other conclusion.”
75
However
an exception to this general rule was made in the case of purely
procedural statutes. These statutes were considered
to operate
retrospectively. The rationale for this was that “no person has
a vested right in any particular course of procedure,
but only a
right to prosecute or defend a suit according to the rules for the
conduct of an action for the time being prescribed.”
76
In this context the distinction between statutes that regulated
procedure and those that did not, assumed particular importance
in
determining whether a particular statute operates prospectively or
retrospectively. However, as the Appellate Division case
law
demonstrates, and O’Regan J observes, the distinction between
procedural and non-procedural statutes is not always easy
to draw,
and the distinction was thus not always helpful.
77
In
construing statutes, courts applied the constitutional principles
of the common law, the supremacy of Parliament and the rule
of law.
And as this Court observed in the
Pharmaceutical
case, the
rule of law “had a substantive as well as a procedural content
that gave rise to what courts referred to as fundamental
rights”.
78
The rule of law embraces, among other things, the requirement that
laws be “ascertainable in advance so as to be predictable
and not
retrospective in its operation”.
79
In order to protect the existing rights including the fundamental
rights, courts developed a rule of interpretation that requires
statutes “if possible [to] be so interpreted [so] as not to take
away rights actually vested at the time”.
80
And this gave rise to the presumption against statutory
retrospectivity. But as was observed in the
Pharmaceutical
case, “because of the countervailing constitutional principle
of the supremacy of Parliament, the fundamental rights could be,
and frequently were, eroded or excluded by legislation.”
81
Under common law therefore
statutes were, as a general matter, to be construed consistently
with fundamental rights which, among
other rights, embraced
principles of justice and equity and the “notions of basic
fairness and justice.”
82
These fundamental rights were part and parcel of the
constitutional principles of the common law. And statutes
therefore
had to be construed consistently with the common law
unless there was an express provision to the contrary.
The
advent of our constitutional democracy has changed all of that.
There has been a fundamental change. The principle of

parliamentary supremacy has been replaced by the supremacy of the
Constitution.
83
The fundamental rights are now guaranteed and protected in the
Bill of Rights.
84
“Courts no longer have to claim space and push boundaries”
85
to find means to protect fundamental rights. That power is vested
in them by the Constitution.
86
The Constitution instructs the court on how to construe
legislation. It enjoins them to interpret legislation in a manner

that will “promote the spirit, purport and objects of the Bill of
Rights.”
87
The
proper approach to the construction of section 92(1)(a) therefore
is to construe it in the light of rights of the Bill of
Rights, in
particular, the right to a fair trial guaranteed by section 35(3)
of the Constitution.
Section
39(2) of the Constitution enjoins us to construe the provisions of
section 92(1)(a) in a manner that will “promote the
spirit,
purport and objects of the Bill of Rights.” Section 39(2) of the
Constitution 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.”
88
The “spirit, purport and
objects of the Bill of Rights” is to be gleaned from the rights
guaranteed in the Bill of Rights
which is “the cornerstone” of
our constitutional democracy. Among the rights guaranteed in the
Bill of Rights is the right
to a fair trial which is guaranteed in
section 35(3). That subsection provides:
“
(3) Every accused person has
a right to a fair trial, which includes the right—
to be informed of the charge
with sufficient detail to answer it;
to have adequate time and
facilities to prepare a defence;
to a public trial before an
ordinary court;
to have their trial begin and
conclude without unreasonable delay;
to be present when being
tried;
to choose, and be represented
by, a legal practitioner, and to be informed of this right
promptly;
to have a legal practitioner
assigned to the accused person by the state and at state expense,
if substantial injustice would
otherwise result, and to be informed
of this right promptly;
to be presumed innocent, to
remain silent, and not to testify during the proceedings;
to adduce and challenge
evidence;
not to be compelled to give
self-incriminating evidence;
to be tried in a language that
the accused person understands or, if that is not practicable, to
have the proceedings interpreted
in that language;
not to be convicted for an act
or omission that was not an offence under either national or
international law at the time it was
committed or omitted;
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;
to the benefit of the least
severe of the prescribed punishments if the prescribed punishment
for the offence has been changed
between the time that the offence
was committed and the time of sentencing; and
of appeal to, or review by, a
higher court.”
The
right to a fair trial guaranteed by section 35(3) is broader than
the list of the rights set out in paragraphs (a) to (o).
89
“It embraces a concept of substantive fairness.”
90
Section 35(3) requires that criminal trials be conducted in
accordance with “the notions of basic fairness and justice.”
91
The list of rights set out in paragraphs (a) to (o) in section
35(3) provides a guide as to what is considered to be offensive
to
the “notions of basic fairness and justice.” In relation to a
prescribed minimum sentence, section 35(3)(n) provides
that an
accused person is entitled “to the benefit of the least severe of
the prescribed punishments if the prescribed punishment
for the
offence has been changed between the time that the offence was
committed and the time of sentencing”.
What
section 35(3)(n) conveys is that it is offensive to a right to a
fair trial to subject an accused person to a more severe
punishment
that was not in operation at the time when the accused committed
the offence. Thus where the prescribed minimum sentence
has
changed between the date of the commission of the offence and the
date of the coming into operation of the new prescribed
punishment,
basic fairness and justice require that the accused be sentenced in
accordance with the less severe of the two punishments.
It
seems to me that it must be equally offensive to the “notions of
basic fairness and justice” to subject an accused person
to a
more severe sentence which was not in force at the time when the
accused pleaded to a criminal charge. To construe section
92(1)(a)
as applying to criminal trials that commenced before it came into
operation, does not, in my view, “promote the spirit,
purport and
objects of the Bill of Rights.” It follows therefore that the
provisions of section 92(1)(a) must be construed
as applying to
criminal trials which commenced after section 92(1)(a) came into
operation.
For
the applicant: A Bava and M Augustine instructed by the Society of
Advocates (Witwatersand Local Division).
For
the respondent: HJ Broodryk SC and CE Britz instructed by the State
Attorney, Johannesburg.
1
The applicant and two other accused were convicted by the regional
magistrate’s court (Southern Transvaal District sitting in
Soweto)
on one charge of murder, two charges of kidnapping, one charge of
assault, and one charge of being in unlawful possession
of
ammunition. The applicant was sentenced to 15 years’ imprisonment
for murder and additional terms corresponding to the other
charges
which he did not appeal; thus he is currently serving a total of 22
years’ imprisonment.
2
Section 6
of the
Magistrates Amendment Act 66 of
1998
.
3
The relevant parts of
section 51
read as follows:
“(2) Notwithstanding any other law but subject to subsections (3)
and (6), a regional court or a High Court, including a High
Court to
which a matter has been referred under
section 52(1)
for sentence,
shall in respect of a person who has been convicted of an offence
referred to in−
(a)
Part II
of Schedule 2, sentence the person, in the case of−
a first offender, to imprisonment for a period not less than 15
years”.
Subsections 3 and 6 are not relevant for the current discussion.
4
Unreported judgment of the Witwatersrand Local Division Case No
A1184/99 delivered on 11 April 2003 at para 23.
5
See
S v Basson 2
CCT 30/03, 9 September
2005, at paras 154-5 as yet unreported,
Mabaso v Law Society,
Northern Provinces
and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005
(2) BCLR 129
(CC) at paras 19-20,
National Coalition for
Gay
and Lesbian Equality and Others v Minister of Home Affairs and
Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 11.
6
See
Federated Employers Fire & General
Insurance Co Ltd and Another v McKenzie
1969 (3) SA 360
(A) at
362F-363A.
7
The applicant in his founding affidavit
erroneously referred to
Rule 20
of the old Constitutional Court
Rules but it is clear that the applicable rule is Rule 19.
8
Phillips and Others v National Director of
Public Prosecutions
CCT 55/04, 7 October 2005 at para 30 as yet
unreported,
Radio Pretoria v Chairperson, Independent
Communications Authority of South Africa, and Another
[2004] ZACC 24
;
2005 (4)
SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19.
9
S v Pennington and Another
1997 (4) SA
1076
(CC);
1997 (10) BCLR 1413
(CC) at para 26.
10
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 31.
11
Mabaso
above n 5 at para 27,
De Freitas
and Another v Society of Advocates of Natal
(Natal Law
Society Intervening)
1998 (11) BCLR 1345
(CC) at para 21.
12
See for example
S v John
2003 (2) SACR 499
(C),
S v Mnisi
en Ander
1999 (1) SACR 189
(T),
S v Willemse
1999 (1)
SACR 450
(C),
S v Arendse and Another
1999 (1) SACR 454
(C),
S v Mbuyane; S v Nkitle
1999 (1) SACR 458
(T);
1999 (6) BCLR
699
(T) discussed below.
13
See for example
Du Toit v Minister of
Transport
CCT 22/04, 8 September 2005 as yet unreported,
Phillips
above n 8.
14
See also section 167(3)(c) of the Constitution
where it is stated that the Constitutional Court may make a final
decision whether
a matter is constitutional or is connected with a
decision on a constitutional matter.
15
See also
Mabaso
above n 5 at para 34.
16
1966 (4) SA 345
(C) at 351E-G.
17
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
at para 65.
18
The Minimum Sentences Act came into effect on 1 May 1998 and the
applicant pleaded in the regional court on 27 May 1998. The

increase in the regional court’s penal jurisdiction under the
amendment to the Act came into effect on 7 October 1998.
19
Section 51(3)(a) of the Minimum Sentences Act.
The
constitutional validity of section 51 was discussed and confirmed in
S v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC).
20
See for example
Willemse
above n 12 at 452-4 where the
retrospective application of section 51 was discussed.
21
Section 276
of the
Criminal Procedure Act 51 of
1977
provides a range of sentences that the regional court is
competent to impose in the exercise of its discretion subject to the
Criminal Procedure Act, other
legislation, the common law and the
Constitution.
22
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC).
23
Id
at para 16.
24
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
(CC).
25
Id
at para 9.
26
Id a
t para 12.
27
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC).
28
Id
at para 22.
29
[2005] ZACC 1
;
2005 (4) SA 581
(CC);
2005 (5) BCLR 423
(CC).
30
Id
at para 26.
31
See for example
Curtis v Johannesburg Municipality
1906
TS 308
at 311,
Katzenellenbogen Ltd v Mullin
1977 (4) SA 855
(AD) at 884A
.
32
See
Currie et al
The New Constitutional and
Administrative Law
Vol 1 (Juta, Lansdowne 2001) 76.
33
Calder v Bull
[1798] USSC 3
;
3 US 386
(1798) at 388 and
396; see also
Weaver v Graham, Governor of Florida
450 US 24
(1981) at 30 where it was held (although in the context of
prescribed punishment) that the critical issue was not an
individual’s
right to less severe punishment but the lack of fair
notice.
34
Above n 31.
35
Id at 311.
36
Id
at 312.
37
[1996] ZASCA 17
;
1996 (3) SA 745
(A).
38
Id at 753B–C.
39
1975 (3) SA 519
(O) at 520D–E; see also
S v
Qualinga en Ander Sake
1978 (4) SA 556
(NC) at 559A–B.
40
Above n 12.
41
1959 (4) SA 305
(A).
42
Above n 12.
43
The minority judgment per Prinsloo AJ held that the decision in
Mnisi
was correct on the grounds that the constitutional
prohibition on the retrospective application of prescribed
punishments in section
35(3)(n) included the increase of sentencing
jurisdiction, and that section 92(1)(a), properly construed, did not
constitute a
purely procedural provision.
44
Above n 12.
45
Id
at 456E–G.
46
Id at 456D.
47
See also the provisions of section 114 of the
CPA, which permit a similar referral mechanism for cases tried in
magistrate’s courts.
48
Arendse
above n 12 at 456D.
49
Above n 12.
50
See
id at para 26.
51
Id
at para 29.
See also
Weaver
above n 33 at 30 where
the United States Supreme Court also
takes an approach that examines the effect, not just the form of
law, to determine whether
the law can be retrospectively applied.
According to this approach, a legislative provision need not impair
a vested right as
such to fall foul of the prohibition on
retrospective application; if the law assigns more disadvantageous
penal consequences to
an act than the law that was in place when the
act occurred, the Supreme Court considers it irrelevant whether the
legislative
change affects any vested rights.
52
John
above n 12
at para 28.
53
Transnet Ltd v Ngcezula
[1994] ZASCA 192
;
1995 (3) SA 538
(A) at 550B–C.
54
Section 123(b) of the CPA provides:
“If an attorney-general is of the opinion that it is necessary for
the more effective administration of justice−
. . . .
(b) that a trial in a magistrate’s court or a regional court be
converted into a preparatory examination, he may at any stage
of the
proceedings, but before sentence is passed, instruct that the trial
be converted into a preparatory examination.”
55
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32.
56
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC),
1995 (6) BCLR 665
(CC).
57
Christian Education of SA v Minister of Education
[2000] ZACC 11
;
2000 (4) SA
757
(CC);
2000 (10) BCLR 1051
(CC).
58
Bhulwana
above n 55
.
59
Section 51
of the
Criminal Law Amendment Act:
>
“
Minimum sentences for certain serious
offences.–(1) Notwithstanding any other law but subject to
subsections (3) and (6), a High
Court shall–
(a) if it has convicted a person of an offence referred to in
Part I
of Schedule 2; or
(b) if the matter has been referred to it under
section 52(1)
for sentence after the person concerned has been
convicted of an offence referred to in
Part I
of Schedule 2,
sentence the person to imprisonment for life.
(2) Notwithstanding any other law but subject to
subsections (3) and (6), a regional court or a High Court, including
a High Court
to which a matter has been referred under
section 52(1)
for sentence, shall in respect of a person who has been convicted of
an offence referred to in–
(a)
Part II
of Schedule 2, sentence the person,
in the case of–
(i) a first offender, to imprisonment for a period not less than 15
years;
(ii) a second offender of any such offence, to imprisonment for a
period not less than 20 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period not less than 25 years;
(b)
Part III
of Schedule 2, sentence the person,
in the case of–
(i) a first offender, to imprisonment for a period not less than
10 years;
(ii) a second offender of any such offence, to imprisonment for a
period not less than 15 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period not less than 20 years; and
(c)
Part IV
of Schedule 2, sentence the person,
in the case of–
(i) a first offender, to imprisonment for a period not less than 5
years;
(ii) a second offender of any such offence, to imprisonment for a
period not less than 7 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period not less than 10 years:
Provided that the maximum sentence that a regional court may impose
in terms of this subsection shall not be more than five years
longer
than the minimum sentence that it may impose in terms of this
subsection.
(3) (a) If any court referred to in subsection
(1) or (2) is satisfied that substantial
and compelling circumstances exist which justify the imposition of a
lesser sentence than the sentence prescribed in those subsections,
it shall enter those circumstances on the record of the proceedings
and may thereupon impose such lesser sentence.
(b) If any court referred to in subsection (1) or
(2) decides to impose a sentence prescribed in those subsections
upon a child
who was 16 years of age or older, but under the age of
18 years, at the time of the commission of the act which constituted
the
offence in question, it shall enter the reasons for its decision
on the record of the proceedings.
(4) Any sentence contemplated in this section shall be calculated
from the date of sentence.
(5) The operation of a sentence imposed in terms of this section
shall not be suspended as contemplated in section 297(4) of the
Criminal Procedure Act, 1977 (Act 51 of 1977).
(6) The provisions of this section shall not be applicable in
respect of a child who was under the age of 16 years at the time
of
the commission of the act which constituted the offence in question.
(7) If in the application of this section the age of a child is
placed in issue, the onus shall be on the State to prove the age
of
the child beyond reasonable doubt.
(8) For the purposes of this section and Schedule
2, ‘law enforcement officer’ includes–
(a) a member of the National Intelligence Agency or the South
African Secret Service established under the Intelligence Services
Act, 1994 (Act 38 of 1994); and
(b) a correctional official of the Department of Correctional
Services or a person authorised under the Correctional Services Act,
1998 (Act 111 of 1998).
(9) The amounts mentioned in respect of the
offences referred to in PART II of Schedule 2 to the Act, may be
adjusted by the Minister
from time to time by notice in the
Gazette.”
60
See for example
Curtis
at 312 (per Innes
CJ); at 318 (per Smith J) and at 324 (per Mason J).
61
See for example
Yew Bon Tew v Kenderaan Bas
Mara
[1982] 3 All ER 833
(PC) at 836b–d.
62
See also
Minister of Safety and Security v
Molutsi and Another
1996 (4) SA 72
(A) at 91A–D.
63
Section 39(2) of the Constitution:
“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.”
64
See
S v Ndevu
1975 (3) SA 519
(O) at
520D–E,
S v Qualinga en Ander Sake
1978 (4) SA 556
(NC) at
559A–B.
65
Section 35(3)(n):
“
Every accused person has a right to a fair
trial, which includes the right to the benefit of the least severe
of the prescribed
punishments if the prescribed punishment for the
offence has been changed between the time that the offence was
committed and the
time of sentencing”.
66
At 467e.
67
At 462j–463b.
68
At 468i.
69
At 470h–471g.
70
Section 116:
“(1) If a magistrate's court, after conviction following on a plea
of not guilty but before sentence, is of the opinion–
(a) that the offence in respect of which the accused has been
convicted is of such a nature or magnitude that it merits punishment
in excess of the jurisdiction of a magistrate's court;
(b) that the previous convictions of the accused are such that the
offence in respect of which the accused has been convicted merits
punishment in excess of the jurisdiction of a magistrate's court; or
(c) that the accused is a person referred to in section 286A(1),
the court shall stop the proceedings and commit the accused for
sentence by a regional court having jurisdiction.
(2) The record of the proceedings in the magistrate's court shall
upon proof thereof in the regional court be received by the regional
court and form part of the record of that court.
(3) (a) The regional court shall, after considering the record of
the proceedings in
the magistrate's court, sentence the accused, and the judgment of
the magistrate's court shall stand for this purpose and be
sufficient
for the regional court to pass any competent sentence:
Provided that if the regional magistrate is of the opinion that the
proceedings
are not in accordance with justice or that doubt exists
whether the proceedings are in accordance with justice he or she may
request
the presiding officer in the magistrate's court to provide
him or her with the reasons for the conviction and if, after
considering
such reasons, the regional magistrate is satisfied that
the proceedings are in accordance with justice he or she may
sentence the
accused, but if he or she remains of the opinion that
the proceedings are not in accordance with justice or that doubt
exists whether
the proceedings are in accordance with justice he or
she shall, without sentencing the accused, record the reasons for
his or her
opinion and transmit such reasons and the reasons of the
presiding officer of the magistrate's court, together with the
record
of the proceedings in the magistrate's court, to the
registrar of the provincial division having jurisdiction, and such
registrar
shall, as soon as possible, lay the same in chambers
before a judge who shall have the same powers in respect of such
proceedings
as if the record thereof had been laid before him or her
under section 303.
(b) If a regional magistrate acts under the proviso to paragraph
(a), he shall inform the accused accordingly and postpone the
case
to some future date pending the outcome of the review proceedings,
and, if the accused is in custody, the regional magistrate
may make
such order with regard to the detention or release of the accused as
he may deem fit.”
See also the provisions of section
114
of the
Criminal Procedure Act.
71
But
see
sections 50
and
51
of the
Criminal Law
Amendment Act. See
also
section 123
of the Criminal Procedure Act:
“
If an attorney-general is of the opinion that
it is necessary for the more effective administration of justice–
(a) that a trial in a superior court be preceded by a preparatory
examination in a magistrate's court into the allegations against
the
accused, he may, where he does not follow the procedure under
section 119, or, where he does follow it and the proceedings
are
adjourned under section 121 (3) or 122 (1) pending the decision of
the attorney-general, instruct that a preparatory examination
be
instituted against the accused;
(b) that a trial in a magistrate's court or a
regional court be converted into a preparatory examination, he may
at any stage of
the proceedings, but before sentence is passed,
instruct that the trial be converted into a preparatory
examination.”
72
Section 35(3):
“
Every accused person has a right to a fair
trial, which includes the right–
(a) to be informed of the charge with sufficient detail to answer
it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable
delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to
be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by
the state and at state expense, if substantial injustice would
otherwise result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify
during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands
or, if that is not practicable, to have the proceedings interpreted
in that language;
(l) not to be convicted for an act or omission that was not an
offence under either national or international law at the time it
was committed or omitted;
(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;
(n) to the benefit of the least severe of the prescribed punishments
if the prescribed punishment for the offence has been changed
between the time that the offence was committed and the time of
sentencing; and
(o) of appeal to, or review by, a higher court.”
73
See section 1 of the Constitution:
“
The Republic of South Africa is one,
sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement
of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common
voters roll, regular elections and a multi-party system of
democratic government,
to ensure accountability, responsiveness and
openness.”
74
See for example
R v Gillam
(1980) 2 Cr App
R (S) 267 at 269.
75
Curtis v Johannesburg Municipality
1906 TS 308
at 311.
76
Yew Bon Tew v Kenderaan Bas Mara
[1982] 3 All ER 833
(PC) at
836b-d.
77
Minister of Public Works v Haffejee NO
[1996] ZASCA 17
;
1996 (3) SA 745
(A) at
752B-753C,
Transnet Ltd v Ngcezula
[1994] ZASCA 192
;
1995 (3) SA 538
(A) at
549C-D,
Yew Bon Tew
above n 2 at 836b-d and 839d-f.
78
Pharmaceutical Manufacturers Association of SA
and Another: In re ex parte President of the Republic of South
Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC
) at para 37.
79
De Smith, Woolf and Jowell
Judicial Review of Administrative
Action
5 ed (Sweet & Maxwell, London 1995) at 14-15, cited
with approval in
Pharmaceutical
id at para 39.
80
Curtis
above n 1 at 311.
81
Pharmaceutical
above n 4 at
para 37.
82
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC).
83
Section 2 of the Constitution.
84
Chapter 2 of the Constitution.
85
Pharmaceutical
above n 4 at para 45.
86
Sections 165(1) and (2) provide:
“(1) The judicial authority of the Republic is vested in the
courts.
(2) The courts are independent and subject only to the Constitution
and the law; which they must apply impartially and without
fear,
favour or prejudice.”
87
Section 39(2) of the Constitution.
88
Bernstein and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 4 BCLR 449
(CC) at para 59,
S v
Dzukuda and Others; S v Tshilo
2000 (4) SA 1078
(CC);
2000 (11)
BCLR 1252
(CC) at para 37(a), and
Investigating Directorate:
Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others: In re Hyundai
Motor Distributors (Pty) Ltd and
Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR
1079
(CC) at paras 21-26.
89
See
Zuma
above n 82 at para 16.
90
Id.
91
Id.