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[2008] ZACC 21
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Geldenhuys v National Director of Public Prosecutions and Others (CCT 26/08) [2008] ZACC 21; 2009 (2) SA 310 (CC); 2009 (1) SACR 231 (CC); ; 2009 (5) BCLR 435 (CC) (26 November 2008)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 26/08
[2008] ZACC 21
IZAK ANDREAS GELDENHUYS Applicant
and
NATIONAL
DIRECTOR OF PUBLIC ROSECUTIONS First Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS,TRANSVAAL Second
Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Third Respondent
Heard
on : 28 August 2008
Decided
on : 26 November 2008
JUDGMENT
MOKGORO
J:
Introduction
This
is an application by a 53-year old man, a dentist by profession
(the applicant), for confirmation of an order made by the
Supreme
Court of Appeal, declaring unconstitutional sections 14(1)(b) and
14(3)(b) of the erstwhile Sexual Offences Act
1
(the Act), in terms of which the applicant had been convicted of
acts of indecency. The effect of those provisions was to
set the
age of consent to “immoral or indecent acts” between
people of the same sex at 19 years, as opposed to
16 years for the
same acts between people of the opposite sex.
The
applicant had also sought leave to appeal his conviction on the
merits, but this Court dismissed that part of the application
on
the basis that it bore no prospects of success. The issue of the
application for leave to appeal against the applicant’s
conviction on the merits is therefore not before us.
Parties
The
applicant is Izak Andreas Geldenhuys. The first and second
respondents are the National Director of Public Prosecutions
and
the Director of Public Prosecutions, Transvaal respectively. These
respondents filed joint papers before this Court.
The third
respondent is the Minister of Justice and Constitutional
Development, who is responsible for the administration of
the
impugned legislation and is joined in terms of the Rules of this
Court.
Background
Many
of the facts included in the application concern the appeal against
the applicant’s convictions on the merits and
are not
relevant for the purposes of the narrow question of the
confirmation of unconstitutionality. I accordingly summarise
only
the relevant facts.
In
1991 the applicant was convicted on four counts of indecency
involving children. As a result, he was suspended from practising
as a dentist for three years, commencing in 1996. During 1997,
while working as a bus driver for a tour bus company, he met
Mrs
B.
2
He and Mrs B became close and she introduced him to her family,
which included her husband and her two sons L and A. The
applicant
and the family were friendly and he often slept over at their home,
usually in the room of the youngest son (A),
which had bunkbeds.
The applicant had informed the family of his previous conviction
explaining that he was innocent and that
the parents of the
children had simply sought money from him.
The
applicant was generous with Mr and Mrs B’s children, giving
them gifts and sweets, and often lent money to their parents.
The
first of a series of indecent acts took place towards the end of
1997 between the applicant and L, when L was 14 years
and A
approximately 7 years old.
Procedural
history
Having
been convicted in the Pretoria Regional Court on 9 February 2005 on
charges of violating section 14(1)(b) of the Act
and sentenced to a
total of 11 years’ imprisonment, the applicant appealed to
the Transvaal High Court. On 21 November
2006 that Court confirmed
his conviction but reduced his sentence. The applicant appealed
further to the Supreme Court of
Appeal against his conviction but
not his sentence.
On
31 March 2008 the Supreme Court of Appeal, per Van Heerden JA, made
an order, including:
declaring that subsections 14(1)(b) and 14(3)(b) of the Act are
inconsistent with the Constitution and hence invalid to the
extent
that these sections differentiate between immoral and indecent
activities between people of the opposite sex and people
of the
same sex by setting the legal age of consent at 16 years and 19
years respectively;
replacing “19 years” with “16 years” in
subsections 14(1)(b) and 14(3)(b) of the Act in order to
cure the
constitutional defect;
ordering that the abovementioned changes to the Act shall not
invalidate any conviction on the basis of the relevant subsections
unless an appeal from or a review of the relevant judgment is
pending, or the time for noting an appeal from that judgment
has
not expired, or condonation for the late noting of an appeal or
late filing of an application for leave to appeal is
granted by a
court of competent jurisdiction;
3
dismissing the applicant’s appeal on the first four counts;
subject to confirmation by this Court, upholding the appeal on the
remaining six counts;
4
suspending the sentences on the remaining six counts, pending this
Court’s confirmation; and
referring the order of invalidity to this Court for confirmation.
On
21 April 2008, the applicant approached this Court seeking not only
confirmation of the order of invalidity of the Supreme
Court of
Appeal, but seeking also to appeal against the remainder of his
convictions. On 14 May 2008, his appeal was dismissed.
Applicant’s
submissions
The
applicant sought confirmation of the order of the Supreme Court of
Appeal. He made a straightforward equality argument,
based on
section 9 of the Constitution, to which I will return shortly. He
echoed the finding of the Supreme Court of Appeal
that counsel for
the State were unable to suggest any constitutional justification
for the discrimination in sections 14(1)(b)
and 14(3)(b) of the
Act, making the provisions unconstitutional and therefore invalid.
First and second respondents’ submissions
While
the first and second respondents concluded that “the question
whether or not to confirm the ruling of the Supreme
Court of Appeal
is . . . left to the discretion of this Honourable Court”,
they did seek to dispel the notion that this
matter is as simple
and straightforward as suggested by the applicant. They conceded
that the relevant provisions of the Act
are discriminatory and
unconstitutional. But, they submitted, there is a remaining
question, which is to determine what the
uniform age of consent
should be.
In
their submissions, the first and second respondents acknowledged
that the Criminal Law (Sexual Offences and Related Matters)
Amendment Act
5
set a uniform age of consent of 16 years and that this fact carried
great weight with the Supreme Court of Appeal. However,
they made
much of the variance between this age of consent and the
constitutional definition of a child as a person below the
age of
18 years, contending that the uniform age of consent must be
consistent with that definition.
6
In
addition, first and second respondents contended that this Court,
in the context of child abuse, has also held that children
are
persons below the age of 18 years.
7
Hence, they argued, cogent reasons are required for departing from
the notion of a child being a person below the age of 18
years as
defined in the Constitution and other relevant instruments.
8
Although the South African Law Reform Commission was of the view
that the age of 16 years was retained for the purpose of
legal
certainty,
9
the respondents submitted that is not the case because 16 years as
an age of consent is at odds with other legislation relating
to
children.
10
For example, no one may watch pornography involving a child under
18, but one may have consensual sexual intercourse with
that child
as long as the child is 16 years or older.
11
Furthermore,
although the Supreme Court of Appeal concluded that Parliament had
done “years of research” before
arriving at 16 years as
the age of consent, the first and second respondents argued that
there was no evidence of such depth
of research.
12
The only supportive evidence that the State, as respondent, placed
before the Supreme Court of Appeal was a report by Doctors
For Life
International,
13
based on research relating to the cognitive abilities of children
and the health risks of homosexual activities, recommending
an age
of consent of 19 years or even older.
The
Minister, as an intervening party before the Supreme Court of
Appeal, based her submissions on a psychiatric report by retired
psychiatrist Professor Tuviah Zabow. While the report was
supportive of an age of consent of 16 years, there was no
disagreement
with the option of a higher age of consent.
Submissions
of the third respondent
The
Minister submitted that the order of the Supreme Court of Appeal
should be confirmed. She supported the order of invalidity
of the
Supreme Court of Appeal together with the remedy.
Like
the applicant, the Minister submitted that the explicit prohibition
of discrimination based on sexual orientation in sections
9(1) and
9(3) of the Constitution precludes sections 14(1)(b) and 14(3)(b)
from setting, as they do, an older age of consent
to sexual acts
between people of the same sex than that provided for between
people of the opposite sex. On this basis, she
conceded the
discriminatory impact of the provisions and provided no
justification.
Condonation
First
to dispose of is the preliminary issue of condonation. Written
argument and an application for condonation for the late
filing of
it were lodged on behalf of the Minister, the third respondent in
this matter, on 26 August 2008, more than three
weeks after the due
date provided for in the directions of the Chief Justice and only
two days before the hearing itself.
14
In
justifying the delay, a representative from the Department of
Justice and Constitutional Development explained that it had
arisen
because, although the Minister’s lawyers were waiting for the
directions from this Court, those directions, issued
on 15 May
2008, had not reached them. This is strange because the Registrar
of this Court did send the directions to the State
Attorney,
Johannesburg by facsimile transmission. Nor does it appear that
the lawyers made any enquiries of the Registrar
when they did not
receive the directions. Moreover, written argument by the other
parties was duly served on the Johannesburg
State Attorney. At
that stage, it should have been realised that directions had been
issued by the Court and the matter was
proceeding. The
representative explained that the State Attorney thought that the
written argument dealt only with the merits
of the application for
leave to appeal against the convictions, a matter in which the
Minister had no interest. Of course,
this is not the case as the
application for leave to appeal against the convictions had been
dismissed summarily by this Court
on 14 May 2008, as has been
described above, and the written argument lodged by the applicant
dealt with the declaration of
invalidity. According to the
representative, the Minister’s lawyers thus only became aware
of the proceedings on 12
August 2008 when they were contacted by
the representatives of the second respondent.
The
representative of the Department emphasised that the delay was due
to a simple error and not in any way due to wilful default.
Although the error, in my view, is less than simple and borders on
negligence, if not incompetence, I accept that the delay
was not
due to wilfulness.
The
general rule is that non-compliance with the Rules of this Court
will be condoned when it is in the interests of justice
to do so.
15
In the circumstances of this case, although the explanation for
the conduct is inadequate, I am inclined to grant condonation.
These are confirmation proceedings that require the presence of the
Minister, who is responsible for the administration of
the impugned
Act. None of the parties suggested that they had suffered any
prejudice as a result of the delay. In these circumstances
it is
in the interests of justice to grant condonation. This, however,
should not detract from the importance of litigants
ensuring
compliance with the directions of the Chief Justice and/or the
Rules of this Court. Non-compliance must not only
be discouraged
as it creates great inconvenience for the courts and other
litigants; it may also result in prejudice to the
latter, placing
the administration of justice in jeopardy.
The
issue
The
matter before us has a narrow ambit. It concerns the confirmation
of the order of invalidity of sections 14(1)(b) and 14(3)(b)
of the
Act, which set different ages of consent to what are termed acts of
indecency for people of the opposite sex and people
of the same
sex. These provisions have already been repealed by Parliament and
new legislation has already been promulgated.
Thus, while the
applicant is fully entitled to seek protection against
unconstitutional legislation that infringes upon his
rights, it is
not for this Court to rule lightly on other matters not squarely
relevant to the confirmation proceedings even
if canvassed fully on
the papers.
Consequently,
I emphasise that this matter is not concerned with the appropriate
age of consent to sexual intercourse, though
much reference was
made in argument in that regard by the parties. The impugned
provisions relate to the age of consent to
acts of a sexual nature
which by their nature or circumstances are termed “immoral or
indecent acts” and explicitly
set different ages of consent
to these acts for people of the opposite sex and people of the same
sex.
What
therefore needs to be answered is whether there is any
justification for a law permitting same-sex sexual acts only at
the
age of 19 years, whereas opposite-sex sexual acts may occur at an
earlier age of 16 years.
Impugned
legislation
The
specific provisions of the Act that are challenged are section
14(1)(b) and 14(3)(b) which provide:
“
Sexual offences with
youths—
Any male person who—
has or attempts to have
unlawful carnal intercourse with a girl under the age of 16
years; or
commits or attempts to
commit with such a girl or with a boy under the age of 19 years
an immoral or indecent act; or
solicits or entices such a
girl or boy to the commission of an immoral or indecent act,
shall be guilty of an offence.
. . . .
(3) Any female who—
(a) has or attempts to have
unlawful carnal intercourse with a boy under the age of 16 years; or
(b) commits or attempts to
commit with such a boy or with a girl under the age of 19 years an
immoral or indecent act; or
(c) solicits or entices such a
boy or girl to the commission of an immoral or indecent act,
shall be guilty of an offence.”
Section
14 of the Act has in the meantime been repealed and replaced by the
2007 Act, which came into effect on 16 December
2007.
16
It
is trite that a person must be judged according to the law in
operation at the time of the commission of the offence.
17
The relatively common exception is when the legislation that is
repealed is unconstitutional.
18
But in this case the fact that the legislation under which the
applicant had been convicted has now been repealed does not,
of
itself, relieve him of his convictions. In this case, all material
facts of the offences of which he had been convicted
occurred after
1994, after the advent of the interim Constitution and its
protective Bill of Rights. The applicant was therefore
within his
rights to approach the courts to impugn the legislation on the
basis that it discriminated against him at the time,
have it
declared unconstitutional and obtain a retrospective order which
would invalidate the provisions which criminalised
his conduct at
the time of the commission of the offence. That would not be an
unusual order as the Constitution is decisively
intolerant of
permitting punishments for conduct that was not unlawful when it
took place.
Constitutional
validity of sections 14(1)(b) and 14(3)(b)
I
now turn to consider the crux of this matter: confirming whether
the differentiation inherent in sections 14(1)(b) and 14(3)(b)
unjustifiably infringes upon the applicant’s right to
equality, protected by section 9 of the Constitution. Although
the
issues in this Court are somewhat different from those that arose
in the Supreme Court of Appeal, I am aided in the analysis
by the
comprehensive judgment of Van Heerden JA. Whereas in the Supreme
Court of Appeal the applicant sought to argue for
a uniform age of
consent to be set at 12 years of age, in this Court he has not
persisted with that argument. Here, the applicant
seeks to confirm
the Supreme Court of Appeal’s order of the constitutional
invalidity of sections 14(1)(b) and 14(3)(b)
of the Act.
It
is now well-settled jurisprudence under the Constitution,
19
that where an impugned provision differentiates between categories
of people, it must bear a rational connection to a legitimate
government purpose; otherwise the differentiation is in violation
of section 9(1) of the Constitution.
20
Further,
if the differentiation is on a ground specified in section 9(3) of
the Constitution, unfairness is presumed.
21
Absent a rebuttal of the presumption, unfair discrimination is
established, resulting in a violation of section 9(3) of the
Constitution. The final step is to determine whether the violation
is justified under the general limitations provision in
section 36
of the Constitution.
Section 14(1)(a) sets the age of consent for sexual intercourse
between an adult man and a girl at 16 years for the girl.
Read
with section 14(1)(a), section 14(1)(b) provides, in the case of
what are termed indecent acts between an adult man and
a girl, an
age of consent of 16 years for the girl but 19 years for a boy, if
the acts are between an adult man and the boy.
Similarly,
in the case of sexual intercourse between an adult woman and a boy,
the age of consent for the boy is set at 16 years
in section
14(3)(a). However, read with section 14(3)(a), section 14(3)(b)
determines that the age of consent for what are
termed indecent
acts between an adult woman and a boy is 16 years for the boy. But
when the acts are between an adult woman
and a girl, the age of
consent for the girl is set at 19 years.
The
age of consent for what are termed indecent acts between persons of
the same sex, whether between an adult man and a boy
or between an
adult woman and a girl, is therefore set at 19 years, whereas when
the acts are committed between an adult man
and a girl or an adult
woman and a boy, the age of consent for the girl or the boy is 16
years. The differentiation is clear.
The age of consent to sexual
acts for people of the same sex is older than the age of consent
required for people of the opposite
sex.
There
is no claim that the differentiation serves a rational purpose.
Rather, it is common cause that the impugned provisions
discriminate between sexual acts between people of the same sex and
the same acts between people of the opposite sex. It is
discrimination based on sexual orientation, a ground enumerated in
section 9(3) of the Constitution.
Is the discrimination unfair?
In
terms of sections 9(3) and 9(5) of the Constitution, discrimination
based on grounds of sexual orientation creates a presumption
of
unfairness unless the contrary is demonstrated. It is incumbent
upon those who intend to uphold or protect the impugned
legislation
to demonstrate the absence of unfairness.
22
None of the respondents in the Supreme Court of Appeal or before
this Court proffered evidence sufficient to conclude that
the
discrimination was fair. I can find none. I therefore agree that
the impugned provisions of the Act limit section 9 of
the
Constitution.
Finally,
the question is whether the violation can be justified under
section 36 of the Constitution. Here, the applicant and
respondents were in one mind in their submissions that there was no
justification. I am inclined to agree. The impugned sections
are
specific in their effect: they do not purport to protect children
between the ages of 16 and 18 against all sexual acts,
but only
against homosexual sexual acts. The inevitable inference is that
there is something odd, deviant and even perverse
about homosexual
acts and/or homosexual people. For young people who are only just
beginning to explore their sexuality and
are perhaps considering
“coming out” to their parents and their community, the
negative effect of the discrimination
in this case might be
particularly harmful.
The differential age of consent perpetuates a damaging stereotype
of sexual conduct between same-sex partners as somehow disgraceful
or as of less value than sexual conduct between opposite-sex
partners. The effect is demeaning and in conflict with our
Constitution and its values. It is contrary to the right to
equality protected in section 9 of the Constitution and inimical
to
the values of equality, human dignity and freedom which are basic
to our constitutional democracy. In
National Coalition,
Sachs
J held:
“
The effect is that all
homosexual desire is tainted, and the whole gay and lesbian
community is marked with deviance and perversity.
When everything
associated with homosexuality is treated as bent, queer, repugnant
or comical, the equality interest is directly
engaged. People are
subject to extensive prejudice because of what they are or what
they are perceived to be, not because
of what they do. The result
is that a significant group of the population is, because of its
sexual non-conformity, persecuted,
marginalised and turned in on
itself.”
23
I
find that the differential age of consent provided for by sections
14(1)(b) and 14(3)(b) discriminates unfairly on the grounds
of
sexual orientation. Justification for the discrimination not
having been shown, the provisions are unconstitutional and
therefore invalid.
Remedy
Having
found that sections 14(1)(b) and 14(3)(b) are inconsistent with the
Constitution because of the unjustifiable age differentiation
between victims of the offences contemplated in those sections, it
is now necessary to determine the appropriate remedy. The
Constitution empowers and obliges this Court to make a just and
equitable order in the circumstances.
24
It would not be just and equitable to strike down the offending
sections and remove them from the statute book altogether.
It is
true that the provisions in question have been superseded by
legislation that cures the defect. There may nonetheless
be
outstanding cases relating to offences alleged to have been
committed before the legislation that repealed and replaced
the
provisions in question came into force. A lacuna would result in
relation to this class of cases if this Court were to
strike down
the provisions without more.
The
Supreme Court of Appeal ordered, in effect, that it would be just
and equitable for the age limit to be set at 16 years
for all
victims of section 14(1)(b) and 14(3)(b) offences. It was
contended on behalf of the first and second respondents
that the
victim age limit in respect of these offences should be increased
to 18 years. This was the only contested issue
in this Court.
The
contention had two legs. The first was that the Constitution and
all international instruments had set 18 years as the
upper limit
for the ages of children. Secondly, it was submitted that there
was an incongruity between this legislation and
other national
legislation prohibiting related activity. For example, as
indicated earlier, section 27(1) of the Films and
Publications Act
25
prohibits the production of pornographic images of a child under
the age of 18 years. It was urged that the remedy would be
just
and equitable because setting a uniform age limit at 18 years would
render the legislation consistent with all these other
instruments.
I
do not think however that the suggested route should be followed
because it would bring with it serious inconsistencies.
Indeed,
two unacceptable consequences would inevitably follow. The one is
that the victim age limit for offences relating
to heterosexual
intercourse
26
will remain at 16 years while that for victims of the offences with
which we are here concerned will be 18 years. The other
is that
the legislation that has repealed and replaced the provisions at
issue in this case has set the victim age limit at
16 years for
offences comparable to those created by section 14(1)(b) and
section 14(3)(b) of the Act. The incongruity that
would be created
by accepting the suggestion to raise the age limit to 18 years can
be neither just nor equitable. It must
be borne in mind that there
has as yet been no attack on the constitutionality of any of this
legislation on the basis that
the 16-year age limit is too low.
I
accordingly find that the remedial order made by the Supreme Court
of Appeal is just and equitable.
Costs
These
are confirmatory proceedings which arise from criminal proceedings
and which under our Constitution are mandatory for
this Court to
hear. It is therefore appropriate that no costs order be made.
Order
The
following order is made:
The
order of the Supreme Court of Appeal to the following effect is
confirmed:
“
1.1 It is declared
that, with effect from 27 April 1994, ss 14(1)(b) and 14(3)(b) of
the Sexual Offences Act 23 of 1957 are
inconsistent with the
Constitution and hence invalid to the extent that these sections
differentiate between heterosexual and
same-sex sexual activities
by setting the legal age of consent at 16 and 19 years,
respectively.
1.2 It is declared that, with
effect from 27 April 1994, s 14(1)(b) of Act 23 of 1957 is to be
read as though the words ‘under
the age of 19 years’
after the words ‘a boy’ have been replaced with the
words ‘under the age of 16
years’.
1.3 It is declared that, with
effect from 27 April 1994, s 14(3)(b) of Act 23 of 1957 is to be
read as though the words ‘under
the age of 19 years’
after the words ‘a girl’ have been replaced with the
words ‘under the age of 16
years’.
1.4 In terms of s 172(1)(b) of
the Constitution, it is ordered that the orders in paragraphs 1.1,
1.2 and 1.3 shall not invalidate
any conviction for a contravention
of s 14(1)(b) or 14(3)(b) of Act 23 of 1957 unless an appeal from
or a review of the relevant
judgment is pending, or the time of
noting an appeal from that judgment has not yet expired, or
condonation for the late noting
of an appeal or late filing of an
application for leave to appeal is granted by a court of competent
jurisdiction.”
There
is no order as to costs.
Langa
CJ, Moseneke DCJ, Madala J, Ngcobo J, O’Regan J, Sachs J, Van
der Westhuizen J and Yacoob J concur in the judgment
of Mokgoro J.
For the Applicant: Advocate JJS Prinsloo SC and Advocate VDT
Nolutshungu instructed by De Klerk & Marais Inc. with the
Legal
Aid Board.
For
the First and Second Respondents: Advocate FC Roberts instructed by
the Office of the Director of Public Prosecutions.
For
the Third Respondent: Advocate I Hussein SC and Advocate SL
Shangisa instructed by the State Attorney.
1
23 of 1957. These sections have since been
repealed. See [26] below.
2
The anonymity of the parties is required as the victims of the
offences were minors at all material times. See
section 154(3)
of
the
Criminal Procedure Act 51 of 1977
.
3
This part of the order is based on a similar
order made by this Court in
National
Coalition for Gay and Lesbian Equality v Minister of Justice and
Others
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) (
National
Coalition
), in which the crime of
sodomy was overturned. Its purpose is to allow convicted persons to
challenge their convictions under
the relevant subsections while
creating minimal disruption to the justice system.
4
This is because if the age of consent is lowered
from 19 to 16 years, then the applicant can no longer be convicted
of what are
termed immoral or indecent acts for any offence after
L’s sixteenth birthday.
5
Act 32 of
2007 (2007 Act).
6
Section 28(3) of the Constitution, 1996. See also Article 1 of the
United Nations Convention on the Rights of the Child and
Article 2
of the African Charter on the Rights and Welfare of the Child.
7
De Reuck v Director of Public Prosecutions, Witwatersrand Local
Division and Others
[2003] ZACC 19
;
2004 (1) SA 406
(CC);
2003
(12) BCLR 1333
(CC).
8
Above n 6.
9
South African Law Reform Commission
Sexual
Offences Report
Project 107 December
2002 at 58-9.
10
Above n 6.
11
See sections 19 and 20 of the 2007 Act.
12
The Minister, on the other hand, did state that the decision of
Parliament was made after “a lengthy process of research,
public hearings and debates”, but did not offer further facts
to support her view.
13
This report had been submitted to the Portfolio Committee for
Justice and Constitutional Development while they were debating
the
draft of the
2007 Act.
14
In directions issued on 15 May 2008, the Chief Justice required the
respondents to file their submissions not later than Friday
1 August
2008.
15
This Court has often pronounced on the importance of parties
complying with time limits set out in the Rules. In
Van Wyk v
Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at paras 20, 22, and 30-4;
S v
Mercer
[2003] ZACC 22
;
2004 (2) SA 598
(CC);
2004 (2)
BCLR 109
(CC) at para 4;
Head of Department, Department of
Education, Limpopo Province v Settlers Agricultural High School and
Others
[2003] ZACC 15
;
2003 (11) BCLR 1212
(CC) at paras 11-3;
and
Brummer v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at
para 3, this Court held that the broad test for granting condonation
of late applications is whether it is in the interests
of justice.
In
National Police Service Union and Others v Minister of Safety
and Security and Others
[2000] ZACC 15
;
2000 (4) SA 1110
(CC) at
paras 4-5 and 7-8, and in
Lekolwane and Another v Minister of
Justice and Constitutional Development
[2006] ZACC 19
;
2007 (3)
BCLR 280
(CC) at paras 17-20, this test was applied to postponement
applications. In
Shilubana and Others v Nwamitwa
[2008] ZACC
9
;
2008 (9) BCLR 914
(CC) at paras 8-9, the same test was applied to
late filing of papers other than applications. It is clear that
there is a general
rule to the effect that non-compliance with time
limits will only be condoned if it is proven to be in the interests
of justice.
16
With the exception of chapters 5 and 6, which are
irrelevant for present purposes.
17
Section 12(2) of the Interpretation Act 33 of 1957. See also the
discussion on the retrospectivity of sentences in Milton and
Cowling
South African Criminal Law and Procedure
2 ed vol 3 (Juta,
Cape Town 2008) at 1-28.
18
See for example the striking down of crimes in
National Coalition
above n 3 and
Case and Another v Minister of Safety and
Security and Others; Curtis v Minister of Safety and Security and
Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC);
1996 (5) BCLR 609
(CC).
19
See
Harksen v Lane NO
[1997]
ZACC 12
;
1998 (1) SA 300
(CC) at para 53;
1997 (11) BCLR 1489
(CC)
at para 52.
20
Prinsloo v Van der Linde
[1997]
ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 25;
Jooste v Score Supermarkets Trading
(Pty) Ltd (Minister of Labour Intervening)
[1998]
ZACC 18
;
1999 (2) SA 1
(CC) at para 17
[1998] ZACC 18
; ;
1999 (2) BCLR 139
(CC) at
para 16.
21
Pretoria City Council v Walker
[1998]
ZACC 1
;
1998 (2) SA 363
(CC);
1998 (3) BCLR 257
(CC) at para 81.
22
President of the Republic of South Africa and
Another v Hugo
[1997] ZACC 4
;
1997 (4)
SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 33.
23
See
National Coalition
above n 3 at para 109.
24
Section 172(1)(b) of the Constitution.
25
65 of 1996.
26
Prohibited in terms of section 14(1)(a) and section 14(3)(a) of the
Act.