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[2018] ZACC 27
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M T v S; A S B v S; September v S (CCT122/17; CCT220/17; CCT298/17) [2018] ZACC 27; 2018 (2) SACR 592 (CC); 2018 (11) BCLR 1397 (CC) (3 September 2018)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
122/17, 220/17 and 298/17
CCT
122/17
In the matter
between:
M
T
Applicant
and
THE
STATE
Respondent
CCT
220/17
In the matter
between:
A S
B
Applicant
and
THE
STATE
Respondent
CCT
298/17
In the matter
between:
JOHANNES
SEPTEMBER
Applicant
and
THE
STATE
Respondent
Neutral citation:
M T v The State; A S B v The State;
Johannes
September v The State
2018 ZACC 27
Coram:
Mogoeng CJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J,
Khampepe J, Madlanga J, Petse AJ and Theron J
Judgment:
Dlodlo AJ (unanimous)
Heard on:
10
May 2018
Decided on:
3
September 2018
Summary:
Criminal
Law Amendment Act 105 of 1997
—
section 51(1)
—
minimum sentences — exclusion from charge sheet
Leave to appeal —
inherent power of courts — section 173 of the Constitution —
interests of justice — constitutional
matter not considered
ORDER
On appeal from the
Supreme Court of Appeal, the following order is made:
Under CCT 122/17 (
M
T v The State
):
1. Condonation is granted.
2. The application for leave to appeal is dismissed.
Under CCT 220/17 (
A
S B v The State
):
1. Condonation is granted.
2. The application for leave to appeal is dismissed.
Under CCT 298/17
(
Johannes September v The State
):
1. The application for leave to appeal is dismissed.
JUDGMENT
Dlodlo AJ (Mogoeng
CJ, Cachalia AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J,
Madlanga J, Petse AJ and Theron J concurring):
[1]
The three applicants, Messrs T, B and September, apply for
leave to appeal against life sentences imposed under the Criminal Law
Amendment Act
[1]
(Minimum Sentences Act). Their arguments, with little
variation, are that the High Court is precluded from sentencing
under the Minimum Sentences Act where an accused person is not made
aware of its potential application from the beginning of the
trial.
The failure to inform in these cases, they contend, renders the
sentencing procedures unfair and liable to be set
aside.
[2]
At issue is whether the state failed adequately to inform the
applicants of the minimum sentencing regime at relevant times in each
of their trials and, if so, what the effects of these alleged
failures are in each case. The cases were heard simultaneously
on the basis of their strikingly similar issues and legal
submissions.
[3]
The Minimum Sentences Act came into effect in 1998. It
provides minimum sentences for certain serious offences in section 51
unless the sentencing court is satisfied that there are substantial
and compelling circumstances to justify the imposition of a
lesser
sentence.
[2]
Section 51(1) directs that a Regional Magistrates’ Court
or a High Court “shall” impose a sentence
of life
imprisonment where it has convicted a person of an offence referred
to in Part 1 of Schedule 2.
[3]
For the purposes of these matters, the following offences listed in
the schedule are relevant:
“Murder, when—
.
. .
(c)
the death of the victim was caused by the accused in committing or
attempting to commit or after having committed or attempted
to commit
one of the following offences:
. . .
(ii) robbery with aggravating circumstances as defined in
section 1
of the
Criminal Procedure Act, 1977
;
[
[4]
]
or
(d)
the offence was committed by a person, group of persons or syndicate
acting in the execution or furtherance of a common purpose
or
conspiracy.
.
. .
Rape as contemplated in
section 3
of the [Sexual Offences Act]
[
[5]
]
—
(a)
when committed—
(i) in circumstances where the victim was raped more than once
whether by the accused or by any co-perpetrator or accomplice;
. . .
(b)
where the victim—
(i) is a person under the age of 16 years.”
M T v The State
[4]
In 1999, Mr T raped a 10-year-old child after drinking
socially with her father. He threatened to kill her if she told
her
parents but she immediately informed her mother and grandmother.
Mr T was charged with the rape of a child under the age of
16.
He pleaded not guilty but was convicted as charged in the Boksburg
Regional Magistrates’ Court.
[5]
The Magistrate referred Mr T’s case to the Witwatersrand
Local Division of the High Court for sentencing on the basis that:
(i) the Minimum Sentences Act applies to the rape of a child under
the age of 16; and (ii) a life sentence under the Act was beyond
the
Magistrates’ Court’s penal jurisdiction. Section
52(1) of the Act, before its repeal, explicitly provided
for this
procedure.
[6]
[6]
The High Court found that no substantial and compelling
circumstances justified deviation from the minimum sentence and, on
13 March
2000, sentenced Mr T to life imprisonment. Mr T
applied for leave to appeal against conviction and sentencing and, in
2004, was granted leave to appeal against sentence only.
[7]
On appeal, the Full Court of the High Court set aside the
sentence of life imprisonment on the basis of the then precedent in
Rammoko
,
[7]
which required evidence to be led on the effect of the rape on the
complainant before sentencing.
[8]
Mr T’s case was referred back to the High Court for
re-sentencing. Following the requirements in
Rammoko
,
the High Court considered a comprehensive report by a
counselling psychologist on the effect of the rape on the
complainant.
It also considered a pre-sentencing report on Mr
T. It found no substantial and compelling circumstances to
deviate from
the minimum sentence of life imprisonment.
[9]
After the second High Court judgment, Mr T was, once again,
granted leave to appeal against his sentence to the Full Court.
But it was not persuaded that the High Court had failed to
exercise its discretion judicially and reasonably. The appeal
was dismissed.
[10]
In 2012, Mr T successfully petitioned the Supreme Court of
Appeal and was granted special leave to appeal against his sentence.
The Supreme Court of Appeal’s judgment was divided.
Schoeman AJA, with Dambuza JA and Nicholls AJA found there to be
no
substantial and compelling circumstances to deviate from the minimum
sentence. Further, they found that even if there
was no
prescribed sentence, life imprisonment would still have been an
appropriate sentence on the facts of this case.
[11]
The Supreme Court of Appeal majority considered the effect of
applying the Minimum Sentences Act without warning at the beginning
of the trial in the light of an accused’s right to a fair trial
under section 35(3) of the Constitution. Referring
to
Legoa
,
it held that “a vigilant examination of the relevant
circumstances” had to be undertaken to determine whether an
accused’s constitutional right to a fair trial had been
violated and that this was a question of “substance and not
form”.
[8]
[12]
Bosielo and Tshiqi JJA dissented. They considered the
Magistrate and Prosecutor both to bear a duty to inform an accused of
the application of the Minimum Sentences Act to their case and
that this could not be inferred from the nature of the crime
for
which Mr T was charged. Because he was charged with rape in the
Magistrates’ Court, Mr T reasonably believed he
would be
sentenced under the penal jurisdiction of the Magistrate, attracting
a maximum sentence of 10 years imprisonment. The
minority would
thus have reduced Mr T’s sentence to 10 years.
A S B v The State
[13]
Mr B was convicted of four counts of rape and one count of
indecent assault committed against his 13-year-old daughter. He
pleaded not guilty and denied his guilt throughout the trial,
characterising the allegations as fabricated by his wife.
[14]
After being convicted in the Regional Magistrates’ Court
in Welkom, Mr B’s case was referred to the Free State Division
of the High Court for sentencing under the Minimum Sentences Act.
The High Court found no substantial and compelling circumstances
warranting a departure from the minimum sentence. In fact, it
found a number of aggravating circumstances to be present.
It
sentenced Mr B to life imprisonment.
[15]
Mr B applied first to the High Court and then, more than 16
years later, to the Supreme Court of Appeal for leave to appeal
against
his conviction and sentence. Having considered the
trial record and the judgment of the Magistrates’ Court, the
High Court
concluded that the Magistrate had properly evaluated
the evidence led and that there was no prospect of another court
coming to
a different conclusion.
[9]
Likewise, in relation to sentence, the High Court held that there was
no reasonable prospect of another court coming to a
different
decision, as on the evidence there were no substantial and compelling
circumstances to justify a lesser sentence.
It accordingly
dismissed Mr B’s application for leave to appeal against
conviction and sentence.
[16]
In the Supreme Court of Appeal, his application was dismissed
because the Court found no reasonable prospects of success on appeal
and no other compelling reasons for leave to be granted.
Johannes
September v The State
[17]
Mr September was the second of three co-accused persons
indicted in the Free State Division of the High Court on charges
arising
from a violent robbery of a bar in Bloemfontein, killing the
owner and seriously injuring three others. All of the accused
persons, including Mr September, pleaded not guilty. Liability
was imputed to him as an accomplice and he was convicted of
murder,
three counts of attempted murder and robbery with aggravating
circumstances. The High Court sentenced him to life
imprisonment under the Minimum Sentences Act and refused leave to
appeal on 30 August 2002.
[18]
In March 2017, Mr September applied to the Supreme Court of
Appeal for leave to appeal against sentence. The Supreme Court
of Appeal called for the trial record in order to consider whether to
grant leave. Mr September wrote to the Registrar noting
that
the cost of copying the entire record was prohibitive and, on 17
October 2017, the Registrar indicated that the Court would
alert Mr
September as to which portions of the record were required.
Without communicating this and, therefore, without considering
the
record, the Supreme Court of Appeal dismissed Mr September’s
application on 6 November 2017. Mr September
did not
allege that this had any effect on the fairness of his trial, nor did
he ask for any related relief. As a result,
this Court makes no
findings on this point.
Summary of
submissions before this Court
[19]
The three cases are premised on two main arguments: first,
that the applicants’ rights to a fair trial were infringed by
their
not being informed of the applicability of the Minimum
Sentences Act at the beginning of their hearings; and second, that
this
caused demonstrable prejudice to the applicants.
Additionally, Mr T and Mr B contended that the Magistrates presiding
over
their trials were precluded from referring the cases to the High
Court for sentencing. The applicants were charged with rape
in
the Magistrates’ Court and thus reasonably expected that they
would be sentenced within the jurisdiction of the Magistrates’
Court (up to a maximum term of 10 years imprisonment).
[20]
Last, Mr T submitted that the Supreme Court of Appeal judgment
did not attach sufficient weight to a string of its decisions,
[10]
or this Court’s judgment in
Ndlovu
.
[11]
These cases, with the exception of
Kgantsi
, overturned
sentences imposed under different legislative provisions from those
explicitly mentioned in the charge sheets.
Counsel for Mr T
argued that the “absolute absence in the charge sheet” of
reference to the Minimum Sentences Act was
an even worse violation
than referencing the incorrect section of it.
[21]
The state, responding to Mr T’s application, conceded
that a charge sheet must explicitly refer to the Minimum Sentences
Act
but contended that Mr T had sufficient information about the
charge to answer it. He knew that the charge was one of rape
of
a girl under the age of 16, which automatically attracts a sentence
under section 51(1) of the Minimum Sentences Act.
The
requirements of a charge sheet are prescribed by
section 84
of the
Criminal Procedure Act (CPA
)
[12]
and the charge sheet in this case met those requirements. On
the whole, therefore, Mr T had a fair trial. The state
agreed
that the case raises a constitutional issue but contended that it has
no prospects of success after five appeal attempts
have already
failed.
[22]
Responding to Mr B and Mr September’s applications, the
state contended that this Court can deduce that the applicants’
legal representatives alerted them to the applicability of the
Minimum Sentences Act. In Mr B’s case, his rights may
additionally have been explained to him before the Magistrates’
Court because no record exists to refute this. The
Minimum
Sentences Act was also not raised before the High Court. Further,
the applicants enjoy no prospects of success because
there is no
suitable sentence for their crimes apart from life imprisonment.
No reasonable prosecutor would have entered
into a plea bargain with
either of the accused persons. As a result, they ask that leave
to appeal be dismissed.
Condonation
[23]
Mr T and Mr B applied for condonation for the late filing of
their applications. In Mr T’s case, the Supreme Court of
Appeal order was issued on 15 December 2016 and the application was
lodged in this Court on 22 May 2017. It was approximately
four
months late. The applicant’s explanation is that he was
not aware of the Supreme Court of Appeal’s
judgment until
March 2017. At first, he believed his application had been
successful because Bosielo JA, the senior judge,
had found in his
favour. He submits that there are reasonable prospects of
success and that it is in the interests of justice
to grant him
condonation.
[24]
The condonation application is not opposed by the state.
The applicant’s explanation is satisfactory, no prejudice will
be suffered by the respondent if condonation is granted and it is in
the interests of justice that condonation be granted.
[13]
[25]
In the Supreme Court of Appeal, Mr B applied for leave to
appeal 16 years and 8 months after his application was refused by the
High Court. Mr September applied for leave to appeal 15 years
and 7 months after his application was refused by the High Court.
Mr B’s reason for the delay was that he was unaware that he
could appeal on the ground that he was never informed of the
applicable minimum sentences. Mr September, similarly, contends
that he only became aware of the possibility of appealing
on the
basis of the Minimum Sentences Act in 2016. He then faced
further unavoidable delays in obtaining money to pay
for the
transcripts of the judgments. In both cases, the Supreme Court
of Appeal granted condonation.
[26]
The state has tendered submissions, before this Court, arguing
that the Supreme Court of Appeal erred in granting condonation
to Mr B and Mr September and that the explanations for the delay
were unsatisfactory. But it is not for this Court to
decide
whether the Supreme Court of Appeal was correct in granting
condonation for their applications to that Court, even
after
excessive delay.
[27]
In this Court, Mr September’s application was filed
timeously. The filing of Mr B’s application was not
excessively
late. The application was served four days late and
filed five days late. Mr B’s explanation for the late
filing
is primarily that he is a layman in the legal field and due to
being in prison. He did not have easy access to a legal
representative.
He further submits that his appeal raises an
arguable point of law of general public importance and that there are
prospects of
success in his matter. Therefore, despite
protestations by the state as to the excessive delay before the
Supreme Court of
Appeal, I am of the view that condonation should be
granted.
Jurisdiction
[28]
This Court’s jurisdiction is governed by section
167(3)(b) of the Constitution. The Court is empowered to decide
“(i)
constitutional matters; and (ii) any other matter, if the
Constitutional Court grants leave to appeal on the grounds that the
matter
raises an arguable point of law of general public importance
which ought to be considered by that Court”.
[29]
A significant proportion of each applicant’s case
concerns factual determinations by the courts a quo. First, the
question
whether the applicants were prejudiced by not knowing that
the Minimum Sentences Act might apply is a factual enquiry. The
applicants failed to prove prejudice. In Mr September’s
case, it is not even proven that he was not informed of the
Minimum Sentences Act at trial because the court record has been
destroyed.
[30]
A second overlapping issue is what the applicants may have
done differently had they known that the Minimum Sentences Act
applied
to their cases. Their counsel argued that if the
applicants were informed of the applicability of the relevant penal
provision
of the Minimum Sentences Act, they may have pleaded guilty
or entered into a plea bargain with the state.
[14]
This suggestion militates against the applicants’ chosen
defence. It is likely that they may have been even less
inclined to plead guilty knowing that guilt attracted a minimum
sentence of life imprisonment. Mr B, for instance, denied
that
he had raped his daughter and alleged that it was his wife who
fabricated the charges against him.
[31]
This Court has made it clear that a challenge to a decision on
the basis that it is wrong on facts is not a constitutional matter
and falls outside of this Court’s jurisdiction.
[15]
We cannot postulate and we cannot consider these factual questions.
[32]
Then, the applicants raised a point of law which they argued
warranted this Court’s intervention. It is this:
Magistrates
have no power to refer matters to the High Court for
sentencing where the Minimum Sentences Act has not been explicitly
raised
with the accused persons. This is a question of law and
is of public importance.
[33]
Counsel for Mr T, in written argument to this Court, implied
that the Magistrate in Mr T’s case should have invited legal
argument on whether to transfer the matter to the High Court before
doing so. At the same time, he conceded that the referral
was
duly made “[i]n terms of the minimum sentence legislation
prevailing at that time”. Here, counsel was referring
to
section 52(1) of the pre-amended Act,
[16]
which was still in effect when Mr T’s and Mr B’s trials
were conducted. The subsection provides that “the
[Magistrates’] Court
shall
stop the proceedings and
commit the accused for sentence by a High Court [having]
jurisdiction” if the crime for which the
accused is convicted
is in excess of their jurisdiction. The Magistrates’ Court
is not empowered to ignore this
statutory injunction.
[34]
When questioned at the hearing, neither counsel could indicate
which law empowered a Magistrate to consider sentencing outside of
the Minimum Sentences Act or precedent where this has occurred and
been sanctioned by a High Court. As a result, we do not
consider this a point of law that ought to be considered at this
stage.
[17]
[35]
Lastly, the applicants contend that their rights to a fair
trial under section 35(3) of the Constitution are infringed by
the
failure to inform them of the possible applicability of the
Minimum Sentences Act. Whether the applicants in this case had
a fair trial is a factual enquiry. However, whether the failure
to include the relevant section of the Minimum Sentences
Act in a
charge sheet infringes an accused’s right “to be informed
of the charge with sufficient detail to answer it”
is a
constitutional matter.
[18]
This Court therefore has jurisdiction to determine this issue.
Leave to appeal
[36]
It is trite that not every case implicating a constitutional
issue warrants intervention by this Court.
[19]
In
Pennington
, this Court characterised “leave to
appeal” as “a requirement needed to ‘protect’
the process of
this Court against abuse by appeals which have no
merit”.
[20]
It will only grant leave to appeal where it is in the interests of
justice that the appeal be considered.
[37]
This Court has delineated the following factors to be taken
into account in determining whether it is in the interests of justice
to grant leave to appeal:
(a) the nature of the order appealed against;
[21]
(b) the importance of the issues raised;
[22]
(c) the importance of determining those issues;
[23]
(d) whether the matter has been considered by the Supreme Court of
Appeal;
[24]
(e) the public interest;
[25]
and
(f) prospects of success.
[26]
No one factor is
decisive and all should be read together.
[27]
[38]
The cases before us come after a number of Supreme Court of
Appeal judgments with differing approaches to the necessity of citing
the Minimum Sentences Act’s provisions in the charge sheet.
The starting point is
Legoa
, where the Supreme Court of Appeal
held that it was not desirable to lay down a general rule as to what
is required
in a charge sheet and that whether an accused’s
right to a fair trial, including their ability to answer the charge,
has
been impaired will depend on “a vigilant examination of the
relevant circumstances”.
[28]
Since then, the Supreme Court of Appeal has primarily dealt with
cases where charge sheets cite the incorrect section of
the Minimum
Sentences Act. In
Ndlovu
, this Court held decisively
that, where an accused is convicted in a Magistrate’s Court of
an offence under an incorrect
section of the Minimum Sentences Act,
that Court will only have jurisdiction to sentence under that
section.
[29]
[39]
This precedent has not created a hard-and-fast rule that each
case where an accused has not been explicitly informed of the
applicability
of the Minimum Sentences Act will automatically
render a trial unfair. However, a practice has developed to
include
the relevant section of the Minimum Sentences Act in the
charge sheet because of this precedent.
[40]
It is indeed desirable that the charge sheet refers to the
relevant penal provision of the Minimum Sentences Act. This
should
not, however, be understood as an absolute rule. Each
case must be judged on its particular facts. Where there is no
mention of the applicability of the Minimum Sentences Act in the
charge sheet or in the record of the proceedings, a diligent
examination of the circumstances of the case must be undertaken in
order to determine whether that omission amounts to unfairness
in
trial. This is so because even though there may be no such
mention, examination of the individual circumstances of a matter
may
very well reveal sufficient indications that the accused’s
section 35(3) right to a fair trial was not in fact infringed.
[41]
The cases before us do not take the matter any further.
The applicants attempted to locate their cases in precedent on
incorrect
citations in charge sheets, with a bald statement that it
is an even worse infringement of the right to a fair trial when no
section
is mentioned at all. This was entirely
unsubstantiated. They also failed to present arguments as to
which Supreme Court
of Appeal approach is constitutionally correct.
It is not even clear whether they argue that the charge sheet itself
needs
to explicitly include the applicable provisions of the Minimum
Sentences Act or if mere mention in the trial would suffice.
[42]
It is also not clear what test, if any, the applicants believe
should be applied to determine whether the failure to inform an
accused
person of the applicability of the Minimum Sentences Act
renders a trial unfair. These questions may yet be considered
and
dealt with by this Court if they arise in a subsequent matter.
[43]
In
Magajane
, this Court declined to consider a
substantive constitutional issue because it did not have the benefit
of comprehensive argument
on the points of law before it.
[30]
It concluded that it was not in the interests of justice to consider
the matter without extensive argument by the parties
or the opinions
and reasoning of other interested parties.
[31]
The same rationale applies to these cases. Most of the issues
before us were questions of fact and, on the points of
law; it is not
in the interests of justice to consider them at this stage.
[32]
Order
[44]
The following order is made:
Under CCT 122/17 (
M
T v The State
):
1. Condonation is granted.
2. The application for leave to appeal is dismissed.
Under CCT 220/17 (
A
S B v The State
):
1. Condonation is granted.
2. The application for leave to appeal is dismissed.
Under CCT 298/17
(
Johannes September v The State
):
1. The application for leave to appeal is dismissed.
For the Applicant
(in CCT 122/17): W A
Karam and N L Skibi instructed by Legal Aid South Africa.
For the Respondent
(in CCT 122/17): L R
Surendra and C Britz instructed by the National Director of Public
Prosecutions.
For the Applicants
(in CCT 220/17 and
298/17): P Peyper instructed by Peyper Austen Inc Attorneys.
For the Respondents
(in CCT 220/17 and
298/17): S Giorgi instructed by the National Director of Public
Prosecutions.
[1]
105 of 1997.
[2]
Section 51(3).
[3]
Section 51(1) provides that “[n]otwithstanding any other law,
but subject to subsections (3) and (6), a regional court
or a High
Court shall sentence a person it has convicted of an offence
referred to in Part 1 of Schedule 2 to imprisonment for
life”.
The offences listed
in Part 1 of Schedule 2 include—
(a) murder;
(b) rape as contemplated in section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (Sexual
Offences Act);
(c) compelled rape as contemplated in section 4 of the Sexual
Offences Act;
(d) any offence referred to in sections 2, 5-10 or 14 of the
Protection of Constitutional Democracy against Terrorist and Related
Activities Act 33 of 2004;
(e) trafficking in persons as provided for in section 4(1) and
involvement in the offence as provided for in section 10 of the
Prevention and Combating of Trafficking in Persons Act 7 of 2013;
and
(f) any offence referred to in Parts 1 or 2 of Schedule 1 to the
Implementation of the Rome Statute of the International Criminal
Court Act 27 of 2002.
[4]
51 of 1977. Section 1 provides:
“‘[A]ggravating circumstances’, in relation to—
. . .
(b) robbery or attempted robbery, means—
(i) the wielding of a fire-arm or any other dangerous weapon;
(ii) the infliction of grievous bodily harm; or
(iii) a threat to inflict grievous bodily harm,
by the offender or an accomplice on the occasion when the offence is
committed, whether before or during or after the commission
of the
offence.”
[5]
Section 3 provides that “[a]ny person (‘A’) who
unlawfully and intentionally commits an act of sexual penetration
with a complainant (‘B’), without the consent of B, is
guilty of the offence of rape”.
[6]
Section 52(1) read:
“
If a regional court, after it has
convicted an accused of an offence referred to in Schedule 2
following on—
(a)
a
plea of guilty; or
(b)
a
plea of not guilty,
but before sentence, is of the opinion that the offence in respect
of which the accused has been convicted merits punishment
in excess
of the jurisdiction of a regional court . . . the court shall stop
the proceedings and commit the accused for sentence
by a High Court
having jurisdiction.”
[7]
S v Rammoko
[2002] ZASCA 138; 2003 (1) SACR 200 (SCA).
[8]
S v Legoa
[2002] ZASCA 122
;
2003 (1) SACR 13
(SCA) (
Legoa
)
at para 21.
[9]
[A S B] v The State
, unreported judgment of the Orange Free
State High Court, Case No 2920/2000 (19 September 2000).
[10]
S v Kolea
[2012] ZASCA 199
;
2013 (1) SACR 409
(SCA);
S v
Mashinini
[2012] ZASCA 1
;
2012 (1) SACR 604
(SCA);
S v
Mthembu
[2011] ZASCA 179
;
2012 (1) SACR 517
(SCA);
S v Makatu
[2006] ZASCA 72
;
2006 (2) SACR 582
(SCA) and
S v Ndlovu
[2002] ZASCA 144
;
2003 (1) SACR 331
(SCA). See also
S v
Kgantsi
[2012] ZASCA 76
; 2012 JDR 0856 (SCA) (
Kgantsi
).
[11]
S v
Ndlovu
[2017] ZACC 19
;
2017 (2) SACR 305
(CC);
2017 (10) BCLR 1286
(CC) (
Ndlovu
).
[12]
Section 84 provides:
“(1) Subject to the provisions of this Act and of any other
law relating to any particular offence, a charge sheet shall
set
forth the relevant offence in such manner and with such particulars
as to the time and place at which the offence is alleged
to have
been committed and the person, if any, against whom and the
property, if any, in respect of which the offence is alleged
to have
been committed, as may be reasonably sufficient to inform the
accused of the nature of the charge.
(2) Where any of the particulars referred to in subsection (1) are
unknown to the prosecutor it shall be sufficient to state
that fact
in the charge.
(3) In criminal proceedings the description of any statutory offence
in the words of the law creating the offence, or in similar
words,
shall be sufficient.”
[13]
Requirements set out in
Brummer v Gorfil Brothers Investments
(Pty) Ltd
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
[14]
In terms of section 105A of the CPA.
[15]
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1)
BCLR 36
(CC) at para 15.
[16]
Set out in full at n 6 above.
[17]
Section 167(3)(b)(ii) reads: “The Constitutional Court . . .
may decide . . . any other matter, if the Constitutional Court
grants leave to appeal on the grounds that the matter raises an
arguable point of law of general public importance
which ought to
be considered by that Court
”. (Emphasis added.)
[18]
Section 35(3)(a) of the Constitution.
[19]
Section 173 of the Constitution confers on the High Court, the
Supreme Court of Appeal and the Constitutional Court “the
inherent power to protect and regulate their own process . . .
taking into account the interests of justice”. Further,
at section 167(6)(b) it provides that “the rules of the
Constitutional Court must allow a person, when it is in the
interests
of justice and with leave of the Court . . . to appeal
directly to the Constitutional Court from any other court”.
Rule 19(6)(a) of this Court’s Rules empowers the Court to
decide whether to grant leave to appeal. See
Paulsen v Slip
Knot Investments 777 (Pty) Limited
[2015] ZACC 5
; 2015 (3) 479
(CC);
2015 (5) BCLR 509
(CC) at para 29. See also
Boesak
above n 15 at para 12 and
S v Pennington
[1997] ZACC 10
;
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC) at para 11.
[20]
Pennington
above n 19 at para 26.
[21]
Mabaso
v Law Society of the Northern Provinces
[2004]
ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) at para 26.
See also
Khumalo v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 10.
[22]
Dengetenge Holdings v Southern Sphere Mining and Development
Company Ltd
[2013] ZACC 52
;
2014 (5) SA 138
(CC);
2014 (3) BCLR
265
(CC) at para 53.
[23]
Mabaso
above n 21 at para 26.
[24]
Id.
[25]
Dengetenge Holdings
above n 22 at para 53.
[26]
Boesak
above n 15 at para 12.
[27]
Dengetenge Holdings
above n 22 at para 53.
[28]
Legoa
above n 8 at para 21.
[29]
Ndlovu
above n 10 at para 48.
[30]
Magajane v Chairperson, North West Gambling Board
[2006] ZACC
8
;
2006 (5) SA 250
(CC);
2006 (10) BCLR 1133
(CC) at para 31.
[31]
Id at para 32.
[32]
It cannot be disputed that an accused person’s right to a fair
trial in section 35(3) of the Constitution constitutes
a
foundation of a criminal trial. Section 35(3) of the
Constitution gives constitutional effect to the provisions
of
section 84(1) of the CPA. The charge sheets in all three cases
complied fully with the requirements set out in section
84(1) of the
CPA.