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[2013] ZAWCHC 185
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Goldberg v Provincial Minister of Environmental Affairs And Development Planning and Others (15927/12) [2013] ZAWCHC 185 (17 December 2013)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
Case
No: 15927/12
DATE:
17 DECEMBER 2013
In
the matter between:
MARK
JONATHAN
GOLDBERG
.......................................................................
APPLICANT
And
PROVINCIAL
MINISTER OF ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT PLANNING
...............................
FIRST
RESPONDENT
NATIONAL
MINISTER OF ENVIRONMENTAL
AFFAIRS
..........................................................................................
SECOND
RESPONDENT
WESTERN
CAPE NATURE CONSERVATION
BOARD
.................................................................................................
THIRD
RESPONDENT
DIRECTOR
OF PUBLIC PROSECUTIONS:
WESTERN
CAPE
...........................................................................
FOURTH
RESPONDENT
REGIONAL
MAGISTRATE, WESTERN CAPE
...............................
FIFTH
RESPONDENT
Coram: GOLIATH,
LE GRANGE & ROGERS JJ
Heard: 28
– 29 NOVEMBER 2013
Delivered:
17 DECEMBER 2013
JUDGMENT
ROGERS
J:
Introduction
[1] This
application arises from criminal proceedings pursuant to which the
applicant was convicted of various offences under the
Nature
Conservation Ordinance 19 of 1974 (‘the Ordinance’). The
applicant’s criminal appeal and the present application
were
heard together by the same full bench panel. The background to the
present application appears from the judgment in the criminal
appeal,
delivered simultaneously with this judgment, and I shall not repeat
it. I shall use the same abbreviations as in the appeal
judgment.
[2] In
the present application the applicant was represented by Mr A Katz SC
leading Mr D Simonsz while the first and third respondents
were
represented by Mr HJ de Waal.
[3] In
his notice of motion the applicant seeks the following substantive
relief:
‘
1.
Declaring section 21(1) of the [Ordinance] to be in consistent with
the [Constitution] and invalid;
2.
Declaring:
2.1
.That the definitions of “carcase” and “wild
animal” appearing in section 2 of the Ordinance:
2.1.1.
exclude items manufactured or processed from animal products;
alternatively that
2.1.2
the definitions of “carcase” and “wild animal”
appearing in section 2 of the Ordinance inconsistent
with the
Constitution and invalid; and
2.2.
Alternatively, that [the magistrate’s] decision dated 22 June
2010 in [the criminal trial] to admit evidence obtained
in violation
of the Applicant’s constitutional rights (“the
admissibility decision”):
2.2.1.
is inconsistent with the Constitution and invalid; and
2.2.2.
is reviewed and set aside;
3.
Declaring that the conviction and sentence of the Applicant [in the
criminal trial] is.
3.2.
inconsistent with the Constitution and invalid; and
3.2.
is reviewed and set aside;’
Prayer
1 – s 21 of the Ordinance
[4] Mr
Katz indicated in argument that the constitutional challenge to s
21(1) of the Ordinance was confined to paras (f) to (j)
of that
subsection.
[5] Mr
de Waal did not contend that these paragraphs were constitutionally
valid. He accepted on behalf of the first and third respondents
that
the powers of search and seizure were too broad. He submitted,
however, that the court should decline to entertain the challenge.
In
the alternative, he submitted that a declaration of invalidity should
not be made retrospective.
[6] The
question whether the court should entertain the challenge turns on
whether the application for that relief is justiciable
in the sense
of presenting a live issue which it would be in accordance with the
interests of justice to determine. In my opinion
this court should
decline to entertain the challenge. The reasons for this conclusion
draw on considerations of judicial policy
expressed in the concepts
of ripeness, mootness and constitutional avoidance.
[7] Ripeness
and constitutional avoidance are sometimes inter-related. If it is
possible to decide a matter without determining
the constitutional
validity of legislation or other action, the principle of avoidance
may lead to the conclusion that the constitutional
question is not
ripe to be determined: ‘While the concept of ripeness is not
precisely defined, it embraces a general principle
that where it is
possible to decide any case, civil or criminal, without reaching a
constitutional issue, that is the course which
should be followed’–
see National Coalition for Gay & Lesbian Equality & Others v
Minister of Home Affairs
& Others
2000 (2) SA 1
(CC) para 21 and
the cases cited in footnote 19 of that paragraph.
[8] Mootness
encapsulates principles which have for many years been applied when
litigants invoke the court’s power to grant
declaratory relief.
A declaratory order is a discretionary remedy. In JT Publishing (Pty)
Ltd & Others v Minister of Safety
and Security & Others
[1996] ZACC 23
;
1997
(3) SA 514
(CC) the Constitutional Court held that this applied also
to applications to declare statutory provisions invalid (in that
matter,
the applicants had sought orders declaring certain provisions
of the Publications Act 42 of 1974 and the Indecent or Obscene
Photographic
Matter Act 37 of 1967 to be constitutionally invalid).
JT Publishing was decided with reference to s 7(4) and s 98(5) of the
interim
Constitution, but similar considerations apply in relation to
s 38 read with s 172 of the final Constitution. Didcott J, writing
for a unanimous court, said the following (para 15, footnotes
omitted):
‘
The
reversal of the decision reached in the Court below brings duly
before us the claim for a declaratory order which the applicants
wish
us to grant on the constitutional issues presented by them. That does
not necessarily mean, however, that we are now bound
to resolve those
issues. Whether we should say anything at all about them must be
settled first. I interpose that enquiry because
a declaratory order
is a discretionary remedy, in the sense that the claim lodged by an
interested party for such an order does
not in itself oblige the
Court handling the matter to respond to the question which it poses,
even when that looks like being capable
of a ready answer. A
corollary is the judicial policy governing the discretion thus vested
in the Courts, a well-established and
uniformly observed policy which
directs them not to exercise it in favour of deciding points that are
merely abstract, academic
or hypothetical ones. I see no reason why
this new Court of ours should not adhere in turn to a rule that
sounds so sensible. Its
provenance lies in the intrinsic character
and object of the remedy, after all, rather than some jurisdictional
concept peculiar
to the work of the Supreme Court or otherwise
foreign to that performed here… Section 98(5) admittedly
enjoins us to declare
that a law is invalid once we have found it to
be inconsistent with the Constitution. But the requirement does not
mean that we
are compelled to determine the anterior issue of
inconsistency when, owing to its wholly abstract, academic or
hypothetical nature
should it have such in a given case, our going
into it can produce no concrete or tangible result, indeed none
whatsoever beyond
the bare declaration.’
See
also Director-General Department of Home Affairs & Another v
Mukhamadiva paras 33-37 for a recent affirmation of this principle
and its applicability to orders in terms of s 172(1)(a) of the
Constitution.
[9] As
Mr de Waal pointed out, the applicant in his founding affidavit has
justified his seeking of the declaration of invalidity
on the basis
that the impugned paragraphs of s 21(1) formed the basis on which the
nature conservation officials and the police
allegedly searched and
seized the items of ivory forming the foundation of the criminal
charges against him. In paras 7 and 8 of
his founding affidavit he
alleged that there were constitutional inconsistencies in the
Ordinance and with the manner in which
the magistrate admitted
evidence during his trial, that those contentions could not properly
be addressed in his appeal proceedings,
and that he was thus bringing
the civil application with a request that it be heard together with
the appeal so that the full bench
could be seized with all the legal
and constitutional questions that arose and could decide them
together, if appropriate. After
identifying in para 9 his three
primary legal and constitutional questions (the first of which is the
constitutional validity of
s 21(1)), he said in para 10 that if any
of those questions were decided in his favour, his conviction and
sentence would fall
to be reviewed and set aside. In para 44 the
applicant observed that the magistrate in the criminal trial had
correctly found that
she was not empowered to declare s 21(1)
invalid, adding: ‘It is for this reason that I approach this
Court, which is empowered
to consider the constitutionality of a
statute, to hear my challenge to the constitutional validity of,
inter alia, section 21(1)
of the Ordinance’.
[10] Because
there are organs of state apart from the DPP having an interest in
the challenge to the constitutional validity of
s 21(1), it was not
necessarily inappropriate to bring the challenge by way of separate
civil proceedings rather than in the criminal
appeal. Nevertheless,
the challenge, as presented in the founding affidavit, was conceived
as relief leading to a conclusion that
the applicant should have been
acquitted in the criminal trial. The applicant did not, in the
present application, aver that because
he was a dealer in items which
were regulated by the Ordinance, he feared future searches by nature
conservation officials in the
exercise of the impugned statutory
powers nor did the respondents in their answering papers state that
they intended to employ
these search powers in the future. The
present case is thus distinguishable from Gaertner & Others v
Minister of Finance &
Others
[2013] ZACC 38
, where SARS asserted
the ongoing importance of the search powers there in issue.
[11] Although
the applicant did not justify his challenge on this basis, I accept
that, following the death of his mother, he has
become the owner of a
business which deals in items regulated by the Ordinance. There is
evidence that subsequent to being charged
in the criminal case he
obtained under the Ordinance a permit to sell a variety of items
forming part of his stock (though not
ivory, all of which has been
seized). It is no doubt possible that nature conservation officials
will in the future invoke their
powers under s 21(1), though, in view
of the fact that the respondents apparently acknowledge the
constitutional fragility of the
impugned paragraphs, one can expect
that in general they will rather use the provisions of the Criminal
Procedure Act in cooperation
with police officials or that they will
at least not use s 21(1) as a basis for warrantless searches of
private residences. Mr
Gildenhuys also stated in the answering
affidavit that the WCNCB was aware that s 21(1) of the Ordinance
might be susceptible to
constitutional challenge to the extent that
it permitted warrantless targeted searches and that a new
Biodiversity Bill was in
the process of being drafted which would be
scrutinised for constitutional compliance and which would in due
course repeal the
Ordinance.
[12] An
important reason why a high court should not entertain a
constitutional challenge to national or provincial legislation
unless
it presents a live issue which needs to be reached is that the
court’s declaration would have no effect unless and
until
confirmed by the Constitutional Court. That court should not be
burdened with confirmation proceedings in relation to matters
where
the interests of justice do not demand a decision. In the present
case there are various factors which lead me to conclude
that this
court should not entertain the challenge.
[13] As
I have already observed, the applicant justified his challenge
because of its significance to his conviction in the criminal
proceedings. However, and as will appear from the judgment in the
appeal to be delivered simultaneously with this one, we have
concluded that the criminal appeal should succeed on other grounds.
Accordingly, and even assuming all other matters in favour
of the
applicant, he does not require a declaration of invalidity in order
to secure his acquittal.
[14] Even
if the outcome of the applicant’s criminal appeal depended
solely on the admissibility or otherwise of the seized
items of ivory
which formed the basis of the prosecution, the declaration of
constitutional invalidity would only assist the applicant
if the
impugned paragraphs of s 21(1) formed the sole statutory authority
for the officials to have seized the ivory. As explained
in the
appeal judgment, the nature conservation officials were entitled in
terms of paras (a) and (e) of s 21(1), the constitutional
validity of
which is not attacked, to enter the shop in order to ask the
appellant to produce the documents necessary for the lawful
possession and sale of the ivory. When those documents were not
produced, the police officials arrested the appellant and were
entitled in terms of s 23(1) of the Criminal Procedure Act 51 of 1977
(‘the CPA’) to seize the ivory.
[15] If,
contrary to our view in the appeal judgment, the officials’
entry into the shop constituted a search (ie an invasion
of privacy
for which statutory authority was required), the state would need to
rely on the impugned search provisions of s 21(1)
to justify the
warrantless search. However, a declaration of invalidity would then
only assist the applicant in the criminal case
if the declaration
operated with retrospective effect, so as to invalidate the
officials’ actions at the shop on 17 August
2009. Mr de Waal
submitted that a declaration of invalidity should not be given any
retrospective effect. Mr Katz, by contrast,
argued that while the
declaration should not operate retrospectively in relation to
completed matters, it should apply retrospectively
in respect of
pending matters, such as the present case. For the distinction
between completed and pending matters in the making
of such
declarations, Mr Katz referred us to S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996
(1) SA 388
(CC) paras 31-33 and Bhe & Others v Magistrate,
Khayelitsha & Others
[2004] ZACC 17
;
2005 (1) SA 580
(CC) paras 126-129).
[16] Whether
the order should be partially retrospective (as Mr Katz argued) or
not retrospective at all (as Mr de Waal contended)
would depend on
the interests of justice and sound public administration. In the
Gaertner case the Constitutional Court, like the
court a quo in that
matter, ruled (despite a reference to Bhulwana in para 76), that the
declaration of invalidity should not have
any retrospective effect
(see the order at para 88; and see para 114 in the court a quo’s
judgment, reported at
2013 (4) SA 87
(WCC)). In Mistry v Interim
Medical and Dental Council of South Africa & Others
1998 (4) SA
1127
(CC) the court also declined to give its order retrospective
effect (paras 40-44). The question of limiting retrospectivity
appears
not to have been considered in Magajane. An important
consideration in this regard is that if a declaration of invalidity
were
to apply retrospectively to pending cases, there might be many
seizures and prosecutions which the authorities would have to
abandon.
We have no information on that question but it seems
inherently probable, as in Gaertner, that there are a number of
cases, not
yet brought to finality, where the impugned provisions of
s 21(1) were employed. To take the applicant’s own case as an
example,
the impugned powers were exercised in August 2009. The
applicant was convicted in July 2011 and sentenced in April 2012. We
heard
the criminal appeal in November 2013. Cases may thus take three
to four years, and even more, to come to finality. The successful
prosecution of all such matters could be thrown into disarray by a
retrospective order. I am thus inclined to think that if a
declaration of invalidity were made in the present case, the court
would refrain from making it retrospective.
[17] However,
it is not necessary to express a final opinion on that question. If
we thought that it was in the interests of justice
to determine the
constitutional validity of the impugned provisions, we might have
chosen to call for additional evidence bearing
on the question of
retrospectivity. But what is clear to us is that, even if the
impugned paragraphs in s 21(1) were declared invalid
with
retrospective effect, it was nevertheless in the interests of justice
for the magistrate, in terms of s 35(5) of the Constitution,
to admit
the real evidence seized at the shop. We have explained, in the
appeal judgment, why we consider that to be the case.
In order for
the constitutional challenge in the present case to present a live
issue, the applicant would not only have to overcome
the other
obstacles we have mentioned but would need to show that the resultant
evidence should not have been admitted under s
35(5).
[18] Up
to now I have been considering the ivory found at the shop. In regard
to the ivory found at the two residences, I have concluded
in the
appeal judgment that the applicant and his mother gave consent for
those searches and that the officials thus did not require
statutory
authority. The seizure was covered by s 23 of the CPA.
[19] It
is perhaps possible that we are wrong on every point that has led us
to conclude that the constitutional challenge does
not present a live
issue of relevance to the applicant’s conviction or acquittal
in the criminal case. However, we do not
think that we should
determine the constitutional challenge just because our views on all
other questions may be found in a higher
court to have been
erroneous. To embark upon the question on that basis may be to
require the Constitutional Court in due course
to entertain a
confirmation application in a matter which is really hypothetical.
Put differently, on the view we take of the matter
it is unnecessary
to reach the constitutional question. If an appeal court takes a
different view, that court can determine the
constitutional matter or
remit it to us for further consideration.
[20] The
relief claimed in para 1 of the notice of motion is thus dismissed.
If, due to a change of circumstances or in the light
of additional
evidence, the applicant considers that he is entitled to obtain a
determination as to the prospective validity of
the impugned
paragraphs in s 21(1) of the Ordinance, he will be free to pursue
such an application.
Prayer
2.1 – the definitions
[21] The
grant of the declaratory relief sought in prayer 2.1.1 of the notice
of motion is discretionary. It is not appropriate
for a court to
grant declaratory orders on academic issues or as a form of legal
advice to the parties. To the extent that the
definitions of
‘carcase’ and’ wild animal’ in the Ordinance
are relevant to the applicant’s guilt
or innocence on the
charges he faced in the criminal trial, we have determined those
questions in the appeal judgment. As it happens,
we have rejected the
proposed interpretation of ‘carcase’ advanced in para 2.1
of the notice of motion. We have not
found it necessary to consider
the interpretation of ‘wild animal’ because there is no
doubting that the African elephant,
from which the ivory came, is a
‘wild animal’ within the definition. We do not think the
definition of ‘wild
animal’ present any particular
difficulty.
[22] For
similar reasons, it is not in the interests of justice to consider
the proposed declaration of invalidity in relation to
the definitions
in question. I simply add that, as observed in the appeal judgment, a
court would only declare national or provincial
legislation to be
invalid on grounds of vagueness violating the foundational value of
the rule of law as a last resort and where
it is not possible to
determine the scope of the legislation through a permissible process
of interpretation. I have no reason
to believe that such an extremity
would be reached in relation to the definitions of ‘carcase’
and ‘wild animal’.
It certainly does not arise in
relation to the application of those definitions to the facts of the
present case.
Prayer
2.2 – the ‘search’
[23] In
prayer 2.2 the applicant seeks an order reviewing and setting aside
the magistrate’s decision to admit the evidence
obtained at the
shop and at the two residences, as having been obtained in violation
of the applicant’s constitutional rights.
Mr Katz based his
argument in this respect on the grounds of review set out in s 24(1)
of the Supreme Court Act 59 of 1959, the
provisions of which are
applicable to the present case by virtue of the transitional
provisions contained in
s 52
of the
Superior Courts Act 10 of 2013
.
One of the grounds of review in
s 24
is ‘the admission of
inadmissible or incompetent evidence or the rejection of admissible
or competent evidence’ (para
(d)).
[24] Review
is a discretionary remedy. Although the admission of inadmissible
evidence is one of the grounds on which the proceedings
of a
magistrate’s court can be reviewed in terms of s 24(1) of the
Supreme Court Act, questions of admissibility can usually
be
determined in an appeal, because the facts bearing on admissibility
will appear from the record. Indeed, in the present case
Mr Liddell,
who appeared for the applicant as appellant in the criminal appeal,
submitted that the magistrate erred in admitting
the evidence
constituted by the ivory found at the shop and the two residences.
There was a trial within a trial in which the prosecution
and the
defence both had fair opportunity to place before the magistrate the
material bearing on the admissibility of the evidence.
Although the
magistrate did not have the power to determine the constitutional
validity of the impugned paragraphs in s 21(1),
she proceeded on the
basis that there had been an unconstitutional invasion of the
applicant’s privacy, ruling that the evidence
was nevertheless
admissible in terms of s 35(5) of the Constitution. This court on
appeal has been able to reassess that question
on the merits and
would also have been able to determine, if necessary, the
constitutional validity of s 21(1).
[25] In
the circumstances, I see no justification for addressing the same
issue by way of separate review proceedings. Review may
be the
appropriate remedy where there is justification for intervening in
unfinished proceedings in the magistrate’s court,
ie at a point
in time where the right of appeal has not yet accrued (Jordan &
Another v Penmill investments CC & Another
1991 (2) SA 430
(E)
and Qozeleni v Minister of Law and Order & Another
1994 (3) SA
625
(E) are examples of such cases). In other cases review may be
appropriate because of the need to establish facts of an irregularity
which do not appear from the record (cf Johannesburg Consolidated
Investment Co v Johannesburg Town Council
1903 TS 111
at 113-114).
The present matter, however, does not have any features necessitating
the invocation of the high court’s review
jurisdiction. To the
extent that there are slight differences in the evidence in the
criminal trial and in the civil application
bearing on the question
of admissibility, those differences do not arise from anything which
could not have been explored or adduced
at the criminal trial; nor in
the civil application is it possible, applying the Plascon-Evans
rule, to resolve the factual differences
in favour of the applicant.
[26] I
would thus dismiss the application for the relief sought in prayer
2.2 of the notice of motion.
Prayer
3 - setting aside the conviction and sentence
[27] The
prayer in para 3 of the notice of motion for the setting aside on
review of the conviction and sentence represent the consequential
relief sought by the applicant following upon the grant of some or
all of the relief sought in prayers 1 and 2 of the notice of
motion.
Again, it is not in the interests of justice for us to entertain the
attack on the conviction and sentence by way of review
proceedings.
All the questions bearing on the applicant’s guilt or innocence
are matters of record in the criminal proceedings
and can thus be
determined on their merits by way of this court’s more generous
appellate jurisdiction.
Conclusion
[28] I
would thus dismiss the application.
[29] Ordinarily
costs would follow the result. However, I think there are reasons in
this case to depart from the usual order. Certain
of the matters
relevant to the determination of the criminal appeal were argued, as
a matter of form, in the civil application.
In other words, on
questions where there was an overlap between contentions in the
criminal and civil case, Mr Liddell for the
appellant in the criminal
appeal was content to align himself with the submissions of Mr Katz
and Mr Simonz in the civil application,
while Mr Tarantal for the DPP
was likewise content to leave parts of the overlapping argument to Mr
de Waal. If all these issues
had been raised and addressed solely in
the criminal appeal, the argument would still have gone into a second
day and both sides
would probably have engaged at least one
additional counsel (in addition to Mr Liddell and Mr Tarantal
respectively). Furthermore,
we have not determined prayer 1 of the
notice of motion on its merits, having regard to our findings on
other aspects. The applicant
was not to know in advance what our
conclusions on those other matters would be. I thus consider that
fairness dictates that the
parties bear their own costs in the civil
application.
[30] This
matter and the related criminal appeal were previously enrolled for
hearing on 23 May 2013. The application and appeal
were postponed
because the appeal record was found not to be in order. Mr Tarantal
said that it was the appellant’s duty
to ensure that the record
was in order. Mr Liddell countered that if the state had not raised
its objection at such a late stage,
the matter could have been put
right without the need to vacate the scheduled date of hearing. Be
that as it may, it is common
cause that the civil application was
postponed only because of the need to postpone the related criminal
appeal. None of the parties
in the civil application were, in that
capacity, responsible for the postponement. I thus consider that no
order should be made
in regard to those costs.
GOLIATH
J:
[31] I
concur. The application is dismissed with no order as to costs. There
shall also be no order as to the wasted costs arising
from the
postponement of 23 May 2013.
LE
GRANGE J:
[32] I
concur.
APPEARANCES
For
Applicant: Mr A. Katz SC & Mr D Simonz
Instructed
by: Liddell Webber & Van der Merwe
Keerom
Street
Cape
Town
For
First and Third Respondent: Mr J de Waal
Instructed
by: The State Attorney
22
Long Street
Cape
Town