S v Jafta (CA&R 490/02) [2003] ZAECHC 18; 2005 (1) SA 108 (E); 2004 (2) SACR 103 (E) (10 April 2003)

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Date delivered:

Case No.: CA&R490/02

In the matter between:

A. JAFTA Appellant

vs

THE STATE Respondent

Case No.: CA&R77/02

NDONDO Appellant

Case No.: CA&R147/02

MCOTATA Appellant

________________

J U D G M E N T

LEACH, J:

I have enjoyed the privilege of reading the judgment prepared by Erasmus J dealing with the question in limine whether these appeals are properly before court. At the time the appellants were tried and convicted, s. 309B and s. 309C of the Criminal Procedure Act No. 51 of 1977 required them to obtain leave to appeal to the High Court, either from the trial court or upon petition to the judge-president. On 29 November 2000 the Constitutional Court declared those sections inconsistent with the Constitution and therefore invalid but, in doing so, suspended the declaration for 6 months from the date of the order (i.e. up to and including 28 May 2001) – see: S v Steyn [2000] ZACC 24; 2001 (1) SA 1146 (CC); 2001 (1) SACR 16; 2001 (1) BCLR 52. The issue which arises for decision is whether the appellants were nevertheless required leave to appeal notwithstanding the declaration of invalidity. As is set out by Erasmus J in his judgment there are various conflicting decisions relating to this issue (and I would further observe that the Supreme Court of Appeal has recently consciously refrained from deciding the point – see: S v Zulu unreported case no. 186/2002 delivered on 23 March 2003 at para [ 3 ] footnote 2).

In my respectful view, the Constitutional Court’s declaration of invalidity did not relieve the appellants from complying with s.309B and s.309C and, as all three appellants were convicted and sentenced prior to the date upon which the declaration of invalidity came into effect (as I shall detail more fully below) but failed to obtain such leave, in my opinion their appeals are not properly before us and should therefore be struck from the roll.

The historical background to the legislation in question and the issue before this Court is fully set out by my learned brother in his judgment, and I have nothing to add thereto. Our views diverge when it comes to the interpretation of s. 172 (1) of the Constitution which reads as follows:

“172(1) When deciding a constitutional matter within its power, a court─

(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) may make any order that is just and equitable, including─

(i) an order limiting the retrospective effect of the declaration of invalidity; and

(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”

My learned brother is of the opinion that the court which issues a declaration of invalidity in terms of s. 172 (1)(a) need not be the court which makes an order in terms of s. 172(1)(b). Indeed, in casu, while accepting that the Constitutional Court in Steyn’s case, on declaring s. 309B and s.309C invalid under s. 172(1)(a), further exercised its powers under s. 172(1)(b) by suspending the declaration of invalidity for 6 months, it is his view not only that this Court is also empowered under s. 172(1)(b) to now make an order based on considerations of justice and equity regarding that declaration in respect of each of the three individual cases before us but that, in the exercise of that function, the appellants are entitled to relief declaring their appeals to be properly before us.

With due respect, I find myself unable to agree to this interpretation of s. 172 (1). In my view, regard must necessarily be had to the use of the word and which links sub-sections (a) and (b). It is a classical conjunctive and, while I accept that it is sometimes inaccurately used (see, for e.g. Binda v Binda 1993 (2) SA 123 (W) at 125 – 126 and the cases there cited), that does not here appear to be the case. Compelling support for this conclusion, even if it may have been obiter (about which I express no view), is to be found in Minister of Justice v Ntuli [1997] ZACC 7; 1997 (3) SA 772 (CC) at 781-2 para. [29] where Chaskalson P said:

“In my view subparas (a) and (b) of s 172(1) should not be read disjunctively so as to permit a Court to order that a declaration of invalidity may be suspended in different proceedings to those in which the declaration of invalidity is made. They should rather be read together to mean that when a Court declares a statutory provision inconsistent with the Constitution to be invalid, as it is required to do, it may also suspend that order if there are good reasons for doing so”.

Having regard to this and the plain meaning of the language used, it is in my view clear that where a court finds any law or conduct to be inconsistent with the Constitution it is obliged to declare it invalid under s. 172 (1)(a) – but, on doing so, it may ameliorate the situation by way of a further order under s. 172 (1)(b) if it feels it is just and equitable to do so. I do not see that it could ever have been the lawgiver’s intention for a law to operate differently depending on what different courts might feel would be just and equitable for persons in different circumstances. After all, it is a well established principle that the same relief should be offered to all persons who are in the same position and that a court, in exercising powers to ameliorate the effect of a declaration of invalidity of a law, should seek to avoid unnecessary uncertainty and dislocation, particularly in the criminal justice process – see S v Bhulwana: S v Gwadiso [1995] ZACC 11; 1996 (1) SA 388 (CC) at 399-400 para [32]. The importance of certainty and finality is also echoed in Ntuli’s case, supra at 781-2 para. [29] where Chaskalson P went on to say:

“[29] The principle of finality in litigation which underlies the common law rules for the variation of judgments and orders is clearly relevant to constitutional matters. There must be an end to litigation and it would be intolerable and could lead to great uncertainty if Courts could be approached to reconsider final orders made in judgments declaring the provisions of a particular statute to be invalid”.

In the light of the aforegoing, it is therefore my respectful opinion that sub-sections (a) and (b) of s. 172(1) are to be read conjunctively and not disjunctively. In reaching this conclusion, I am acutely aware that when interpreting the Constitution it is necessary to bear in mind and promote its underlying values, as enjoined by cases such as S v Zuma & Others [1995] ZACC 1; 1995 (2) SA 642 (CC) at 650 – 652. However, as Kentridge AJ stated in Zuma’s case, supra at 652 – 653 (in commenting upon a statement by Froneman J in Qozeleni v Minister of Law & Order and Another 1994 (3) SA 625 (E) at 634 C that the previous constitutional system of this country was the fundamental “mischief” the Constitution seeks to redress and that the Constitution must be interpreted “to give clear expression to the values it seeks to nurture for a future South Africa”):

“[17] ........... This is undoubtedly true. South African Courts are indeed enjoined by s 35 of the Constitution to interpret chap 3 so as ‘to promote the values which underlie an open and democratic society based on freedom and equality’, and, where applicable, to have regard to the relevant public international law. That section also permits our Courts to have regard to comparable foreign case law.

I am, however, sure that Froneman J, in his reference to the fundamental ‘mischief’ to be remedied, did not intend to say that all the principles of law which have hitherto governed our Courts are to be ignored. Those principles obviously contain much of lasting value. Nor, I am equally sure, did the learned Judge intend to suggest that we should neglect the language of the Constitution. While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single ‘objective’ meaning. Nor is it easy to avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.

[18] We must heed Lord Wilberforce’s reminder that even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination”.

Bearing this in mind, it is my opinion that the language used by the legislature clearly prescribes that where the Constitutional Court finds a law to be inconsistent with the Constitution and, on declaring it to be invalid, ameliorates its declaration by an order under s. 172 (1)(b), the law so declared and ameliorated will thereafter apply consistently to all matters. I am therefore of the view that that there is no room for an interpretation that a declaration of invalidity made by the Constitutional Court may be ameliorated or adjusted by another court making a further order under s.172 (1)(b).

In the Steyn matter, having declared s.309B and s.309C invalid under s.172(1)(a), the Constitutional Court ameliorated the situation under s.172(1)(b)(ii) by suspending the declaration of invalidity for a period of six months and, in the light of my conclusion set out above, there is therefore no room for this Court to make a further order under that section. All this Court can do is to determine the effect of the Constitutional Court’s order i.e. whether upon the lapse of the six month period of suspension and without the legislature having taken any steps to correct the defect the Constitutional Court found to exist, the declaration of invalidity resulted in the sections being treated as invalid retrospectively with effect from the date of their original enactment or only from the date the six month period expired.

On the issue of the precise ambit of the powers extended under s.172 (1), I therefore find myself in respectful disagreement with Erasmus J. However, I agree with the reasoning he has set out in paras [34],[35] of his judgment and his conclusion in the first sentence of para [40] that the Constitutional Court by necessary implication did not intend the declaration of invalidity to operate retrospectively at the end of the period of suspension. I also agree with his criticism of the decision in S v Danster 2002 (2) SACR 178 (C) contained in para [51] of his judgment. It hardly seems likely that it was intended that all persons who were obliged to comply with the sections in question during the six month period of suspension would later be relieved of such obligations when that period came to an end or in the event of the legislature rectifying the defects the Court had found to exist in the procedure. After all, as Goldstone J explained in J and B v Director General: Department of Home Affairs and Others (case no CCT 46/02, unreported Constitutional Court judgment delivered on 28 March 2003) at para [21]:

“The suspension of an order is appropriate in cases where the striking down of a statute would, in the absence of a suspension order, leave a lacuna. In such cases, the Court must consider, on the one hand, the interests of the successful litigant in obtaining immediate constitutional relief and, on the other, the potential disruption of the administration of justice that would be caused by the lacuna. If the Court is persuaded upon a consideration of these conflicting concerns that it is appropriate to suspend the order made, it will do so in order to afford the legislature an opportunity “to correct the defect”. It will also seek to tailor relief in the interim to provide temporary constitutional relief to successful litigants”.

Accordingly, as the suspension of the declaration in Steyn’s case was designed to avoid a lacuna (a period when the procedures laid down in the sections did not apply), it is most unlikely that the Court intended that very lacuna to arise when the period of suspension came to an end. And in the light of the established general principle that an order of invalidity has no effect on cases finalised before the date of the order – see: S v Bhulwana: S v Gwadiso, supra at 400 – it is also unlikely that it was intended that persons who had unsuccessfully followed the procedures laid down in the sections in question should be in a worse position than those who had failed to take any steps at all to seek leave to appeal at a time when they were obliged to do so.

This conclusion also appears to have been reached in Ndhlovu v Director of Public Prosecutions, Kwazulu Natal 2003 (1) SACR 216 (N). In that matter the appellant was convicted by a regional court in January 2000. In April 2000, he applied to the trial court under s.309B for leave to appeal but his application was refused. In May 2000, his petition to the judge president under s.309C was similarly unsuccessful. However, in June 2001 (viz. after the lapse of the period of suspension of the declaration of invalidity relating to s.309B and s.309C) he delivered a further notice of appeal against his conviction and sentence. When the matter came before the High Court, the crucial question was whether it had been open to him to note an appeal in June 2001 as he had purported to do. In considering the effect of the Constitutional Court’s order in the Steyn case, Hurt J, with whom Kruger AJ concurred, said the following (at 220 a – c):

“The order goes on then, to make specific provisions for a modified procedure under s 309C in respect of certain convicted persons. What is abundantly clear from the judgment in S v Steyn is that the order striking down ss 309B and 309C was not to operate retrospectively, ie it did not amount to a declaration that any proceedings under s 309C were to be treated as invalid. In fact, the applicant and the convicted accused who is described, in the judgment, as an amicus curiae were specifically refused relief by the Constitutional Court, notwithstanding that they had both been refused leave to appeal to the High Court under the procedure prescribed in s 309C. In my view, therefore, the declaration by the Constitutional Court did not have the effect of reviving the applicant’s right to note an appeal against the judgment of the regional magistrate”.

I agree with this reasoning and the conclusion that was reached. In my opinion, the Constitutional Court, by suspending its declaration of invalidity, by necessary implication provided for it to become effective only from the date the suspension expired and not retrospectively to the date of enactment of the sections. In the light of that conclusion, I am of the respectful view that cases such as S v Xhoza (unreported TPD case A672/2001) and S v Jaars 2002(1) SACR 546 (C) which concluded that to be the position were correctly decided while judgments to the contrary, such as S v Danster supra, and S v Thusi 2002(12) BCLR 1274 (N), were wrongly decided.

I do not think it is necessary to consider the various other interesting issues raised by Erasmus J in his thought provoking judgment as, in my view, for the reasons I have mentioned, the three matters before this Court must be determined on the basis that s. 309B and s.309C are to be regarded as valid from the date of their enactment up to and including 28 May 2001. Accepting that to be the case, I turn now to deal with the three cases before us.

On 27 July 2000, the appellant in the matter of S v Jafta CA&R490/02 was convicted on a charge of rape and sentenced to 15 years imprisonment. On 24 November 2000, his application for leave to appeal under s. 309B was dismissed. He did not invoke the provisions of s. 309C by then petitioning for leave to appeal but, on 3 April 2002, he filed a notice of appeal in which he purported to appeal directly to this Court against his conviction and, possibly, his sentence as well. However, as his application for leave to appeal had been dismissed prior to the Constitutional Court’s declaration of invalidity in the Steyn case, supra and as s. 309B and 309C are to be regarded as valid and enforceable from the date of their enactment up to and including 28 May 2001, the appellant was only entitled to appeal to this Court with the necessary leave being granted – cf. S v Khoasasa [2002] 4 All SA 635 (SCA) at 637 para. [6] and S v Zulu, supra. In any event, even if the provisions of s. 309B and 309C are to be regarded as retrospectively invalid from the date of their enactment, on the principle that the order of invalidity should have no effect upon cases finalised before the date of the order, and as the appellant’s application for leave to appeal had been refused and he had failed to take any steps to petition under s. 309C before 29 May 2001, this case can be considered as being finalised when the declaration of invalidity took effect and no effect can therefore be given to the purported notice of appeal of April 2002. The appeal is therefore not properly before this Court and should be struck from the roll.

Turning to the case of S v Ndondo CA&R 77/02, the appellant was convicted on charges of rape and murder for which he was respectively sentenced to 10 years imprisonment and 15 years imprisonment. Sentence was imposed on 29 March 2001 i.e. during the period the Constitutional Court’s declaration of invalidity was suspended. The appellant was therefore obliged to apply for leave under s.309B. The appellant immediately applied for leave to appeal but his application was also dismissed. Although the magistrate then explained his right to seek leave to appeal under s. 309C by way of petition, the appellant did not avail himself of that option. However, on 27 July 2001 i.e. after the suspension of the Constitutional Court’s invalidity declaration had lapsed, the appellant sent a fresh notice of appeal to the clerk of the court which was apparently received by the magistrate on 9 October 2001.

The appellant in this case finds himself in the same position as the appellant in the Jafta case. At the time his application for leave to appeal was dismissed, the provisions of s. 309B and 309C were still in force, albeit in terms of a suspended declaration of invalidity. He failed to obtain the necessary leave to appeal in terms of those sections and the matter can be regarded as finalised, whether the declaration of invalidity which came into effect on 29 May 2001 is retrospective to the date of enactment of the sections or not. His appeal, too, is therefore not properly before this Court and must be struck from the roll.

Finally, I turn to consider the position of the appellant in S v Mcontana CA&R No. 147/02. The appellant in this case was convicted in a regional court on 13 January 2000 on a charge of unlawfully dealing in dagga and sentenced to 15 years imprisonment. On 16 November 2000, he applied unsuccessfully under s. 309B for leave to appeal against his sentence. Although he did not thereafter petition for leave under s. 309C, he did forward a letter to the clerk of the court which all concerned accept is to be construed as a notice of appeal. It is not clear when this letter was drafted or lodged but, for the purposes of this judgment, the parties are agreed that it can be accepted that it was after the Constitutional Court’s declaration of invalidity came into effect. But, as the declaration of invalidity was not retrospectively effective and only effected matters from 29 May 2001 onwards, the appellant’s right of appeal was limited by the provisions of s. 309B and 309C and, as he did not obtain the necessary leave, his appeal is not properly before us.

However, in so far as his case is concerned, that is not the end of the matter. Pursuant to a plea of guilty and a statement made under s. 112 (2) of the Criminal Procedure Act, he was correctly convicted of having contravened s.5 (b) of Act No. 140 of 1992 by dealing in 131,18 kilograms of dagga which he admitted he had transported in a motor vehicle for the purposes of redistribution. The State then called a policeman, one Grieb, whose unit specialises in drug offences and who testified that the value of the dagga was R131 000,00. He arrived at this value by applying the street value of R1,00 per gram to the total quantity of the dagga the appellant had been transporting. Accepting this to be the relevant value, the magistrate concluded that the offence fell under Part II of Schedule 2 of the Criminal Law Amendment Act No. 105 of 1997 (viz. an offence referred to in s. 13 (f) of Act No. 140 of 1992 where that the value of the dependence-producing substance in question is more than R50 000,00) and that by reason of the provisions of s. 51 (2)(a)(i) of Act 105 of 1997, a minimum sentence of 15 years was therefore prescribed unless substantial and compelling circumstances justified a lesser sentence. The magistrate found that there were no such circumstances and, notwithstanding his reservations as to whether such a punishment was proportionate to the crime, therefore imposed what he considered was the mandatory minimum sentence of 15 years imprisonment.

This case is remarkably similar to S v Legoa 2003 (1) SACR 13 (SCA) in which Cameron JA stressed that while the value of an article was as a general rule its market value, being the price a willing buyer would pay to a willing seller in an open market, it was wrong to assume that dagga sold in bulk and dagga sold in small quantities of 1 gram would have sold at the same price per gram. The magistrate in casu made the same mistake. There is no evidence here of the market value of a single consignment of 131,18 kilograms of dagga. That being so, the State has therefore failed to establish that the value of the dagga was more than R50 000,00 and that the offence was one envisaged by Part II of Schedule 2 to Act No. 105 of 1997.

In any event, in Legoa’s case, supra the court went on to hold that the facts which must be present to make the minimum sentence compulsory must be included in the facts on which the conviction is based – so that where an accused pleads guilty and is convicted on his plea without admitting the facts which will bring a prescribed minimum sentence into operation, the State cannot then lead evidence to establish that the matter is one in respect of which a minimum sentence is prescribed. As, in casu, the question of the value of the dagga was ventilated only after the accused had been convicted and was not even referred to in the charge sheet, the State was not entitled to seek to enforce the provisions of s.51 of Act 105 of 1997 against the appellant. The magistrate therefore erred in applying those provisions and the sentence must be set aside on review.

There seems to me to be no necessity to remit the matter back to the magistrate to impose sentence afresh as all the material facts appear to be on record. The offence was clearly a serious one, involving a considerable quantity of dagga. The accused, who was 39 years of age at the time of the offence, is a first offender. The State accepted that he had undertaken for reward to drive the motor vehicle containing the dagga to Cape Town and he had therefore performed an intermediary function and was not the actual distributor. He also indicated his remorse by pleading guilty and by stating in his s. 112 statement (which was accepted by the State) that he regretted his conduct and would never commit a similar act again, and that he had done what he did by reason of the money that he had been offered as a fee to drive the car. In the light of all these circumstances, I am of the view that a sentence of 5 years imprisonment would be adequate.

In my judgment, for the reasons I have given, all three appeals should be struck from the roll. However, in the exercise of this Court’s inherent review powers, the sentence imposed by the magistrate in the matter of S v Mcotana CA&R147/02, should be set aside and substituted with a sentence of 5 years imprisonment, that sentence to be ante-dated to 13 January 2000 being the date upon which sentence was imposed in the court a quo.

_____

L.E. LEACH

JUDGE OF

THE HIGH COURT

PICKERING, J:

I agree with the judgment of my brother Leach and the order he proposes. As this is the majority decision, it is so ordered.

J.D.

PICKERING

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO:CA&R 490/02

In the matter between:

A. JAFTA Appellant

and

THE STATE Respondent

CASE NO:CA&R 77/02

M. NDONDO Appellant

CASE NO:CA&R 147/02

K.M.S. MCONTANA Appellant

JUDGMENT

AR ERASMUS J:

INTRODUCTION

[1] In all three of the appeal cases on our roll the question arises in limine whether the matter is procedurally properly before court. The issue in each case turns on the question whether s 309B and s 309C of the Criminal Procedure Act 51 of 1977 are applicable to the appeals.

[2] Section 309B provided that an accused who wished to appeal against a decision of a lower court had to apply within 14 days to that court for leave to do so. Section 309C provided that if an application for leave to appeal under s 309B had been refused, the accused could within 21 days of such refusal petition the Judge President for leave to appeal. The Constitutional Court, in S vs Steyn1, found this procedure to be inconsistent with the Constitution and declared the provisions invalid. The Court further ordered that the declaration of invalidity be suspended for a period of six months from the date of the order. (I deal more fully with the judgment and order later herein2).

[3] The suspension of the operation of the declaration means that there are three periods relevant to the question that arises before us:

(a) the period between the enactment of ss 309B and C, and the judgment in S vs Steyn (25 May 1999 to 29 November 2000);

(b) the six months period of suspension (30 November 2000 to 29 May 2001); and

(c) the period following the end of the suspension (30 May 2001 to date).

[4] The appellants were all three convicted on serious criminal charges and sentenced to lengthy terms of imprisonment. For present purposes, the following further factors have relevance.-

S vs Jafta CA&R 490/02

The appellant was sentenced on 27 July 2000. He took no steps in terms of s 309B, but on 3 April 2002 simply lodged with the magistrate a document purporting to be a notice of appeal against his conviction and sentence.

S vs Ndondo CA&R 77/02

The appellant was sentenced on 29 March 2001. Immediately thereafter, he applied in terms of s 309B for leave to appeal against his conviction. The court refused leave to appeal both in regard to conviction and sentence. The appellant did not petition the Judge President in terms of s 309C for leave to appeal. On 9 October 2001 he filed with the magistrate a letter which purported to be a notice of appeal to this Court against his conviction and sentence.

S vs Mcontana CA&R 147/02

The appellant was sentenced on 17 January 2000. On 16 November 2001, he brought an application for leave to appeal which was dismissed.

He did not thereafter petition the Judge President in terms of s 309C, but filed with the magistrate a document that could be taken to be a notice of appeal against his sentence (the date thereof is not quite clear).

[5] The question that arises for our decision is essentially whether the declaration in S vs Steyn operated with full retrospective effect as from the date upon which the period of suspension came to an end, or whether it operated as from that date forward only. The question has been the subject of a number of conflicting judgments in other Divisions of the High Court.

JUDGMENTS OF THE HIGH COURTS

[6] In the Transvaal Provincial Division, in S vs Khoza3, the appellant was on 9 March 2001 convicted of a crime and sentenced to imprisonment by a regional court. He lodged an application for leave to appeal on 9 April 2001, but did not proceed with the application, for the reason – so his attorney informed the court – that such application was no longer necessary (presumably in view of the decision in S vs Steyn). Stafford DJP with Mynhardt J concurring found that the effect of the decision in Steyn’s case was not retrospective, because the decree invalidating ss 309B and 309C had been suspended for six months. The learned Deputy Judge President declared: ‘Eers na ses maande op 30 Mei is verlof om te appelleer nie meer nodig nie. Dit wil sê teen skuldigbevindings wat na 29 Mei 2001 plaasgevind het.’

[7] Thereafter, on 7 December 2001 in the Cape Provincial Division in S vs Jaars; S vs Williams; S vs Jantjies4, Thring J (with the concurrence of Erasmus J) expressly agreed with and applied the decision in S vs Khoza. The learned Judge was of the view that the approach adopted in that case was consistent with the principle that amendments to statutes, generally speaking, affect future conduct and do not have retrospective effect5.

[8] The question arose again in the Cape Provincial Division in two cases submitted to a Judge in Chambers on petition for leave to appeal in terms of s 309C (S vs Brandt; S vs Celento6). The matters came before Knoll J. In her judgment, in which Selikowitz J concurred, the learned Judge stated that the effect of a declaration of constitutional invalidity of a statutory provision is retrospective in the absence of a contrary order by the court. Such declaration of invalidity, she added, invalidates also any action taken under any of the invalidated provisions, and does so from the moment that either the particular section or the Constitution came into effect, whichever is the later date; not from the moment of the court’s order. The learned Judge relied for authority on National Coalition for Gay & Lesbian Equality v Minister of Justice & another7; Dawood and another v Minister of Home Affairs, and three other cases8. She pointed out that in Steyn the Constitutional Court made no order limiting the retrospectivity of the order of invalidity, as it could have done in terms of the Constitution. The learned Judge further referred to the comment of O’Regan J in S vs Bhulwana; S vs Gwadiso9:

‘As a general principle, therefore, an order of invalidity should have no effect on cases which have been finalised prior to the date of the order of invalidity.’

Knoll J held that in both cases before her, the refusal of leave to appeal was invalidated by the declaration in Steyn’s case; consequently, that the petitioners had the right to appeal without being at all affected by the invalid provisions.

[9] Thereafter, presumably in view of the conflicting decisions in that Division, two matters were enrolled for decision before the Full Bench of the Cape Provincial Division consisting of Nel J, Conradie J and Davis J, (S vs Danster; S vs Nqido10). In both matters the accused had been convicted and sentenced prior to 28 May 2001 and had not obtained leave to appeal in terms of s 309B or s 309C. Davis J, who delivered the judgment of the Court, accepted and applied the formula propounded by Knoll J in S vs Brandt; S vs Celento, viz that following a declaration of invalidity, the doctrine of objective constitutional invalidity operates absolutely with retrospective effect; limited only by the principle that the declaration does not apply to matters finalised prior to the date the declaration. He found that this conclusion had certain implications11; in short, that retrospectivity applied to non-completed cases, but not to completed matters. (The order is fully set out and considered hereinbelow12).

[10] In the matter of S vs Ndlovu13, Findlay AJ sitting in the Kwazulu-Natal Provincial Division considered the various conflicting judgments. The learned Judge found that Danster was clearly the better view and should be followed. This finding was endorsed by Hartzenberg AJ14 in S vs Thusi15.

LEGISLATIVE, CONSTITUTIONAL AND JUDICIAL DEVELOPMENTS

[11] Any person convicted of any offence by a lower court always has had a right to appeal to a higher court16. The right was unfettered save that since 1917 (as far as I can establish) no person undergoing imprisonment for any offence was entitled to prosecute a review or an appeal in person unless a Judge had certified that there were reasonable grounds for review or appeal17.

[12] The requirement of a Judge’s certificate did not survive long in the new constitutional dispensation introduced by the Republic of South Africa Constitution Act 200 of 1993 on 27 April 1994 (‘the interim Constitution’). On 8 November 1995, the Constitutional Court in S vs Ntuli18 (‘Ntuli(1)’) held that this limitation of the right to appeal was inconsistent with the constitutionally guaranteed right to a fair trial. The Court accordingly declared the relevant provisions to be invalid. The Court, further, ordered that Parliament was required to remedy the defect by 30 April 1997, and suspended its declaration until that date.

[13] Parliament however failed to act timeously upon the opportunity afforded it by the Constitutional Court. The Minister, in Minister of Justice vs Ntuli19 (‘Ntuli (2)’), made an abortive last-minute attempt to have the period of suspension extended. Chaskalson P (now also Chief Justice) was critical of the failure on the part of the responsible public servants to institute steps remedying the defect. He referred to ‘the sorry tale of the inexcusable delay in the launching of the proceedings’20.

[14] In this Division these developments resulted in a flood of appeals by persons serving sentences of imprisonment. In the majority of cases the appeals were not only devoid of merit, but were also procedurally defective: they were for the most part out of time; they were initiated by documents that were little more than letters of complaint; there was seldom any attempt to obtain condonation for procedural defects. We adopted a lenient approach to the non-compliance with the rules. However, where a document could not even on a liberal construction be seen as a notice of appeal or an application for condonation, the accused was advised of the requirements of the rules, on a standard letter devised by the Judge President. Such accused was informed also of his or her rights to legal representation. Despite these measures, appellants often appeared in person in prison garb with a posse of warders in attendance at court. Many of them accepted the advice of the Court to apply for legal aid; others insisted on arguing their own case, which in most instances amounted to protestations of their innocence reinforced by reiteration of their evidence in the lower court. The position was not satisfactory, but we coped.

[15] At the time of the judgment in S vs Ntuli(1)21, the statutory provisions prescribing leave to appeal from the High Court22 were under challenge in the Constitutional Court. That Court, on 28 December 1995 in S vs Rens23, ruled that the procedure was not inconsistent with the rights guaranteed under the (interim) Constitution. Presumably in view of that decision, the requirement of leave to appeal was introduced in the lower courts with effect from 28 May 1999, in the provisions of s 309B and s 309C of the Criminal Procedure Act24>.

[16] Prior thereto the Magistrates’ Courts’ Rules were aligned to notice of appeal procedure. Rule 67 prescribed the time periods and requirements as to the form and content of the notice of appeal. The rule was substantially amended so as to regulate the leave procedure and petition introduced by s 309B and s 309C25. This rule is still in place, unamended despite the developments around it.

[17] The validity of statutes was beyond judicial challenge in the pre-constitutional era of absolute parliamentary sovereignty.

This changed when the interim Constitution came into operation26. Section 4(1) proclaimed that thenceforth the Constitution was the supreme law of the Republic and that any law or conduct inconsistent with it was invalid. Section 98(5), under the heading ‘Constitutional Court and its jurisdiction’, enjoined the Constitutional Court to declare invalid any law or provision found to be inconsistent with the Constitution. The interim Constitution did not spell out the effect of the declaration of invalidity. This was done by the Constitutional Court in Ferreira vs Levin NO and others; Vryenhoek & others vs Powell NO & others27 . Ackermann J pointed out that the Court’s declaration does not invalidate the law; it declares it to be invalid. Pre-existing laws either remained valid or became invalid upon the Constitution coming into operation. The Court relied on the supremacy clause of the Constitution to develop the notion that unconstitutional laws are invalid even without a declaration to that effect. The Constitutional Court thereby opted for what is sometimes called ‘the doctrine of objective constitutional invalidity’;

rather than judicial invalidation.

[18] We are however concerned here not with the invalidity of a statutory provision in the abstract, but with the practical effect of the invalidity of a law upon procedure prescribed by that law. The interim Constitution dealt with the situation in specific terms. Section 98(6) decreed:

‘Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof –

existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity; or

passed after such commencement, shall invalidate everything done or permitted in terms thereof.’

[19] The application of these provisions was considered in S vs Bhulwana; S vs Gwadiso28. The Constitutional Court struck down the reverse onus provisions of the Drug Trafficking Act 140 of 1992. In regard to an order in terms of para (a) of s 98(6), O’Regan J, speaking for the Court, said that it was central to the consideration of the interests of justice in a particular case that not only the litigants but all other persons in the same situation as the litigants, should obtain the constitutional relief sought in the case, unless the interests of good government outweighed the interests of the litigants. On the other hand, she declared, the Court should be circumspect in exercising its powers under s 98(6)(a) so as to avoid unnecessary dislocation and uncertainty in the criminal justice process. The Court issued an order to the effect that the declaration of invalidity did not affect cases finalised in the sense that the accused had been convicted and sentenced, and the time for appeal had elapsed.

[20] Chaskalson and his co-authors29 state in their work that this became the authoritative approach to s 98(6). They elaborate:

‘Unless the interests of good government dictated otherwise, a declaration of invalidity of a statute generally had retrospective effect, irrespective of when that statute was enacted. In the application of this test only one clear principle emerged under the interim Constitution jurisprudence. In order to avoid dislocation and uncertainty in the administration of justice, orders of retrospective invalidity did not affect cases which had been finalised at the date of the order. It was possible, however, to take advantage of the order of invalidity in any trial, appeal or review which was pending at the date of the order. Beyond this principle, questions of retrospective relief, good governance, and the interests of justice tended to be approached by the court on an ad hoc basis with an inclination not to grant retrospective relief in cases where the consequences of doing so were not clearly predictable.’

(My emphasis)

[21] The final Constitution in its s 172 declares:

‘(1) When deciding a constitutional matter within its power, a court –

must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

may make any order that is just and equitable, including –

an order limiting the retrospective effect of the declaration of invalidity; and

an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

(2)(a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

(b) A Court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.’

[22] That then was the position when the Constitutional Court handed down the judgment in S vs Steyn.

SECTION 172(1) OF THE CONSTITUTION

[23] Section 172(1) deals with the two aspects involved in the unconstitutionality of a law, viz (in subpara (a)) the invalidity of the law and (in subpara (b)) the effect of the invalidity30. The two questions are clearly closely interrelated in that it is really the effect of a law on human activity (or inactivity) that determines the constitutionality of that law. All acts, performed in terms of a law declared to be invalid are therefore presupposedly inconsistent with the Constitution.

[24] However, consequences harmful to individual persons or to society could flow from stripping the validity from acts performed in terms of an Act of Parliament in the bona fide belief that the law was valid. The architects of both the interim and the final Constitutions were obviously mindful of the fact that the blanket invalidity of all such acts could have implications inimical to constitutional principles and objectives.

[25] The interim Constitution dealt with the problem fairly specifically, by preserving the validity of anything done or permitted in terms thereof prior to 27 April 1994 (the date of commencement of the interim Constitution), but invalidating everything done or permitted in terms thereof after that date; while allowing the Constitutional Court the power in both instances to order otherwise31. The final Constitution (presumably in view of the judgments of the Constitutional Court on the question of retrospectivity) adopts a significantly different and more flexible approach. It dictates that a court may (in regard to the effect of a declaration of invalidity) make an order that is just and equitable, ‘including an order limiting the retrospective effect of the declaration.’32 The court is given wide powers to ameliorate the effect of the declaration of invalidity. See in this regard for example the orders in National Coalition for Gay and Lesbian Equality vs Minister of Justice33; Dawood and another vs Minister of Home Affairs, and three other cases34; Fraser vs The Children’s Court35.

[26] Where the court issues an express order limiting retrospectivity, the position is clear. The position is also clear where the court, having properly considered the question, expressly declines to make any order in terms of subpara (b) (see for example Dawood and another vs Minister of Home Affairs, and three other cases36).

[27] Section 172(1) does not prescribe the form of the order issued in terms of subpara (b). The Constitution is decidedly not formalistic. An order in terms of subpara (a) therefore need not be in express terms, but can be found in the intention of the court implicit in the judgment. On this basis the effect of the declaration will be in full harmony with the intention of the Court.

[28] It becomes necessary therefore to consider carefully the judgment in S vs Steyn.

S VS STEYN

[29] Madlanga AJ commences his judgment with the observation that in S vs Rens37 the Constitutional Court held that the leave requirements for criminal appeals from the High Court were not inconsistent with the Constitution. The starting point of the judgment was therefore that a leave requirement is not per se unconstitutional. It was argued by counsel representing the prosecuting authority that the magistrates’ courts’ leave procedure was likewise constitutional. Madlanga AJ considered the question under two headings: ‘The nature of the magistrates’ courts’ leave to appeal procedure, and ‘The institutional context’. It is not necessary for present purposes to traverse this aspect of the judgment in any detail. The core element of the Justice’s reasoning was the point of principle he identified in the difference in standing and functioning of the magistrates’ courts as compared to the High Courts. He concluded that the risk of an error leading to an injustice was substantially greater in the magistrates’ courts than in the High Courts. This conclusion gave rise to the finding that the attenuated appeal procedure contained in ss 309B and 309C constituted a limitation of the right of appeal to a higher court entrenched in s 35(3)(o) of the Constitution.

[30] Madlanga AJ considered the question whether the infringement of such right by the challenged provisions was a limitation justifiable in terms of s 36 of the Constitution. In this regard he noted that the State had failed to adduce any evidence on the clogging of the appeal rolls, the impact of unmeritorious appeals, and the existence of any resource-related problems or other relevant considerations that could justify the existence of the procedure introduced by ss 309B and 309C; nor was the Court referred to any objectively determinable factors that could be considered in justification of the challenged provisions. In the circumstances, he found, the State had failed to establish that the procedure was reasonable and justifiable.

[31] The learned Justice commented that it could well be that a less restrictive and justifiable means of achieving the purpose of promoting the interests of the administration of justice existed. The State however had contented itself with the submission that because the leave and petition procedure was upheld in the context of the High Courts, the procedure should pass muster in the context of the magistrates’ courts as well.

[32] Madlanga AJ considered the relief appropriate in the circumstances. (This aspect is of particular importance in relation to the issue before this Court.) He stated that in view of the Court’s finding that the leave to appeal and petition procedure was inconsistent with s 35(3)(o) of the Constitution, a declaration of invalidity had to ensue. What was not so straightforward, he stated, was whether the declaration had to take effect forthwith. As appeared from s 172(1)(b), courts deciding constitutional matters had to take the dictates of justice and equity into account when making orders. The practical implications for the administration of justice were also to be borne in mind. In this regard, he said, the Court could adopt what was set out in s 172(b)(i) and (ii). Madlanga AJ then referred to the Ntuli saga38. The question that in view thereof loomed before him was whether in the matter before Court extension of time should be allowed in the interests of good government. He pointed out that the mechanism of suspending orders was intended to avert disorders or dislocation that could arise as a result of an immediate declaration of invalidity. He declared that even though the State had not furnished any hard data, the Court could not ignore the probability that the sudden increase in appeals that would result from an immediate declaration of invalidity would have a major

impact on the court system, the full ramifications of which were not immediately imaginable. It was notorious, he noted, that the High Courts were already overburdened and that such a sudden increase in the workload could well prove impossible to handle. Also, the costs of the transcription of all records would certainly have a significant impact on financial resources. More importantly, the additional transcription workload was likely to result in delays in the production of records. The ripple effect thereof could be that the hearing of all appeals could be delayed. These were realities that could not be ignored. In order to avoid dislocation in the appeal process, he concluded, it seemed necessary to suspend the declaration of invalidity so that the State could take necessary, reasonable steps to address the impact of the declaration.

[33] Madlanga AJ further found that during the period of suspension, in the interests of justice and equity, it was necessary to ameliorate the adverse effects of the leave to appeal and petition procedure contained in ss 309B and 309C. These measures he set out in para 4 of the order of the Court, which reads as follows in such regard:

‘During the period of such suspension, clerks of the court shall, when submitting documents to a High Court in terms of s 309C(3) of the Criminal Procedure Act 51 of 1977, submit copies of the record of proceedings in the magistrate’s court and the magistrate’s reasons for the judgment appealed against in every case in which –

(a) the applicant for leave to appeal has been –

sentenced, without the option of a fine, to a prison sentence of which the unsuspended portion is in excess of three months, or

given an option of a fine but that fine has remained unpaid for a period of two weeks from the date of sentence and the unsuspended portion of the alternative term of imprisonment is in excess of three months; and

(b) the applicant for leave to appeal is prosecuting the application for leave in person; and

(c) there is no automatic review in terms of s 302 of the Criminal Procedure Act 51 of 1977.’

[34] The judgment in S vs Danster; S vs Nqido, commences the analysis of the effect of the judgment in Steyn by looking at what the position would have been had the Constitutional Court not suspended its declaration of invalidity39. The fact of the matter is that the Court did suspend the declaration. It, further, carefully added safeguards to the leave procedure prescribed in the two sections40. These acts of the Court have very definite implications and significance as to its intention in regard to retrospectivity. The Court thereby preserved the validity and legal effect of the leave and petition procedure - not only for the six months’ period of suspension, but also for the whole of the preceding period during which the two sections were effective (from 25 May 1999)41. The operation of the leave procedure during the period of suspension was completely incompatible with the invalidity of the two sections in that period. The Constitutional Court could not have intended that acts validly performed in terms of a procedure expressly sanctioned and fashioned by the Court for the period of suspension, would at the end of the period be (and always have been) quite meaningless.

[35] The ultimate test of a court’s intention lies in the impact of its decision on the parties before court. Mr. Steyn, the appellant, had been refused leave and his petition turned down. He was joined in his challenge of the constitutionality of the leave procedure by an amicus curiae in the same position as he. Although they succeeded in having the procedural obstacles standing in the way of their appeals declared to be invalid, Madlanga AJ expressly stated that in his view it was not an appropriate case in which the applicant and the amicus should derive a personal benefit42. The Justice could think of no basis for singling them out for relief and not subjecting them and others that were in similar positions to the suspensions set out in the order43. I should think that if the declaration had restored to them (and not merely delayed) their enjoyment of an unfettered right to appeal, the Justice would hardly have stated that they derived no benefit or relief from the declaration of invalidity. It is to be noted that the appellant was denied relief, not on the ground that his case had been ‘finalised’, but because the provisions of ss 309B and 309C remained operative by order of the Court.

[36] There is some indication that the Court may have intended that the full right of appeal was to be restored to all accused at the end of the period of suspension. This is to be found in the fact that the ameliorative provisions found in para 4 of the order were operative ‘during the period of such suspension.’ This consideration is in my view outweighed by those to the contrary set out in paras [34] and [35].

[37] The question must be asked however: why did the Constitutional Court not expressly issue an order in terms of s 172(1)(b)(i) limiting the retrospective effect of the declaration? It cannot be assumed, with respect, that the Court in its full and careful judgment overlooked the question of retrospectivity. It must be accepted that it intentionally made no express order in terms of subpara (b)(i). It becomes the task of this Court to determine and give proper effect to that intention.

[38] While Madlanga AJ expressed his concern at the ‘disorder or dislocation’ that could come from the declaration of invalidity,

there was uncertainty regarding the expected consequences of the declaration. He laid this uncertainty at the door of the State’s representatives’ failure to adduce any evidence regarding the impact of the operation on the appeal court rolls.

[39] The Constitutional Court faced the problem that it lacked ‘hard data’ as to the short and long term effect of its order on the functioning of the courts. An ‘incorrect’ decision by it on the question of retrospectivity could have a disasterous effect on the courts; or, on the other hand, it could needlessly create the risk of the miscarriages of injustice that were the cause of concern in Steyn. The order related to a fluid future situation in that an order limiting the retrospective effect of the declaration might be necessary in the interests of good governance in the immediate future, but could become quite unnecessary at a later date; also, the impact could be quite different in different Divisions of the High Courts.

[40] To meet these difficulties, as I see it, the Court ruled, by implication, that its declaration of invalidity would take effect only at the end of the period of suspension without however operating retrospectively. The Court, in not making an express order in terms of s172(1)(b)(i), left open the door to interested parties to approach a court at some future date for an order in terms of that provision regarding the effect of the declaration.

[41] This interpretation of the effect of the Steyn judgment is predicated on the assumption that a court other than the court that issued the declaration has the power to make an order in terms of s 172(1)(b) as to the effect of that declaration. I deal with that issue under the heading JURISDICTION, hereunder44.

[42] However, in order properly to consider that question, it is useful first to consider the other interpretations of S vs Steyn that are presented to us, viz (a) the formula suggested by counsel for the appellants and (b) the formula adopted in the Cape and Natal Provincial Divisions of the High Court45.

(a) The formula proposed by counsel

[43] Counsel for the appellants submit that because a declaration of invalidity operates with objective effect, everything done or permitted in terms thereof lacks (and always lacked) validity46; that therefore nothing thereby prescribed has (or ever had) valid force or effect, unless the court expressly orders otherwise in terms of subpara (b) of s 172(1). It follows, so they contend, that in the absence of such order, the declaration of invalidity issued in S vs Steyn means that ss 309B and 309C of the Criminal Procedure Act never had any legal validity, and that consequently no convicted accused was ever obliged to apply for leave to appeal in terms of those provisions. They submit that in the premises this is the case irrespective of the steps taken or not taken by an accused in terms of the leave procedure; for anything done or not done in terms of a legal nullity is itself a nullity in law. They submit that there is no room for any exceptions, as were allowed in S vs Danster; S vs Nqido47.

[44] Counsel suggest, in short, the following formula: in the absence of an express order in terms of subpara (b)(i), objective constitutional invalidity kicks in with absolute effect. This argument may have worked under the interim Constitution; but the application of objective invalidity in this absolute manner does not hold under the final Constitution48. Objective invalidity does not encompass any principle of law. It is simply an expression describing the effect of the operation of the supremacy clause of the Constitution on other law49. Its logic dictates that an inferior law shall yield to the supreme law for the whole of their concurrency to the full extent of their inconsistency. It operates automatically, and is therefore blind to considerations of justice and equity, which form the core principle of s 172(1)(a). It is therefore in itself an inappropriate mechanism for the determination of the effect of a declaration issued in terms of that subparagraph. Significantly perhaps, s 172(1)(b)(i) refers to ‘the retrospective effect’ of a declaration of invalidity; which term is more appropriate to judicial invalidation than to judicial nullification of a statutory provision.

[45] Tampering with the past can give rise to varied and complex problems50. The evidential material before court could be (and often is) insufficient for the court to assess the effect of its declarator.

In such circumstances, the court could find that it is impossible, or may regard it to be imprudent, to make a final and inalterable order in regard to the effect of its declaration on past conduct. On counsels’ formula, it would mean that although the court expressly declines to make a definitive order on the question, it in effect makes an order with final and immutable effect on that very issue. The formula has no regard for the intention of the court issuing the declaration of invalidity.

[46] My main objection to counsel’s formula is that it could result in injustice and inequity. Where a court is unable or unwilling to make a finding on the effect of its declaration of invalidity, the consequences of its declaration - being uncertain or unforeseeable - could be unjust and inequitable. Those consequences would, on counsel’s approach, automatically materialise whenever the court makes no express order in terms of subpara (b) of s 172(1), and be irremediable.

(b) The S vs Danster; S vs Nqido51 formula

[47] The full order of the Court is as follows52:

1. Completed matters are not affected by the declaration of invalidity. In short, the following matters can be considered to have been completed:

1.1 an application for leave to appeal which has been granted;

1.2 an application for leave to appeal which has been refused but the petition to the Judge President has either been successful or was refused before 29 May 2001;

1.3 an application for leave to appeal has been refused and the time limit for petitioning the Judge President had expired before 29 May 2001.

2. Where an application for leave to appeal was launched and refused but a timeous petition was not considered as at 29 May 2001, the petition lapses and the applicant now enjoys an automatic right of appeal. In practice we rule that the application for leave to appeal should in general be considered as the notice of appeal.

3. Where an application for leave to appeal was launched and refused and the time limit for the petition expired after 29 May 2001, the applicant has an automatic right to appeal, irrespective of whether the petition was actually brought. Again, the application for leave can be regarded as the notice of appeal.

4. Where no application for leave to appeal had been launched before 29 May 2001, an applicant would need to apply for condonation for bringing an appeal out of time.

[48] The order is that of the Full Bench of a Provincial Division and as such the judgment has substantial persuasive value. It moreover has been followed and applied in decisions in another Division53. This Court will therefore not lightly hold that the judgment is wrong.

[49] Essentially, Davis J held that in the absence of an express order to the contrary in terms of subpara (b)(i), a declaration of invalidity means that all acts done in terms of the invalid law never were valid, excepting only ‘finalised’ acts. Save for such exception, this formula is essentially the same as that advanced by counsel, and it is therefore - with respect - subject to the same criticisms54.

[50] Furthermore, the basis upon which the Court excluded ‘completed’ matters from the operation of objective constitutional invalidity, with respect, lacks foundation in law. The judgment in S vs Bhulwana; S vs Gwadiso55 upon which Knoll J relied56, was decided in the context of s 98(6)(a)57 of the interim Constitution which differs substantially from s 172(1)(b)58. In the Bhulwana case, the Court - as a matter of principle - declined to extend invalidity to matters already finalised. Certainty and finality in criminal trials are well-established requirements of good judicial governance. Such considerations are undoubtedly relevant to the decision whether the court should issue an order in terms of subpara (b)(i) limiting the retrospective effect of a declaration of invalidity. However, finalised matters (whatever they may be in the present context) are certainly not automatically excluded from the operation of a declaration of invalidity. A formula that has such effect is therefore unacceptable.

[51] The practical effect of the retrospective operation of the Steyn declaration would be to bring about the midstream change of procedure in all appeals not yet finalised as at the date that the declaration becomes effective. It would have the effect that criminal matters commenced under one procedure would be continued under another, quite different and largely inconsistent, appeal procedure. Anomalies and contradictions are bound to arise; and, with respect, do arise in the order issued in S vs Danster; S vs Nqido59:

It is not clear on what basis the Court required that an appellant would need to apply for condonation for bringing an appeal out of time60. Rule 67, the operative rule of court, was at the time (and still is) geared to the leave procedure, and laid down no time period for the noting of appeals61. This means that the Danster order requires that an accused who has failed to comply with invalid statutory prescripts, must apply for condonation of his or her failure to comply with non-existent rules of court!

In as much as s 309C expressly allowed an accused the right to apply for extension of time within which to bring a petition, it does not seem logical to regard a matter as ‘completed’ simply because the time period stipulated in the section has expired62. In such a case, the rights of the accused have not been procedurally exhausted, and there could be merit in an application for extension of time.

There can be no reason in logic or equity why an accused who has taken no steps at all following his sentence63, should be in a better position than one that properly applied for leave to appeal64. The Constitutional Court with its decision in Steyn certainly did not intend to condone lassitude on the part of prospective appellants; the Court acted to assist those persons

potentially prejudiced by the refusal of leave to appeal. The order in Danster, it seems, benefits the wrong persons.

[52] The clear objective of subpara (b) of s 172(1) is to maintain justice and equity in the process of cleansing the law books of laws inconsistent with the Constitution. It involves the weighing-up of competing interests and values. In the process, a particular right may have to yield to the public interest65. The exercise can be difficult and intricate. What is required is a flexible and sophisticated approach, responsive to constitutional principles. A rigid and formalistic approach as proposed by counsel, or that adopted in S vs Danster; S vs Nqido, with respect, does not meet that need.

[53] That objective can be achieved simply by allowing any court of competent jurisdiction the power to make an order regarding the effect of a declaration of invalidity issued by another court. The question as to whether a declaration of invalidity should operate with retrospective rather than non-retrospective effect, can - like any other judicial issue - be determined properly only by a court with the power to make a just order, upon a sufficiency of evidential material, after being addressed by the interested parties.

[54] At this point my path of reasoning and that of my Brother Leach diverge. He takes the view that only the court that issues the declaration of invalidity has the power to make an order in terms of subpara (b)(i) of s 172(1), which would mean that the Court in Steyn established absolute finality on the question of the retrospectivity of its declaration, subject only to appeal relief. I, on the other hand, respectfully hold that the ruling in S vs Steyn on the effect of its declaration is not is cast in stone. I deal with this issue under the next heading.

JURISDICTION

[55] Court proceedings to determine the constitutional validity of a law, differ from a conventional civil trial in several material respects. Three of these are relevant to the present enquiry. I refer first to the circumstance that most often only a minuscule number of the persons to be affected by the judgment of the court are actually before court. As a result, vital information regarding the effect of a declaration of invalidity on absent interested parties may not be presented to the court. The order of the court regarding the effect of its declaration could conceivably cause great injustice to interested parties who had no opportunity of putting their case to the court. The second circumstance is that in many instances, the case of society as against the individual is put forward by public servants representing an interested Ministry of the government. Where that case is not properly presented (as was the case in Steyn apparently), then it is society and its institutions that are prejudiced by a ‘wrong’ decision. The third point of difference lies in the fact that in a civil suit, the cause of actions arises completely prior to the institution of proceedings, and developments subsequent to the judgment are quite irrelevant. In the case of a declaration of invalidity, the reality of developments subsequent to the declarator (as in the present matter, see paras [39]

and [71] to [76]) remain a concern of society and individuals that rely on the Constitution for the protection of their interests. Those interests require that injustice or inequity that flows from unforeseen consequences of a declaration of invalidity, or that arise in developments subsequent thereto, be remediable. The question for us to decide is whether this Court has the power in terms of s 172(1)(b) to effect such remedy.

[56] I respectfully concede the cogency of the reasoning of my learned colleague, Leach J, that leads him to the conclusion that this Court lacks jurisdiction to make an order regarding the effect of the declaration of invalidity issued by the Constitutional Court in S vs Steyn. I readily concede the merit in his view that on the wording of s 172(1)66, subparas (a) and (b) thereof would seem to be conjunctive; thereby seemingly indicating that a court that issues the order in terms of subpara (b) must be the court that issued the declaration in terms of subpara (a). The section is nevertheless capable of bearing the meaning that ‘a court’ (any court) ‘deciding a constitutional matter within its power’ may make an order in terms of subpara (b) and not necessarily only the court that issued the declaration in terms of subpara (a).

[57] I am very much aware of the comment by Chaskalson P in Ntuli(2)67 to the effect that the two subparagraphs of s 172(1) should not be read disjunctively68. The learned President of the Constitutional Court however expressed the view not on the wording of s 172(1), but in the context of the particular question as to whether it is open to a court to vary an order of court ‘that was final in form and substance’69. He was deferring to the ‘well established’ principle of the common law-

‘… that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject-matter has ceased.’70

The present matter does not involve the variation of a judgment, but proceeds on a quite different question, i.e. whether it is just and equitable to make an order in terms of a specific section of the Constitution expressly providing for such order.

[58] Chaskalson P considered the argument advanced on behalf of the applicant71:

‘Counsel for the Minister pointed out that an order declaring provisions of a statute to be invalid is not limited in its application to the parties to the suit, but is of general application. It may be necessary, so the argument went, for such an order to be varied in the interests of justice and good government, particularly where the full facts were not placed before a Court at the time of the hearing, and the implications of the order for persons who were not represented at the hearing might not have been taken into account. It is therefore implicit in any order of suspension that the period of suspension can be extended if circumstances change or if the full implications of the order made only become apparent at some future time.’

The learned Justice referred to the principle that there must be an end to litigation, and that it would be intolerable and would lead to great uncertainty if courts could be approached to reconsider the final orders made in judgments declaring the provisions of a particular statute to be invalid. However, in the view that he took of the facts in the matter, it was not necessary to decide whether a court is free to extend the period of suspension previously fixed in the final order declaring provisions of a statute to be invalid. For the purposes of the judgment, he was prepared to assume that in an appropriate case an order for the suspension of the invalidity of a provision of a statute could subsequently be varied by a court for good cause. But if that was so, such a power would be one that should be sparingly exercised.

[59] The jurisdictional content of s 172(1) was again considered by the Constitutional Court in Dawood, Shalabi and Thomas vs Minister of Home Affairs 72. The Court was called upon to confirm the declaration of invalidity of certain sections of the Aliens Control Act 96 of 1991 issued by the Court of the Cape Provincial Division. It found the relevant provisions to be unconstitutional. O’Regan J, who spoke for the Court, then considered whether it was appropriate to make an order in terms of s 172 of the Constitution. She stated73:

‘Although this matter is before this Court for the confirmation of an order of invalidity, there is nothing in s 172 that suggests that the Court’s power to make appropriate orders is limited in such matters. It seems clear from the language of s 172(1), in particular, that as long as a Court is deciding a constitutional matter “within its power”, it has the remedial powers conferred by that section, as broad as they may be. In the circumstances, therefore, the Court is not empowered merely to confirm or refuse to confirm the order that is before it. The Court, as s 172(1) requires, must, if it concludes that the provision is inconsistent with the Constitution, declare the provision invalid and then the Court may make any further order that is just and equitable.’

(Emphasis added)

The Constitutional Court declared the particular statutory provisions to be invalid, and further issued an order in terms of s 172(1)(b) different from that made by the Court a quo.

[60] Section 172(1) does indeed confer wide powers upon a court to regulate the effect of a declaration of invalidity. The order can for example be conditional, or of temporary application. There, too, can be no objection to it operating differently in different Divisions, if circumstances so require. It would be manifestly unjust to limit the right of appeal of an accused in one Division for the reason that the retrospective effect of the declaration of invalidity would render the appeal rolls of some other Division unmanageable. It might happen that after the lapse of time, a particular Division of the High Court no longer requires the protection of ‘non-retrospectivity’; with the corollary that it would be unjust any longer to deny accused persons full rights of appeal in that Division. The disjunctive interpretation, in allowing fluidity, caters for such developments; whereas the conjunctive interpretation, with respect, does not do so and could therefore give rise to injustice.

[61] It is not axiomatic that for every wrong there is a remedy; nor does the Constitution necessarily say what one would like it to say; no court, not even the Constitutional Court, can confer jurisdiction on another court where no such power exists under the Constitution. Due regard must however be had to s 173 of the Constitution, that declares that –

‘(t)he Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.’

It is not the case here of the Court arrogating to itself jurisdiction, but of interpreting what is intended by ‘a court’ in s 172(1)(b) of the Constitution. In my view the section is capable of bearing the interpretation that ‘a court’ could be a court other than the court that makes the declaration in terms of subpara (a).

[62] This interpretation allows the particular question to be properly adjudicated in accordance with the principles of natural and constitutional justice. It caters for the position where the court making the declaration of invalidity finds it impossible or inadvisable (for any of many possible reasons) to make a definitive order in terms of subpara (b)(i). Where the ruling on the retrospectivity of a declaration of invalidity is unclear or ambiguous, it enables a High Court to issue its own order, appropriate to the situation in its Division. It caters for the situation where it appears only after the declaration that it is just and equitable that the retrospective effect of the declaration be limited, or not be limited. It lends flexibility to the operation of the Constitution. The strictly conjunctive interpretation of s 172(1) would mean that an order made in terms of subpara (b) is immutable no matter how unjust and inequitable its effect proves to be. If I must choose between a grammatical interpretation and a more strained construction of a constitutional provision, I emphatically opt for the latter if it alone achieves the constitutional objective of promoting the values that underlie an open and democratic society based on human dignity, equality and freedom.

[63] I need not, and therefore do not, decide the question whether s 172(1)(b) of the Constitution vests in a court the power to vary the judgment of another court on a issue that was rendered res judicata in form and substance in terms an order of that court. I do find that a court has the power to make an order in terms of s 172(1)(b) where the court that issued the declaration of invalidity intentionally did not establish absolute finality on the effect of its declaration. The intention of that court is therefore of prime importance. A court will therefore have due regard to the judgment of the other court, in particular the rationale for its declaration of invalidity, and the reasons why it made (or did not make) an express order in terms of subpara (b) of s 172(1). And because justice and equity are the cynosure of the section, it will be assumed that the court intended that its declaration shall have a just and equitable effect immediately as well as in the future. If justice and equity so require, a court will have regard to facts and circumstances unknown to the other court at the time of the judgment, or which developed thereafter.

[64] In making an order in terms of subpara (b)(i) in circumstances such the present, a court does not revisit the question of the constitutionality of the invalid provisions, but gives just and equitable effect to the declaration of invalidity issued by another court.

[65] There remains the question whether this Court, in the present circumstances, has the competency to make an order in terms of s 172(1)(b). The section vests jurisdiction in a court ‘deciding a constitutional matter within its power’. Far more is involved in the present matter than the interpretation of the judgment of the Constitutional Court in S vs Steyn. We are called upon to decide the question of the effect of a declaration of invalidity under the Constitution. That is clearly a ‘constitutional matter’. The High Court is competent in terms of s 169 of the Constitution to decide that matter.

[66] I find therefore that this Court has the power in the matters before court to make an order in terms of subpara (b) of s 172(1) of the Constitution. I further hold the view that it is the duty of the Court to consider whether it is just and equitable in the present matters to issue such order.

[67] In view of the finding of my Colleagues on the effect of the judgment in Steyn, I need not decide whether an order of this Court in terms of s 172(1)(b) must be referred for confirmation by the Constitutional Court in terms of s 167(5) of the Constitution.

DECISION

[68] In considering the principles engaged in the application of subpara (b) of s 172(1) of the Constitution, the proper starting point for the enquiry is the fact that ss 309B and 309C are inconsistent with the Constitution. On the other hand, leave to appeal and petition procedure is not necessarily repugnant to the Bill of Rights, it having been held to be constitutionally acceptable in the case of the High Courts74. In S vs Steyn, the scales come down in favour of invalidity of the two sections because of material differences in the composition and functioning of the magistrates’ courts and the High Courts. Furthermore, by suspending the declaration, the Constitutional Court in effect held that it was just and equitable that the two provisions, with the additional safeguards75, operate for the further period of six months.

[69] The Court cannot disregard practical considerations. In terms of the Steyn declaration, all accused persons convicted and sentenced after 29 May 2001 acquired the right of appeal unrestricted by the requirement of Judge’s certificate or leave procedure76. Inevitably, this has increased the flow of appeals. In addition, if the Court were to order that the declaration of invalidity operate with full retroactive effect, all accused who had been inhibited by the leave and petition procedures (from 25 May 1999 to 29 May 2001) would all simultaneously acquire the right to appeal.

[70] Subsequent to the hearing of the appeals, we obtained from the Director of Public Prosecutions the following statistics regarding appeals in this Division. They are as follows.-

(a) Matters set down for the 1st term - 199

(b) Other matters awaiting set down - 163

(c) Waiting period for set down - 2 to 3 terms

[71] Counsel were invited to respond to these figures. Mr. Sakata, who appeared on behalf of the respondent, furnished us with a report prepared by the Department of Justice and Constitutional Development. It bears the

heading: STATISTICAL EVIDENCE ON THE IMPACT OF APPEALS ON THE ADMINISTRATION OF JUSTICE. It comprises 41 pages with 11 annexures in the form of statistical charts and schedules. The gist of the report is set out in the ‘Executive Summary’, which reads as follows.-

‘Following the Constitutional Court ruling that declared certain sections of the Criminal Procedure Act 51 of 1977 unconstitutional, the Minister of Justice and Constitutional Development decided that the automatic right to appeal must once again take effect from 1 June 2001. He requested the Department of Justice and Constitutional Development to monitor the impact of the right of appeal on the administration of justice.

The Department instituted a special survey of the lower and high courts to gather information on appeals for a 12-month period from June 2001 to May 2002. This report presents this information, as well as comparative information from the Department’s normal annual statistical return, and submissions from the Legal Aid Board and Directors of Public Prosecutions.

The main findings contained in the report are as follows:

The number of appeals dealt with by the high courts remained more or less constant over the 12-month period of the special return on appeals (i.e. from June 2001 to May 2002).

However, twice the number of appeals was dealt with during that period than were received by the high courts during the 12-month period prior to that (i.e. 4 047 compared to 2 202).

This is supported by comparative information from the Department’s annual statistical return that showed that the number of appeals being submitted to the high courts has doubled.

The number of appeals pending in the high courts, particularly in respect of cases submitted by the regional courts, increased drastically during the last quarter of the 12-month period (i.e. during March to May 2002). This conclusion is supported by comparative information from the annual return.

The number of appeals dismissed by the high courts increased by 141% during the 12-month period of the special return.

The number of appeals upheld also increased during the 12-month period, but by 70%.

Therefore, more than twice the numbers of appeals are being dismissed than are being upheld.

The number of hours spent by judges on appeals nearly doubled from the first quarter to the fourth quarter of the 12-month period.

Pietermartizburg and Pretoria High Courts are dealing with the greatest number of appeals.

Approximately R40 million per year is spent by the lower courts on transcriptions relating to appeals.

Legal aid in respect of appeals provided by the Legal Aid Board is currently costing between R6 and R9 million per year.

The Legal Aid Board estimates that an amount of R171 million would be needed in addition to the Board’s normal budget, for the representation of all prisoners who qualify for legal aid, and who are presently entitled to appeal.

The number of appeals received by Directors of Public Prosecutions doubled between 2000 and 2002.

Despite enormous efforts, the measures that have been put in place by Judge Presidents and DPPs to deal with the increase in appeals have in most cases not had the desired effect of keeping the number of outstanding cases under control.

Most appeals, particularly prison appeals, have no merits (i.e. are not upheld).

There is sufficient evidence to conclude from the statistical and other information contained in the report that there has been a substantial increase in the number of appeals being submitted to the high courts, which has led to an increase in the number of cases pending – this despite the enormous number of extra hours spent by judges on preparing for, and hearing, appeals. It has also been shown that twice as many appeals are being dismissed as are being upheld. This suggests that unless some measures are instituted to serve as a “sifting” mechanism, the high courts would not be in a position to deal with the increasing backlog of appeals.’

The report was supplied to appellants’ legal representatives, who have not responded thereto.

[72] Mr. Sakata, further, furnished us with a copy of a letter received by him from the Secretary of the Rules Board for Courts of Law,dated 22 January 2003. It states that due to the decision in Steyn vs The State, amendments to rule 67 of the Magistrates’ Courts’ Rules (and rule 51 of the High Court Rules) are necessary. It further states that in view of the intended amendment of the Criminal Procedure Act, 1977, regarding leave to appeal, it was decided to wait for the amendments to be promulgated before amending the rules. It is understood, the letter says, that a Bill has been submitted to Parliament.

[73] In this Division the backlog in appeals is a matter of grave concern. During the Court recess of October 2002 a special sitting for the hearing of criminal appeals was arranged. Senior counsel acted in those courts together with permanent Judges, members of the Bar appeared for the appellants and also on behalf of the State. (All the advocates acted pro bono). In this way 99 matters were disposed of. There arevertheless still a large number of outstanding cases awaiting set-down. We are advised that the waiting period for new matters reaching the office of the Director of Public Prosecutions is two to three terms.

[74] There are clearly weighty considerations in favour of maintaining the non-retrospectivity of the Steyn declaration. There are also substantial considerations that operate to the contrary. I refer to the following.

Two years and four months have passed since the Steyn judgment. The State, through its officials, did not avail itself of the opportunity specifically extended to it by the Constitutional Court to take corrective measures during the period of suspension; nor has anything effective been achieved in the following almost two years. The rules of court are still unamended, and all we have is the uncertain prospect of a Bill amending the Criminal Procedure Act.

In this Division, the Director of Public Prosecutions has been setting down appeals irrespective of the date of sentence and the steps taken by the accused persons in terms of the leave to appeal and petition procedure. The three appeals on our roll are fairly

typical examples thereof. A number of appeals where the accused were convicted and sentenced prior to 29 May 2001 have been disposed of in this way notwithstanding the fact that they were not ‘procedurally properly before court’; without objection from us, the Judges of this Court. It is only now, that the status of the cases on the roll is being challenged.

Allowing all persons the full right of appeal, will in fact accord with the factual situation that has obtained in this Division since the judgment in S vs Steyn. Should that position now be disturbed, all appeals that date back to before 30 May 2001 will have to be enrolled, only to be struck off for non-compliance with the invalid ss 309B and 309C of the Criminal Procedure Act. The accused will have to take appropriate action in terms of the leave to appeal and petition procedure provided for in the two sections.

The effect will be disruptive and confusing; the whole affair will reflect poorly on the administration of justice in these courts;

the further delay in the appeals could give rise to miscarriages of justice.

The increase in the number of appeals reflected in the statistics was the inevitable and foreseeable consequence of the declaration of invalidity in S vs Steyn. Our concern here is with the position of trials finalised prior to 30 May 2001. We have no statistics in that specific regard. It can nevertheless be accepted, I think, that the initial flow of appeal cases arising prior to 30 May 2001 has by now to some extent abated.

In S vs Steyn, Madlanga AJ pointed out that in May 1999, when the impugned ss 309B and 309C became operational, the High Courts were handling automatic appeals from magistrates’ courts, but that there was no serious suggestion by the State that automatic appeals were done away with because the High Courts could not cope with them77. I have no reason to believe that the Court will not eventually be able to cope with the situation – as we did when the requirement of a Judge’s certificate was abolished; especially if the rules are suitably amended, or a rule of practice imposed to regulate the ordinary flow of appeals.78

The Court dare not lose sight of the reasons why the sections were declared to be unconstitutional by the Constitutional Court:

‘As pointed out above, the effect of a criminal conviction on the liberty and dignity of the individual makes it imperative that adequate procedural checks and balances limit wrong convictions and inappropriate sentences to the barest minimum. The right to appeal is, accordingly, of considerable importance in the achievement of a fair criminal justice system. A leave to appeal procedure which does not enable an appeal Court to make an informed decision on the application, and which does not adequately protect against the possibility of wrong convictions and inappropriate sentences constitutes a serious limitation of the right to appeal.’79

In the case of S vs Mcontana the sentence imposed upon the appellant is clearly not in accordance with law, for the reasons set out by my learned colleague, Leach J. The case underscores the disturbing fact that there may well be other cases of ‘wrong’ convictions or sentences that will go uncorrected were the accused not afforded an automatic right of appeal.

[75] After weighing up all the relevant considerations, I come to the conclusion that the continued application of the procedure prescribed by the invalid ss 309B and 309C can no longer be countenanced. I would issue an appropriate order in terms of s 172(1)(b) of the Constitution, and rule on the question in limine that the three appeal cases on our roll are procedurally properly before court. In as much as my ruling is a minority decision, the ruling on the question posed in limine goes the other way.

[76] I am in agreement with my Brothers that we exercise our powers of review in regard to the case of S vs Mcontana. I order that the sentence imposed upon the accused by the magistrate be set aside and that there be substituted therefor a sentence of five (5) years’ imprisonment; which sentence is antedated to 13 January 2000.

A.R. ERASMUS

JUDGE OF THE HIGH COURT

1 2001(1) SA 1146; 2001(1) SACR 25 (CC); 2001(1) BCLR 52.

2 Para [29] to [40].

3 An unreported judgment delivered on 11 September 2001 in case no. A672/2001.

4 2002(1) SACR 546 (C).

5 See Steyn, Die Uitleg van Wette 5th ed. at 83; R vs Grainger 1958(2) SA 443(A), 448.

6 Unreported judgment dated 15 June 2001 in case no. P16/2001.

7 1999(1) SA 6 (CC) at 46 D-F; 1998 (12) BCLR 1517; 1998(2) SACR 552.

8 2000(1) SA 997 (C) at 1050 G-H.

9 1996(1) SA 388 (CC); 1995(2) SACR 748; 1995(17) BCLR 1579.

10 2002(2) SACR 178 (C).

11 183 b-f

12 Paras [47] to [54].

13 Unreported judgment delivered on 2 July 2002 in case no. AR242/02.

14 Who had agreed in the judgment of Findlay AJ in the Ndlovu case.

15 2002(12) BCLR 1272 (N).

16 In terms of s 309(1)(a) of the Criminal Procedure Act and its precedecssors.

17 S 93(1) Act 32 of 1917; s 103(1) Act 32 of 1944; s 309(4) read with s 305 Act 51 of 1977.

18 1996(1) SA 1207 (CC); 1996(1) SACR 94; 1996(1) BCLR 141.

19 1997(3) SA 772 (CC); 1997(6) BCLR 677; 1997(2) SACR 19.

20 Id at [37].

21 Above n 18.

22 S 316 read with 315(1) of the Criminal Procedure Act, 51 of 1977.

23 1996(1) SA 1218 (CC); 1996(2) BCLR 155; 1996(1) SACR 105.

24 By s 3 Act 76 of 1997 with effect from 28 May 1999.

25 By GN R569 of 1999.

26 On 27 April 1994, see [12].

27 1996(1) SA 984 (CC); 1996(1) BCLR (1).

28 Above n 9.

29 Chaskalson et al, Constitutional Law of South Africa, p9-28B.

30 Quoted para [21] above

31 See above para [18].

32 Above para [21].

33 Above n 7.

34 Above n 8; below para [59].

35 1997(2) SA 261 (CC); 1997(2) BCLR 153.

36 Above n 8 at 1054E.

37 Above n 21.

38 Para [13].

39 Above n 9 at p 181 i.

40 Para [33].

41 Para [3].

42 Above n 1 at para [52].

43 Id.

44 Paras [55] to [64].

45 Paras [6] to [10].

46 See above para [17] and below para [44]

47 Above n 9, para [49].

48 See para [25].

49 See above para [17].

50 See Steyn, Die Uitleg van Wette 5th ed. p 82.

51 Para [9].

52 Above n 10 at p 183 a-f.

53 Para [10].

54 Paras [43] to [46].

55 Above n 9.

56 And therefore also, indirectly Davis J in Danster, above n 10, at p 182 d; Para [9].

57 Quoted above para [18].

58 Quoted above para [21].

59 Quoted above para [47].

60 Id, para 4 of order.

61 See above at para [16] and below at para [76].

62 Para 1.3 of order.

63 Above para [47], para 4 of order.

64 Id para 1.3 of order.

65 See S vs Steyn above n 1 at para [30] and n 50 thereof.

66 Quoted above at para [21].

67 Above n 19.

68 Id at para [25].

69 Id at para [21] to [24].

70 Per Trollip JA in Firestone South Africa (Pty) Ltd vs Gentiruco AG 1977(4) SA 298(A) at 306 F-G.

71 Above n 19 at [28].

72 2000(3) SA 936 (CC).

73 Id at para [60].

74 S vs Rens, para [15] above.

75 Para [33].

76 Para [12].

77 Above n 1, para [39].

78 Subsequent to the hearing of the appeals, counsel were invited to submit written argument as to what could be done in regard to the position that Rule 67 which in its present form still caters for leave procedure in terms of invalid provisions of the Criminal Procedure Act. Counsel for appellants and respondent furnished us with full and most helpful submissions, for which we express our thanks. It appears that the questions raised by the unconstitutionality of Rule 67 are clearly many and complex. Although the written arguments are of great assistance, the issue is such that to my mind a court can properly rule thereon only after hearing full argument by counsel. Furthermore, in my view, counsel for the appellants are correct in their submission that the provisions of rule 67 do not form an obstacle to the appellants’ appeal to this Court; or, at least, have not been raised as being an obstacle. I decided, therefore, that this is not a proper case in which to deal with the position of rule 67.

79 "> 79 Per Madlanga AJ at para [36].

79 Per Madlanga AJ at para [36].