IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO: CCT/20/94 DATE OF HEARING: 24.3.95 IN RE: THE STATE versus 1. H WILLIAMS 2. J KOOPMAN 3. T MAMPA 4. F ADONIS (G PAPIER) 5. J THOMAS (J GOLIATH AND S WITBOOI) STATE'S HEADS OF ARGUMENT l. INTRODUCTION (a) In S v Williams and 5 similar cases 1994 (4) SA 126 (C) at 140 B the Full Bench of the CPD referred the "constitutionality of Sec 294(1) of Act 51/1977 to the Constitutional Court". (See also page 23 of Vol I of the Record) (b) The first 3 cases supra were sentenced to juvenile whippings in terms of Sec 294(1) of Act 51/1977 (The "Procedure Act") plus periods of imprisonment which were suspended in terms of Sec 294(1) (b) of the [2/...] [2] Procedure Act. All 3 cases are subject to automatic review because the terms of imprisonment exceed 3 months. Cases 4 and 5 were also sent on automatic review because Adonis and Thomas were sentenced to longer than 3 months imprisonment (Sec 302(1)(a)(i) of the Procedure Act) whereas Papier (accused no 1 in the Adonis case) and Goliath and witbooi (accused no's 2 and 3 in the Thomas case) were sentenced to juvenile cuts, which cuts are not reviewable. (c) The Magistrate at Vredenburg submitted the 1st case supra (Williams^ for special review in terms of Sec 304(4) of the Procedure Act, although it is a case that is subject to automatic review. He has expressed doubts as to whether his sentence of 5 cuts is a competent one in the light of the decision in Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of the State 1991 (3) SA 76 (NmSC). (d) The following schedule indicates how part of the problem arose: ACCUSED AGE DATE OF DATE OF DATE OF OFFENCE TRIAL SENTENCE WILLIAMS (18) 25.2.94 14.3.94 5.5.94 KOOPMAJJ (17) 6.3.94 29.3.94 4.5.94 MAMPA (18) 19.3.94 23.3.94 9.5.94 PAPIER (16) 16.3.94 18.3.94 6.5.94 GOLIATH (13) and 15.2.94 19.4.94 19.5.94 WITBOOI (11) (e) The Constitution of the Republic of South Africa Act, no 200/1993 (the "Constitution Act") came into effect on 27.4.94 (Section 251(1)). (f) The abovementioned person were thus sentenced after the Constitution Act came into operation. [3?...] [3] (g) The following questions now arise: IN THE INSTANT CASES OF THE 5 ACCUSED (i) has the Constitution Act repealed or amended Sec 294 of the Procedure Act? (See para 2 in£ra) (ii) if it has could the magistrates nevertheless have imposed the sentences of cuts because the provisions of Sec 241(8) of Act 200/1993 permit it? (See para 3 infra.) (iii) if it has not repealed or amended the Procedure Act are these particular sentences nevertheless incompetent because they are inconsistent with the spirit and objectives of chapter 3 of the Constitution Act (often known as the Bill of Rights)? (See para 4 infra) GENERALLY is corporal punishment per se unconstitutional? 2. HAS THE PROCEDURE ACT BEEN AMENDED OR REPEALED? 2.1 STATUTE LAW (a) Sec 230(1) of the Constitution Act provides that "the laws mentioned in Schedule 7 are repealed to the extent set out in the third column. >• [4/...] [4] (b) Schedule 7 of the Constitution Act makes £to mention of the Procedure Act at all. (c) There has thus been no formal or specific repeal or amendment as we traditionally know it. (d) The Constitution Act itself has contradictory provisions relating to other Acts or laws which are inconsistent with it. See: (i) Sections 4 and 7(1) contra (ii) Sections 229, 230 and 241(1), (8), (10). (e) At first blush it seems as if Sections 4 and 7(1) would override Sec 294 of the Procedure Act. (f) But Sec 4(1) has a proviso: "unless otherwise provided expressly or by necessary implication in this Constitution ..." (g) It is submitted that Sec 241(1), (8) and (10) fall within the terms of the proviso. (h) See also Sec 103(2). (i) See also Sec 12(2) of the Interpretation Act (33/1957) . 2.2 CASE LAW When a penal provision has been repealed or amended during the course of a trial the case law can be broadly divided into the following categories: [5/!..] [5] (a) When the new penalty has been increased such penalty will not be retrospective, and the accused is sentenced to the punishment which was applicable on the date of the offence - p v* Mazibuko 1958 (4) SA 353 (A) at 356/357 B vs Sillas 1959 (4) SA 305 (A) at 308/311 (b) However, when the penalty has been decreased the accused is entitled to the benefit thereof on the date of his sentence, on the grounds of public policy and fairness - s vs innes 1979 (1) SA 783 (C) at 786/789 Approved by the Appellate Division in: PrOkureur-qeneraalr Noord K**p vs Hart 1990 (1) SA 49 (A) at 55/56 (c) If the trial has proceeded to its completion even though the Act upon which its prosecution was based has been repealed, or amended, and the sentence is otherwise in order, the Appeal Court will not replace it with a sentence that did not exist at the time - R vs Mpetha 1985 (3) SA 702 (A) at 708/709 s vs Crawford 1979 (2) SA 48 (A) at 56 B (d) But if the sentence (under the "old" Act) is set aside for any reason (such as being inappropriate or shocking etc) then any new penalty that was not available at the date of sentence can now be considered - [6/...] [6] S vs Mpendokana 1987 (3) SA 20 (C) (also approved of in Prokureur~generaal, Noord Kaap vs Hart, supra at 56 A) S vs R 1993 (1) SA 476 (A) at 484/485 (The ratio being that the "old sentence has been "vernietig" on appeal, and thus "vonnis (van meet af oor) besin moet word en dat die tans beskikbare vonnisopsies oorweeg kan word" ). (my underlining) (In S vs R the option of correctional supervision had not existed at the time of sentence, but by the time the Appellate Division was seized with the matter it was one of the "tans beskikbare vonnisopsies"). 2.3 SUBMISSIONS ON THIS ASPECT OF REPEAL/ AMENDMENT (a) The Constitution Act - (i) has not specifically amended/repealed Sec 294 of the Procedure Act; (ii) provides for the continuation of present Acts, until amended or repealed by a "competent authority"; (iii) has not provided for an alternative punishment in the place of punishment in terms of Sec 294 of the Procedure Act (nor any other punishments, for that matter); [7] (iv) has thus not amended or repealed the Procedure Act. (b) Even should this Honourable Court find that Sec 294 has been repealed, the Interpretation Act and the case law (supra) provide for the imposition of punishments that were available at the time of the commission of the offences (i.e.) the punishments provided for by Sec 294 of the Procedure Act (S vs Mpetha. S vs Crawford supra), unless this Court interferes with the sentences, in which case "tans beskikbare vonnisopsies" can be considered (S vs Mpendokana, S vs R supra). (c) If these submissions are correct, and on the further assumption that the sentences are otherwise in order, this means that: (i) the sentences were competent; and (ii) should be confirmed as being in accordance with justice. 3. SECTION 241(8) OF THE ACT (a) This section reads as follows: "All proceedings which immediately before the commen- cement of this Constitution were pending before any court of law .. exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be brought before the court having jurisdiction under this Constitution ..." [8/'.. ] y.'v '•>. w* *^f3S!»!g^:'isrri»^g?*g^^ [8] (b) The State agrees with the Accuseds' broad description (para 243 of their heads of argument) of the directions taken by the various Provincial Divisions in their interpretations of this Section. (c) The Accused urge this.. Honourable Court to follow Oozeleni v Minister of Law and Order and another 1994 (3) SA 625 (E) at 639 C (see para 244 of their heads of argument). (d) COMMENTS ON OOZELENI (i) ' Froneman J's language is couched in such terms that it is clear that he too is unsure of the real meaning of the section; (ii) In common with many domestic and overseas judgements on the various Bills of Rights, the Learned Judge indulges in meaningless but catchy language (". a bridge from a despairing past to a hopeful future, not as an extended bypass ...") (iii) In our respectful view such flowery language exaggerates and distorts the true meaning of the Constitution, and overlooks such basic matters as the interpretation of statutes. Van Diikhorst J (in Kalla and another v The Master and others 1995 (1) SA 261 (T) at 268 F) labels Froneman J's remarks as "sweeping generalisations", and on p 269 B Van Diikhorst J says the following: "The Constitution does not only deal with lofty ideals and principles. It has many provisions on mundane matters- The [9/...] '-«•>*-<- YTVa t^,'i [9] transitional arrangements in Sections 234 - 247 are some of them.