HELD AT CONSTITUTIONAL HILL
CCT CASE NUMBER: 124/2011 HIGH COURT (SGJ) CASE NO: 12/1999 DPP REFERENCE NO: JPV98/0186
In the matter between:
MPOFU, MANDLA TRUST APPLICANT
and
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT 1ST RESPONDENT SOUTH GAUTENG HIGH COURT 2ND RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS
SOUTH GAUTENG HIGH COURT: JHB 3RD RESPONDENT
NOTICE OF OPPOSITION
TAKE NOTICE THAT the 3rd Respondent hereby notes its opposition to the Applicant’s application for the relief prayed for in his Notice of Motion served on the 3rd Respondent on 15 December 2011.
TAKE FURTHER NOTICE THAT the 3rd Respondent has appointed the appeals office of the Director of Public Prosecutions, 4th Floor, Inner Court Building, 74 Kerk Street, Johannesburg, as the address at which it will accept notice and service of all documents in these proceedings.
DATED AT JOHANNESBURG ON THIS 23rd DAY OF JANUARY 2012.
__________________________
Adv CE BRITZ
COUNSEL ON BEHALF OF THE RESPONDENT Senior State Advocate
Office of the Director of Public Prosecutions South Gauteng High Court: Johannesburg
TO:
THE REGISTRAR OF THE ABOVE HONOURABLE COURT
AND TO:
THE APPLICANT Mr Mandla Trust Mpofu
Johannesburg Medium B Prison
A-Single Cell 5 Received a copy hereof on
Private Bag x04 this the ……… day of ………..
MONDEOR 2012
2110
_______________________
For: Applicant
AND TO:
1ST AND 2ND
STATE ATTORNEYS
RESPONDENTS 10th
North State Building Received a copy hereof on Floor
Cnr Kruis and Market streets this the ……… day of ………
JOHANNESBURG 2012
2000
Ref: 6259/11/P8 ______________________
For: 1st & 2nd Respondents
ON BEHALF OF 3rd RESPONDENT
Director of Public Prosecutions
South Gauteng High Court: Johannesburg 6th
Inner Court Building Floor, room 650 74 Kerk Street JOHANNESBURG 2000
Tel: (011) 220 4098 Fax: (012) 843 3666
Ref: Adv CE Britz - JPV 98/0186
ON BEHALF OF APPLICANT
Mr Mandla Trust Mpofu
Johannesburg Medium B Prison
A-Single Cell 5
Private Bag x04 MONDEOR 2110
ON BEHALF OF 1ST & 2ND RESPONDENTS
STATE ATTORNEYS 10th
North State Building Floor
Cnr Kruis and Market streets JOHANNESBURG
2000
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA HELD AT CONSTITUTIONAL HILL
CCT CASE NUMBER: 124/2011 HIGH COURT (SGJ) CASE NO: 12/1999 DPP REFERENCE NO: JPV98/0186
In the matter between:
MPOFU, MANDLA TRUST APPLICANT
and
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT 1ST RESPONDENT SOUTH GAUTENG HIGH COURT 2ND RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS
SOUTH GAUTENG HIGH COURT: JHB 3RD RESPONDENT
AFFIDAVIT
I, the undersigned
DANILE DANIEL DAKANA
do hereby make oath and state: -
1
I am a Deputy Director of Public Prosecutions, South Gauteng High Court:
Johannesburg and an advocate of the High Court of the Republic of South Africa. I am duly authorised to act for and on behalf of the Director of Public Prosecutions in f all prosecutions and matters concomitant thereto within the area of jurisdiction of the South Gauteng High Court: Johannesburg. I am also duly authorized to depose to this affidavit.
2
The facts stated herein are within my personal knowledge, unless otherwise stated and are to the best of my knowledge both true and correct.
3
The Applicant herein was arraigned and stood trial together with four (4) co- accused on various charges inter alia, murder in the South Gauteng High Court: Johannesburg (the Witwatersrand Local Division as it then was) before the Honourable Mr Justice Labuschagne.
4
On 25 September 2001 the Applicant was convicted on the following charges-
Count 1: Contravention of section 39(1)(l) of Act 75 of 1969, to wit unlawfully pointing a firearm;
Count 2: Kidnapping;
Count 4: Murder ;
Count 5: Robbery;
Count 6: Contravention of section 2 of Act 75 of 1969, to wit unlawful possession of a firearm;
Count 7: Contravention of section 36 of Act 75 of 1969, to wit unlawful possession of ammunition;
5
After due consideration of all the relevant factors, including the youthfulness of the Applicant at the time of the commission of the offence and the fact that he had a relevant previous conviction (to wit robbery) the Honourable Mr Justice Labuschagne sentenced the Applicant as follows:
Count 1: four (4) years imprisonment;
Count 2: five (5) years imprisonment;
Count 4: imprisonment for life;
Count 5: fifteen (15) years imprisonment;
Count 6 & 7: four (4) years imprisonment.
6
On 16 November 2004 the Applicant sought leave to appeal against the sentence of life imprisonment only. The application was dismissed.
Thereafter the Applicant petitioned the Supreme Court of Appeal for leave to appeal against the sentence. On 17 August 2006 the petition was likewise dismissed by the Supreme Court of Appeal.
7
It is submitted that it is pertinently clear from a reading of the judgment handed down by the Honourable Mr Justice Labuschagne and is borne out by the convictions that the Applicant was an active participant in the planning and execution of the crimes. Applicant is the person who shot the deceased whilst he was lying defenceless on the ground. It was a brutal, well planned, callous
attack on the unsuspecting deceased. The perpetrators were armed with two (2) firearms, of which Applicant had one, a knife and container filled with petrol.
8
The Applicant wants this Honourable Court to set aside the sentence of imprisonment for life and replace the sentence imposed utilising the provisions of the Child Justice Act 75 of 2008 , an Act of Parliament which has not yet been enacted at the time when the crimes were committed nor at the time of sentencing. The Child Justice Act was only assented to on 7 May 2009.
9
The rights contained in section 35(3)(l) and (n) in our Constitution is founded upon the right against retrospective application of offences and penalties is expressed in the Latin maxims “nulla crimen sine lege” and “nulla poena sine lege” – there can be no crime or penalty without pre-existing law. The premise for this is that the law itself must be certain and accessible to the persons subjected to it.
10
These rights are contained in major human rights instruments and are non- derogable rights. These rights are also contained in international law such as the Universal Declaration of Human Rights, article 11(2) and the International Covenant on Civil and Political Rights, article 15.
11
The principle against retrospective application was recognised in the pre-constitutional era in South Africa as well. This is brought out in judgements such as –
Principal Immigration Officer v Purshotam 1928 AD 443 where DeVilliers JA stated -
“that statutes regulate future conduct and are construed as operating only on cases or facts which came into existence after
[emphasis added]
they were passed.”
Curtis v Johannesburg Municipality 1906 TS 311, Chief Justice Innes observed the rule as follows:
“The general rule is that, in the absence of express provision to the contrary, statutes should be considered as affecting future matters only
[emphasis added]
; and more especially that they should if possible be so interpreted as not to take away rights actually vested at the time of their promulgation.”
12
The Child Justice Act 75 of 2008 does contain transitional provisions, section 98(1) provides as follows –
“All criminal proceedings in which children are accused of having committed an offence, which were instituted prior to the commencement of this Act and which are not concluded before the commencement of this Act, must be continued and concluded in all respects as if this Act had not been passed [emphasis added]
.”
13
It is submitted that it naturally follows that if the so-called “part-heard” matters had to be finalised as if the Act had not been passed, that the Applicant cannot rely on the provisions of the Act in order to get around the consequences of his heinous crimes.
14
It is further submitted that on a reading of the Applicant’s notice of motion that no constitutional issue is raised and that the Applicant approaches the Honourable Court as a Court of Appeal in order to have the sentence imposed by the trial court set aside. It is trite that determining an appropriate sentence is a function which falls squarely within the ambit of the trial court and cannot be interfered with lightly. Further, leave to appeal is required in order to appeal against an order of a High Court. The requisite leave to appeal has been refused by both the trial court and the Supreme Court of Appeal, as a result the Applicant is attempting to circumvent the requirement by approaching this Honourable Court.
15
In terms of section 28 of the Constitution of South Africa, Act 108 of 1996 children has certain rights and that a child is a person under the age of 18
years. It is submitted that the Applicant cannot rely on rights relating to children as he is no longer a child.
16
Furthermore, the Child Justice Act makes provision for the continued detention of a child in a prison if the child is older than 14 years or is accused of having committed an offence referred to in Schedule 3, which include murder. Thus even if the Child Justice Act did apply, which it clearly did not, the continued detention of the Applicant in prison was in accordance with the said Act.
17
As far as sentencing is concerned section 77(2) of the Criminal Justice Act 75 of 2008 provides as follows –
“Notwithstanding any provision of this or any other law, a child who was 16 years or older at the time of the commission of an offence referred to in Schedule 2 to the Criminal Law Amendment Act, 1997 (Act 105 of 1997) must, if convicted,
[emphasis added]
be dealt with in accordance with the provisions of section 51 of that Act.”
18
It is therefore clear that the existence of the Child Justice Act 75 of 2008 would not have altered the manner in which the Applicant would have been dealt with in order to determine a suitable sentence. In terms of section 77(2) of the Child Justice Act 75 of 2008 the Applicant would therefore face imprisonment for life unless substantial and compelling circumstances were
found to be present since section 51 of Act 105 of 1997 is specifically made applicable to children 16 years or older.
19
It is accordingly submitted that the Applicant’s prayers as set out in his notice of motion ought to be dismissed.
DATED AT JOHANNESBURG ON THIS 24th DAY OF JANUARY 2012.
___________________
DEPONENT
DANILE DANIEL DAKANA
Thus signed and sworn to before me on this the 24th day of JANUARY 2012, the deponent having acknowledged that he knows and understands the contents of this affidavit, has no objection to taking the prescribed oath and considers it binding on his conscience.
________________________
COMMISSIONER OF OATHS
Full Names: Arone Siweya
Capasity: Warrant Officer
Business Address: 5th Floor, Inner Court Building, 74 Kerk Street,
Johannesburg
Area: Johannesburg
