IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE CCT 114/13 In the matter between:
J
Applicant and
NATIONAL DIRECTOR OF PUBLIC PROSECUTION First Respondent MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Second Respondent
PRACTICE NOTE ON BEHALF OF SECOND RESPONDENT
1. The parties’ names:
I J v National Director of Public Prosecution and the Minister of Justice and Constitutional Development.
2. Case No.
Case CTT 114/13.
3. Nature of the proceedings
Confirmation of finding of constitutional invalidity of section 50(2) of the section 50(2)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007.
4. The issues that will be argued
4.1. Whether section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007 (“the Sexual Offences Act”) passes constitutional muster insofar as it does not allow the court to enquire and decide after affording the accused an opportunity to make representations, whether or not the particulars of the accused should be included in the National Register for Sexual Offenders
4.2. Is the limitation of an accused’s right to be heard, before his particulars are included in the Register of Sexual Offences, justifiable?
4.3. Is the High Court’s order not overbroad?
4.4. Why the interim relief which attempts to cure the constitutional deficiency is not appropriate nor just and equitable for, among other reasons, that it creates an internal conflict in section 50(2)
and the interim order which is intended to constitute interim remedial relief creates an unconstitutional result.
4.5. What an appropriate order in the circumstances would be.
5. Estimated duration of oral argument
The oral argument on behalf of the second respondent is estimated to last no more than one hour.
6. Summary of argument Set out in annexure “A”.
SUMMARY OF ARGUMENT
7. S50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007 (“the Act”) is unconstitutional in depriving the accused an opportunity to make representations
7.1. The constitutional attack on s50(2)(a) is that it denies to an accused person the right to be heard before his particulars are included in the Register.
7.2. In obliging a court to make an order that an accused person’s particulars are included in the Register, s50(2)(a) withholds from the court the discretion to determine whether the particulars of the offender should be included in the Register, in that particular case;
7.3. The words “…after sentence has been imposed … must make an order that the particulars of the person be included in the Register” s50(2)(a)(i) are an indication that between sentencing and the order including the accused’s particulars in the Register being made the accused does not have a right to advance reasons why his particulars should not be included in the Register;
7.4. The right to be heard is an important component of a fair criminal trial.
8. The limitation is not justifiable?
8.1. The limitation of an accused person’s right to be heard and consequently an unfair trial is neither reasonable nor justifiable under s36. The impugned provisions are not connected to the purpose they seek to achieve.
9. The High Court’s order is overbroad.
9.1. Here two issues arise:
9.1.1. Is it competent for a court mero motu to raise a constitutional issue that does not arise on the facts; and
9.1.2. Whether the finding of unconstitutionality must extend beyond s50(2)(a) to include s50(2) in its entirety, i.e. including s50(2)(b).
9.2. S85(1) of the Child Justice Act No 75 of 2008 (“CJA”), creates an automatic review where a child is convicted of an offence. The reviewing judge mero motu raised the question whether an order in terms of s50(2) of the Act was a competent order in the light of ss 2, 3 and 4 of the CJA, as well as s28 of the Constitution. It raised two further questions; first whether it was competent for the Child Justice Court to order that the particulars of a minor convicted of a sexual offence be included in the Register established under s42 of the Act and second, if such an order was competent, whether the court was compelled to make such an order.
9.3. The High Court found s50(2) of the Act is unconstitutional in that it deprived a person the right to be heard prior to a court ordering that the particulars of the person convicted of a sexual offence be included in the Register. Instead of declaring that s50(2) was unconstitutional in its
application to children it declared that the section is unconstitutional in its application to all offenders.
9.4. As a general rule it is not improper for a court mero motu to raise a constitutional issue, this is subject to the qualification that the constitutional issue concerns the constitutionality of a law that it is called upon to enforce.
The same question arose in Director of Public Prosecutions, Transvaal v The Minister of Justice and Constitutional Development and Others 2009 (4) SA 222 (CC), namely whether a court can decide a constitutional issue where the constitutionality of the statutory provision does not arise from the facts.
This court found that a court could not do so.
9.5. It is submitted that the declaration of the unconstitutionality of s50(2) must be limited to s50(2)(a). There can be no constitutional attack on s50(2)(b) on the basis that “it does not allow the court to inquire and decide after affording the accused an opportunity to make representations, whether or not the particulars of the accused should be included in the National Register for Sexual Offenders.”
9.6. The High Court’s finding that includes a declaration that s50(2)(b) is unconstitutional in that “it does not allow the court to inquire and decide after affording the accused an opportunity to make representations, whether or not the particulars of the accused should be included in the National
Register for Sexual Offenders” is not correct. The section obliges the trial court “when making an order contemplated in paragraph (a), [to] …explain the contents and implications of such an order, including section 45, to the person in question.” It is not clear at all why an accused person would have to be heard prior to the trial
10. Interim relief attempting to cure the constitutional deficiency not appropriate nor just and equitable
10.1. The Act contemplates six different categories of sex offenders:
10.2. S50(2)(a) applies to sex offenders (regardless of age) who have been convicted and sentenced in whose presence the trial court is obliged to implement the impugned provision after sentencing;
10.3. s50(1)(a)(ii) applies to sex offenders (regardless of age)who have been alleged to have committed a sexual offence and have in their presence been dealt with either under s 77(6) or 78(6) of the Criminal Procedure Act, 1977;
10.4. S50(4) empowers and obliges a trial court which has failed to implement the impugned provision to do so after the conclusion of the trial in the absence of the sex offender;
10.5. S50(1)(a) applies to those offenders who had been tried and convicted (sentenced, serving a sentence or who was convicted but not served a sentence of imprisonment) in a South African court either before or after the
commencement of Chapter 6 of the Act on 16 June 2008 or who have been alleged to have committed a sexual offence and have been dealt with either under s77(6) or 78(6) of the Criminal Procedure Act, 1977. Their names can be included in the Register in their absence;
10.6. S50(1) (b) applies to offenders tried and convicted in courts outside of South Africa. Their names can be included in the Register in their absence.
10.7. However, the High Court’s interim order applies only to the offenders contemplated in s50(2)(a). It is only they who will be afforded the right to make representations to the trial court before it decides whether to order that the offender’s particulars must be included in the Register. This, it is submitted, gives preferential treatment to s50(2)(a) offenders.
10.8. It is submitted that an order in terms of which the words are read into s50(2)(a) 50(2)(b) and s50(2)(c) added to s50(2) to remedy the unconstitutionality pending the enactment of remedial legislation is not appropriate nor is it just and equitable and therefore the finding of unconstitutionality should not be coupled with any interim relief.
11. What an appropriate order in the circumstances would be.
We submit that a just and equitable order would be that the declaration of invalidity be suspended pending the enactment of remedial legislation
