THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no:  640/2002
REPORTABLE

In the matter between:
Michiel de KOCK, NO

First Appellant

DIRECTOR OF PUBLIC PROSECUTIONS, TRANSVAAL

Second Appellant

MINISTER OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT

Third Appellant

and

Thomas Frederick van ROOYEN
Respondent

Before:
Howie P, Scott JA, Cameron JA, Cloete JA and
Ponnan AJA
Appeal:

5 March 2004
Judgment:
15 March 2004

Magistrate – Security of tenure – Unconstitutionally insecure
appointment – Appropriate order in light of existing Constitutional
Court decision – Effect of suspension of declaration of invalidity –
Application of higher courts’ decisions by high courts – Constitutional
issues not to be decided unnecessarily

JUDGMENT
_______________________________________________________

CAMERON JA:

[1] The Minister of Justice and Constitutional Development and the
Director of Public Prosecutions, Transvaal (DPP) appeal against a
judgment of the Pretoria High Court which set aside a criminal trial
as ‘null and void and of no legal force and effect’.  The
proceedings were impugned because the regional magistrate who
convicted and sentenced Mr van Rooyen had retired and been re-
appointed in an acting capacity on a contract the State could
terminate on fourteen days’ notice.  The Constitutional Court
found against contracts of this sort in proceedings in which van
Rooyen challenged on other grounds the competence of another
magistrate to convict and sentence him in a different trial1 (van
Rooyen (1)).  But it suspended for a year the order of legislative
invalidity it granted, and refused to set aside that conviction and
sentence.  Despite referring to this judgment the High Court – just

1 Van Rooyen and others v The State and others (General Council of the Bar of South Africa
intervening) 2002 (5) SA 246 (CC).

four months after the Constitutional Court – ruled the trial in these
proceedings invalid.  This appeal tests that conclusion and finds it
wrong.

[2] The proceedings originate in a burglary at a house near
Hartebeespoort Dam, Pretoria in April 1997.  Van Rooyen was
arrested on the day of the break-in.  Three months later he was
charged in the Pretoria Regional Court on charges of
housebreaking with intent to steal and theft.  The trial court
convicted van Rooyen as charged, and in October 1997
sentenced him to six years’ imprisonment.  Van Rooyen first
lodged an appeal.  But later he launched review proceedings
attacking the regional magistrate’s competence to convict and
sentence him at all.

[3] The regional magistrate, Mr de Kock (‘the magistrate’), is
nominally the first appellant, though from the outset he has played
no active part in the proceedings and abides their outcome.  The
DPP and the Minister, the second and third appellants, appeal
with the leave of the court below (Bosielo J and Claassen AJ).

We were told during argument that van Rooyen was released on
parole last year, presumably in respect of the sentence he
contested unsuccessfully in van Rooyen (1).  But because of the
way the High Court dealt with the matter, van Rooyen’s appeal
against this conviction and sentence is still pending.  The
magistrate’s acting appointment came to an end in December
1999, more than four years ago, but the High Court judgment
imperils other criminal trials from the pre-van Rooyen (1) period
during which retired magistrates who were re-appointed on
contract presided.  So the matter has considerable currency.

[4] The nub of van Rooyen’s complaint was the magistrate’s acting
appointment.  Van Rooyen claimed that the magistrate’s contract
with the Department of Justice made him subject to civil service
conditions incompatible with judicial independence and hence that
his trial was a nullity.  To assess the implications of this claim in
the light of van Rooyen (1) we must examine the magistrate’s
career.

The Magistrate’s appointment

[5] Mr de Kock became a magistrate in 1970.  He was appointed
under s 9 of the Magistrates’ Courts Act 32 of 1944, which at the
time vested the power to appoint magistrates in the Minister of
Justice.  In November 1978 he became a regional magistrate.  He
served in this capacity for nearly sixteen years until retirement age
in February 1994.  (He did not hold office under the Magistrates
Act 90 of 1993, which created the Magistrates’ Commission to
advise the Minister in appointing magistrates, but which applies
only to permanent magistrates.2)  On 28 February 1994 he retired
on pension.  But the Department of Justice re-appointed him
immediately.  The next morning he returned to his office in
Pretoria and to court 9, where he had always presided.

[6] After the interim Constitution came into effect in April 1994, the
magistrate took an oath to uphold and protect the Constitution and
its fundamental rights.  Otherwise he continued hearing cases as
before.  But now he held office under a contract with the
Department of Justice.  From April 1996, this contract was for an
indefinite period.  The Department of Justice furnished van

2 Magistrates Act 90 of 1993 s 2.  Section 1 excludes from its definition of magistrate ‘any person

Rooyen with the contract in force at the time of his trial.  Apart
from matters like leave, subsistence and travel claims, it provides
that the magistrate makes his services available to the State as a
regional magistrate for an indefinite period at Pretoria or
elsewhere, subject to the Public Service Act of 1994 and its
regulations.  The contract provided that notwithstanding these
particular provisions –
‘either party to this Agreement may at any time during its period of currency
terminate it by giving 14 working days’ notice in advance to the other party’.3

[7] Van Rooyen focused his attack on this part of the agreement.  He
claimed it made the magistrate a civil servant subject to the orders
of the Department of Justice.  He could therefore not sit as a
proper court under the Constitution.  This complaint the High
Court upheld.  It found that the terms of the magistrate’s
appointment ‘directly conflicted with the core principle and notion
of judicial independence enshrined in the Constitution’, and that it
was ‘patently inimical to the core constitutional values of judicial

occupying that office in an acting or temporary capacity’.
3 ‘Ondanks andersluidende bepalings in klousules 1 en 4 hiervan, kan enigeen van die twee
partye by hierdie Ooreenkoms dit te eniger tyd gedurende die geldigheidstermyn daarvan opsê
deur skriftelik 14 werksdae vooraf kennis daarvan aan die ander party te gee.’

independence and impartiality’.4  Absence of contractual security
of tenure, the High Court said, created a reasonable suspicion
that as a public servant the magistrate ‘may be influenced
advertently or inadvertently, perceptibly or imperceptibly, by some
extraneous factors to pass judgment intended to please his
master for the sole purpose of safeguarding his position’.5

[8] The substance of this conclusion is not surprising.  The high
authority of van Rooyen (1) establishes it.  But the critical question
before the High Court was not whether the magistrate’s
appointment was unconstitutionally insecure.  That van Rooyen
(1) had made clear.  The real question was what relief, if any, van
Rooyen was entitled to.  It is this question the High Court’s order
did not address correctly.

The decision of the Constitutional Court in Van Rooyen (1)
[9] In van Rooyen (1) the presiding magistrate had not retired.  So
the complaint was not about an acting or contract appointment.
The case concerned the appointment and tenure of permanently

4 Van Rooyen v De Kock NO and others 2003 (2) SA 317 (T) paras 12.1 and 12.3.

appointed magistrates under the Magistrates’ Courts Act 32 of
1944 and the Magistrates Act 90 of 1993.  But in dealing with this
the Constitutional Court gave comprehensive consideration to the
entire statutory regime governing magistrates’ appointments.  It
concluded that certain provisions of both Acts and of the
Regulations for Judicial Officers in the Lower Courts fell short of
what was required to ensure the institutional independence of
magistrates’ courts.  The unconstitutional provisions included s
9(4) of the Magistrates’ Courts Act.  But in order to ensure that the
structures and functioning of the courts were not affected, the
Constitutional Court made its orders prospective – and in the case
of s 9(4) it in addition suspended its order of invalidity so as to
permit temporary magistrates to be appointed if necessary
pending an appropriate amendment to the section.6

[10] Although the magistrate’s contract in this case does not
expressly say so, it is clear, and the High Court rightly found,7 that

5 2003 (2) SA 317 para 12.3.
6 2002 (5) SA 246 paras 269, 272.  Subsections 9(3), (4) and (5) of the Magistrates’ Courts Act
have now been substituted in the light of the Constitutional Court’s decision: see s 1 of the
Judicial Officers (Amendment of Conditions of Service) Act 28 of 2003, promulgated on 13
October 2003 (GG 25650).  These provisions are not at issue in this appeal.
7 2003 (2) SA 317 para 6.2.

the magistrate was re-appointed under the provisions of s 9(4).8
The suggestion pressed by van Rooyen’s counsel that he was
appointed merely as a civil servant under the Public Service Act is
clearly untenable.  It asks us to ignore the sole and obvious basis
for the magistrate’s re-appointment, which was s 9(4).  So van
Rooyen (1) is directly applicable.  There the Constitutional Court
gave two reasons for finding s 9(4) unconstitutional.  First, the
temporary appointments the section envisaged were not for a
fixed or determinate period.  To appoint a magistrate to hold office
at the discretion of the State is inconsistent with security of tenure
that is essential to judicial independence.9  Second, the provision
authorised acting appointments of non-magistrates to hear
particular cases.  While there could be no objection to appointing
any ‘competent person’ (including a non-magistrate) temporarily
to act generally in a particular court, to appoint a person who

8 Until 1996 s 9(4) read (the square-bracketed words in bold were added by s 3(b) of Act 104 of
1996): ‘The Minister or an officer in the Department of Justice [or a magistrate at the head of a
regional division or a person occupying the office of chief magistrate, including an acting
chief magistrate] authorized thereto in writing by the Minister, may appoint temporarily any
competent person to act either generally or in a particular matter as magistrate of a regional
division in addition to any magistrate or acting magistrate of that division or as additional or
assistant magistrate for any district or sub-district in addition to the magistrate or any other
additional or assistant magistrate.’  Section 3 (c) of Act 66 of 1998 further amended the provision
in ways not now material.
9 2002 (5) 246 (CC) SA 246 (CC) para 247.

neither is a magistrate nor has security of tenure to hear a
particular case would be inconsistent with judicial independence.10

[11] In view of the High Court’s order, it must be emphasised what
van Rooyen (1) did not decide.  It did not find that the appointment
of acting magistrates was in principle unconstitutional.  Nor did it
find that the re-appointment of a retired magistrate in an acting
capacity was unacceptable.  It did not find that a retired
magistrate (or any competent person) could not be appointed to
act generally in a particular court – provided such an appointment
was for a fixed or determinate period.  The court did not
disapprove the practice of appointing permanent magistrates
temporarily to another division to hear a particular case.  As long
as the temporary appointee (or transferee) has security of tenure,
this is not constitutionally objectionable.

Application of van Rooyen (1) to the present case
[12] The particular features of the present case (re-appointment to
act indefinitely, though subject to termination on fourteen days’

10 para 248.

notice) were not before the Constitutional Court.  The finding that
an appointment to hold office at the discretion of the State was
unacceptable concerned a particular standard form contract the
Constitutional Court considered.  That contract gave the State the
power in the event of breach to terminate the magistrate’s
services ‘summarily or after notice of less than one month as it
may deem expedient’.11  In the present case, the State did not
have the power of summary termination.  But the contract
nevertheless had the same vice, which s 9(4) at the time
permitted, in that it failed to grant its temporary incumbent a fixed
or determinate period of office, instead making him vulnerable to
unilateral termination (albeit on fourteen days’ notice) at the
State’s instance.

[13] So when the magistrate presided at van Rooyen’s trial his
appointment was constitutionally flawed.  But was the High Court
correct to nullify the proceedings?  The High Court noted that in
van Rooyen (1) the Constitutional Court suspended its order

11 2002 (5) SA 246 (CC) para 247.

declaring s 9(4) unconstitutional.12 But it proceeded without further
analysis to quash van Rooyen’s conviction and sentence.  This
was wrong.  The Constitutional Court’s order declaring s 9(4)
unconstitutional was suspended when the High Court gave
judgment.  Section 9(4) as it then read, together with acting
appointments under it, consequently remained constitutional,
although the section was under notice of imminent invalidity.

[14] The reasoning the Constitutional Court employed in van
Rooyen (1) was directly applicable to the critical question of
remedy the High Court had to consider.  Although s 9(4) and
certain
other
statutory
provisions
were
inconsistent
with
magistrates’ institutional independence, Chaskalson CJ stated –
‘That does not mean … that magistrates' courts must stop functioning, that
all decisions taken by magistrates must now be set aside as nullities, and
that the persons convicted by magistrates of criminal offences must be
released from jail’.13
In van Rooyen (1) the High Court had refused to set aside the
convictions and sentences.  Chaskalson CJ agreed:

12 2003 (2) SA 317 para 13.
13 Van Rooyen (1) 2002 (5) SA 246 para 260.

‘It is clearly in the interests of justice that the magistrates' courts and the
regional courts should continue to function. There is no reason to believe that
the magistrates presiding in those courts will not administer justice, as they
have done in the past, impartially, independently and in accordance with the
law. Their oath of office and the Constitution, by which they are bound,
requires no less.’14
The court went on to state:
The provisions of the Act and the regulations that have been found to be
inconsistent with the Constitution do not detract from the core values of
judicial independence and do not affect the capacity of the overwhelming
majority of judicial officers ordinarily presiding in these cases to conduct fair
trials.’15
Finally, the court stated the purpose with which it made certain
orders of invalidity prospective: this was ‘so that completed
matters are not affected’.  In addition, the order invalidating s 9(4)
had to be suspended ‘to permit temporary magistrates to be
appointed when that is necessary pending an appropriate
amendment to the section’.16

14 Para 262.
15 Para 266; see also para 269.
16 Para 272.

[15] All this was directly applicable to what the High Court had to
decide.  The Constitutional Court did not find that acting
magistrates were an inherent evil under the Constitution, to be
eradicated without delay or, worse, retrospectively.  All it required
was that, in accordance with our deepening understanding of
what the concept of judicial independence requires,17 acting
magistrates’ contracts should henceforth afford security of tenure
for a specified or determinable period of office; and in future only
permanently appointed magistrates should be transferred
temporarily to hear specific cases in other divisions.  That is the
nub of van Rooyen (1), and it governed the result that should
have been reached in this case.

[16] What is more, there was no reason to suppose outside the
record – which the High Court did not scrutinise – that the
magistrate here had not administered justice impartially,
independently and in accordance with the law.  His oath under the
Constitution, by which he was bound, required this.  In the
absence of particular complaint – and van Rooyen made none –

17 See paras 75 and 249.

there was no reason to believe that the unconstitutional insecurity
in the magistrate’s contract detracted from his fairness and
impartiality.  Yet the order granted wrongly indicated the opposite.

[17] In its judgment granting leave to appeal, the High Court (per
Claassen AJ) belatedly sought to justify its omission to apply van
Rooyen (1) by declaring that the Constitutional Court referred to
acting magistrates ‘only in passing and obiter’.  This compounds
the error.  An ‘obiter’ pronouncement is a judicial observation
made in passing: one not necessary for the decision of the case.18
It is a stated thought that does not advance the reasoning by
which the outcome is reached.19  But in van Rooyen (1) the
Constitutional Court was seized of the constitutionality of all
statutory provisions relating to the appointment and tenure of
magistrates.  This included s 9(4) and acting magistrates
appointed under it.  Its reasoning on these questions was integral
to its decision, and what it had to say in coming to its conclusions
was constitutionally binding on all courts.  The High Court applied
that very reasoning in condemning the magistrate’s contract as

18 R v Nkwali 1925 AD 578 (Innes CJ).

unconstitutionally insecure.  So its omission to apply the further
aspect of the decision – suspending the invalidity of s 9(4) – was
both paradoxical and incorrect.

[18] In ex parte Minister of Safety and Security and others: in re S v
Walters and another20 the Constitutional Court found it necessary
in a different context to emphasise how important it is that courts
follow and apply the decisions of higher courts.  It is necessary to
repeat the admonition.  Consistency, coherence, certainty and
predictability in our new constitutional order require the due
application of the decisions of higher courts.  Disregarding them
wastes precious resources.  It also imperils public understanding
of the Constitution and its implications by creating an impression
of incoherence, irrationality and unpredictability.  The order
granted here, so soon after that in van Rooyen (1), can only have
created an impression of a dissonant judicial system at variance
with itself, with consequent detriment to public faith in
constitutional processes.

19 See R v Crause 1959 (1) SA 272 (A) 281B-C (Schreiner ACJ).

[19] In addition, sparse Legal Aid Board funds were expended.  Van
Rooyen was represented by two counsel and attendant attorneys,
both local and correspondent, while the DPP and the Minister took
the due precaution of briefing senior counsel from the Bar,
together with a senior member of the DPP’s staff, who were
accompanied by a member of the State Attorney’s staff.  These
resources could have been applied productively elsewhere.

Steyn, Danster and the doctrine of objective invalidity
[20] It is necessary to deal with a further issue arising from the
decision in van Rooyen (1).  I indicated earlier (para 13) that
because of the order suspending the declaration of invalidity, s
9(4) remained in force at the time the High Court gave its
judgment.  But the suspension envisaged legislative intervention
within a year to correct s 9(4).  That did not occur.  Parliament
failed to act within the time given.  The amendment was
promulgated only in October 2003, four months after the year
expired.21

20 2002 (4) SA 613 (CC) paras 55-61.
21 Judicial Officers (Amendment of Conditions of Service) Act 28 of 2003, promulgated on 13
October 2003 (GG 25650), s 1, substituting subsections (3), (4) and (5) of s 9 of the Magistrates’
Courts Act 32 of 1944.

[21] Does that affect the conclusions reached earlier?  This question
has arisen regarding the Constitutional Court’s decision in S v
Steyn.22  There the court declared unconstitutional the
requirement, introduced in 1999, that an accused must obtain
leave to appeal from a magistrate’s decision in a criminal case.
The court gave Parliament six months from the date of its order to
remedy the situation (or to apply for a further extension),23 but
Parliament failed to act within that time.  The result was that the
leave to appeal provisions became invalid.  But from when?  And
what was the position of appellants convicted and sentenced
before 29 May 2001 (when the order suspending the declaration
of invalidity lapsed) but whose appeals had not yet run their
course?  High Courts have delivered conflicting judgments on this
question.  Some have held that because Steyn suspended the
order of invalidity, the leave to appeal provision became
unconstitutional only at the end of the period of suspension –
even though Parliament did not act in time – with the result that
appeals pending from pre-expiry convictions and sentences fell to

22 2001 (1) SA 1146 (CC).  See too Minister of Justice v Ntuli 1997 (3) SA 772 (CC).

be dealt with under the leave to appeal requirement.24  Others
held that because Parliament failed to act, the provision became
unconstitutional from the date of its enactment, with the result that
appellants whose appeals had not been completed gained an
untrammelled right of appeal.  Some of the decisions are referred
to in S v Danster, S v Nqido,25 where a full court of the Cape High
Court endorsed the latter approach.

[22] The question, which has a bearing on this case, arises from the
decision of the Constitutional Court in Ferreira v Levin NO and
others; Vryenhoek and others v Powell NO and others,26 where
Ackermann J, speaking on this matter for the whole court, held
that an order declaring a law in conflict with the Constitution ‘does
not invalidate the law; it merely declares it to be invalid’.  Laws
pre-dating the Constitution either remained valid or became
invalid when the interim Constitution came into operation:  ‘In this
sense laws are objectively valid or invalid depending on whether

23 paras 38-53.
24 S v Jaars; S v Williams; S v Jantjies 2002 (1) SACR 546 (C) (Thring and Erasmus JJ), following
Xhosa v The State (unreported judgment of Stafford DJP); Ndlovu v Director of Public
Prosecutions, KwaZulu Natal and another 2003 (1) SACR 216 (N) (Hurt J and Kruger AJ).  On
the pre-Steyn position, see S v Ramakgopola and others 2000 (2) SACR 213 (T) (Southwood J
and Legodi AJ).
25 2002 (2) SACR 178 (C) (Davis J, Nel and Conradie JJ concurring).

they are or are not inconsistent with the Constitution’. 27  It was for
this reason, Ackermann J stated, that the interim Constitution
(which was at issue in Ferreira), specially provided that a
declaration of invalidity affecting a pre-constitutional law did not
invalidate ‘anything done or permitted to be done … before the
coming into effect of such declaration of invalidity’.28

[23] In National Coalition for Gay and Lesbian Equality and another
v Minister of Justice and others,29 applying this exposition,
Ackermann J pointed out that the 1996 Constitution deals
differently with the consequences of invalidity:  in the absence of a
contrary order, nothing more is provided than that the declaration
of invalidity has retrospective effect.30  Under the Constitution, a
competent court may make any order that is just and equitable,
including ‘an order limiting the retrospective effect of the
declaration of invalidity’.31

26 1996 (1) SA 984 (CC).
27 para 27.
28 Interim Constitution, Act 200 of 1993, s 98(6)(a).
29 1999 (1) SA 6 (CC).
30 para 84(a).  Section 172(1) of the Constitution provides that when deciding a constitutional
matter within its power, a court – ‘(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.’
31 s 172(1)(b)(i).

[24] Does the doctrine of objective invalidity mean that if Parliament
fails to act before the suspension of a declaration of invalidity
expires, the provision becomes invalid from the moment of its
enactment, without any suspension at all?  In Danster the Cape
full court answered with an unqualified ‘yes’:
‘A suspension of invalidity does not destroy the doctrine of objective
invalidity.  Were it to do so there would be no point in specifying a time limit
for the suspension of an order which declared a provision to be
unconstitutional, as an order given in terms of s 172(1) of the Constitution to
suspend the declaration of invalidity would then render the doctrine of
objective invalidity ineffective.  Such an approach runs contrary to the
purpose of s 172(1), which is to temper possibly harsh effects of the doctrine
of objective invalidity by ensuring that, during a specified period as contained
in such order, Parliament would be afforded the opportunity to cure the
constitutional defect.  In the present case the Ministry of Justice did not
prepare any such legislation for Parliament.  Accordingly the order of
suspension lapses and the doctrine of objective constitutional invalidity
dictates that the legislation is rendered unconstitutional from the day on
which such legislation became operative.’32

32 2002 (2) SA SACR 178 (C) 182g–i.

[25] The result in Danster was that the appellants, whose appeal
processes were pending when the Steyn period expired, were
held exempt from the invalid provisions.  Both the reasoning and
the result in Danster seem to me to be incorrect.  The reasons
given for the conclusion are expressed in terms that are both too
absolute and too general.  They suppose that a declaration of
invalidity is suspended for only one purpose, namely to allow the
legislature to intervene, and that in the absence of legislative
intervention the benefit of the suspension must be undone.  This
cannot be right.  A declaration of invalidity may be suspended for
a range of just and equitable considerations.  This may include
giving the legislature time to intervene.  But many other reasons
arising from the administration of justice may also require
suspension.  Both Steyn and van Rooyen (1) illustrate this.

[26] It therefore cannot be right to suggest that the objective theory
of constitutional invalidity dictates any particular outcome.
Section 172(1) gives competent courts not only the power to
suspend a declaration of invalidity for any period to allow the
competent authority to correct the defect, but to do so ‘on any

conditions’.  In addition, the provision gives courts wide and
seemingly unqualified power to limit the retrospective effect of a
declaration of invalidity.  Read separately and together, these
provisions do not suggest that any particular outcome is
inexorable when a court suspends a declaration of invalidity and
Parliament fails to act timeously.

[27] The effect of a declaration of invalidity must rather depend on
the terms and context of the order the court – in the case of
statutory invalidity, always the Constitutional Court – issues.  The
court may order (or its order on a proper construction may mean)
that if Parliament does not intervene timeously the declaration of
invalidity takes effect retrospectively.  That does not seem to me
to have been the intention or the effect of the order in Steyn.
There the court expressly stated that ‘upon the expiry of [the
period of suspension] automatic appeals will be restored’.33 In
addition, it gave a range of further reasons for suspension.  It
therefore seems to me that Danster was incorrectly decided and

33 2001 (1) SA 1146 (CC) para 51.

must be overruled.34  It follows that those decisions in which it was
held that appellants convicted and sentenced in the magistrates’
courts before 29 May 2001 who had at that date not yet
exhausted their rights to appeal were covered by the leave to
appeal provisions at issue in Steyn, are correct.

[28] The effect of the order in van Rooyen (1) is even clearer than in
Steyn.  That order did not envisage retrospective undoing of
concluded trials, even where appeals were still pending.  When
the suspension of the declaration of invalidity lapsed on 11 June
2003 without Parliament intervening, trials in which temporary
magistrates presided, whose appointments fell short of the
evolving constitutional standard of judicial independence, did not
become null and void.  The passages from the judgment of
Chaskalson CJ set out earlier (para 14) show this unequivocally.
Section 9(4) remained valid during the period of suspension, as
did acting appointments made under it.  The provision as it then
was and appointments stemming from it became invalid only on

34 The correctness of Danster was left open in S v Zulu 2003 (2) SACR 22 (SCA) para 3 n2.  In
Khoasasa v S 2002 [4] All SA 635 (SCA) (a matter decided after the Steyn suspension expired),
the Court indicated that the sections remained valid for six months after the decision (para 6), but
the question in Danster was not directly at issue.

11 June 2003.  Trials concluded before that date were not
affected.  This included van Rooyen’s.  This result seems to me to
be ‘just and equitable’ in the terms the Constitution contemplates
in s 172(1).  Even though van Rooyen’s appeal was still pending,
the result also accords with what O’Regan J on behalf of the court
expressed as a general principle in S v Bhulwana, S v Gwadiso,35
that –
‘an order of invalidity should have no effect on cases which have been
finalised prior to the date of the order’.

Reaching constitutional questions without first dealing with non-
constitutional issues
[29] In conclusion it is necessary to remark on the way the High
Court dealt with the appeal and review before it.  The High Court
decided to address the constitutional issue only.  Hence it gave no
consideration to van Rooyen’s appeal against conviction and
sentence.  It did so for what it called ‘reasons of convenience and
pragmatism’,36 but I cannot conceive of any.  Convenience and
pragmatism required the opposite.  Van Rooyen’s appeal should

35 1996 (1) SA 388 (CC) para 32.
36 2003 (2) SA 317 (T) para 3.

first have been disposed of before any constitutional issues were
addressed.  Once again I invoke Kriegler J in Walters,37 where he
regretted the ‘unfortunate’ result of a trial court’s decision to deal
with a constitutional issue, without first resolving factual and non-
constitutional questions.  He approved the general principle set
out in the judgment of Kentridge AJ in S v Mhlungu and others,38
that –
‘where it is possible to decide any case, civil or criminal, without reaching a
constitutional issue, that is the course that should be followed.’
This course should also have been followed here.  If it had been,
van Rooyen’s appeal on the merits would have been dealt with,
and it would not have been necessary, nearly seven years after
the burglary at Hartebeespoort Dam, for us to remit the conviction
and sentence arising from it to the High Court for determination.

Costs
[30] Counsel for the Minister and the DPP asked for a costs order
against van Rooyen in both courts, including those of two counsel
in this court.  At the hearing Van Rooyen’s counsel did not oppose

37 2002 (4) SA 613 (CC) paras 62-67.
38 1995 (3) SA 867 (CC) para 59.

this.  Since then the question has arisen whether a different
approach is not applicable.  This is the principle the Constitutional
Court takes into account in awarding costs, namely that bona fide
and reasonable litigants who raise genuine constitutional
questions of broad concern should not be discouraged from
asserting their constitutional rights by having to pay the costs of
the governmental adversaries.39  This has particular application to
challenges that relate directly to criminal proceedings,40 a
principle applied in van Rooyen (1).  Since this question was not
raised at the appeal, it will be appropriate to issue no costs order
now, and to permit the Minister and the DPP to make
representations if so minded.

[31] The order is as follows:
1. The appeal succeeds.
2. The order of the court below is set aside.
3. In its place there is substituted the following:
‘The review application is dismissed.’

39 See Oranje Vrystaatse Vereniging vir Staatsondersteunde Skole and another v Premier,
Province of the Free State and others 1998 (3) SA 692 (CC) para 4; African National Congress
and another v Minister of Local Government and Housing, KwaZulu-Natal and others 1998 (3) SA
1 (CC) para 34.
40 Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) para 44.

4. The appeal against conviction and sentence are remitted to the
High Court for determination.
5. There is no order as to costs.
6. The appellants may if so advised within ten days of delivery of
this judgment submit representations concerning the award of
costs in this Court and the Court below.
7. Pursuant to any submissions envisaged in para 6, the
respondent may within ten days if so advised submit
representations.

E CAMERON
JUDGE OF APPEAL

HOWIE P

)
SCOTT JA

)
CONCUR
CLOETE JA

)
PONNAN AJA

)