Mhlungu and Four Others v The State

Five accused were charged with murder and other crimes allegedly committed in April 1993. An Afrikaans indictment was served on 11 March 1994, before the commencement of the interim Constitution on 27 April 1994. An English indictment was later served on 4 May 1994. The accused pleaded not guilty before Page J sitting with assessors. During trial, the prosecution relied on confessions and sought to invoke the onus-reversing provisions of section 217(1)(b)(ii) of the Criminal Procedure Act, 1977. Defence counsel challenged the constitutionality of this provision under section 25(3) of the Constitution (right to fair trial). The central issue was whether the Constitution applied to proceedings that were "pending" when it came into operation on 27 April 1994. Page J referred the matter to the Constitutional Court under section 102 of the Constitution, raising both the validity of section 217(1)(b)(ii) and the interpretation of section 241(8) of the Constitution.

• Whether the referral to the Constitutional Court was competent under section 102 of the Constitution
• The proper interpretation of section 241(8) of the Constitution
• Whether proceedings 'pending' before 27 April 1994 must be dealt with 'as if this Constitution had not been passed'
• Whether the Constitution, particularly Chapter 3 (Fundamental Rights), applies to criminal proceedings that commenced before but were not concluded by 27 April 1994
• The retrospective or prospective application of constitutional rights
• Whether section 217(1)(b)(ii) of the Criminal Procedure Act, 1977 applies in proceedings pending on 27 April 1994

The Court declared that section 241(8) does not preclude an accused person in a criminal trial from relying on applicable provisions of Chapter 3 in proceedings that were pending before 27 April 1994. The Court extended the declaration of invalidity made in S v Zuma (regarding section 217(1)(b)(ii)) to invalidate any application of that provision in criminal trials that commenced before, on or after 27 April 1994, where the final verdict was or may be given after 27 April 1994. The applicants were entitled to challenge the admissibility of their confessions without the burden imposed by section 217(1)(b)(ii).

Section 241(8) of the Constitution is a transitional provision intended to preserve the jurisdictional authority of pre-Constitution courts to continue dealing with pending cases, not to exclude the application of Chapter 3 fundamental rights to such cases. The phrase 'shall be dealt with as if this Constitution had not been passed' must be interpreted purposively in the context of the Constitution as a whole to mean that the court's authority to function and exercise jurisdiction is preserved, but fundamental rights guaranteed by Chapter 3 apply to all proceedings after 27 April 1994, regardless of when they commenced. The Constitution must be interpreted to avoid arbitrary discrimination and to give effect to its fundamental objectives of equality and human dignity. Transitional provisions should be construed harmoniously with fundamental rights provisions, not as derogating from them. A literal interpretation that would deny constitutional rights to persons whose cases were fortuitously pending on 27 April 1994 would be inconsistent with the spirit, design and purpose of the Constitution.

Mahomed J made extensive observations about constitutional interpretation methodology, emphasizing the need to avoid 'the austerity of tabulated legalism' and to give the Constitution a purposive and generous interpretation that reflects its transformative objectives. He noted that the Constitution should be interpreted to give fundamental rights 'the widest possible amplitude.' Kentridge AJ (in dissent) emphasized that even constitutional provisions must be interpreted according to their language, and that respect must be paid to clear transitional arrangements even if they produce some anomalies. He suggested that executive and legislative organs could address injustices through repeals or withdrawals of prosecutions. Kriegler J emphasized that the Constitution 'made everything new' and represented a fundamental metamorphosis, not merely an amendment to existing law. Sachs J developed an approach based on 'interactive proportionality' when constitutional provisions appear to conflict, arguing that different parts of the Constitution require different interpretive approaches - broad purposive interpretation for fundamental rights, but more technical reading for transitional provisions. The Court also provided guidance on referral procedures under section 102, emphasizing that referrals should generally be made only after hearing evidence where possible, and that constitutional issues within the jurisdiction of lower courts need not be immediately referred.

This is a landmark decision on the temporal application of constitutional rights during South Africa's transition to democracy. It established that the fundamental rights in Chapter 3 apply to all persons, including those whose cases were pending when the Constitution came into force, rejecting an interpretation that would have created an arbitrary class of persons excluded from constitutional protection. The decision affirmed a purposive approach to constitutional interpretation, emphasizing that transitional provisions must be read in harmony with fundamental rights rather than as nullifying them. It demonstrated the Court's commitment to ensuring that the Constitution's promise of equality and human dignity extended to all persons from the date of its commencement. The judgment also established important principles about the proper use of referral procedures under section 102 and the interpretive approach to be adopted for the Constitution as opposed to ordinary statutes. The deep division in the Court reflected the difficulty of balancing textual clarity with constitutional purpose and values.