Donald Veldman v The Director of Public Prosecutions (Witwatersrand Local Division)

Donald Veldman was convicted of murder and other offences in the regional magistrate's court. At the time he committed the offences and entered his not guilty plea, the regional court's maximum penal jurisdiction for murder was 10 years' imprisonment under section 92(1)(a) of the Magistrates' Courts Act 32 of 1944. However, after he pleaded but before sentencing, two legislative changes occurred: (1) on 7 October 1998, section 92(1)(a) was amended increasing the regional court's maximum jurisdiction for murder from 10 to 15 years; and (2) section 51 of the Criminal Law Amendment Act 105 of 1997 (Minimum Sentences Act) was promulgated, prescribing minimum sentences for murder. The regional court sentenced Veldman to 15 years' imprisonment for murder. His appeals to the High Court and application to the Supreme Court of Appeal were dismissed. He applied to the Constitutional Court for leave to appeal, arguing the increased sentence violated his right to a fair trial under section 35(3)(n) of the Constitution.

• Whether the regional court applied section 51 of the Minimum Sentences Act or section 92(1)(a) of the Magistrates' Courts Act in sentencing
• Whether section 35(3)(n) of the Constitution applies to increases in a court's penal jurisdiction (as opposed to prescribed punishments for specific offences)
• Whether the retrospective application of section 92(1)(a) to impose a 15-year sentence violated the applicant's right to a fair trial under section 35(3) of the Constitution
• Whether section 92(1)(a), properly and constitutionally interpreted, authorized the regional magistrate to impose a 15-year sentence where the accused had pleaded before the amendment came into force
• The proper approach to constitutional interpretation of legislation under section 39(2) of the Constitution

The application for condonation was granted. Leave to appeal directly from the High Court was granted. The appeal succeeded. The sentence of 15 years' imprisonment for murder was set aside and replaced with 10 years' imprisonment. No order as to costs. The Court declined to make a general order substituting sentences for all persons similarly situated, as sentencing requires consideration of individual circumstances and such an order would cause uncertainty in prison administration. Those wishing to rely on this judgment must approach a competent court for relief.

Section 92(1)(a) of the Magistrates' Courts Act, properly and constitutionally interpreted in light of section 39(2) and the right to a fair trial under section 35(3), does not authorize a court to apply an increased penal jurisdiction to sentence an accused person who pleaded before the amendment came into force. To do so would violate the rule of law and the right to a fair trial by creating uncertainty and exposing the accused to a more severe sentence than was competent at the time of plea, when the parameters of the trial were defined. Although increases in sentencing jurisdiction do not fall within section 35(3)(n) (which applies to prescribed punishments), they are subject to the general fair trial guarantee in section 35(3). Once an accused has pleaded, there is a legitimate expectation that the rules of the trial will not be changed to the accused's substantive disadvantage.

Mokgoro J (with concurrence from Moseneke DCJ, Sachs J, Skweyiya J and Van der Westhuizen J) noted that while the crime was heinous and may have deserved a harsher sentence if prosecuted in the High Court, the guarantee of a fair trial applies in all criminal trials regardless of the nature of the offence. The unfairness is not assessed by proportionality between offence and sentence, but by the retrospective application of legislation rendering the sentence unauthorized. The Court declined to make a general order affecting all similarly situated persons, noting that sentencing requires individual consideration and such an order would cause administrative difficulties. O'Regan J (with concurrence from Langa CJ, Ngcobo J and Yacoob J) observed that English courts have held it an abuse of process for a judge to promise a non-custodial sentence and then impose a custodial one. Ngcobo J emphasized the shift from parliamentary supremacy to constitutional supremacy, noting that courts must now interpret legislation to promote the Bill of Rights values rather than relying on common law presumptions, though those presumptions reflected similar concerns about fairness and the rule of law.

This case is significant for establishing that: (1) The right to a fair trial under section 35(3) is comprehensive and extends beyond the specific enumerated rights; (2) Procedural legislation that has substantive adverse effects on an accused's rights cannot be applied retrospectively merely because it is characterized as procedural; (3) Section 92(1)(a) must be interpreted, in light of section 39(2) and constitutional values, not to apply to trials that commenced before it came into force; (4) The rule of law requires certainty in criminal proceedings - once an accused has pleaded, the parameters of the trial (including maximum sentence exposure) should not be altered to the accused's detriment; (5) It provides important guidance on constitutional interpretation of legislation affecting fair trial rights; and (6) It clarifies the distinction between prescribed punishments (covered by section 35(3)(n)) and general increases in sentencing jurisdiction.