CRI/T/111/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between

Rex

vs

MASUPHA
EPHRAIM SOLE

For the
Director of Public Prosecutions: Mr G. H. Penzhorn, S.C., Mr H.H.T.
Woker.

For the
Accused: Mr E. H. Phoofolo.

Before
the Hon. Mr Acting Justice B. P. Cullinan on 24th and 25th September,
5th

October
and 20th December, 2001.

ORDER

2

INDEX
PAGE

Cases
referred to in ruling 3-5

THE
LEGJSLA TION 6

PROCEDURAL
LAW 12

THE
AUTHORITIES 13

UK and
South Africa 13

United
States of America 43

Canada
45

THE
TEXTBOOKS 55

COMPARISON
OF NEW AND OLD LEGISLATION 57

The New
Sections 245 and 246: "...purporting to be..." 58

Old
Section 246 (1) 59

Old
Section 246 (1) (a) and (b) 59

Old
Section 246 (3) 60

New
Section 246 61

Sub-section
(4) 61

Sub-section
(5) 61

Sub-section
(6) 61

Inspection
and Copying: Foreign Banks 62

Bank
Documentation 62

THE
INTENTION OF THE LEGISLATURE 63

SUMMARY 66

CONSTITUTIONALITY
OF NEW PROVISIONS 67

Motivation
for the Legislation 67

Accused's
Right to Cross-examination: Presumption of Innocence 72

3

Cases
referred to:

(1)
Gardner v Lucas and Others (1878) 3 App. Cas. 582;

(2)
Curtis v Johannesburg Municipality 1906 TS 308;

(3) The
Ydun (1899) 68 L JProb 103;

(4) R v
Chandra Dharma (1905) 2 KB 335; (1904 - 7) All ER Rep 570;

(5) West
v Gwynne (1911) 2 Ch 1;

(6)
Shewan Tomes &Cov Commissioner of Customs & Excise 1955 (4)
SA 305

(AD);

(7) Parow
Municipality v Joyce and McGregor (Pty) Ltd 1974 (1) SA 161;

(8) R v
St Mary, Whitechapel (Inhabitants) (1848) 12 QB 120; 116ER811;

(9)
Master Ladies Tailor Organisation v Minister of Labour [1950] 2 All
ER 525;

(10) In
re A Solicitor's Clerk [1957] 1 WLR 1219;

(11) Yew
Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833, PC;

(12)
Maxwell v Murphy (1957) 96 CLR 261;

(13)
Euromarine International of Mauren v The Ship Berg 1986 (2) SA 700
(A);

(14) S v
Heita and Others 1987 (1) SA 311 (SWA);

(15)
Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3) SA 800 (A);

(16)
Protea International (Pty) Ltd' v Peat Marwick Mitchell & Co 1990
(2) SA 566

(A);

(17)
Kruger v President Insurance Co Ltd 1994 (2) SA 495 (DCLD);

(18)
Chang Jeeng v Nuffield (Australia) Pty Ltd (1959-60) 101 CLR 629
(HC);

(19)
Swanepoel v Johannesburg City Council; President Insurance Co Ltd v
Kruger 1994(3)SA789(A);

(20)
Transnet Ltd v Ngcezula 1995 (3) SA 538 (A);

(21)
Minister of Public Works v Haffejee NO 1996 (3) SA 745 (A);

4

(22) L
'Office Cherifien des Phosphates and Another v Yamashita - Shinnihon
Steamship Co Ltd. The Boucraa [1994] 1 All ER 20, HL;

(23)
Secretary of State for Social Security v Tunniclijfe [1991] 2 All ER
712, CA;

(24)
Plewa v Chief Adjudication Officer [1994] 3 All ER 323, HL;

(25)
National Director of Public Prosecutions SA v Carolus and Others
[2000] 1 All SA 302; 2000 (1) SA 1127 (SCA);

(26)
Transnet Ltd (Autonet Division) v Chairman National Transport
Commission 1999 (4) SA l(SCA);

(27)
Benner v Canada (Secretary of State) (1997)42 CRR (2d) 1 (SCC);

(28)
Landgraf v USI Film Products et al (1994) 511 US 244;

(29)
United States of America v Certain Funds Located at the Hong Kong and
Shanghai Banking Corporation et al (1996) 96 F 3d 20 (2nd Cir);
(1996) US App LEXIS 23606;

(30)
United States of America v Four Tracts of Property on the Waters of
Leiper's Creek (1999) WL 377773 (6th Cir (Tenn)); (1999)US App LEXIS
10666;

(31)
Howard Smith Paper Mills et al v The Queen (1957) 8 DLR (2d) 449; 118
CCC321(SCC);

(32) R v
Le Sarge (1975) 26 CCC (2d) 388 (Ont CA);

(33) R v
Irwin (1976) 32 CRNS 398; [1976] OJ No 153 (Ont CA);

(34) R v
Ali [1979] 108 DLR (3d) 41 (SCC); 1979 DLR LEXIS 4758;

(35)
Wildman v The Queen (1984) 12 DLR 4th 641 (SCC): 14 CCC (3d) 321;

(36)
Bingeman v Mc Laughtin (Bingeman)(1977) 11 DLR (3d) 25; (1978) 1 SCR
548;

(37)
Angus v Sun Alliance Insurance Co [1988] 2 SCR 256; 1988 SCR LEXIS
1045;

(38) De
Roussy v Nesbitt (1920) 53 DLR, 514;

(39) RvE.
(A. W.) [1993] 83 CCC (3d) 462; 3 SCR 155 (SCCC);

(40)
Letsie & Others v v 1995 - 1996 LLR -LB 28;

(41)
Dawoodally v Gora (1924) (2) PH F11 (N);

(42) R v
Albutt and Screen (1911) 6 Cr App R 55, CCA;

(43)
Pepper v Hart [1992] 3 WLR 1032, HL;

(44)
Fothergill v Monarch Airlines [1981] AC 251; HL;

(45)
Black- Clawson International Limited v Papierwerke Waldhof-
Aschaffenburg AG[1975]AC591,HL;

(46)
Liyanage v R [1966] 1 All ER 650; [1966] 2 WLR 682; (1967) 1 AC 259,
PC;

(47)
Cummings v State of Missouri (1866) 4 Wall 277;

(48)
Kariapper v Wijesinha and Another [1967] 3 All ER 485, PC;

(49)
Swissbourgh Diamond Mind (Pty) Ltd and Five Others v The Military
Council of Lesotho and Eight Others 1991 - 1996 (2) LLR 1481

(50)
Calder v Bull (1789) 3 Dallas USSC 386;

(51) S v
Zuma and Others 1995 (1) SACR 568 (CC);

(52) S v
Van Der Sandt 1997 (2) SACR 116, WLD.

6

THE
LEGISLA TION

The
accused challenges the application of amending legislation. His
challenge is two fold: either the legislation has no application to
this trial, or alternatively it is in any event, where he is
concerned, unconstitutional. The amending legislation is contained in
the Criminal Procedure and Evidence (Amendment) Act 2001 (No 3 of
2001) which amended the Criminal Procedure and Evidence Act, 1981
("the Code") by repealing and replacing sections 245 to 248
inclusive of the Code. On the 5th of October, 2001, I ruled that the
amending legislation was applicable to this trial, inherently holding
that it was not unconstitutional: I did so for reasons which now
follow. In order to appreciate the submissions of both parties in the
matter, it proves necessary to first set out the provisions of
sections 245 to 248 before amendment:

"SPECIAL
PROVISIONS AS TO BANKERS' BOOK [S]

245 The
entries in ledgers, day-books, cash-books and other account books of
any bank shall be admissible as prima facie evidence of the matters,
transactions] and accounts recorded therein, on proof being given by
the affidavit in writing of a director, manager or an officer of that
bank or by other evidence-

1. that
   the ledgers, day-books, cash-books or other account books-

   
   

(i) are or have been the ordinary books of that bank;

(ii) are in or come immediately from the custody or control of that
bank; and

2. the
   entries have been made in the usual and ordinary course of business.

   
   

246 (1)
Copies of all entries in any ledgers, day-books, cash-books or other

account
books used by any bank may be proved in any criminal proceedings as
evidence of any such entries without production of the originals by
means of the affidavit of a person who has examined them, stating the
fact of the examination and that the copies sought to be put in
evidence are correct except that –

1. no
   ledger, day-book, cash-book or other account book of any such bank
   and no copies of entries therein contained, shall be

   
   

7

adduced
or received in evidence under the Act, unless 10 days' notice in
writing or such other notice as may [be] ordered by the court or a
magistrate holding [a] preparatory examination, containing a copy of
the entries proposed to be adduced, and stating the intention to
adduce the same in evidence has been given by the party proposing to
adduce the same in evidence to the other party; and

2. the
   other party is at liberty to inspect the original entries and the
   accounts of which such entries form a part.

   
   

(2) On the application of any party who has received notice pursuant
to sub-section (1) the court or a magistrate holding a preparatory
examination may order that such party be at liberty to inspect and
take copies of any entry in the ledgers, day-books, cash-books or
other account books of any bank relating to the matters in question
in the criminal proceedings, and such order may be made by the court
or magistrate in its or his discretion, either with or without
summoning before it or him such bank or other party, and shall be
intimated to such bank at least 3 days before the copies are
required.

(3) On
the application of any party who has received notice the court or a
magistrate holding a preparatory examination may order that the
entries and copies mentioned in the notice shall not be admissible as
evidence of the matters, transactions and documents recorded in the
ledgers, day-books, cash-books and other account books.

247 (1)
Subject to sub-section (2) no bank shall be compelled to produce the
ledgers, day-books, cash-books or other account books, of any
criminal proceedings unless the court or the magistrate holding the
preparatory examination specially orders that the ledgers, day-books,
cash-books or other account books shall be produced.

(2) The
police officer of the rank of lieutenant or above may demand the
production of bank ledgers, day-books, cash-books or other account
books notwithstanding that there are no criminal proceedings pending.

248
Sections 245 to 247 shall not apply to any criminal proceedings to
which any bank, whose ledgers, day-books, cash-books or other account
books are required to be produced in evidence, is a party."

That was
the state of the law when the accused was first charged before the

8

Subordinate
Court on 28th July, 1999. It remained so on 3rd December, 1999, when
he was first indicted in the High Court, that is, with eighteen other
accused. There were a number of ancillary applications; the Court
made some orders for separation of trials. Ultimately the Crown
preferred another indictment on the 1st of June 2001, in which it
charged only the present accused. The accused pleaded not guilty to
all counts on that indictment on the 11th of June, 2001.

Meanwhile
the amending Act took effect on 8th March, 2001. The amended sections
are based upon and are almost identical with the provisions of
sections 236 and 236 A of the Criminal Procedure Act, 1977 of the
Republic of South Africa, which provisions were introduced in 1993. I
set out hereunder the amended sections 245 to 248:

"SPECIAL
PROVISIONS AS TO BANKERS' RECORDS

Proof of
entries in accounting records and documentation of banks in Lesotho

"245

1. In
   this section –

   
   

2. 
   

"document"
includes a recording or transcribed computer print-out produced by a
mechanical or electronic device and any device by means of which
information is recorded or stored; and "entry" includes any
notation in the accounting records of a bank by any means whatsoever.

(2) The
entries in the accounting records of a bank in Lesotho, and any
document in the possession of the bank which refers to the [said]
entries or to any business transaction of that bank, shall be prima
facie proof at criminal proceedings of the matters, transactions and
accounts recorded in the [said] accounting records or document upon
the mere production, at the proceedings, of a document purporting to
be an affidavit made by any person who in that affidavit alleges-

(a) that
he is in the service of the bank in question;

(b) that
the [said] accounting records or document [is] or has been the
ordinary records or document of the bank;

(c) that
the [said] entries have been made in the usual and ordinary course of
the

-9-

business
of the bank or the [said] document has been compiled, printed or
obtained in the usual and ordinary bank or the said document has been
compiled, printed or obtained in the usual and course of the business
of the bank; and

(d) that
the [said] accounting records or document is in the custody or under
the control of such bank.

(3) Any
entry in an accounting record or any document referred to in
subsection (2) may be proved at criminal proceedings upon the mere
production at the proceedings of a document purporting to be an
affidavit made by any person who in that affidavit alleges -

(a) that
he is in the service of the bank in question;

(b) that
he has examined the entry, accounting record or document in question;
and

(c) that
a copy of the entry or document set out in the affidavit or in an
annexure [thereto] is a correct copy of the [said] entry or document.

(4) Any
party at the proceedings against whom evidence is adduced in terms of
this section or against whom it is intended to adduce evidence in
terms of this section, may, upon the order of the court before which
the proceedings are pending, inspect the original of the document or
entry in question and any accounting record in which the [said] entry
appears or of which the entry forms part, and may make copies of the
[said] document or entry, and the court shall, upon the application
of that party, adjourn the proceedings for the purpose of the
inspection or the making of the [said] copies.

Proof of
entries in accounting records and documentation of banks in countries
outside Lesotho.

246.

(1) In
this section -

"document"
includes a recording or transcribed computer print-out produced by
any mechanical or electronic device and any device by means of which
information is recorded or stored; and

"entry"
includes any notation, by any means whatsoever, in the accounting
records of a bank contemplated in subsection (2)

(2) The
entries in the accounting records of a bank in a foreign state, and
any document which is in the possession of the bank which refers to
the [said] entries or to any business transaction of the bank, shall
be prima facie proof at criminal proceedings of the matters,
transactions and accounts recorded in

-10-

the
[said] accounting records or document upon the mere production at the
proceedings of a document purporting to be an affidavit made by any
person who in that affidavit alleges-

(a) that
he is in the service of the bank in question;

(b) that
such accounting records or document are or were the ordinary records
or document of [the] bank;

(c) that
the said entries have been made in the usual and ordinary course of
the business of the bank;

(d) that
such accounting records are or document is in the custody or under
the control of the bank..

(3) Any
entry in an accounting record or a document contemplated in
sub-section (2) may be proved at criminal proceedings upon the mere
production at the proceedings of a document purporting to be an
affidavit made by any person who in that affidavit alleges -

(a) that
he is in service of the bank in question;

(b) that
he has examined the entry, accounting record or document in question;
and

(c) that
a copy of the entry or document set out in the affidavit or in an
annexure [thereto] is a correct copy of the entry or document.

an
affidavit is a correct copy of the entry or document.

(4) A
document purporting to be an affidavit shall for the purposes of this
section have no effect unless it is obtained in terms of an order of
a competent court or on the authority of a competent government
institution of the state concerned.

(5) The
admissibility and evidentiary value of an affidavit contemplated in
subsections (2) and (3) shall not be affected by the fact that the
form of the oath, confirmation or attestation [thereof] differs from
the form of the oath, confirmation or attestation prescribed in
Lesotho.

(6) A
court before which an affidavit contemplated in sub-sections (2) and
(3) is placed may, in order to clarify obscurities in the affidavit,
on the request of a party to the proceedings, order that a
supplementary affidavit be submitted or that oral evidence be heard
and that oral evidence shall only be heard if the court is of the
opinion that a party to the proceedings would be materially
prejudiced should oral evidence not be heard.

-11-

Bank's
obligation to produce records and documentation

247.

(1)
Subject to subsection (2), no bank in Lesotho shall be compelled to
produce, in any criminal proceedings, an accounting record or a
document as contemplated in section 245 which is in the possession of
the bank, unless the court concerned orders that the accounting
record or document be produced.

(2) A
police officer of the rank of Senior Inspector or above may demand
the production of an accounting record or a document of any bank as
referred to in sub-section (1) notwithstanding that there are no
criminal proceedings pending, and the police officer shall thereupon
be entitled to make and retain copies of the accounting record or
documents.

Proceeding
to which bank is a party.

248.
Sections 245 to 247 shall not apply to any criminal proceedings to
which a bank, whose accounting records or documents are required to
be produced in evidence, is a party."

The Crown
and the defence have filed heads of argument and also supplementary
heads. Once again I greatly appreciate the very full argument
advanced by both parties involving reference to numerous authorities.
The authorities are based upon the common law, and indeed the
legislation which emanated from the common law. It is necessary to
consider that legislation in order to better appreciate the thrust of
the various authorities. Such legislation is to be found in the
various interpretation statutes throughout the common law
jurisdictions, which were based upon the provisions of section 38 (2)
of the Interpretation Act 1889 of England. Such provisions are to be
found in section 18 of the Interpretation Act, 1977 of Lesotho, which
reads as follows:

"18.
Where an Act repeals in whole or in part another Act, the repeal
shall not -

(b)
revive anything not in force or existing at the time at which the
repeal takes effect:

(c)
affect the previous operation of the Act so repealed or anything duly
done or suffered under the Act so repealed;

-12-

(d)
affect any right, privilege obligation or liability acquired, accrued
or incurred under the Act so repealed;

(e)
affect any penalty, forfeiture or punishment incurred in respect of
any offence committed against the Act so repealed;

(f)
affect any investigation, legal proceedings or remedy in respect of
any such right, privilege, obligation, liability, penalty, forfeiture
or punishment referred to in paragraphs (c) and (d); and any such
investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture or punishment
may be imposed as if the repealing Act had not been passed."

PROCEDURAL
LAW

The Crown
maintains that the amending legislation in this case is procedural in
effect, in respect of which the presumption against retrospectivity
does not operate. As to what is procedural, the following opening
lines of Phipson On Evidence 14 Ed (1990) at p1 are relevant:

"Law
is commonly divided into substantive law, which defines rights,
duties and liabilities; and adjective law, which defines the
procedure, pleading and proof by which the substantive law is applied
in practice.

The rules
of procedure regulate the general conduct of litigation; the object
of pleading is to ascertain for the guidance of the parties and the
court the material facts in issue in each particular case; proof 'is
the establishment of such facts by proper legal means to the
satisfaction of the court, and in this sense includes disproof. The
first-mentioned term is, however, often used to include the other
two."

Mr
Penzhorn and Mr Woker in their heads rely upon the following extracts
from Salmond on Jurisprudence 12 Ed (by Professor P. J. Fitzgerald)
1966 at pp461/462:

"The
law of procedure may be defined as that branch of the law which
governs the process of litigation. It is the law of actions -jus quod
ad actiones pertinent - using the term action in a wide sense to
include all legal proceedings, civil or criminal. All the residue is
substantive law, and relates, not to the process of litigation, but
to its purposes and subject-matter. Substantive law is concerned with
the ends which the administration of justice seeks; procedural law
deals with the means and instruments by which those ends are to be
attained. The latter regulates the conduct and relations of courts
and litigants in respect of the litigation itself; the former
determines their conduct and relations in respect of the matters
litigated."

-13-

and at
p462

"What
facts constitute a wrong is determined by the substantive law; what
facts constitute proof of a wrong is a question of procedure. For the
first relates to the subject-matter of litigation, the second to the
process merely. Whether an offence is punishable by fine or by
imprisonment is a question of substantive law, for the existence and
measure of criminal liability are matters pertaining to the end and
purpose of the administration of justice. But whether an offence is
punishable summarily or only on indictment is a question of
procedure. Finally, it may be observed that, whereas the abolition of
capital punishment would be an alteration of the substantive law, the
abolition of imprisonment for debt was merely an alteration in the
law of procedure. For punishment is one of the ends of the
administration of justice, while imprisonment for debt was merely an
instrument for enforcing payment." (Italics added)

THE
AUTHORITIES South Africa and England

In 1878
in the case of Gardner v Lucas and Ors (1) the House of Lords
considered legislation enacted in 1874, the effect of which was to
render valid any deed or instrument lacking formality of execution.
The question arose as to whether such legislation was retrospective
in effect and rendered valid a lease executed in 1873. The House held
that the legislation was not retrospective. Lord Blackburn's
oft-quoted opinion reads thus at p603:

"Now
the general rule, not merely of England and Scotland, but, I believe,
of every civilized nation, is expressed in the maxim, "Nova
constitutio futuris formam imponere debet nonpraeterttis "'
-prima facie, any new law that is made affects future transactions,
not past ones. Nevertheless, it is quite clear that the
subject-matter of an Act might be such that, though there were not
any express words to shew it, it might be retrospective. For
instance, I think it is perfectly settled that if the Legislature
intended to frame a new procedure, that instead of proceeding in this
form or that, you should proceed in another and a different way;
clearly there bygone transactions are to be sued for and enforced
according to the new form of procedure. Alterations in the form of
procedure are always retrospective, unless there is some good reason
or other why they should not be. Then, again, I think that where
alterations are made matters of evidence, certainly upon the reason
of the thing, and I think upon the authorities also, those are
retrospective, whether civil or criminal.

But where
the effect would be to alter a transaction already entered into,
where it

-14-

would be
to make that valid which was previously invalid - to make an
instrument which had no effect at all, and from which the party was
at liberty to depart as long as he pleased, binding -I think the
prima facie construction of the Act is that it is not to be
retrospective, and it would require strong reasons to shew that is
not the case." (Italics added)

The locus
classicus in the matter of retrospectivity in the Republic of South
Africa is the case of Curtis v Johannesburg Municipality (2) decided
in 1906 by Innes CJ and Mason and Smith JJ. That case concerned an
enactment which had the effect of prescribing the appellant's claim
against the respondent Municipality, in respect of serious injury
suffered as a result of the Municipality's alleged negligence. The
Court (Smith J dissentiente) held that in respect of claims which
arose prior to the enactment the period of limitation would be
reckoned, not from the time when the cause of action arose but from
the date of promulgation of the enactment. Innes CJ observed at p311:

"The
general rule is that, in the absence of express provision to the
contrary, statutes should be considered as affecting future matters
only; 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. The legislature is virtually omnipotent, but the
courts will not find that it intended so inequitable a result as the
destruction of existing rights unless forced to do so by language so
clear as to admit of no other conclusion." (Italics added)

The
Municipality maintained that the enactment did not come within that
rule, "because it dealt with a matter of procedure, and statutes
regulating procedure were, necessarily, retrospective." Innes CJ
observed at pp311/312:

"There
can be no doubt that the words of the section deal not with rights
but with remedies. They are wide enough to cover causes of action
based upon contract as well as upon tort, and in substance they enact
that all suits against the council shall be instituted within six
months from the time when the cause of action arose, or not at all.
The naked right is allowed to remain, but the remedy of enforcing it
by action is taken away. It may still be used for purposes of set
off, but it cannot be sued upon. The section is in effect a statute
of limitations.

It must
be taken as settled law that statutes of limitations barring the
remedy are portion of the law of procedure."

-15-

and at
p312

"Every
law regulating legal procedure must, in the absence of express
provision to the confa-ary, necessarily govern, so far as it is
applicable, the procedure in every suit which comes to trial after
the date of its promulgation. Its prospective operation would not be
complete if this were not so, and it must regulate all such procedure
even though the cause of action arose before the date of promulgation
and even though the suit may have been then pending. To the extent to
which it does that, but to no greater extent, a law dealing with
procedure is said to be retrospective. Whether the expression is an
accurate one is open to doubt, but it is a convenient way of stating
the fact that every alteration in procedure applies to every case
subsequently tried, no matter when such case began or when the cause
of action arose. " (Italics added)

The
learned Chief Justice considered French, English, Roman and
Roman-Dutch law in the matter. As to the latter he observed at
p316/317:

"There
is, therefore, considerable weight of Roman-Dutch authority in favour
of the view that a statute of limitations, which in terms draws no
distinction between debts due before and those which became due after
its promulgation, should be held to apply to both classes, but that
the period of limitation should be calculated in regard to the former
class as from the date of promulgation.

It only
remains to inquire whether there is anything in the language of the
law under consideration which prevents the application of this rule.
The words are wide, and if literally construed they would certainly
include actions the causes of which arose more than six months before
promulgation; but if the effect of construing a statute literally
would be to take away existing rights, then the literal construction
should not be adopted, unless it is evident beyond doubt that the
legislature intended it, or unless any other construction would
defeat the evident object of the statute, or would render it
meaningless. In the present case, to read the section literally would
so impair existing obligations as virtually to amount to a
deprivation of rights. It should not, therefore, be so read."
(Italics added)

Smith J
observed at p319:

"In
my opinion.... it does not follow of necessity that because a statute
deals with procedure it is to be treated as retrospective in its
operation. In the case of every statute, whether with procedure or
not, the intention of the legislature has to be ascertained, and no
general rule applicable to all statutes can be laid down. Thus Lord
BLACKBURN says in Gardner v Lucas [ 1 ]: "Alterations in the
form of procedure are always retrospective unless there is some good
reason or other why they should not be;' and VAUGHAN-WILLIAMS, L.J.,
in The Ydun [3] says: "I do not mean to say that legislation in
reference to procedure is not in some cases to be treated as not
being retrospective. To determine whether it is so or not one must
look at the language of

-16-the
Act of Parliament."

In those
cases where a statute regulates merely the course of the proceedings
in the Court itself it seems to me that, strictly speaking, the
effect is not retrospective; it can only operate on proceedings had
subsequently to the time when the statute came into force. No one has
a vested right in procedure, as a learned Judge in an English case
remarked; his only right is to have his action heard according to the
course of procedure in force at the time it came into court, "
(Italics added)

Mason J
observed at pp324/325

"There
is no doubt that the rule is general that statutes with reference to
procedure apply to all actions from the date of their operation, even
though the actions themselves have arisen in respect of transactions
occurring prior to the statute."

The
learned Judge referred to a body of academic and judicial authority
in the matter and continued at p325:

"The
reasons for the rule are obvious. In the first place it is clear that
it would be impossible because a contract was made, for instance, a
hundred years ago to apply at this date the procedure of those times.
The manner in which an action is to be brought is governed by the law
for the time being in force; it is not a vested right attached to the
contract or obligation at the time of its creation. But the rule can
only be justified as a general maxim upon the understanding that the
parties concerned are able to adopt and to apply to their vested
rights the existing procedure, and it is that application of the rule
which gives rise to the opinion so repeatedly expressed that,
properly speaking, provisions relating to procedure are not
retroactive because they have no retroactive effect." (Italics
added)

It will
be seen that Mason J there speaks of retroactivity, rather than
retrospectivity. The learned Judge had earlier, with reference to the
general rule, referred to the case of The Ydun (3) decided in 1899. A
barque of that name, had run aground in Preston port on 13th
September 1893. On 5th December 1893, The Public Authorities
Protection Act, 1893 was passed, taking effect on 1st January 1894,
which reduced the period within which the barque owners might
institute a claim from six years to six months. The barque owners
instituted their action more than five years after the accident. In
the Court of Appeal AL Smith L J (Vaughan Williams and

-17-

Romer LL
J concurring) held at p245 that although a right of action is not
taken away "unless it is so expressed in the Act",
nonetheless the amending Act was "an Act dealing with procedure
only" and hence applied to all actions, "whether commenced
before or after the passing of the Act". Vaughan Williams L J at
p246 agreed that the amending Act was retrospective, there being

"abundant
authority that the presumption against a retrospective construction
has no application to enactments which effect only the procedure and
practice of the Courts".

The issue
was decided against the barque owners. In the Curtis case (2) Mason J
also referred to the case of R v Chandra Dharma (4). That was a case
where a statutory bar on prosecution within three months was
enlarged, before the three months had expired (in respect of the
accused), to six months, prosecution being subsequently initiated
before the six months had expired. Lord Alverstone C J observed at
pp338/339 (KB), p571 (All ER):

"The
rule is clearly established that, apart from any special
circumstances appearing on the face of the statute in question,
statutes which make alterations in procedure are retrospective. It
has been held that a statute shortening the time within which
proceedings can be taken is retrospective {The Ydun [3]), And it
seems to me that it is impossible to give any good reason why a
statute extending the time within which proceedings may be taken
should not also be held to be retrospective. If the case could have
been brought within the principle that unless the language is clear a
statute ought not to be construed so as to create new disabilities or
obligations, or impose new duties in respect of transactions which
were complete at the time when the Act came into force, [Counsel for
the prisoner] would have been entitled to succeed; but when no new
disability or obligation had been created by the statute, but it only
alters the time within which proceedings may be taken, it may be held
to apply to offences completed before the statute was passed. That is
the case here. This statute does not alter the character of the
offence, or take away any defence which was formerly open to the
prisoner. It is a mere matter of procedure, and according to all the
authorities it is therefore retrospective."(Italics added)

Channell
J. concurring, additionally observed that "the question would
have been entirely different" if the time under the old Act had
expired before the new Act

-18-came
into operation."

A case
often quoted is that of West v Gwynne (5) which came before the Court
of Appeal in England in 1911. That case concerned legislation which
referred to "all leases." The Court (Cozens-Hardy M R,
Buckley and Kennedy LL J) construed the legislation to refer to all
leases, whether executed before or after the commencement of the Act.
Buckley L J observed at pp 11/12:

"During
the argument the words "retrospective" and retroactive"
have been repeatedly used, and the question has been stated to be
whether s.3 of the Conveyancing Act, 1892, is retrospective. To my
mind the word retrospective" is inappropriate, and the question
is not whether the section is retrospective. Retrospective operation
is one matter. Interference with existing rights is another. If an
Act provides that as at a past date the law shall be taken to have
been that which it was not, that Act 1 understand to be
retrospective. That is not this case. The question here is whether a
certain provision as to the contents of leases is addressed to the
case of all leases or only of some, namely, leases executed after the
passing of the Act. The question is as to the ambit and scope of the
Act, and not as to the date as from which the new law, as enacted by
the Act, is to be taken to have been the law." (italics added)

and at
p12:

"As
matter of principle an Act of Parliament is not without sufficient
reason taken to be retrospective. There is, so to speak, a
presumption that it speaks only as to the future. But there is no
like presumption that an Act is not intended to interfere with
existing rights. Most Acts of Parliament, in fact, do interfere with
existing rights." (Italics added)

I presume
that Buckley L J was, in the light of the provisions of section 38
(2) of the Interpretation Act, 1889, there referring to amending
legislation which expressed an intention contrary to such provisions.
In any event, the dicta of Buckley L J first quoted supra were quoted
with approval by Schreiner ACJ (van den Heever, Hoexter, Fagan and
Steyn JJ A concurring) in the case of Shewan Tomes & Co v
Commissioner of Customs & Excise (6). The appellant in that case
sued the respondent for damages arising out of the seizure and sale
in February and October,

-19-

1953,
respectively, of a consignment of fireworks, imported through Durban
Harbour. After such sale, legislation was introduced which had the
effect of applying to the claimant a requirement to issue a notice of
claim within one month after seizure. Further, such legislation
provided that the particular provision "shall be deemed to have
come into operation on the 5th day of June 1944" (the date of
commencement of the original legislation). Schreiner ACJ at p311
considered the dicta in Curtis (2) and West v Gwynne (5) and went on
to dismiss the appeal, observing at pp311/312:

"Curtis's
case [2] was of the same type as West v Gwynne [5], while the present
case is one of true retrospectivity in the strict sense used by
BUCKLEY L.J. Where one is dealing with a case of true retrospectivity
it will generally, I apprehend, be more difficult to draw inferences
as to the Legislature's presumed intention not to produce injustice,
since ex hypothesi the Legislature is creating a situation in which
the conduct of persons is affected by rules that did not exist at the
time of the conduct.

However
that may be, true retrospectivity is no doubt for present purposes to
be dealt with on the same general lines as interference with existing
rights, and where there is real room for doubt as to the meaning of a
provision, the interpretation producing the less harsh results should
be favoured. But here the meaning of the section is perfectly clear."

The dicta
of Buckley L J in West v Gwynne (5) were also quoted with approval by
Van Winsen AJP in the case of Parow Municipality v Joyce and McGregor
(Pty) Ltd (7). In that case the respondent property-owning
development company had in 1932 submitted a plan for sub-division of
land, for an estate, which included a large number of even, streets
and a "recreation ground". The plan was approved. In 1944
the land comprised in the estate was incorporated within the
boundaries of the applicant Municipality. Subsequently, section 127
of the Cape Municipal Ordinance, 1951 provided that

"[t]he
ownership of all immovable property to which the inhabitants of the
municipality shall have or acquire a common right and of all public
streets and the land comprised therein shall vest in the
municipality."

-20-

Van
Winsen AJP granted a declaration that under the definitions contained
in the legislation, the recreation ground was a "public street"
and that section 127 had vested the recreation ground (without
compensation) in the Municipality, that is, from the date of
promulgation of the legislation, observing at ppl64/165:

"The
mere fact that an area on an approved plan was described as "street"
or "recreation ground" would not in itself have had the
effect of vesting the ownership thereof in the local authority. Sec.
127 accordingly brought about a change in the law. But as I read the
section it only did so as from the date of its promulgation. It does
not purport to be retrospective in its operation nor does it, in my
view, lend itself to an interpretation that such is its effect.

The
section applies to a state of affairs existing at its inception,
viz., that a certain area of land shewn upon an approved sub-division
plan comprises a public street. The fact that the afore-mentioned
requisites for its operation existed antecedent to the time when the
section was promulgated does not in itself render it retrospective in
its operation. Cf. R v St Mary, Whitechapel[%] at pl27; Master Ladies
Tailors Organisation v Minister of Labour [9], at p527; [In re] A
Solicitor's Clerk [10]. It would, in my view, have been retrospective
in its operation if it had sought to provide that as from a date
anterior to its promulgation the local authority had become vested
with ownership in what were then public streets. But this it does not
do. The remarks of BUCKLEY LJ in West v Gwynne [5] at pll, quoted
with approval by SCHREINER, ACJ in Shewan Tomes & Co Ltd v
Commissioner of Customs & Excise [6], are apposite in this
connection."

Van
Vinsen AJP went on at pl65 to quote the dicta of Buckley LJ at ppl
1/12 first quoted above.

The dicta
of Lord Alverstone C J and Chanell J in Chandra Dharma (4) were
referred to by Lord Brightman in delivering the opinion of the Privy
Council in the case of Yew Bon Tew v Kenderaan Bas Mara(11), decided
on appeal from the Federal Court of Malaysia. That case concerned a
claim by the first appellant, and an infant suing by the first
appellant, for personal injury suffered in a collision between a
motor cycle driven by the first appellant (with the infant as pillion
passenger) and the respondent's bus. Amending legislation increased
the period of limitation applicable,

-21-

after the
appellant's claim had become statute-barred under the old
legislation, that is, a claim which arose on 5th April, 1972 became
statute barred 12 months later, the latter period being enlarged by a
1974 Act to one of 36 months. Lord Brightman observed thus at p836:

"Apart
from the provisions of the interpretation statutes, there is at
common law a prima facie rule of construction that a statute should
not be interpreted retrospectively so as to impair an existing right
or obligation unless that result is unavoidable on the language used.
A statute is retrospective if it takes away or impairs a vested right
acquired under existing laws, or creates a new obligation, or imposes
a new duty, or attaches a new disability, in regard to events already
past. There is however said to be an exception in the case of a
statute which is purely procedural, because no person has a vested
right in any particular course of procedure, but only a right to
prosecute or defend a suit according to the rules for the conduct of
an action for the time being prescribed.

But these
expressions 'retrospective' and 'procedural', though useful in a
particular context, are equivocal and therefore can be misleading. A
statute which is retrospective in relation to one aspect of a case
(e.g. because it applies to a pre-statute cause of action) may at the
same time be prospective in relation to another aspect of the same
case (e.g. because it applies only to the post-statute commencement
of proceedings to enforce that cause of action); and an Act which is
procedural in one sense may in particular circumstances do far more
than regulate the course of proceedings, because it may, on one
interpretation, revive or destroy the cause of action itself.

Whether a
statute is to be construed in a retrospective sense, and if so to
what extent, depends on the intention of the legislature as expressed
in the wording of the statute, having regard to the normal canons of
construction and to the relevant provisions of any interpretation
statute." (Italics added)

Lord
Brightman went on to observe at p836 that the relevant issue in The
Ydun (3) "was disposed of in the judgments with remarkable
brevity for so important an issue." He observed at p838 that
"the Federal Court found of great assistance, as also have their
Lordships," the following passage from the judgment of Williams
J in the Australian case of Maxwell v Murphy (6) at pp 277/278:

"Statutes
of limitation are often classed as procedural statutes. But it would
be unwise

-22-

to
attribute a prima facie retrospective effect to all statutes of
limitation. Two classes of case can be considered. An existing
statute of limitation may be altered by enlarging or abridging the
time within which proceedings may be instituted. If the time is
enlarged whilst a person is still within time under the existing law
to institute a cause of action the statute might well be classed as
procedural. Similarly if the time is abridged whilst such person is
still left with time within which to institute a cause of action the
abridgment might again be classed as procedural. But if the time is
enlarged when a person is out of time to institute a cause of action
so as to enable the action to be brought within the new time or is
abridged so as to deprive him of time within which to institute it
whilst he still has time to do so, very different considerations
could arise. A cause of action which can be enforced is a very
different thing to a cause of action the remedy for which is barred
by lapse of time. Statutes which enable a person to enforce a cause
of action which was then barred or provide a bar to an existing cause
of action by abridging the time for its institution could hardly be
described as merely procedural. They would affect substantive
rights." (Italics added)

The
Federal Court of Malaysia held that when the appellants' claim had
expired, the respondents had acquired an "accrued right" to
immunity from claim, which was preserved by the Interpretation Act,
1967. The 1974 Act was not "retroactive" and had no
application to a cause of action which was barred before the Act came
into operation. Lord Brightman at p839 agreed with that conclusion.
Additionally he observed at pp839/840:

"Whether
a statute has a retrospective effect cannot in all cases safely be
decided by classifying the statute as procedural or substantive. For
example, in The Ydun the barque might have grounded on 13 May instead
of 13 September 1893 and the 1893 Act might have come into force on 5
December 1893 when it received the royal assent, instead of 27 days
later. Had those been the facts the Act would, if its procedural
character were the true criterion of its effect, have deprived the
owners of their ability to pursue their cause of action on the day
the Act reached the statute book. A limitation Act which had such a
decisive effect on an existing cause of action would not be 'merely
procedural' in any ordinary sense of that expression. Their Lordships
assume (without expressing an opinion) that The Ydun was, on its
facts, correctly decided.

Their
Lordships consider that the proper approach to the construction of
the 1974 Act is not to decide what label to apply to it, procedural
or otherwise, but to see whether the statute, if applied
retrospectively to a particular type of case, would impair existing
rights and obligations. The appellants assert that a Limitation Act
does not impair

-23-

existing
rights because the cause of action remains, on the basis that all
that is affected is the remedy. There is logic in the distinction on
the particular facts of The Ydun, because the right to sue remained,
for a while, totally unimpaired. But in most cases the loss, as
distinct from curtailment, of the right to sue is equivalent to the
loss of the cause of action. The Public Authorities Protection Act
1893 can be regarded as procedural on the facts of The Ydun, but a
slight alteration to those facts would have made it substantive. A
Limitation Act may therefore be procedural in the context of one set
of facts, but substantive in the context of a different set of facts.

In their
Lordships' view, an accrued right to plead a time bar, which is
acquired after the lapse of the statutory period, is in every sense a
right, even though it arises under an Act which is procedural. It is
a right which is not to be taken away by conferring on the statute a
retrospective operation, unless such a construction is unavoidable.
Their Lordships see no compelling reason for concluding that the
respondents acquired no 'right' when the period prescribed by the
1948 Ordinance expired, merely because the 1948 Ordinance and the
1974 Act are procedural in character. The plain purpose of the 1974
Act, read with the 1948 Ordinance, was to give and not to deprive; it
was to give to a potential defendant, who was not on 13 June
possessed of an accrued limitation defence, a right to plead such a
defence at the expiration of the new statutory period. The purpose
was not to deprive a potential defendant of a limitation defence
which he already possessed. The briefest consideration will expose
the injustice of the contrary view. When a period of limitation has
expired, a potential defendant should be able to assume that he is no
longer at risk from a stale claim. He should be able to part with his
papers if they exist and discard any proofs of witnesses which have
been taken, discharge his solicitor if he has been retained, and
order his affairs on the basis that his potential liability has gone.
That is the whole purpose of the limitation defence." (Italics
added)

The case
of Euromarine International of Mauren v The Ship Berg (13) was
decided by the Appellate Division (Corbett, Miller, Hoexter and
Grosskoff JJ A and Galgut AJA) in 1985. The Court was there faced
with legislation enacted in 1983 which provided for the arrest of an
"associated ship" in an admiralty action in rem, which
legislation represented a development of the notion of "sister-ship
liability" introduced in England in 1956. The appellant sought
the arrest of the ship Berg in respect of negligence by the owners of
an "associated ship" Pericles, arising out of an accident
in Durban Harbour on 24th December, 1978. Miller JA (the other
members

-24-

of the
Court concurring) quoted the dicta of the three members of the court
in the Curtis case (2) observing at p710:

"Of
course, some of the observations made in the judgments in the Curtis
[2] case were prompted or moulded by a consideration of the nature of
the particular enactment with which the case was concerned - it was a
statute of limitation of actions which required actions to be brought
within six months of the time when the causes of such actions arose.
But what is clear from the several judgments is that primarily, in
every case, the inquiry must be into the language of the enactment
and the purpose and intent of the Legislature which emerges
therefrom. This was also the approach of Lord BRIGHTMAN In Yew Bon
Tew v Kenderaan Bas Mara [11] at 836."

Miller JA
went on at p710 to quote the dicta of Lord Brightman in Yew Bon Tew
(11) at p836 reproduced supra. He continued at p712 thus:

"The
contention on behalf of the appellant was, however, that the new
provision enabling a claimant to bring an action in rem by the arrest
of an associated ship instead of the ship in respect of which the
maritime claim arose should be taken to have retrospective effect,
because it is in essence a provision relating to procedure rather
than to substantive or vested rights. Such provision, it was said, in
effect provided the legal machinery by which a claim could be
enforced. It is true that s3 (6) read with s5 (3) describes a method
for recovery of money due to one who has suffered injury or loss for
which he has a maritime claim, but it does much more than that; it
gives to the claimant a right which he never had before, namely to
recover what is due to him from a party who was not responsible for
the damage suffered by him. It provides the claimant not only with a
method for recovery but with an additional or alternative defendant.
And by that token, it is creative of new liabilities or obligations
in owners of ships, or the potential thereof, of which such owners,
if the claims arose prior to the commencement of the Act, would have
been wholly unaware and unsuspecting." (Italics added)

Ultimately
Miller JA upheld the majority judgment of Milne JP in the Natal
Provincial Division that the relevant provisions did not affect
causes of action which arose before the commencement of the Act.
Miller JA observed at p713:

"The
argument that the [relevant] provisions.... are procedural and ought
therefore to be applied with retrospective effect cannot avail the
appellant, for even if, to the limited extent that those provisions
describe the method by which maritime claims may be enforced, they
might be regarded as procedural, they can by no means be regarded as
"purely procedural" measures (see the judgment of Lord
BRIGHTMAN, quoted above) nor as being predominantly or substantially
procedural, for their design

-25-

was,
clearly, to create substantive rights and obligations in regard to
security for and payment of maritime claims."(Italics added)

In the
same year Levy J in the case of S v Heita and Others (14) in the
Supreme Court of South West Africa (as it was then named) was faced
with a Presidential Proclamation which prohibited any court from
enquiring into or pronouncing upon the validity of any Act of
Parliament. Levy J held that a criminal trial pending before the
introduction of the Proclamation was not affected by its provisions.
He observed at

p316:

"[W]hat
makes an amendment 'procedural' so that pending litigation is
affected thereby is whether it deals with a new procedure to be
followed or with new rules relating to proof in respect of such
pending litigation.

An
amendment to an Act which deprives a party of his right to challenge
the validity of legislation in a Court of law does not prescribe a
new procedure to be followed or a new set of rules relating to proof.
On the contrary, it is the very antithesis thereof. It stops all
litigation in respect of a particular matter, irrespective of legal
procedure and evidence. Where there is a procedural amendment, the
Legislature does not have to make it retrospective in that all
matters, whether they are pending or not, are governed by such an
amendment. When the amendment is not procedural, if pending
litigation is to be affected, the amendment must say so in clear
terms."(Italics added)

The issue
of retrospectivity came before the Appellate Division once more in
the case of Adampol (Pty) Ltd v Administrator, Transvaal (15). The
Court (Joubert, Hoexter, Botha, Vivier and Eksteen JJ A) considered
an amending provision which provided for the payment of interest "on
any outstanding amount of the compensation payable", in respect
of land expropriated, "with effect from a date 60 days from the
promulgation of the notice" of expropriation. The particular
notice of expropriation was promulgated on 31st December 1980, a
claim was submitted on 28th May 1982 and ultimately the amount of
compensation was settled and paid on 10th June 1986. Meanwhile the
amending legislation had been introduced on 25th September 1985. The
respondent maintained that interest was thus only payable from the
latter date.

-26-

Hoexter
JA (Vivier and Eksteen JJ A concurring) held that the wording of the
amending legislation was clear and unambiguous, that on 25th
September 1985 the compensation ultimately paid was "outstanding"
and hence interest was payable with effect from 1st March 1981 to
10th June 1986. Joubert JA concurred, holding that the legislation
should be construed prospectively but that nonetheless it had
elements of a retrospective nature. Hoexter JA at pp811/812 had
occasion to quote the dicta of Buckley LJ in the case of West v
Gwynne (5) at ppl 1/12 first quoted supra. He then considered the
facts of the Parow case (7) quoting the dicta of Van Winsen AJP
reproduced supra, observing at p812:

"It
seems to me, with respect, that in the above-quoted passage Van
Winsen AJP correctly stated the criterion to be employed in cases of
this sort, and I proceed to apply it to the situation in the instant
case."

The
learned Judge of Appeal continued at pp812/813:

"In
providing what the law is to be with effect from 25 September 1985,
s95 A(l) undoubtedly interfered with the existing rights of the
parties to this appeal. Before that date the respondent bore no
obligation to pay interest on any outstanding amount of compensation
owing to the appellant, and the latter enjoyed no right to claim such
interest from the former. That fact, by itself, does not render the
operation of s95 A (1) retrospective. Nor, in my opinion, is its
operation rendered retrospective by the adventitious circumstances
that the interest payable is to be computed from a date which may
precede (and which in the instant case does precede) 25 September
1985. In my view that factor is one quite extraneous to the inquiry.

Had s95
A(l) provided for the payment of interest not only on amounts
outstanding from the date on which it came into operation, but also
on amounts outstanding for any period prior to 25 September 1985 and
which had been paid in full to the expropriatee before that date,
then its provisions would have satisfied the criterion enunciated in
West v Gwynne [5] and applied in the Parow Municipality case [7]. It
would then have decreed, ex post facto, the payment of interest in
respect of transactions wholly past and perfected. However, as
already pointed out, the section does no such thing. It provides for
the payment of interest only on amounts outstanding on and after 25
September 1985, Section 95 A(l) provides what the law is to be with
effect from 25 September 1985. It does not provide that at a past
date the law shall be taken to have been that which it was not.
Reduced to essentials the contention advanced on behalf of the
respondent in the present case (and the same

-27-

may be
said of the respondent in the Parow Municipality case [7] really
comes to this: that prior to the date of the amending enactment he
enjoyed a vested and entrenched right that in future the law
governing his obligations would never be amended. That contention is,
I consider, an untenable one." (Latter italics added)

Retrospectivity
arose before the Appellate Division once again in the case of Protect
International (Pty) Ltd. v Peat Marwick Mitchell & Co (16). The
appellant's claim was for breach of contract based on the
respondent's alleged negligent failure to detect certain irregular
transactions. The alleged breach occurred on' 10th August 1983, but
was only brought to the knowledge of the appellant in March 1984.
Summons was served on 23rd October 1986. The question before the
Court was whether or not the claim had become prescribed. Joubert JA
(Vivier, Milne JJA, Friedman and Nienaber AJJ A concurring) observed
at p568:

"Since
a prescribed debt is the correlative of the creditor's contractual
right of action, the prescription of the debt necessarily
extinguishes the right of action. The extinction of a contractual
right of action by prescription is accordingly a matter of
substantive law and not a procedural matter."

Under
section 11 (d) of the Prescription Act, 1969 the prescriptive period
was three years. The Act (section 12) was amended on 7th March 1984
to provide in effect, that a debt was not deemed to be due until the
creditor had "knowledge of the identity of the debtor and of the
facts from which the debt arises", such knowledge to be deemed
to exist where it could be acquired with reasonable cause. The
appellant then maintained that the prescriptive period did not
commence running until March 1984, service of the summons being
effected before the completion of the prescriptive period in March
1987. The respondent maintained that the prescriptive period had
commenced running on 10th August 1983, terminating before service of
the summons, the legislative amendment being inapplicable to
prescription which had already commenced to run before the operative
date of 7th March 1984.

-28-

In the
course of his judgment Joubert JA at p573 considered it "extremely
doubtful" whether there is such a principle of Roman-Dutch law"
as that relied upon by Innes CJ and Mason J in the Curtis case (2),
"a matter which does not fall to be decided in this appeal."
Ultimately the appeal was dismissed, Joubert JA referred to the
approach of the appellant in the matter in the following terms:

"Apart
from the illogicality of such an approach without any legal
foundation for ignoring prescription which had already commenced to
run before 7 March 1984, the intention of the legislator, in my
judgment, is in accordance with the general rule of construction that
the amendment to [section] 12 (3) is to operate only prospectively
{in futuro) since a contrary intention is not indicated by any
express words. The amendment is intended to operate only
prospectively in respect of prescription which commences to run on or
after 7 March 1984. It was not intended to operate retrospectively
(in praeterito) in respect of prescription which commenced to run
prior to 7 March 1984. Such a construction obviates the illogicality
of having two commencement dates for prescription."

In the
case of Kruger v President Insurance Co Ltd (17) Thirion J considered
amending legislation concerning motor vehicle insurance, whereunder
the period of prescription of a claim was increased while at the same
time the right to apply to the Court for leave to increase the period
was removed. The question which arose was whether the amending
legislation affected claims arising before the effective date of such
legislation and which had not become prescribed before that date.
Thirion J held that the amending legislation applied to such claims.
He observed at p503:

"Full
recognition was given in Protea International [16] to the rule
against retrospectivity based on the distinction between matters of
substantive law and procedural law; a distinction which Dixon CJ
described in Chang Jeeng v Nuffield (Australia) Pty Ltd [18] (a
judgment of the High Court of Australia) at 638 as 'clear enough in
principle and well founded in justice' but adding the observation
that in some cases

'The
difficulty has been traceable to the inveterate tendency of English
law to regard some matters as evidentiary or procedural which in
reality must operate to impair or destroy rights in substance.'

-29-

However,
strong though the presumption against retrospectivity may be, it is
nothing more than an aid in interpretation and must yield to the
intention of the legislature as it emerges from any particular
statute. The answer to the question whether a particular statute has
retrospective operation cannot be found by simply determining whether
the statute deals with substantive law or matters of procedure. One
has always to ascertain the intention of the legislature.

The
conclusion that a statute was intended to operate with retrospective
effect may be more readily arrived at in a case where vested rights
would not be affected by a retrospective operation and also where the
intention of the legislature was clearly to bestow a benefit or to
effect evenhandedness in the operation of the law." (Italics
added)

The
judgment of Thirion J was upheld by the Appellate Division in the
joint appeal case Swanepoel v Johannesburg City Council, President
Insurance Co Ltd v Kruger (19). The Supreme Court in the Swanepoel
case had come to a conclusion different to that in Kruger (17). The
judgment in that case was not upheld. Hefer JA (Botha and Eksteen JJ
A and Nicholas and Olivier AJJ A concurring), observed at

p793:

"It
must be pointed out at the outset that [the Swanepoel] judgment is
largely based on the decision of this Court in Protea International
(Pty) Ltd v Peat Marwick Mitchell & Co [16], and on what is
referred to therein at 570B - C as

'a
general rule of construction ... (that) the operation of a statute is
prospective, to apply only after its enactment (in futuro), unless
the legislator clearly expressed a contrary intention that the
operation should be retrospective to apply prior to its enactment (in
praeterito) '.

However,
what required the attention of the Court in that case was an
amendment to the Prescription Act 68 of 1969 which affected the date
on which prescription commenced in the context of a debt which had
become due before the date of the amendment.

The
situation in the present cases is entirely different. We are not
concerned with the date of commencement of the prescriptive period
nor, I may add, with the effect of the amendment on claims which had
already become prescribed, nor with any other past event. Our sole
concern is the effect of the amendment on claims which although
having admittedly arisen before, had not become prescribed on the
effective date.

-30-

Viewed in
this manner it is difficult to understand the relevance of the
so-called rule against retrospectivity."

The
learned Judge of Appeal observed at p793 that the amending
legislation was "plainly prospective." He continued:

"But
this does not entail that existing rights, simply because they
accrued in the past, are not similarly affected; the amendment
relates, not to the date of the accrual before the effective date,
but to the date of the expiry of the rights thereafter. The amending
statute is not

'a
retrospective statute because part of the requisites for its action
is

drawn
from time antecedent to its passing' (per Lord Denman in R v St Mary,
Whitechapel (Inhabitants) [8] at 814."

Ultimately
Hefer JA concluded at p796

"I
find it inconceivable that it could have been contemplated that the
old system would, despite its shortcomings, continue to exist side by
side with the new one until all claims which arose in the past have
been disposed of."

In the
case of Transnet Ltd v Ngcezula (20) The Appellate Division dealt
once more with the issue of retrospectivity. The respondent in that
case was seriously injured when a train allegedly pulled away as she
was boarding it. The legislation (1981) stipulated that a claim be
lodged within three months, against the South African Transport
Services ("SATS"). Her attorney filed a claim over six
months after the accident. The legislation however provided in
(section 64 (3) thereof) that she might nonetheless apply to court
for special leave to file a claim out of time. Some three weeks after
filing claim, on 1st April 1990, the Legal Succession to the South
African Transport Services Act, 1989 was enacted, under which the
1981 legislation was repealed, SATS ceased to exist, its rights and
obligations being taken over by the appellant corporation. The 1989
legislation however did not repeat the 1981 provision regarding
special leave of the court.

-31-

Botha JA
delivered a judgment in the Appellate Division, in which Van Heerden,
Hefer, Nienaber and Howie JJ A concurred. Botha JA at p546 observed
that the doubt expressed by Joubert JA in the Protea International
case (17) about the correctness of the decision in Curtis (2) was
related specifically to the principle of Roman-Dutch law formulated
by Innes CJ in the passage quoted from his judgment at p316
reproduced supra. The learned Judge of Appeal continued at p546:

"That
principle is not directly in issue in this case, as I have already
indicated. Nor was it in issue in the Protea International case, as
was stated by Joubert JA himself (at 573B). However, lest it be
thought that I share the doubt, I feel bound to suggest, as my
personal opinion, that the view of my learned Colleague might require
reconsideration if the need should arise in a future case to examine
the Roman-Dutch

law
principle in question."

Botha JA
went on at pp546/547 to give reasons for his suggestion. He observed
at p549

"[I]t
is advisable, I consider, to emphasise once again that the
fundamental and decisive enquiry is always directed at ascertaining
the intention of the Legislature (see Adampol 's case supra at 809 F
-J and Swanepoel 's case supra at 794 A - C). To place the
categorisation of the statute as being either one of substantive or
one of procedural law in the forefront of the enquiry may lead one
astray. Curtis' case is no warrant for falling into error in this
respect."(Italics added)

Botha JA
then referred to the dicta of Miller JA in the Euromarine case (13)
at 709 I - 710 E quoting in part the dicta at p710 D - E reproduced
supra and making special reference to the dicta of Lord Brightman in
Yew Bon Tew (11) at p836 reproduced supra. The learned Judge of
Appeal continued at pp549/550:

"[I]t
will be convenient to divide [section 64 (3)] into its three main
component parts: (i) the claimant must lodge the claim within three
months; (ii) the sanction for non-compliance with (i) is that the
defendant shall not be liable; (iii) the sanction will be lifted if
the claimant applies for and obtains special leave to lodge the claim
out of time. Part (i), when considered in isolation, can be said to
be procedural in character. But the same can certainly not to be said
of part (ii). If the claimant should bring an action after the lapse
of three months and the claim has not been lodged, the sanction of
part (ii) confers a complete defence on the defendant. Although the
defence arises from the failure to comply with what may be termed a
procedural requirement, the

-32-

defence
itself is not a procedural matter; it is sufficient to ward off the
claim and is therefore a matter of substantive law. As to part (iii),
while the application for special leave may be regarded as a
procedural step, the granting of special leave has more than merely
procedural consequences: it not only terminates the suspension of the
enforceability of the claim, but also deprives the defendant of the
substantive defence of which he could previously have availed
himself. And if special leave is refused, the condition upon which
the enforceability of the claim was contingent (the granting of such
leave) fails, with the consequence that the claim is in effect, and
in substance, extinguished."

Botha JA
went on at p550 to observe that "the attempt to categorise s 64
(3) as procedural is of no assistance in resolving the problem. The
solution must be found elsewhere." He continued at p550:

"[H]ere
we are dealing with the simple repeal, without more, of s64 (3),
wiping out the whole structure which has been set up by it. The
repealing Act is silent about what the consequences were intended to
be. No guidance can be obtained from its wording. What must be done
is to examine the position in which the respondent and SATS found
themselves immediately before the repeal, and to consider the
possible effects of the demise of the structure on the parties,
substituting Transnet for SATS (because of the simultaneous transfer
of rights and obligations)."

In this
respect Botha JA agreed with Counsel for Transnet that the solution
to the problem lay in the provisions of section 12 (2) of the
Interpretation Act, 1957, which are virtually identical to those of
section 18 of the Interpretation Act, 1977, which sections, as
indicated earlier, have a common ancestor in section 38 of the
Interpretation Act, 1889. Botha JA at pp 551/552 considered the
provisions of section 12 (2) and concluded atp552 that "s 12 (2)
had the effect of preserving the status quo and that the rights of
both the claimant and the defendant survived the repeal of s64 (3)".
Ultimately Botha JA, on a consideration of the circumstances in which
the claimant had not lodged her claim timeously, granted her special
leave to lodge her claim in writing with Transnet within 20 days
after the date of the Courts judgment.

That
decision contrasted, in effect, with the decision of the Appellate
Division

-33-

in
Minister of Public Works v Haffejee NO (21). In that case property
vesting in the respondent as administrator of an estate was
statutorily expropriated by the appellant on 20th April, 1986. At
that time the respondent, being dissatisfied with the offer of
compensation, might have applied to an ad hoc compensation court (or
a Division of the Supreme Court where the amount claimed was R100,
000.00 or more) for a determination of the compensation payable. The
respondent made such application to a compensation court on 6th
August, 1992, claiming R80, 410 compensation. The particular
legislation, however, had been amended on 1st May, 1992, abolishing
the compensation court and requiring all claims for compensation to
be lodged with the Supreme Court, regardless of the amount of the
claim.

The Court
a quo had found for the respondent on the basis that having rejected
the appellant's final offer of compensation, prior to 1st May, 1992,
he had a vested right to lodge an application in a compensation
court. In the Appellate Division, Marais JA (Grosskopf, Smalberger,
Vivier and Nienaber JJ A concurring) observed that Counsel for the
appellant laid great stress on the procedural nature of the
amendments." The learned Judge of Appeal continued at p752:

"Now
although it has often been said that the presumption against
statutory retrospectivity does not apply to procedural provisions,
the realisation has grown that the distinction between procedural and
substantive provisions cannot always be decisive in the context of
statutory interpretation."

Marais JA
then quoted the dicta of Lord Brightman in the Yew Bon Tew case (11)
at p836 b - d and 839 d - f reproduced supra. He went on to quote the
dicta of Innes CJ in the Curtis case (2) and in particular the
observations thereon of Botha JA in the Transnet case (20) at p549 C
- D reproduced supra. Marais J then observed at p753:

-34-

"In
other words, it does not follow that once an amending statute is
characterised as regulating procedure it will always be interpreted
as having retrospective effect. It will depend upon its impact upon
existing substantive rights and obligations. If those substantiate
rights and obligations remain unimpaired and capable of enforcement
by the invocation of the newly prescribed procedure, there is no
reason to conclude that the new procedure was not intended to apply.
Aliter if they are not." (Italics added)

Marais JA
went on to observe that the relevant amendments were "undoubtedly
procedural", their only effect being that a claim for less than
R1 00,000 had to be brought in a different forum, which did not
affect the respondent's pre-existing right to compensation. As to
claims which had been lodged before 1st May, 1992, the learned Judged
of Appeal observed a p754 that

"[t]he
disruption, inconvenience, wastage of time and money, and other
complications which could attend insistence upon pending and, a
fortiori, pending part-heard cases being re-instituted before the
Supreme Court are so obvious that they require no elaboration and
there is no provision in the legislation for the mere transfer of
such cases to the Supreme Court. Indeed, it is difficult to envisage
how provision could fairly and effectively be made for the transfer
of a case which is actually part-heard. These considerations are
entirely absent in a case such as the respondent's where proceedings
had not been instituted by 1 May 1992."

Marais JA
then at p754 referred to

"the
sweeping, and to my mind, quite untenable proposition that a litigant
has a vested right in the forensic procedures which happen to be in
force at the time when his right to claim arose."

He went
on to observe at p755:

"As
we have already seen, the common law recognizes no vested right in
procedure simpliciter. See Curtis's case [2] at 319. Were it
otherwise, no procedural amendment would apply to cases or causes of
action arising before their commencement and that is certainly not
the law. Most procedural provisions regulating the institution and
conduct of litigious proceedings have a cost implication and many
have a tactical implication. Yet that has never in the past been
regarded as imparting to them a special character taking them out of
the realm of purely procedural provisions and subjecting them to the
presumption against legislative interference with vested rights. I
see no good reason to commence doing so now. To label procedural
provisions instead as conferrers of privileges does nothing, in my

-35-

view, to
improve their claim to be regarded as anything more than what they
truly and essentially are, namely purely procedural provisions
designed to regulate the institution and conduct of litigious
proceedings."(Latter italics added)

As for
the provisions of section 12 (2) (c) and (e) of the Interpretation
Act, Marais JA found that no question of any accrued "right"
or "privilege" arose.

The issue
of retrospectivity came before the House of Lords in the case of L
'Office Cherifien des Phosphates and Another v Yamashita - Shinnihon
Steamship Co Ltd; The Boucraa (22). That case concerned the
provisions of section 102 of the Courts and Legal Services Act 1990
which, on 1st January, 1992, amended the Arbitration Act, 1950 by the
introduction of a new section 13 A, which empowered an arbitrator to
dismiss a claim on the ground inter alia "that there has been
inordinate and inexcusable delay on the part of the claimant".
An arbitrator on 13th August 1992, exercising such power, dismissed
the respondents' claim initiated on 5th August 1985, on the grounds
of the delay prior to 1st January, 1992. That decision was reversed
in the High Court and again the Court of Appeal. An appeal to the
House of Lords was allowed, the award of the arbitrator being
restored. Lord Templeman (in a separate speech), Lord Goff of
Chieveley, Lord Jauncey of Tullichettle and Lord Browne -Wilkinson,
concurred in the speech delivered by Lord Mustill. Lord Mustill at
p30 quoted with approval the following dicta of Staughton L J in
Secretary of State for Social Security v Tunnicliffe (23) at p724

"In
my judgment the true principle is that Parliament is presumed not to
have intended to alter the law applicable to past events and
transactions in a manner which is unfair to those concerned in them,
unless a contrary intention appears. It is not simply a question of
classifying an enactment as retrospective or not retrospective.
Rather it may well be a matter of degree - the greater the
unfairness, the more it is to be expected that Parliament will make
it clear if that is intended. "(Italics added)

Lord
Mustill continued at p30:

-36-

"Precisely
how the single question of fairness will be answered in respect of a
particular statute will depend on the interaction of several factors,
each of them capable of varying from case to case. Thus, the degree
to which the statute has retrospective effect is not a constant. Nor
is the value of the rights which the statute affects, or the extent
of the statute. Again, the unfairness of adversely affecting the
rights, and hence the degree of unlikelihood that this is what
parliament intended, will vary from case to case. So also will the
clarity of the language used by Parliament, and the light shed on it
by consideration of the circumstances in which the legislation was
enacted. All these factors must be weighed together to provide a
direct answer to the question whether the retrospectivity is so
unfair that the words used by Parliament cannot have been intended to
mean what they might appear to say. " (Italics added)

Lord
Mustill went on at p32 to observe:

"My
Lords, at this point a strictly orthodox approach to the problem of
retrospection would call up a line of authority,.... which applies
different rules for ascertaining the retrospective effect of statutes
by reference to a distinction between accrued substantive and
procedural rights. This distinction is so firmly embedded in the law
as to lead easily to an assumption that every right can be
characterised uniquely as either substantive or procedural, and that
the assignment of particular right to one category rather than the
other will automatically yield an answer to the question whether a
particular statute can bear upon it retrospectively. If this
assumption were correct, it would call up an elaborate discussion, in
the light of numerous reported cases, of whether the rights
potentially affected by sl3A are properly regarded as substantive or
procedural. My Lords, I believe that such a discussion would be
unprofitable, partly because the distinction just mentioned is
misleading, since it leaves out of the account the fact that some
procedural rights are more valuable than some substantive rights, and
partly because I doubt whether it is possible to assign rights such
as the present unequivocally to one category rather than another.
Thus, whilst keeping the distinction well in view, I prefer to look
to the practical value and nature of the rights presently involved as
a step towards an assessment of the unfairness of taking them away
after the event." (Italics added)

Ultimately,
while Lord Mustill at p33 found the meaning of section 13A
"sufficiently clear" and that the section "was
intended to bite in full from the outset", having considered the
rights of the claimant (respondent) in the matter, he concluded

at p33:

"A
right which the claimant regards so poorly that he has taken no
trouble to enforce it is far removed from those which the courts have
been so alert to protect; and in my

-37-

view the
presumption that Parliament did not intend to affect it is
correspondingly weak."

In
particular the learned Law Lord found it "impossible to accept"
that Parliament had "reconciled itself to the continuation of
arbitral proceedings already irrevocably stamped with a risk of
injustice".

In the
same year, 1994, there followed the case of Plewa v Chief
Adjudication Officer (24), again before the House of Lords. In that
case the deceased husband of the appellant (the executrix of his
estate), had received a retirement pension for a number of years,
which contained an amount in respect of his wife, who was in fact in
part-time paid employment, which aspect was undisclosed and would
have affected the amount paid to Mr Plewa. At the relevant time the
legislation provided for a defence, in proceedings for the recovery
of an overpayment, of "due care and diligence" to avoid
overpayment. When the matter came before the relevant tribunal, new
legislation had been introduced which made a third party liable to
make repayment on the grounds of misrepresentation or failure to
disclose the overpayment, and , in particular, removed the defence of
"due care and diligence."

As to the
latter aspect, Lord Woolf, with whose speech Lord Templeman, Lord
Bridge of Harwich, Lord Lloyd of Berwick and Lord Nolan concurred,
observed at p327 that the tribunal had indicated that if the matter
had been decided under the old legislation, it "might well have
found that Mr Plewa had used due care and diligence to avoid
overpayment." The tribunal had followed the decision of the
Court of Appeal in the Tunnicliffe case (23) the facts of which Lord
Woolf considered to be "indistinguishable from those relating to
Mr Plewa." The Court of Appeal in

-38-

Tunnicliffe
(23) (Mustill L. J. (as he then was), Staughton and McGowan LL J)
held that the tribunal a quo was right to apply the new legislation.
The Court held that the presumption against retrospectivity "must
be weak" (per Mustill LJ) and that "the retrospective
effect of [the new legislation] is not so unfair to recipients of
benefit, or

some of
them, as to require greater clarity than Parliament has
used........". Lord

Woolf,
quoting the first paragraph of the dicta of Lord Brightman in the Yew
Bon Tew case (11) at p836 reproduced supra, considered at p328 that
the new legislation introduced an "entirely new obligation to
which Lord Brightman's remarks would apply with full effect,"
which aspect "makes it clear how unfortunate it is that in
Tunnicliffe [23] the Court of Appeal were not addressed on the
possible effect on third parties of the change in machinery..",
and again at p329 that

"When
the possible effect on innocent third parties is taken into
account.....it is clear

that a
considerable degree of unfairness could result from the third party
being under an obligation which he would not have been under prior to
the coming into force of [the new legislation]."

Again,
Lord Woolf at p329 g - h observed:

"Although
the position of the actual payee is obviously not as clear as that of
a third party, even in the case of a claimant, I would have been
inclined to attach more importance to the possible retrospective
unfair effect of [the new legislation] than the Court of Appeal did
in Tunnicliffe [23]. This is because it removed the defence of due
care and diligence. If recipients would not have been under a
liability in fact to make a repayment under the former machinery then
from the practical point of view they were being placed under a
liability which did not previously exist by the change in the law.
This is a situation where the presumption against retrospectivity
should apply. It is desirable that in this situation legislation
should make it clear whether the new provision is to be retrospective
or not."

While the
decision in Tunnicliffe (23) clearly was not approved by the House in
Plewa (24), nonetheless the dicta of Staughton LJ at p724 (quoted by
Lord Mustill in the Cherifien case (22) at p30) were quoted by Lord
Woolf, with apparent approval, at p329. Ultimately Lord Woolf allowed
the appeal of Mrs Plewa, ordering that the

-39-

claim be
reconsidered under the old legislation, or under both the old and the
new legislation if there was also non-disclosure after the effective
date of the latter legislation, unless, "[b]earing in mind the
period which has elapsed and the fact that the claimant has died it
may be thought unnecessary to insist on the matter being reconsidered
by the tribunal."

The
Supreme Court of Appeal had occasion to refer to the Tunnicliffe
(23), Plewa (24) and Cherifien (22) cases, in the case of National
Director of Public Prosecutions SA v Carolus and Others (25). In that
case the Cape of Good Hope High Court made a preservation order in
terms of section 38 (Chapter 6) of the Prevention of Organised Crime
Act (Nol21 of 1998) ("the Act") which took effect on 21st
January 1999, which order prohibited the first respondent and any
other person from dealing with certain properties. That order was
subsequently rescinded by the High Court, against which rescission an
appeal was lodged. Farlam AJA (as he then was) (Mahomed CJ, Olivier,
Zulman JJ A and Melunsky AJA concurring) observed that the provisions
of Chapter 5 of the Act, which provided for confiscation orders upon
conviction, were retrospective in that sections 12 (3) and 19 (1)
referred to unlawful activity "whether before or after the
commencement of this Act"; again the definitions of "pattern
of criminal gang activity" and "pattern of racketeering
activity" contained in section 1, which did not relate to
Chapter 6, included conduct before the commencement of the Act.
Chapter 6 on the other hand made provision (section 50) for the
forfeiture of property which is tainted, because it is linked to the
commission of crime, that is, it is proved to be, on a balance of
probabilities to be "an instrumentality of an offence" or
to be "the proceeds of unlawful activities", even if no one
is convicted of using the property or of having been guilty of the
particular

-40-

unlawful
activities. In particular, section 38 provided for the making of a
preservation order, upon ex parte application by the National
Director, where the High Court has "reasonable ground to
believe" that the property concerned "is an instrumentality
of an offence" or "is the proceeds of unlawful activities."

Farlam
AJA turned to the authorities upon retrospectivity. He referred at
p311 inter alia to the case of Transnet Ltd (Autonet Division) v
Chairman National Transport Commission (26). He continued at
pp311/312 paras [33] to [36]:

"[33]
In the Transnet Ltd case [26] at 7B-D, it was pointed out that a
distinction is made in the case law between

""true"
retrospectivity (i.e. where an Act provides that from a past date the
new law shall be deemed to have been in operation) and cases where
the question is merely whether a new statute or an amendment of a
statute interferes with or is applicable to existing rights".

Reference
was then made to a number of decisions of this Court, starting with
Shewan Tomes and Co Ltd v Commissioner of Customs and Excise [6] at
311. "True" retrospectivity was described (at 7E) as being
"strong" while the adjective "weaker" was applied
to retrospectivity in the second sense as it is used in our case law,

[34] In
Benner v Canada (Secretary of State) [27], a decision of the Supreme
Court of Canada, lacobucci J referred (at 17) to the fact that the
terms "retroactivity" and "retrospectivity" can
be confusing and he quoted with approval definitions of the two terms
given by the well known Canadian writer on the interpretation of
statutes, Elmer A Driedger, in an article in (1978) 56 Canadian Bar
Review 264 at 268-9 as follows"

"A
retroactive statute is one that operates as of a time prior to its
enactment. A retrospective statute is one that operates for the
future only. It is prospective, but it imposes new results in respect
of a past event. A retroactive statute operates backwards. A
retrospective statute operates forwards, but it looks backwards in
that it attaches new consequences for the future to an event that
took place before the statute was enacted. A retroactive statute
changes the law from what it was; a retrospective statute changes the
law from what it otherwise would be with respect to a prior event."

[35] In
terms of this terminology the expression "retroactivity" is
used for retrospectivity in the "strong" sense while the
expression "retrospectivity" is reserved for what is
described as retrospectivity in the "weaker" sense.

-41-

[36] It
appears clearly from the many cases on the point, both in our law and
in overseas jurisdictions, that the basis of the presumption against
retrospectivity (in the strong and weak senses) is what Stevens J
described, when giving the opinion of the United States Supreme Court
in Landgraf v USI Film Products et al [28] at 265 as '''elementary
considerations of fairness [which] dictate that individuals should
have an opportunity to know what the law is and to conform their
conduct accordingly. " (Italics added)

Counsel
for the appellant in the Carolus case (25), Mr Seligson S.C.,
submitted that Chapter 6 of the Act involved retrospectivity in the
"weak" sense, and while the Act provided drastic remedies,
in order to assist the State to combat an intolerable large increase,
in organised crime, its main objective was to prevent criminals from
benefitting from the proceeds of crime and to discourage the use of
property for criminal purposes; Chapter 6, he submitted, operated
independently of the other Chapters, so that Chapter 5 was not
relevant to the interpretation of Chapter 6; while the provisions of
Chapter 6 were not purely procedural, the distinction between
procedural and substantive provisions was not helpful in that case.
In particular, Mr Seligson submitted that the provisions of Chapter 6
did not impair any vested rights, as there could be no right to
property acquired unlawfully, and accordingly Parliament would not
have considered it unfair to provide a forfeiture mechanism designed
to strip criminals of the proceeds of unlawful activities, even those
which had taken place before the commencement of the Act. Indeed, he
submitted, the property forfeited under Chapter 6 could have been
realised under a confiscation order under Chapter 5, if the
respondents had been convicted, so no unfairness arose.

Mr
Seligson referred to the dicta of Staughton LJ in the Tunnicliffe
case (23) at p724 reproduced supra and those of Lord Mustill in the
Cherifien case (22) at p30 reproduced supra. He also referred to two
American cases, namely, USA v Certain

-42-

Funds
Located at the Hong Kong and Shanghai Banking Corporation et al (29)
and USA v Four Tracts of Property on the Waters of Leiper's Creek
(30), to which I shall return. Farlam AJA at p316 considered that the
provisions of Chapter 6,as much as Chapter 5 involved an enquiry into
the past. The fact therefore that the legislature, in sections 12 (3)
and 19(1) and in the definitions (in Chapter 1) of "pattern of
criminal gang activity" and "pattern of racketeering
activity", found it necessary to state expressly that offences
committed before the Act came into operation could be taken into
consideration, was a "strong indication ... that it did not
intend the provisions of Chapter 6 to be applied retrospectively. The
omission in Chapter 6 of the phrase "whether before or after the
commencement of this Act" was "the most formidable obstacle
to the acceptance of the contentions advanced on behalf of the
appellant". The learned Judge of Appeal observed further on at
p317, para. [58]:

"[58]
If Mr Seligson was correct in submitting that chapter 6 is
retrospective it would create a cause of action to justify the
seizure of property, which cause of action did not exist before the
commencement of the Act. In my view such a result would be lead to an
unfair result: it is unlikely that that could have been intended by
Parliament."

Farlam
AJA found support for that conclusion in the case of Plewa (24) and
in particular in the dicta of Lord Woolf therein at 329 g - h,
reproduced supra. Thereafter Farlam AJA concluded at p317, paras [60]
and [61]:

"[60]
In my view the cumulative effect of the unfairness, the legal culture
leaning against retrospectivity where there is unfairness, the fact
that Parliament refrained from repeating the "whether before or
after the commencement of this Act" phrase used in sections 12
(3) and 19(1) and the fact that conduct before the commencement of
the Act is specifically referred to in the definitions of "pattern
of criminal gang activity" and "pattern of racketeering
activity" leads me to the conclusion that on a proper
interpretation of the Act chapter 6 was not intended to be
retrospective,

[61] The
two American cases cited by Mr Seligson do not assist at all because
the factors enumerated in the previous paragraph were not applicable
in those cases."(Italics added)

-43-In
the result the appeal was dismissed.

United
States of America:

As to the
two American cases, in the Hong Kong case (29) the United States
Government sought the forfeiture of assets valued at US % 1.5 to 3
million located in Hong Kong, alleged to be the proceeds of a
conspiracy to smuggle heroin into the United States and to "launder"
the proceeds thereof. The Government commenced action in September
1991 in a Federal District Court. The claimants filed their claim and
answer in October, 1991, without challenging the jurisdiction of the
court. This they did in April 1992, claiming want of jurisdiction
over a res located outside the United States. In October 1992 the
legislation conferring jurisdiction on Federal Courts over civil
forfeiture proceedings was amended to provide District Courts with in
rem jurisdiction over a res located in a foreign country. The Federal
District Court (Eastern District of New York) held, on one aspect,
that the legislation did not apply retroactively and dismissed the
Government's action. That decision was reversed on appeal to the
United States Court of Appeals for the Second Circuit (Winter and
Gabranes Circuit JJ and Motley District J). Gabranes, Circuit J in
delivering the judgment of the Court observed at p24 that

"[the
amended legislation] ... is not a forfeiture statute per se : it is a
procedural statute. The Landgraf Court [28] itself noted that
procedural rules "may often be applied in suits arising before
their enactment without raising concerns about retroactivity,"
Landgraf, [28] at 1502. There are "diminished reliance interests
in matters of procedure ...because rules of procedure regulate
secondary rather than primary conduct." Id. (Citations omitted).
The secondary conduct here is the court's power - its jurisdiction-
over the res located overseas. Quintessential procedural,
jurisdiction statutes have often been accorded retroactive
application. The supreme Court has "regularly applied
intervening statutes conferring or ousting jurisdiction, whether or
not jurisdiction lay when the underlying conduct occurred or when the
suit was filed." Id. at 1501. "Application of a new
jurisdiction rule usually 'takes away no substantive right but simply
changes the tribunal that is to hear the case.' Present

-44-

law
normally governs in such situations because jurisdictional statutes
'speak to the power of the court rather than to the rights or
obligations of the parties.1"

Earlier
Gabranes J had observed that the Court in Landgrqf"(28) had held
that a court should not apply a statute to conduct that took place
before its enactment if a

"new
provision attaches new legal consequences to events completed before
its enactment" {ibid. At p 1499) and

"would
impair rights a party possessed when he acted, increase a party's
liability for past conduct or impose new duties with respect to
transactions already completed" {ibid. At p 1505)

Gabranes
J went on to conclude at p24

"We
conclude that [the amended legislation] if applied in this case,
would not take away any rights possessed by a party, increase
liability, or attach new legal consequences to past conduct. The
claimants never had any right to property resulting from illegal
gains, and their alleged drug smuggling and money laundering have
always carried criminal penalties. One of the legal consequences of
drug smuggling or money laundering is that the resulting illegal
proceeds are subject to forfeiture to

the
government...... The mere fact that people who commit crimes within
the

jurisdiction
of the United States manage to secrete proceeds of those crimes out
of the country does not mean that they enjoy any greater rights to
those proceeds. Accordingly, it cannot be said that [the new
legislation] ever created any new legal consequences or impaired any
existing rights..."(Italics added)

In the
Leiper's Creek case (30) the claimant purchased property with the
proceeds of drug-trafficking activity in the early 1970s, as a result
of which he was imprisoned on two consecutive sentences, each of five
years' imprisonment. He buried the ill-gotten money before being
imprisoned, dug it up when released, and thereafter purchased the
property at Leiper's Creek in 1989. The Government instituted
forfeiture proceedings in 1992. It relied upon forfeiture provisions
amended in 1978 to cover inter alia the proceeds of drug-trafficking.
The claimant maintained that the property represented the proceeds of
drug-trafficking activity in the early 1970s, prior to the amendment
to the legislation. As to that aspect, the United States

-45-

Court of
Appeals for the Sixth Circuit (Kennedy, Daughtrey and Clay Circ. JJ)
held at p9 that the money was still hidden and had not then been
converted to "proceeds" when the legislation was amended,
so that "there simply is no retroactivity question raised by the
facts in this case." Furthermore, relying on the decision in the
Hong Kong case (27), the court held at p9 that

"it
is obvious that [the claimant] never had a right to the proceeds of
his illegal behavior ... therefore forfeiture of the defendant
property as "proceeds" could not impair any vested rights."

Canada

There are
a number of Canadian cases which are of assistance. The first of
those is Howard Smith Paper Mills Ltd et al v The Queen (31), decided
in 1957. There the Supreme Court of Canada considered new legislation
which provided that a document (even an "inter-office
memorandum") found in possession of an accused, or on premises
used or occupied by him, or in possession of an agent, were
admissible in evidence as prima facie evidence of anything recorded
therein as having been "done, said or agreed upon" by the
accused, or by the agent with the accused's authority. The Court held
that the legislation was applicable to events which had occurred
before its commencement. Cartwright J in particular, who wrote the
second of two main judgments, quoting at p466 the opening lines of
Phipson on Evidence (9th Ed) at p 1(see 14 Ed at p 1 reproduced
supra), relied heavily on the dicta of Lord Blackburn in Gardner v
Lucas (1) at p603 reproduced supra. The learned Judge went on to say
at p476:

"While
[the new legislation] makes a revolutionary change in the law of
evidence, it creates no offence, it takes away no defence, it does
not render criminal any course of conduct which was not already so
declared before its enactment, it does not alter the character or
legal effect of any transaction already entered into; it deals with a
matter of evidence only and, in my opinion, the learned Trial Judge
was right in holding that it applied to the trial of the charge
before him."(Italics added)

-46-

The
Ontario Court of Appeal dealt with the issue of retrospectivity in
1975 in the case of R v Le Sarge (32). The accused was convicted of
the theft of a tractor, and a trailer containing a large quantity of
alcohol. The theft occurred on 8th August 1973. As a result of
information received on 10th August, the police conducted a
"wire­tapping" exercise, which led to their finding the
accused, and another, in possession of the alcohol, on 12th August
1973. On 30th June 1974 legislation was introduced which amended the
Criminal Code and prohibited wire-tapping. The headnote to the
judgment indicates that the accused's trial, before a County Court
Judge, "was held after that date". Inasmuch as the accused
was found in possession of a large consignment, 1224 cases, of stolen
alcohol, valued at Can $60,000, I cannot but imagine that he was
forthwith arrested and charged therewith, that is, on 12th August
1973. It is safe to assume therefore that his trial was pending when
the new legislation took effect. Houlden JA (Jessup and Martin JJA
concurring) observed at p395 that authority indicated that the
wire-tapping, when conducted, was not unlawful. The learned Judge of
Appeal observed at pp395/396 that it is a well established principle
that "a statute which deals with matters of procedure only is
ordinarily to be given a retrospective application." The
amending legislation however did not deal with procedural matters
only: it created three new substantive offences and the section in
question was, as Houlden JA observed, "so inextricably bound up
with the substantive provisions ... that, in my opinion, it cannot be
given a retrospective operation". Houlden JA continued at p396:

"Furthermore,
as the Act was not in force at the relevant time, it would have been
impossible for the police to have complied with provisions of s.
178.16. The fact that an Act imposes new duties in respect of past
transactions with which it is impossible to comply, is an important
consideration in determining whether or not a retrospective
application should be given to a statute."

-47-

To the
same effect was the decision in R v Irwin (33) decided in the same
Court in 1976, where the Court (Kelly, Dubin and Howland JJA)
considered the applicability of the provisions of the Criminal Code,
amended on 30th June 1974, to a trial which commenced on 4th July
1974 in respect of a transaction in June 1973. The Crown's case
depended entirely on the evidence of a closed circuit video recording
and an audio recording from a wireless microphone. The amendment to
the Criminal Code rendered such evidence inadmissible, whereupon the
trial Judge had dismissed the charge. In delivering the judgment of
the Court of Appeal, Dubin JA followed the decision in LeSarge (32),
and set aside the acquittal, ordering a new trial, holding that the
admissibility of the video and audio evidence was "still to be
determined by the rules of evidence which governed its admissibility"
prior to the amendment to the Criminal Code.

The same
question arose in the prominent case of R v Ali (34) decided by the
Supreme Court of Canada in 1979. In that case the accused was charged
with driving whilst under the influence of alcohol. He was subjected
to a breathalyzer test based on one sample of breath, in accordance
with the prevailing legislation. A certificate from a qualified
technician, which indicated that, arising out of such test, the
accused's blood revealed a proportion of alcohol in excess of the
statutory limit, was presented at the accused's trial and he was duly
convicted. Meanwhile the legislation had been amended, that is,
before the date of the offence, which amendment, however, took effect
shortly after the date of the offence and the breathalyzer test, but
before the date of the information and the trial. The amendment to
the legislation provided that not less than two samples of breath be
received in a breathalyzer test.

-48-

The
Magistrate held that the amended legislation had no retrospective
effect and convicted the accused, but stated a case to the Supreme
Court of Newfoundland, the appeal thereon being dismissed. The
Newfoundland Court of Appeal quashed the conviction, however, against
which decision the Crown appealed to the Supreme Court of Canada. By
a majority (of five to two members) the Supreme Court allowed the
appeal and restored the conviction. Pratte J, who delivered the
majority judgment, observed at p52:

"It
is not in dispute that the rule as to the retrospective operation of
procedural statutes is not absolute; it is only a guide that is
intended to assist in the determination of the true intent of
Parliament which is the main objective of statutory construction."

As to the
amending legislation in question, the learned Supreme Court Judge
observed at pp55/56:

"This
amendment clearly related to substantive law; it gave police officers
the right to demand more than one sample of breath so as to enable a
proper analysis to be made and made it an offence for a suspect to
refuse to give more than one sample of breath; before the amendment,
only one suitable sample of breath could be demanded; thus, a person
could, without committing an offence, refuse to give more than one
sample. This amendment by its very nature may only apply
prospectively; the requirement that the samples of breath be taken
"forthwith" or within a prescribed time frame makes it a
physical impossibility to give any retrospective effect to the new
[legislation]."

and
further on at p56.

"[I]t
is apparent that the new [legislation] cannot in fact operate
retrospectively. When only one sample of breath has been taken
because only one was required and could be demanded at the time, the
law cannot make it possible for two samples to have been taken. The
retrospective operation of the new [legislation] which has been
adopted by the Court of Appeal would effectively result in neither
the new nor the old section being operative during the period when
the new [legislation] is supposedly intended to operate
retrospectively. This can hardly have been the result that was
intended by Parliament."

Pratte J
went on at pp57/58 to consider the provisions of section 35 of the

-49-

Interpretation
Act, and in particular paragraphs (b) and (e) thereof, which are
virtually identical to those of section 18 of the Interpretation Act,
1977 of Lesotho. As to paragraph (b) Pratte J concluded at p58 that
the breathalyzer certificate in question

"would
certainly be "affected" if because of the repeal of the
section under which it was validly given it were deprived of all
evidentiary value and would thus cease to have any usefulness at all.
Section 36 (b) is precisely intended to prevent such an undesirable
result."

In the
case of Wildman v The Queen (35) the accused was convicted of first
degree murder of his eight year-old stepdaughter. His wife did not
give evidence at the trial, either for the Crown or the defence. The
trial Judge erred in excluding a material statement over the
telephone by the wife, or someone purporting to be her, shortly after
the disappearance of the deceased and before the discovery of her
body, on the ground that it offended the hearsay rule. The Supreme
Court of Canada allowed the appeal on this ground and ordered a new
trial. That raised the issue of whether or not the accused's wife
might give evidence. An amendment had been effected to section 4 (by
the addition of sub-section (3.1)) of the Canada Evidence Act, that
is after the date of the commission of the offence. The effect of the
amendment was (apparently as an exception to the general rule), in
the case of prescribed offences, where the complainant or victim was
under the age of fourteen years, to render a spouse "a competent
and compellable witness for the prosecution without the consent of
the person charged." Lamer J (as he then was), who delivered the
judgment of the seven-member Court, having quoted section 4 (3.1),
observed at p657:

"The
new trial will governed by that section. Indeed, S. 36(d) of the
Interpretation Act, R.S.C. 1970, c. 1-23, states that:

36. Where
an enactment (in this section called the "former enactment")
is repealed and another enactment (in this section called the "new
enactment") is substituted therefor,

-50-

(d) the
procedure established by the new enactment shall be followed as far
as it can be adapted thereto in the recovery or enforcement of
penalties and forfeitures incurred, and in the enforcement of rights,
existing or accruing under the former enactment or in a proceeding in
relation to matters that have happened before the repeal;"

In this
respect, see also the similar provisions of section 44 (d) of the
federal Interpretation Act of Canada, reproduced at p544 of Driedger
on the Construction of Statutes (3 Ed, by Professor Ruth Sullivan).
Indeed, section 44 (c) reads:

"(c)
every proceeding taken under the former enactment shall be taken up
and continued under and in conformity with the new enactment in so
far as it may be done consistently with the new enactment."
(Italics added)

I
appreciate, of course, that those are foreign statutory provisions
inapplicable to these proceedings. In this respect, however, Lamer J
in Wildman (35), after quoting section 36 (d) supra continued thus:

"This
is an enactment of the common law rule that there is no vested right
in procedure along with a limitation to the effect that the following
of the new procedure must be feasible: see R v Ali[34]. Therefore, a
new procedure applies to pending suits without breaching the "rule
of interpretation to the effect that statutes ought, if possible, to
be interpreted so as to respect vested rights". See E.A.
Driedger, The Retrospective Operation of Statutes (1953), Legal
Essays in Honour of Arthur Moxon, University of Toronto Press, p.5 et
seq. Section 36(d) of the Interpretation Act uses procedure in a wide
sense and that expression includes the rules of evidence."

Lamer J
then quoted from Phipson On Evidence, 13 Ed at p1 (see 14 Ed at p1
reproduced supra), and continued at pp657/658:

"Some
rules of evidence must nevertheless be excluded for they are not
merely procedural, they create rights and not merely expectations
and, as such, are not only adjectival but of a substantive nature.
Such has been found to be the case for rules or laws creating
presumptions arising out of certain facts: see, for example, as
regards the presumption of advancement in questions of ownership of
property as between

husband
and wife, Bingeman v McLaughlin (Bingeman) [36]......Such is also the
case

of the
lawyer-client privilege resulting from a person's right to the
confidentiality of his lawyer, irrespective of whether there is
litigation......The courts, for obvious

-51-

reasons
of logic, have not excluded under new laws, for want of certain new
prerequisites to its admissibility, evidence which had complied with
the prerequisites of the previous. R v Ali, [34], is an illustration
of this approach, using the proviso "as

far as it
can be adapted thereto" of s.36(d) of the Interpretation
Act....... But such is

not the
case as regards a spouse's incompetence to testify.

Spouses
do not have a substantive right to the confidentiality as to what
either was seen doing by the other or to the confidentiality of what
was to the other communicated by either.

The
incompetence and uncompeliability of s.4 of the Canada Evidence Act
is not the

result of
a substantive right to confidentiality and is merely procedural.

If a new
trial ensues, Mrs Wildman will be a competent and compellable witness
for the prosecution without the consent of the accused."(Italics
added)

The issue
of retrospectivity came before the Supreme Court of Canada once again
in 1988 in the case of Angus v Sun Alliance Insurance Co (37). The
facts of that case were that the respondent was seriously injured in
a motor vehicle accident, where the vehicle was owned by her father
but driven by her husband. She filed action, in the Supreme Court of
Ontario, for damages against her husband (whom she subsequently
divorced) and her father. At the time of the accident legislation
provided that spouses could not sue one another in tort; insurance
legislation provided further that an insurer was not liable for
bodily injury or death of a daughter, son, wife or husband, the
father's insurance policy containing a clause absolving the insurer
from third party liability in similar terms. After the accident, but
before the suit was commenced, all of such legislation was repealed.
In response to the action, the appellant insurers sought a
determination as to whether the new legislation operated
retrospectively and also an order that the statement of claim
disclosed no reasonable cause of action against the husband, the
father or the insurers. The Supreme Court of Ontario (Galligan
J)determined that the new legislation was retrospective in effect and
that the defences, previously available to the defendants were not
now available. On

-52-

appeal,
the Court of Appeal for Ontario upheld Galligan J, adding further
that in any event the divorce had caused the defences to fall away,
an aspect which, on appeal, the Supreme Court of Canada rejected and
which need not concern us.

La Forest
J delivered the judgment of the five-member Bench of the Supreme
Court. At pp 260 and 262 he referred to, as "unexceptionable",
inter alia the following statement of Galligan J:

"[N]o
legislation is to be construed as being retrospective in operation so
far as substantive rights and obligations are concerned unless the
statute clearly provides or such retrospective operation is required
by clear implication. A procedural enactment, however, is prima facie
to be given a retrospective interpretation unless it would prejudice
a substantial right of a party."

La Forest
J himself observed at p262

"There
is a presumption that statutes do not operate with retrospective
effect. "Procedural" provisions, however, are not subject
to the presumption. To the

contrary,
they are presumed to operate retrospectively......The distinction
between

substantive
and procedural provisions, however, is far from clear."

and at
pp265/266,

"A
provision is substantive or procedural for the purposes of
retrospective application not according to whether or not it is based
upon a legal fiction, but according to whether or not it affects
substantive rights. P. - A. Cote, in The Interpretation of
Legislation in Canada (1984), has this to say at pl37:

"In
dealing with questions of temporal application of statutes, the term
"procedural" has an important connotation: to determine if
the provision will be applied immediately [i.e. to pending cases]
"the question to be considered is not simply whether the
enactment is one affecting procedure but whether it affects procedure
only and does not affect substantial rights of the parties."
(Quoting De Roussy v Nesbitt [38] at 516)".

In the
present case, it is difficult to see how procedure is being affected
at all. The provision in question provides a complete defence to an
action. Whatever may be the reasons for this, and whether one agrees
or disagrees with them, the provision of a

-53-

complete
defence to an action, just as much as the creation of a cause of
action itself, is a substantive matter.

Even if
one assumes that the provision in question is procedural in some
sense, the judicially created presumptions regarding the
retrospective effect of procedural rules were not devised with this
sort of distinction in mind. Normally, rules of procedure do not
affect the content or existence of an action or defence (or right,
obligation, or whatever else is the subject of the (legislation), but
only the manner of its enforcement or use. P. St. J. Langan, Maxwell
on Statutory Interpretation (12th ed. 1969), at p222, puts the matter
this way:

"The
presumption against retrospective construction has no application to
enactments which affect only the procedure and practice of the
courts. No person has a vested right in any course of procedure, but
only the right of prosecution or defence in the manner prescribed for
the time being, by or for the court in which he sues, and if an Act
of Parliament alters that mode of procedure, he can only proceed
according to that altered mode" (Italics added)

Alteration
of a "mode" of procedure in the conduct of a defence is a
very different thing from the removal of the defence entirely. The
latter is in essence an interference with a vested right."

at again
at p267

"Galligan
J also maintained that James Angus had no "right to injure"
his wife and was, therefore, not being deprived of anything. The
reality seems to me to be quite otherwise. A retroactive application
of s.7 would clearly deprive him of a complete defence to the action.

It is not
necessary here to untangle the complex distinctions between
substantive and procedural legislative provisions. The provision in
this case is clearly substantive. In any case, whether the provision
is deemed to be substantive or procedural, it is not one to which a
presumption of retrospectivity can be applied. This would amount to a
serious deprivation of an acquired right of the husband, and it
should not lightly be assumed that this was the intention of
legislature."(Italics added)

Lamer CJC
had occasion to deal once again with retrospectivity in the case of R
v E. (A. W.) (39). In that case the respondent had been convicted of
a sexual offence on the uncorroborated sworn evidence of his minor
stepson aged 13 years. ("J.E."). The alleged incidents took
place in 1983 and the trial took place in 1990, in which the

-54-

trial
Judge relied upon amendments to the law of evidence in 1988. The
conviction was set aside by the Alberta Court of Appeal. It was
restored by the majority (four to three members) of the Supreme Court
of Canada, on the basis that the Court of Appeal should not have
considered an unsolicited letter by the trial Judge to that Court;
the minority considered that nonetheless the letter disclosed an
error of law which might have affected the verdict (Lamer CJC at p483
and Sopinka J at p486). The Court of Appeal had also allowed the
appeal on the ground that the trial Judge had applied the amended
legislation. In his dissenting judgment Lamer CJC dealt with that
issue thus

at
pp485/486:

"Prior
to its repeal in 1988.... s.586 of the 1970 Criminal Code required
corroboration before the unsworn evidence of a child complainant
could be adduced. Those same amendments to the criminal Code removed
the requirement at common law that any uncorroborated evidence by the
complainant be accompanied by a caution from the trial judge. In the
present case, the trial judge accepted the uncorroborated evidence of
J.E. based on the law in force at the time of trial, and was, I find,
correct in so doing. It is the law of evidence at the time of trial
that prevails. Indeed, this court has held that the enactment of a
new law with respect to evidentiary questions may validly have
retrospective application: see R v Wildman [35]." (Italics
added)

The
judgment of Lamer CJC indicates at p483 that he considered that, in
all the circumstances of the case, the trial Judge "could at
least have suggested to the jury to proceed with caution," and
again that "while the charge to the jury appears sound on its
own," when read together with the Judge's letter "it
becomes clear that the trial Judge misdirected himself in his charge
to the jury." The particular legislation is not before me. It
seems to me nevertheless that in the dicta reproduced above Lamer CJC
was saying that the trial Judge was entitled, under the legislation
as amended, to rely on the uncorroborated evidence of a child, but he
was nonetheless of the view, in all the circumstances of the case,
that a caution to the jury was indicated. Be that as it may, for our
purposes, there can be no doubt as to the effect of the learned Chief

-55-

Justice's
statement of general principle as to the applicable law of evidence.

THE
TEXTBOOKS

As to the
textbooks, in the matter there is much to consider in Maxwell on The
Interpretation of Statutes 12 Ed ( P. St J . Langan) (1985) at pp
215/227, Craies on Statute Law 7 ED (S. G. G. Edgar) (1978) at pp3
87/406, Interpretation of Statutes (Dr Gail-Maryse Cockram) 3 Ed
(1990) at pp 124/131 and Interpretation of Statutes (Professor George
E. Devenish)(1996) at pp l86/194. The following passage, adopted by
Devenish op. cit. at ppl93/194, is to be found in Cockram op. cit. at
ppl29/130, where the learned author, speaking of "[r]etrospectivity
in respect of procedure," observes:

"Strictly
speaking, the position is that the enactment, on coming into effect,
applies to all matters which come before the courts. As such, the
enactment is prospective in its operation. Its prospectivity,
however, appears to have a retrospective aspect in that the new
procedure will apply in the adjudication of acts or events which
occurred prior to the amendment of the law. In this sense
retrospectivity is only apparent and not real. And it is in this
sense that it is correct to say that no presumption against
retrospectivity of procedural statutes exists.

Where,
however a procedural statute has the effect of depriving a person of
a remedy or of a defence, by, for example, extending a period of
prescription which has already expired prior to the coming into
effect of the enactment, then it is retrospective in the true sense
of the word, and will be subject to the usual presumption. So it
appears that retrospective operation may only be given to a statute
involving procedural changes to the law where the change does not
impose disabilities or new burdens on an in dividual. "(Italics
added)

Mr
Phoofolo has referred me to a particular passage at p549 of Driedger
op. cit. The passage must be considered in context. The learned
author observes at pp543/544 that procedural legislation is "presumed
to apply immediately to on-going proceedings including those
commenced but not completed before its coming into force".
Indeed,

-56-

Professor
Sullivan observes that such presumption is "partially codified
in Canadian Interpretation Acts", quoting in part the provisions
of section 44 of the federal Interpretation Act, observing that

"[a]lthough
the application of new substantive law is delayed and restricted by
the survival of repealed law, the application of new procedural law
is not. it applies immediately and generally to all facts in so far
as it can be adapted to give full effect to the surviving substantive
law."(Italics added)

Professor
Sullivan defines procedural law as "law that governs the methods
by which facts are proven and legal consequences are established in
any type of proceeding" and observes at p545:

"Whether
a provision is procedural must be determined in the circumstances of
each case. A provision may be procedural as applied to one set of
facts but substantive as applied to another. To be considered
procedural in the circumstances of a case, a provision must be
exclusively procedural; that is, its application to the facts in
question must not interfere with any substantive rights or
liabilities of the parties or produce other unjust results. This
point is emphasized repeatedly in the cases. "(Italics added)

Professor
Sullivan goes on at pp545/546 to consider the Angus case (37),
observing that "the important thing is not the label but the
effect," in this respect quoting the dicta of Lord Brightman in
the Yew Bon Tew case (11) at p839 at f reproduced supra. As to
limitation of actions, the learned author observes at p546 that

"where
the effect of applying the new provision is either to extinguish an
action that was still viable when the provision came into force, or
to revive an action that was barred, more than time is at stake. In
such a case, the provision affects the substantive rights of the
parties and cannot be considered purely procedural."(Italics
added)

Again,
there is reference to Lord Brightman's dicta at pp839/840 1 to a,
reproduced supra. The particular passage in Driedger to which Mr
Phoofolo makes reference is at p549. It reads thus:

-57-

"Presumption
against retroactivity applies to procedural law. Where a provision is
found to be purely procedural, it is given immediate and general
effect. It is not given retroactive effect. The presumption against
the retroactive application of legislation applies to procedural
provisions as it does to all legislation, without exception. Thus,
any attempt to apply a procedural provision to a stage in a
proceeding that was completed before the provision came into force
would be refused, subject to a legislative direction to the contrary.

The
presumption against the retroactive application of legislation
explains why courts have refused to apply new rules governing the way
evidence is gathered to pending actions. Where evidence is obtained
through means that are lawful at the time, an accused usually is not
allowed to rely on subsequently enacted changes to render this

evidence
inadmissible."

First of
all, the passage refers to "retroactivity" rather than
"retrospectivity" and clearly retroactivity (enacting the
law to be, in the past, that which it was not) can only be legislated
in express terms. Secondly, as to the second paragraph above, the
second sentence thereof is explanatory or rather demonstrative of the
first. The learned author proceeds immediately thereafter to give the
example of the case of R v Ali (34), of which case, having recited
the facts thereof, Professor Sullivan observes at pp 549/550:

"To
apply the new provisions to this trial would have given them a
retroactive rather than an immediate application. They would have
governed a stage of the proceedings, namely the taking of a breath
sample, that had been completed long before the new legislation came
into force." (Italics added)

Considering
that the learned author was speaking of the presumption against
retroactivity, I respectfully observe that "new rules governing
the way evidence is gathered" are simply inapplicable where such
evidence has already been lawfully gathered in accordance with the
terms of existing legislation.

COMPARISON
OF NEW AND OLD LEGISLA T1ON

The
accused's objections are launched at sections 245 and 246 in the new

-58-

legislation.
It will be seen that the old sections 245/248 referred to a "bank",
which was construed by van den Heever AJA (as she then was) (Browde
and Leon JJ A concurring) in the case of Letsie and Others v R (40)
at pp47/48 to include a foreign bank. The new legislation statutorily
confirms that interpretation, inasmuch as it specifically caters in
section 246 for a foreign bank.

The New
Sections 245 and 246: "Purporting to be...."

As to
sections 245 and 246, Mr Phoofolo submits that the first objection,
is to the use of the expression, "purporting to be", that
is, indicating that it is sufficient if a document purports to be an
affidavit, whereas the old legislation required the production of an
affidavit as such. As indicated earlier, the new legislation is
almost a verbatim copy of sections 236 and 236 A of the Criminal
Procedure Act of South Africa, 1977, the present-day provisions of
which sections were introduced in 1993, in which the expression
"purporting to be" is used. Furthermore, the expression is
used seven times in section 223 of the Code (and see also section 212
of the Criminal Procedure Act, 1977), which deals with the admission
of evidence by affidavit, including sub-section (6) thereof which
even refers to a reply by a deponent to interrogatories as a reply
"purporting to be a reply from such [deponent]."

It is
clear that when a Court receives an affidavit, the document is best
described as a document "purporting to be an affidavit".
The document no more than purports that the oath was taken by one, in
the presence of another who purports to be a commissioner for oaths.
The presumption of regularity applies and, unless there is evidence
to the contrary, what purports to be an affidavit is accepted as such
by the Court. In brief, I consider that the expression, "purporting
to be an affidavit,"

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correctly
describes the document, rather than the previous description of the
"affidavit", and stresses the point that, quite obviously,
the document will be rejected by the Court should it transpire that
it is not an affidavit (see e.g. Dawoodally v Gora (41)).

Old
Section 246 (1)

As to the
old section 246 (1) (excluding paras (a) and (b)), it will be seen
that, compared to the new sections 245 (3) and 246 (3), it imposed a
lesser duty upon the Crown: the old provisions required an affidavit
from "a person" (any person) who had examined the
originals, whereas the new provisions require that such examination
be conducted by one "in the service of the bank": see R v
Albutt and Screen (42).

Old
Section 246 (1) (a) and (b)

Mr
Phoofolo points to the fact that paragraphs (a) and (b) of the old
section 246 (1) have not been repeated. Firstly, he submits, the
requirement of 10 days notice has been taken away. I have to say that
in the circumstances of this present trial, that aspect is somewhat
unrealistic. Mr Penzhorn confirms that, under the "open docket"
principle, the relevant documentation was supplied to the accused
many months ago. In any event, under the said principle, the
authorities indicate that such documentation should be forwarded upon
indictment. The "open docket" principle is based on an
ethos of transparency, connoting not alone disclosure but also due
notice. The right to disclosure has not been taken away - it is
supplied by the common law. There can be no doubt that the question
of the quantum of the notice is "purely procedural", but in
any event, in the light of the "open docket" principle,
must be equitably administered by the Court.

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Mr
Phoofolo points to the fact that under paragraph (b) an accused was
at liberty to inspect the originals. It seems to me that paragraph
(b) was related to paragraph (a) and an accused would therefore only
have been at liberty to inspect the originals, when, under paragraph
(a), they were produced by the prosecution, which eventuality would
have been most unlikely. If that were not the case, why then was it
necessary under sub-section (2) for a court to order that an accused
"be at liberty to inspect the originals, as well as to take
copies, that is, if he was already at liberty to inspect under
sub-section (1) paragraph (b). In brief under the old legislation, if
the Crown obtained possession of the originals, then the accused was
"at liberty to inspect" (and no doubt, under the "open
docket" principle, to copy), whereas, if the originals remained
in the custody of the bank then, a court order was required for the
purpose of both inspection and copying. Further, where it was
necessary to produce the originals at the trial, a court order under
section 247 was necessary, which provision is repeated, in respect of
a local bank, under the new section 247.

In any
event, under the new legislation, were it the case that the Crown
proposed to adduce originals, and the copies thereof were challenged,
I cannot but see that under the "open docket" principle,
the accused would be "at liberty" to inspect and copy the
originals. Where the originals remained in the custody of the bank,
then under the new section 245 (4) the accused may still, as before,
approach the court in the matter and secure an order for inspection
of the originals and the taking of copies thereof. Indeed the new
section 245 (4) provides that the court may adjourn for such purpose.

Old
Section 246 (3)

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The
circumstances under which a court might have made an order under this
subsection do not spring readily to mind; unless it is that the
comparison of originals and copies might have revealed discrepancies,
or indeed that the account was other than that of the person stated.
In any event, the very use of the words, "purporting to be,"
in the new legislation, and indeed the words, "prima facie
proof, indicate that the hands of the court are never tied and the
accused is always free to invoke the court's powers in the matter. In
brief I cannot see that the old section 246 (3) added to the Court's
powers, nor that its repeal has detracted therefrom.

New
Section 246 Sub-section (4)

It will
be seen that here the protective measures (as far as an accused is
concerned) are reinforced, that is, that an affidavit from a foreign
bank is of no effect unless it is obtained in terms of an order of a
foreign court or government institution.

Sub-section
(5)

I
consider this measure to be nothing more than a matter of form.

Subsection
(6)

This is a
new provision, and the accused can have no objection thereto. The
Court may order that a supplementary affidavit be submitted, or
indeed that the deponent be called to give oral evidence. I have
little doubt that under the old legislation the Court, if needs be,
could have resorted to oral evidence (see the reference to "other
evidence" in section 245). The new legislation makes clear
statutory provision in the matter, however, and additionally confers
the power to call

-62-for a
supplementary affidavit.

Inspection
and Copying: Foreign Banks

Mr
Phoofolo submits that there is no power in the new legislation for an
accused to inspect the original documents in a foreign bank. As
indicated above, I do not consider that under the old legislation an
accused had such power, even in respect of a local bank, except upon
court order. In the case of Letsie (38) van den Heever AJA, speaking
of the old section 247, observed at p48:

"But
the accused is only to be at liberty to inspect. If he does not wish
to do so, the

question
whether the particular bank would permit him to do so or not is
irrelevant.....

The fact
that section 247 has no extra-territorial validity is accordingly no
ground for limiting the word bank in sections 245 and 246 to mean by
necessary implication "bank in Lesotho."

For that
matter I do not see that the old section 246 (2) had any
extra-territorial validity either, which aspect is supported by the
fact that the new section 245 (2) (and hence sub-section (4)) and the
new section 247 (1) ( and hence subsection (2)) specifically refer to
a "bank in Lesotho."

Bank
Documentation

The main
change effected by the new legislation is that, in keeping with the
1993 legislation introduced in South Africa, (and see that of 1979 in
England), the reference to "ledgers, day-books, cash-books and
other accounts books" has disappeared. Instead, in view of the
fact that the terminology, originating in the Bankers' Books Evidence
Act 1879 of England, has for many years now, become largely
anachronistic, the new legislation takes cognizance of the
computerization of accounts. In the formalized system of book-keeping
122 years ago, it could safely be

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assumed
that all transactions of a bank would be recorded in some form or
other of an "account book", so that the old terminology was
sufficiently wide, that being the intention of the legislature, to
cover all relevant transactions. With the disappearance of the
old-style of book-keeping, and the introduction of computerisation,
there was clearly a need for amendment, in order to preserve the
intention of the legislature in the matter. I cannot, however, see
that the present accused enjoyed any vested right in the matter: any
"document" or "entry" (as respectively defined in
the new legislation) in the possession of a bank could always have
been produced, before the advent of the new legislation, by means of
subpoena and viva voce evidence. The fact that it now can be produced
by affidavit, constituting prima facie evidence, is no more than a
procedural measure dealing with the manner of proof.

THE
INTENTION OF THE LEGISLATURE

Ultimately
it is the intention of the Legislature which must be divined. In this
respect Mr Phoofolo submits that for a number of years now in
England, the Courts have had recourse to Hansard in the matter of
statutory interpretation. He refers to the case of Pepper v Hart (43)
and see also the case of Fothergill v Monarch Airlines (44). There is
a learned discussion in Devenish op. cit. on the subject at 122/127.
In conclusion Professor Devenish quotes the observation of
Pierre-Andre Cote (Interpretation of Legislation in Canada, 1984 at
p347) where he observed of the general exclusionary rule, that,

"[a]ll
things considered there is much to be said for defining the rule as
'cautionary rather than mandatory'".

Mr
Phoofolo then refers to two extracts taken from the Second Reading to
the Criminal Procedure and Evidence (Amendment) Bill, 2000, the
precursor to Act No.3

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of 2001.
The first extract, a translation of which has been supplied by Mr
Phoofolo, represents portion of a contribution to the debate made by
one Hon. Member of

Parliament:

"The
issue is, now that we have this type of a Bill, it is not necessary
that after it has been passed as law, or maybe it ought to be stated
here that it should operate retrospectively, so that even those who
stole two, three years ago, should fall within this Bill so that we
may charge them. I consider it important that this Bill be
retrospective, it should operate retrospectively if this is
permissible so that those who stole in the past should fall within
its ambit, so that they may be dealt with according to the law after
investigations concerning them have been completed. I do not know
whether this is possible, but if it is not possible many will have
escaped and gone with those monies with impunity."(Italics
added)

Mr
Phoofolo has also supplied the Court with a translation of an extract
from the Hon. Attorney-General' s speech at pp 19/20 of Hansard. I
thought it best, however, for contextual purposes, to secure the
translation of an additional extract (at pp 18/19), which has been
provided by Mr Mathinya Sesioana, an Assessor of this Court and
former Chief Interpreter thereof. The two extracts combined read
thus:-

This C.
P. & E. Act talks about ledgers, old things that have become
obsolete. So, this Bill talks about matters pertaining to the banks'
records which are made by entries which are about the transcribed
computer print-outs and these are mechanically and also
electronically done, for all these to be done they must be contained
in the Bill so they can be admitted in court. These matters also came
to our attention through some cases that were before the High Court
and the Court of Appeal e.g. the case of Moitsupeli Letsie & 2
others v Rex 1995/6 Lesotho Law Reports in which the Court of Appeal
said from its reading of this C. P. & E. Act it gives a
restrictive reading when it comes to the bankers books. Under these
circumstances you find that when it interprets these words or
matters, many times the cases could not be established on prima facie
evidence.

The other
case that was before the Court of Appeal was that of the Commissioner
of Police v Standard Bank of Lesotho Limited and Another. It is not
in the Law Reports. It also shows that because of the restrictive
interpretation of that Law which was out­dated the courts would
find it difficult to accept certain evidence. But when this Bill has
been passed that evidence will be acceptable through affidavits made
by a person working in the bank and is entitled to make such an
affidavit.

-65-

This Bill
does not forbid the accused from asking for such an affidavit to go
and get originals from the bank so that he can know what his case is
all about.In this manner this Bill will help about the evidence that
will be placed before courts for them to administer justice.

To
continue and in response to one member who said that their Bill has
delayed and ought to operate retrospectively. Unfortunately under the
criminal laws you are only found guilty under an existing law. It is
not permitted that when we pass the law now, we go back in the past
and say that 10 years ago you committed a wrongful act, and now that
this Bill has been passed, you will have to be arrested. In other
words, then, members please accept that the "principle of
Retrospectivity" does not apply under this criminal law Bill.
However since this is the manner in which government cures these
defects, we should hasten up things without waiting for the penal
code to arrive. Among the things that could happen, should happen
under this Bill, so that thieves, particularly "white collar"
and "Blue collar Criminals" should be arrested. I say this
because you will find that usually only small people are arrested,
but now we would want to arrest these white collar people who are
stealing from the nation, and that is the "purpose behind this
particular amendment." I support the Minister." (Italics
added)

In view
of the prescriptive period of 20 years, enacted by section 22 of the
Code, it is difficult to ascertain the exact nature of the Hon.
Member's query, particularly where he used the italicized words, "so
that we may charge them ". This apparently indicates that the
Hon. Member was seemingly of the opinion that the Bill proposed the
creation of an offence, and he wished the Bill to have retroactive
effect.

It seems
to me therefore, that in his reply the Hon. Attorney-General was
there addressing the aspect of the presumption against retroactivity,
rather than retrospectivity, and was explaining to the Hon. Members
the constitutional principle that you cannot be "found guilty ",
or for that matter "arrested\ in respect of an act or omission
which did not at the time it took place constitute an offence.
Thereafter it seems to me that the emphasis was upon the necessity to
enact the provisions of the Bill so as to deal with "white-collar"
crime.

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In brief,
I do not see that there is any assistance to be found in Hansard in
the matter: the debate does not deal with the specific point in
question, and the difficulty of applying the Parliamentary debate to
the issue before the Court serves only to illustrate the basis of the
general exclusionary rule in the matter, highlighted in the
discussion in Devenish ibid., and indeed by the following observation
of Lord Reid in the case of Black-Claws on International Limited v
Papierwerke Waldhof -Aschaffenburg AG at p613:

"We
often say that we are looking for the intention of Parliament, but
that is not quite accurate. We are seeking the meaning of the words
which Parliament used. We are seeking not what Parliament meant but
the true meaning of what they said."

In the
present case, that meaning cannot be gleaned with any, degree of
certainty, from Hansard, but can only be determined by application of
the canons of construction developed in the authorities considered
supra.

SUMMARY

The new
legislation introduces new rules of evidence. Prima facie it is
therefore procedural in nature. As to whether or not substantive
rights are affected, the accused has no vested right or privilege in
any rules of evidence. I cannot see that any defence or remedy
available to the accused or, under section 18 (c) of the
Interpretation Act, 1977, any "right, privilege, obligation or
liability acquired, accrued or incurred", has been affected.
That being the case, as Marais JA observed in the Haffejee case (21)
at p756, of the virtually identical provisions of section 12 (2) (c)
and (e) of the Interpretation Act, 1957, of South Africa,

"once
s12 (2) (c) is found to be inapplicable, no succour for the [accused]
can be found in sl2 (2) (e). That is because the latter provision can
operate only when a ' right, privilege, obligation or liability'
within the meaning of the former provision has been found to exist.
Here so such right or privilege existed."

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For that
matter, I cannot see that any unfairness arises. Indeed, it seems to
me that the observations in Driedger op. cit. at p549 are apposite:
speaking of the dicta of Lamer CJC in the case of R v E. (A.W.) (39)
at pp485/486 reproduced supra, concluding with the dictum that "[i]t
is the law of evidence at the time of the trial that

prevails",
Professor Sullivan observes:

"The
interest an accused might have in preventing relevant and reliable
evidence from being admitted is not something the courts are prepared
to protect. In so far as new legislation promotes the fair and
efficient administration of justice, as it is presumed to do, its
immediate application to pending actions is not unfair to the
accused."

Those
observations apply a fortiori to the present case: there being no
question of substantive rights being affected and no unfairness
involved, the new legislation can only be regarded as purely
procedural in character.

CONSTITUTIONALITY
OF NEW PROVISIONS

As I
indicated at the outset, Mr Phoofolo challenges the constitutionality
of the new legislation. This he does on two grounds.

Motivation
for the Legislation

Mr
Phoofolo submits that the new legislation is directed at the accused,
and draws an analogy with the case of Liyanage v R (46). The point is
basically jurisprudential rather than constitutional, although the
right to equality before the law under section 19 of the Constitution
may equally be invoked. The aspect of generality has undefined
limits. The textbooks contain learned discourses thereon. It suffices
for our purposes to quote a very old but succinct authority, that is,
Sir Frederick Pollock's work A First Book of Jurisprudence 4 Ed
(1918) at pp37/38:

'[T]he
rule of justice is a rule for citizens as such. It cannot be a rule
merely for the individual: as the medieval glossators put it, there
cannot be one law for Peter and

-68-

another
for John. Not that every rule must or can apply to all citizens;
there are divers rules for divers conditions and classes of men. An
unmarried man is not under the duties of a husband, nor a trader
under those of a soldier. But every rule must at least have regard to
a class of members of the State, and be binding upon or in respect of
that class as determined by some definite position in the community.
This will hold however small the class may be, and even if it
consists for the time being of only one

individual,
as is the case with offices held by only one person at a
time.......... But

these
rules are not lacking in quality of generality, for in every case
they apply not to the individual person as such, but to the holder of
the office for the time being."

The
following is contained in Salmondon Jurisprudence 10 Ed (Dr Glanville
Williams) at p39:

"Now
it is clear that "a law", in the sense of and of the
legislature, may be particular in the fullest sense of the word. A
Divorce Act, for example, is none the less a statute and none the
less a law because it applies only to a particular couple and lays
down no rule of conduct even for them. It is not so obvious that
"law", in the sense of the legal system, may be particular.
A private Divorce Act is a law, but the passing of such an Act is not
commonly thought of as changing the law of England. The law of
England declares that divorces may be granted (1) by Act of
Parliament; (2) by judicial decree. When a private Divorce Act is
passed or a divorce decree is pronounced, this is an application of
the law of England but not (it may be said) a change in it. The Act
or the decree operates in the law but is not itself part of the law.
Similarly it may be said that the former Acts of Attainder, whereby
particular persons were sentenced to death or otherwise penalised,
though "a law" (sensu concrete), did not create "law"
{sensu obstracto) any more than does the sentence of a criminal
court."

The
learned author was there, of course, (no later than 1947) speaking in
jurisprudential terms, and a bill of attainder or of pains and
penalties is otherwise unconstitutional (see Cummings v State of
Missouri (47) at p323, Kariapper v Wijesinka and Anor (48) at
p488/492 and see Article 1 section 9 (3) of the Constitution of the
United States of America). In any event, in the Kariapper case (48),
the Privy Council found at p492 that an Act of the Parliament of
Ceylon (as then named), which inter alia declared the appellant's
seat in Parliament vacant (and those of five others named with him in
the Schedule to the Act), was not an Act of attainder

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or a Bill
of pains and penalties but was "legislative in character".
The facts of Kariapper (48), of course, were in sharp contrast to
those of Liyanage (46), also decided by the Privy Council some
eighteen months earlier in 1965 in respect of two Acts of the same
Parliament. It proves convenient to repeat an account of the case
found in the case of Swissbourgh Diamond Mines v Military Council
(49) at pp 1621/22, to which Mr Phoofolo refers:

"Two
Acts were passed by Parliament, subsequent to an abortive coup d'etat
involving thirty alleged conspirators, including the eleven
appellants, all of whom were detained. The Acts had retrospective
effect. They legalised ex post facto the detention of the appellants
and others, created a new offence to coincide with the circumstances
of the abortive coup d 'etat, provided for a minimum punishment of 10
years' "rigorous" imprisonment and mandatory forfeiture of
all property, empowered the Minister of Justice to direct a trial by
three Judges without Jury, such Judges to be nominated by the
Minister, provided for the appointment of two more Judges to the
Supreme Court, removed the restriction upon confessions made by an
accused to, or in the custody of, a police officer, placed upon the
accused the burden of proof as to involuntariness of a confession,
and provided that no appeal would lie against conviction. Further,
the legislation provided in effect that it would "cease to be
operative after the conclusion of all legal proceedings connected
with or incidental to any offence against the State committed on or
about Jan. 27, 1962", the date of the abortive coup d'etat, or
one year after the commencement of the legislation, whichever was
later.

The
provision as to the nomination of the Judges by the Minister was
repealed after the three Judges nominated, upon preliminary
objection, held that the statutory power of nomination and the
exercise thereof were unconstitutional, as being an interference with
or in derogation of the judicial power. The repealing legislation
provided for nomination by the Chief Justice.

Upon a
fresh nomination of Judges the appellants were tried with thirteen
other accused (who were acquitted). Each of the appellants was
convicted of three offences of a seditious nature and was sentenced
to ten years' rigorous imprisonment and forfeiture of all his
property."

The
Judicial Committee (Lord MacDermott, Lord Morris of Borth-y-Gest,
Lord Guest, Lord Pearce and Lord Pearson) advised that the appeal
should be allowed and the convictions quashed. Lord Pearce delivered
the judgment of the Judicial

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Committee.
He observed thus at pp659/660:

"Counsel
for the appellants succinctly summarises his attack on the Acts in
question as follows. The first Act was wholly bad in that it was a
special direction to the judiciary as to the trial of particular
prisoners who were identifiable (in view of the White Paper) and
charged with particular offences on a particular occasion. The pith
and substance of both Acts was a legislative plan ex post facto to
secure the conviction and enhance the punishment of those particular
individuals. It legalised their imprisonment while they were awaiting
trial. It made admissible their statements inadmissibly obtained
during that period. It altered the fundamental law of evidence so as
to facilitate their conviction. And finally it altered ex post facto
the punishment to be imposed on them.

In their
lordships' view that cogent summary fairly described the effect of
the Acts. As has been indicated already, legislation ad hominem which
is thus directed to the course of particular proceedings may not
always amount to an interference with the functions of the judiciary.
But in the present case their lordships have no doubt that there was
such interference; that [it] was not only the likely but the intended
effect of the impugned enactments; and that it is fatal to their
validity." (Italics added)

Lord
Pearce went on at p660 to observe:

"One
might fairly apply to these Acts the words of CHASE, J., in the
Supreme Court

of the
United States in Colder v Bull [50]: These acts were legislative
judgments; and

an
exercise of judicial power."

BLACKSTONE
in his COMMENTARIES, Vol. 1 (4th Edn.) P.44, wrote:

"Therefore
a particular act of the legislature to confiscate the goods of
Titius, or to attaint him of high treason, does not enter into the
idea of a municipal law: for the operation of this act is spent upon
Titius only and has no relation to the community in general: it is
rather a sentence than a law."

Earlier,
however, Lord Pearce had observed at p659:

"It
goes without saying that the legislature may legislate, for the
generality of its subjects, by the creation of crimes and penalties
or by enacting rules relating to evidence. But the Acts of 1962 had
no such general intention. They were clearly aimed at particular
known individuals who had been named in a White Paper and were in
prison awaiting their fate. The fact that the learned Judges declined
to convict some of the prisoners is not to the point. That the
alterations in the law were not intended for the generality of the
citizens or designed as any improvement of the general law, is shown
by the fact that the effect of those alterations was to be limited to
the participants in the January coup and that after these had been
dealt with by the judges, the law should revert to its normal state.

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Such a
lack of generality, however, in criminal legislation need not, of
itself, involve the judicial function, and their lordships are not
prepared to hold that every enactment in this field which can be
described as ad hominem and ex post facto must inevitably usurp or
infringe the judicial power. Nor do they find it necessary to attempt
the almost impossible task of tracing where the line is to be drawn
between what will and what will not constitute such an interference.
Each case must be decided in the light of its own facts and
circumstances, including the true purpose of the legislation, the
situation to which it was directed, the existence (where several
enactments are impugned) of a common design, and the extent to which
the legislation affects, by way of direction or restriction, the
discretion or judgment of the judiciary in specific proceedings."
(Italics added)

Mr
Phoofolo bases his submission on the short history of the new
legislation. He points to the fact that the Court delivered a ruling
in this trial, involving the Crown and inter alios the then third
accused in these proceedings, in which the Court held that the
terminology, "ledgers, day-books, cash-books and other account
books" could not be given any extended meaning. Where therefore
the Crown sought, under the old section 247 (1), the production by
three local banks of various documents to a police officer, the Court
ruled this could only be done, not by an order under section 247 (1),
but by a subpoena duces tecum. Mr Phoofolo submits that the new
legislation was enacted as a direct result of the said ruling. I
observe that the Court's ruling followed the interpretation placed
upon the old legislation by the Court of Appeal in the Letsie case
(40), decided on 2nd June 1996. Indeed, reference is made to that
decision in Hansard (and also to this Court's ruling sub nom., The
Commissioner of the Lesotho Mounted Police Services & Anor v
Standard Bank Lesotho Ltd& Ors), as a motivation for the
introduction of the new legislation. But even if the sole motivation
for the change was the decision of the Court of Appeal, as it
affected this present trial, it cannot be gainsaid that the main
thrust of the amendment was long overdue, having been effected in
South Africa and England some eight and twenty-two years ago

-72-respectively,
namely the modernisation of a 122 year-old dichotomy.

Lord
Pearce observed in Liyanage (46) at p659,

"their
Lordship's are not prepared to hold that every enactment in this
field which can be described as ad hominem and ex post facto must
inevitably usurp or infringe the judicial power."

and again
at p660,

"legislation
ad hominem which is thus directed to the course of particular
proceedings may not always amount to an interference with the
functions of the judiciary." (Italics added)

In this
respect, I have to say that any comparison of the new legislation in
this case with that introduced in the Liyanage (46) case, is
unrealistic in the extreme. Nowhere is there any mention of the
accused's name, or indirect reference to him, in Hansard or in any
travaux preparatoires. Even if it was the case that the legislature
wished to ensure that these present proceedings, then pending, should
be affected by the new legislation, as well as future cases, the
pervading generality of the new provisions is apparent. In brief, I
cannot see how the new legislation can even be described as ad
hominem.

Accused's
Right to Cross-examination: The Presumption of Innocence

Finally,
Mr Phoofolo challenges the constitutionality of the new legislation,
and indeed of the old provisions, on an entirely different ground. He
submits that the introduction of evidence by way of affidavit, rather
than viva voce, conflicts with the accused's right under section 12
(2) (e) of the Constitution, that is, to "be afforded facilities
to examine in person or by his legal representative the witnesses
called by the prosecution before the Court." He also submits
that the fact that such affidavit

-73-

evidence
constitutes prima facie evidence, conflicts with the presumption of
innocence.

Those
submissions can be equally applied to the very full provisions of
section 223 of the Code, to which I made earlier reference, providing
for the introduction of evidence by way of affidavit, that is, as
"prima facie proof of the contents thereof. Those provisions
find their origin in section 268 of the Criminal Procedure and
Evidence Act, 1917 of South Africa, as amended in 1926 and 1935, and
as reproduced in section 218 of the Criminal Procedure and Evidence
Proclamation No.59 of 1938 of Lesotho. As for the provisions of
sections 245 and 246 (1) of the Code before amendment, providing for
the introduction of prima facie evidence by way of affidavit, they
find their fons et origo not alone in the 1917 Act but also, as
indicated, in the Bankers' Books Evidence Act of 1879 of England. We
are dealing then with provisions of relative antiquity.

There are
a number of examples in the statute books where certificates, much
less affidavits, are admissible as prima facie evidence of their
contents. An obvious example is that of a birth or death certificate,
which under section 13 of the Registration of Births and Deaths Act,
1973, constitutes "prima facie evidence in all courts of the
dates and facts therein stated." Again, under section 35 (3) of
the Marriage Act, 1974 a marriage certificate "shall, in the
absence of evidence to the contrary, be legal proof of the due
solemnization of the marriage." Indeed, under section 223 (7) of
the Code a "written report" (much less an affidavit) by a
"duly qualified medical practitioner" as to, say, the
injuries suffered by a deceased and his opinion as to the cause of
death, is "prima facie evidence of the facts recorded in it."

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It was my
experience that such a certificate sufficed in the vast majority of
e.g. homicide trials, and it was only in the exceptional case that it
proved necessary to call the medical practitioner to give viva voce
evidence.

The
provisions of section 268 of the 1917 Act were re-enacted in section
239 of the Criminal Procedure Act, 1955 and ultimately section 212 of
the Criminal Procedure Act, 1977 of South Africa. Indeed under
section 212 A, introduced in 1993, the provisions of subsections (1),
(2) and (3) of section 212 were applied to proof of certain facts by
an affidavit from a person in a foreign country. In any event, there
is indirect reference by the Constitutional Court to section 212 to
be found in the case of S v Zuma and Others (51), wherein the Court
declared section 217 (1) (b) (ii) of the Criminal Procedure Act 1977,
(which was not adopted in section 228 of the Code in 1981 and which
placed a reverse onus upon an accused in the matter of the
voluntariness of a confession) to be invalid. Kentridge AJ with whom
the other members of the Court concurred, observed at p591 para [41]:

"[41]
It is important, I believe, to emphasise what this judgment does not
decide. It does not decide that all statutory provisions which create
presumptions in criminal cases are invalid. This Court recognises the
pressing social need for the effective prosecution of crime, and that
in some cases the prosecution may require reasonable presumptions to
assist it in this task. Presumptions are of different types. Some are
no more than evidential presumptions, which give certain prosecution
evidence the status of prima facie proof, requiring the accused to do
no more than produce credible evidence which casts doubt on the prima
facie proof. See, for example the presumptions in s212 of the
Criminal Procedure Act. This judgment does not relate to such
presumptions. Nor does it seek to invalidate every legal presumption
reversing the onus of proof. Some may be justifiable as being
rational in themselves, requiring an accused person to prove only
facts to which he or she has easy access, and which it would be
unreasonable to expect the prosecution to disprove."

The
provisions of section 212 fell squarely for consideration by a Full
Court of the Witwatersrand Local Division in the case of S v Van Der
Sandt (52). That was a

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review
case where the accused had been convicted of drunken driving, based
on the certificate of a forensic analyst, produced under section 212
(4) (which permitted the production of a certificate in lieu of an
affidavit), who also gave viva voce evidence. The court held that the
contents of the certificate were insufficient to support the
conviction, but that the defect had been remedied by the evidence of
the forensic analyst, and confirmed the conviction. Van Dijkhorst J
(Mynhardt and Du Plessis JJ concurring) observed at p 132

"It
was argued by Mr Van Eeden [for the accused at the request of the
Court] that s212 (4) and for that matter the whole of s 212 is
unconstitutional as it curtails the right of cross-examination, which
right, so it was argued, is an immutable component of a fair

trial.

In
passing it may be mentioned that s212 has been referred to but
neither approved or frowned upon in the Constitutional Court in S v
Zuma and Others [51] at 591.

This
point is therefore res nova. It is, however, not a valid one. A fair
trial is in essence a proper ventilation of the dispute before an
unbiased competent tribunal. Dictates of fairness do not a priori
prescribe that evidence be presented only in a certain manner. That
contention puts paid to all documentary evidence and evidence of
tape-recordings, videos and the production of objects. Evidence can
be tendered in any form, if it is relevant it is normally admissible.
Its cogency can be debated. In my view the mere fact that evidence is
tendered in the form of an affidavit or certificate does not per se
render the proceedings unfair. The answer to that question lies in
the nature of the evidence.

It is
clear that the evidence allowed by s 212 is generally of & formal
non-contentious nature, often peripheral to the real issues. Mostly
it would not be contested and only rarely probed by over-zealous
angling counsel. In these circumstances a provision that it may be
adduced by affidavit is not only meaningful, it is essential to the
proper administration of justice.

Even if
this curtailment of the right to cross-examination is seen as a
limitation of the right to a fair trial (which in my view it is not)
then it is a proper limitation in terms of s36 (1) of the
Constitution." (Italics added)

The
reference there is to the following provisions

"36
(1) The rights in the Bill of Rights may be limited only in terms of
law of general

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application
to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account all relevant factors, including -

(a) the
nature of the right;

(b) the
importance of the purpose of the limitation;

(c) the
nature and extent of the limitation;

(d) the
relation between the limitation and its purpose; and

(e) less
restrictive means to achieve the purpose."

There are
no such provisions in Chapter II of the Constitution of Lesotho.
Nonetheless section 12 (1) thereof requires "a fair hearing".
In this respect Van Dijkhorst J considered that the particular
curtailment of the right to cross-examination was not a limitation of
the right to a fair trial. He continued thus at p 132:

"One
should not overlook s212 (12) in terms of which the court may call
such deponent to testify viva voce. A court which refuses a fair
request by the accused to do so will put the outcome of the trial at
risk.

Counsel
countered these considerations by arguing that in the case of s212
(4) the evidence is often, as in the present case, not of a formal
nature and that the accused's right to cross-examine may not be
subjected to the discretion of the court as is done in s2l2 (12).
Counsel emphasised that the fact of blood alcohol content is in a
charge under sl22 (2) of the Road Traffic Act 29 of 1989 not a
peripheral matter or one of the facta probantia, it is the factum
probandum. It stands at the centre of the charge. That is so, but I
fail to see how a trial can be regarded as unfair in which the
accused, upon being presented (in advance upon request, as is now
practice) with the affidavit or certificate, may either request that
the deponent be subpoenaed under s212 (12) or do it himself. The
debility that one may not cross-examine one's own witness will not
apply in the former case and should not apply in the latter. It
remains a State witness."

and again
at p 135

"A
fair trial entails that the State should present its evidence in such
a way that the accused (or if he is ignorant his legal
representatives or experts) will understand it to enable him to
contradict it should he so wish. It follows that a mere statement
that an expert used an unnamed unexplained process and so established
a fact falls short of what is required for a fair trial.

As the
intention with the enactment of s2l2 of the Criminal Procedure Act
was to avoid undue wastage of mainly official manpower by court
attendances for the purpose of frequently undisputed evidence on
matters nearly always incontrovertible,

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there is
no reason to read into s 212(4) a component that relieves the State
of the duty to prove by documentary means that which it would
otherwise do by viva voce evidence."(Italics added)

(See
Constitutional Criminal Procedure by Professor Nico Steytler at
pp353/354 and Cross-Examination in South African Law by Dr J P
Pretorius at pp363/364, to which Mr Penzhorn and Mr Woker refer).
Those observations apply equally to section 223 (in particular
223(4)) of the Code. In my view they also apply a fortiori to
sections 245 and 246. As Van Dikhorst J observed, "it is clear
that the evidence allowed by [section 223 of the Code] is generally
of a formal non-contentious nature, often peripheral to the real
issues." That may not necessarily be said of section 223 (4)
where, as the facts of Van Der Sandt (52) fully illustrate, the
contents of the forensic analyst's affidavit or certificate may be
extremely complicated and require elucidation. I do not see that such
considerations arise in the interpretation of a bank account or bank
record, which must generally be regarded as being "of a formal
non-contentious nature". As learned Counsel observed in Van Der
Sandt (52), the contents of the analyst's certificate was not
peripheral, but constituted the factum probandum in the State's case.
That might well be the situation where the provisions of sections 245
and 246 are utilised by the Crown. Nonetheless, the contents of a
bank record are, generally speaking, hardly a matter for contest. In
an apparent endorsement of the practicality of bankers' books
evidential provisions,, van den Heever AJA in the case of Letsie (40)
observed at pp38/39:

"Section
245.....sets out prerequisites to proof by affidavit of hearsay upon
hearsay

evidence
of facts that would, were direct evidence.... required, be virtually
impossible to prove: the teller who received a cheque among hundreds
if not thousands of others, would be required to testify that on a
specific day a specific person handed a cheque (or cash) to him for
deposit into that client's account. It provides for common sense
safeguards against unreliable hearsay, based on the assumption that
in the ordinary course of a bank's business mistakes in recording
transactions in which both a bank

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and its
clients have a vital interest, are correctly recorded and accepted by
both parties as being correct - scil. since statements and returned
cheques are sent to clients who can therefore control the correctness
of the records kept by the bank and copied by a responsible person in
the employ of the bank."

It seems
to me therefore that such records, constituting hearsay, lend
themselves to production by way of affidavit by a bank official, who
can only give direct evidence as to the existence of such records.
Indeed, it is difficult to appreciate the basis of any proposed
cross-examination, when any evidence by the official as to the
contents of the records, would no doubt constitute hearsay. In any
event, the new legislation provides for the inspection of originals
in a local bank. While there is no express provision for the Court to
order a supplementary affidavit or oral evidence in the case of a
local bank, I cannot see that the Court's hands would be tied in the
matter, in an appropriate case. Such provision is expressly made in
the case of a foreign bank. Under the new section 246 (6), the issue
in my judgment is not a matter for the court's discretion: the
underlying rationale is one of fairness to the particular party, e.g.
the accused. As I see it, the Court is obliged to order oral evidence
if satisfied that the accused would otherwise be materially
prejudiced.

As to the
provision that the annexures to a banker's affidavit constitute prima
facie evidence, such provision, casts no more than an evidential
burden upon an accused, as indicated by Kentridge AJ in Zuma (51)
supra. The very probative value of the contents of the affidavit is
undermined by the provision for a supplementary affidavit, or oral
evidence, where necessary, indicating the necessity for the court's
satisfaction in the matter, that is, on a prima facie basis. It must
be remembered again that the legislation deals with evidence "of
a formal non-contentious nature" which is "frequently
undisputed .... on matters nearly always incontrovertible." Even
so, the

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Crown's
burden is never discharged, at the end of a trial, with a prima facie
case. As Van Dijkhorst J observed at p135, "there is no reason
to read into [the legislation] a component that relieves the State of
the duty to prove by documentary means that which it would otherwise
do by viva voce evidence," and again (at pl33), "[t]he
[legislation] does not contain any indication that the requirements
of proof of

trustworthiness
and correctness have.....been jettisoned." Even though an
evidential

burden
may be placed upon the accused (the failure to discharge which does
not necessarily result in a conclusive case), the "golden
thread" remains intact, the Crown's burden never shifts, the
presumption of innocence remains in place.

I cannot
then see that the new legislation impinges upon the fairness of the
trial. I hold that it is not unconstitutional. I hold further, for
all the reasons earlier stated, that such legislation is applicable
to the conduct of this trial.

Delivered
This 20th Day of December, 2001.

B. P.
CULLINAN ACTING JUDGE