IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
CASE NO 65/04
245/04

In the matter between

WESTERN AREAS LIMITED

First Appellant
ROGER BRETT KEBBLE

Second Appellant
HENDRIK CHRISTOFFEL BUITENDAG

Third Appellant
ROGER AINSLEY RALPH KEBBLE

Fourth Appellant

and

THE STATE

Respondent

________________________________________________________________________

CORAM:
HOWIE P,  SCOTT,  FARLAM,  MTHIYANE  et  CLOETE
JJA
________________________________________________________________________

Date Heard:
1 March 2005

Delivered:
31 March 2005
Summary:      Dismissal of objection to indictment – whether appealable before close
of trial – interpretation of s 21(1) of the Supreme Court Act of 1959 – subsection can
permit appeal before end of trial if interests of justice so require – not shown to be
so required in the instant case.
________________________________________________________________________

J U D G M E N T
________________________________________________________________________

HOWIE P

HOWIE  P
[1] A criminal trial cuts across a number of an accused person’s
fundamental rights. Attendance at the trial, even if on bail, limits freedom of
movement and even the right to liberty is curbed to an extent. Those are
some of the negative consequences. On the other hand the accused is
afforded a number of what are collectively called fair trial rights. One of
these is the right to appeal. The primary question in the present instance is
whether this Court has jurisdiction to hear an appeal at this stage. The
question arises in the following way.
[2] The four appellants, a company and three individuals, have been
charged in the High Court, Johannesburg on an indictment containing twelve
counts alleging their commission of a variety of offences. Before pleading
they formally objected to each of seven counts as disclosing no offence.
[3] Six of the counts (counts 1, 2, 3, 4, 6 and 7 in the indictment) each
comprises a charge of fraud and some have alternative charges of
contravening the Riotous Assemblies Act 17 of 1956 – conspiracy to commit
fraud as one alternative and incitement to commit fraud as another. Each
fraud count alleges, as an element of the offence, the non-disclosure of facts
which the State says it was the appellants’ statutory and common law duty to
disclose in respect of certain share-dealings. The notice of objection points
to the fact that the statutory and regulatory provisions which pertain to
share-dealings and impose a duty of disclosure, fail to criminalise non-
disclosure. The nub of the objection is that non-disclosure in that situation
cannot as a matter of law constitute the misrepresentation element of fraud.
(It is not disputed that non-disclosure amounts to a misrepresentation that the
undisclosed facts do not exist.) Consequently, so the objection continues,

each of the six fraud charges in question is bad in law. That being so the
alternative charges, being inextricably linked to the alleged fraud, are also
bad.
[4] The seventh count objected to (count 12 in the indictment) alleges a
contravention of s 2(1) of the Insider Trading Act 135 of 1998, again with
conspiracy and incitement charges as alternatives. The objection is that
s 4(1)(d) of that Act creates a specific defence and the conduct attributed to
the appellants in the charge is the very conduct which constitutes that
defence.
[5] At the start of the hearing in the High Court, but before plea,
argument was heard on the objection. The presiding Judge (Labuschagne J)
reserved his decision and subsequently dismissed the objection. Later he
granted leave to appeal to this court and also granted a certificate in terms of
Rule 18 of the Constitutional Court in respect of a possible appeal to that
Court.
[6] Turning to the jurisdictional issue, usually referred to in the present
context as appealability, the case for the appellants is that this Court has
jurisdiction at this juncture, firstly, by reason of the provisions of s 168(3) of
the Constitution,1 secondly, as a matter of discretion and, thirdly, by virtue
of the provisions of s 21(1) of the Supreme Court Act.2
[7] Section 168(3) of the Constitution (omitting irrelevant words) reads as
follows –
‘The Supreme Court of Appeal may decide appeals in any matter. It is the highest court
of appeal except in constitutional matters, and may decide only –

(a)
appeals;

(b)
issues connected with appeals; and

1   The Constitution of the Republic of South Africa, Act 108 of 1996.
2   Act 59 of 1959.

(c)
… ’

[8] The first submission by counsel for the appellants in regard to this
subsection is that it altered the pre-existing position by conferring plenary
appellate jurisdiction. Before the coming into operation of the constitution
on 4 February 1997 this court’s jurisdiction had to be conferred by statute.3
Questions of appealability went to jurisdiction and had to be decided by
reference to the Supreme Court Act4, the Criminal Procedure Act5 and other
legislation specifically material to appeals to this court. Now, said counsel,
the appealability questions that pre-dated 1997 have fallen away; every High
Court order is appealable in principle and no Rule of this Court restrains that
otherwise limitless jurisdiction. In this regard counsel relied on Chevron
Engineering (Pty) Ltd v Nkambule.6
[9] In evaluating this contention the following considerations are of
importance. First, there is a significant background history. The Interim
Constitution7 specifically stated that this Court had no jurisdiction in matters
falling within the jurisdiction of the Constitutional Court viz constitutional
matters.8 The intention in s 168(3) was to remove that restriction. The words
‘any matter’ accord jurisdiction not only in matters that were subject to the
court’s jurisdiction before but, now, also constitutional matters. In effect the
jurisdiction bestowed is to decide appeals on any subject matter. The words
‘any matter’ also appear in s 170 of the Constitution which empowers
magistrates’ courts and all other courts 9 to decide ‘any matter determined by

3   Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 7D-G.
4   Sections 20 and 2.
5   Act 51 of 1977.
6   2003 (5) SA 206 (SCA).
7   The Constitution of the Republic of South Africa Act 200 of 1993.
8   Section 101(5)
9   Other, that is, than superior courts and magistrates’ courts.

an Act of Parliament’. Here, again, the intention in my view is to refer to
subject matter because the section goes on to say that a court of lower status
than a High Court may not enquire into or rule on the constitutionality of
any legislation or any conduct of the President. These are instances of
subject matter. The appellants’ reliance on Chevron 10 is misplaced. The
question there was not whether the decision in issue was appealable but
whether, in respect of a decision that clearly was appealable, an appeal lay to
this court.
[10] Secondly, nothing in the subsection suggests the conferment of
jurisdiction to hear as an appeal that which, by established statutory
construction and practice, is not appealable. On the contrary, quite apart
from subject matter, the words ‘decide appeals’ plainly means that the cases
to be decided are appeals. A decision which is not appealable is not
justiciable as an appeal. The subsection therefore means an appeal properly
before the court as such.
[11] Thirdly, a dispute on the question of appealability is not itself an
appeal. It falls contextually and linguistically within the meaning of the
words ‘issues connected with appeals’ in s 168(3)(b).
[12] Fourthly, no reason suggests itself why the framers of the Constitution
would have wanted to render decisions such as rulings on evidence or
interlocutory procedure appealable. More importantly, if the argument under
consideration were right, the prosecution could appeal against any acquittal.
Understandably that has never been regarded as the correct legal position.
[13] Finally, s 171 of the Constitution states that all courts function in
terms of national legislation and their rules and procedures must be provided
for in terms of national legislation. Here is a very clear indication that the

10   Footnote (6)

framers had no intention to speak in s 168(3) of matters of forensic rules,
procedures and function. Appealability – when to appeal and what to appeal
against – is essentially a subject within the ambit of rules, procedures and
function. The respondent does not argue that there is no right to appeal
against the findings of the Court below. The question is: when to appeal?
That, as the Constitution shows, is a question for legislative interpretation
and application, not for s 168(3).
[14] In conjunction with the appellants’ argument on s 168(3) their counsel
advanced certain submissions in regard to Minister of Safety and Security v
Hamilton11. That case concerned the appealability of an order dismissing an
exception in a civil case. In the majority judgment the following statement
appears –
‘Though s 168(3) of the Constitution provides without qualification that this court may
decide “appeals in any matter”, this must obviously be read in the light of the Supreme
Court Act 59 of 1959.’12
(Nothing in the minority judgment conflicts with this statement.)
[15] Counsel urged that the quoted statement is clearly wrong. The reasons
proffered for that contention were that s 168(3) of the Constitutions warrants
no such qualification; that one cannot employ the construction of a statute to
interpret the Constitution; and that the Constitution contemplates a hierarchy
of courts which would be disregarded if an appeal would proceed to the
Constitutional Court without first being dealt with in this court.
[16] Not only am I not persuaded that the statement in Hamilton is wrong,
I am satisfied it is right. The reasons for my view have really been stated
already. What the quoted statement in Hamilton clearly meant was that one
cannot look at s 168(3) alone because it does not bear on appealability. One

11   2001 (3) SA 50 (SCA)
12   at 52B-E par 4 per Cameron  JA.

has to look at s 171 of the Constitution and that leads one inter alia to the
Supreme Court Act. That approach does not involve using statutory
interpretation to aid constitutional interpretation; it is based solely on
construction of the Constitution itself. Finally, in this connection, it is so that
the Constitution contemplates a hierarchy of courts but it has been
recognised that a matter can be appealable to the Constitutional Court before
being appealable to this court.13
[17] For these reason the appellants’ argument pertaining to s 168(3) of the
Constitution cannot be sustained.
[18] It was argued in the alternative to the appellants’ first submission that
if this Court should find that it had a discretion to exercise its appellate
jurisdiction then there were circumstances present which warranted the
exercise of that discretion in their favour. I do not think that there is a
discretion in the context of this court’s jurisprudence based on construction
of the relevant provisions of the Criminal Procedure Act and the Supreme
Court Act or any discretion conferred by those provisions themselves. The
only possibly relevant provision of the Criminal Procedure Act is s 31914
which concerns reservation of a question of law. It is true that ss (2) deems
the grounds of objection to an indictment to be questions of law but in terms

13   Khumalo and others v Holomisa 2002 (5) SA 401 (CC) at 409F-411B paras 6 to 8.
14   Section 319 reads
‘(1)  If any question of law arises on the trial in a superior court of any person for any offence, that court
may of its own motion or at the request either of the prosecutor or the accused reserve that question for the
consideration of the Appellate Division, and thereupon the first-mentioned court shall state the question
reserved and shall direct that it be specially entered in the record and that a copy thereof be transmitted to
the registrar of the Appellate Division.
(2)  The grounds upon which any objection to an indictment is taken shall, for the purposes of this section,
be deemed to be questions of law.
(3)  The provisions of section 317(2), (4) and (5) and 318(2) shall apply mutatis mutandis with reference to
all proceedings under this section.’

of the provisions of ss (3) read with s 317(2),15 application for reservation of
such a question can only be made after conviction or acquittal.16
[19] As regards the material provisions of the Supreme Court Act, they are
contained in s 21(1).17 They confer on this court jurisdiction to hear and
determine an appeal from ‘any decision’ of a Provincial or Local Division
not conferred by s 20(1) of that Act. The latter section, which does not apply
to criminal proceedings, provides for appeals against a ‘judgment or order’
and does not refer to a ‘decision’. Nonetheless this court has construed
‘decision’ in s 21(1) to have the same meaning as that which it has attributed
to ‘judgment or order’.18
[20] The appealability decisions of this court are based on the ‘salutary
general rule that appeals are not entertained piecemeal’.19 Appeals are,
generally, precluded before final determination of a case unless the judicial
pronouncement sought to be appealed against, whether referred to as a
judgment, order, ruling, decision or declaration, has three attributes. First, it
must be final in effect. That means it must not be susceptible of alteration by
the court appealed from. Second, it must be definitive of the rights of the
parties, for example, because it grants definite and distinct relief. Thirdly, it
must have the effect of disposing of at least a substantial portion of the relief

15   Section 317(2) reads
‘(2)  Save as hereinafter provided, an application for condonation or for a special entry shall be made to the
judge who presided at the trial or, if he not available, or,  if in the case of a conviction before a circuit court
the said court is not sitting, to any other judge of the provincial or local division of which that judge was a
member when he so presided.
16   R v Adams and others 1959 (3) SA 753 (A) at 760F-761G.
17   Section 21(1) of Act 59 of 1959 reads
‘(1)   In addition to any jurisdiction conferred upon it by this Act or any other law, the appellate division
shall, subject to the provisions of this section and other law, have jurisdiction to hear and determine an
appeal from any decision of the court of a provincial or local division.’
18   Moch’s case, footnote (3)
19   Wahlhaus v Additional Magistrate,  Johannesburg 1959 (3) SA 113 (A) at 120E.

claimed.20 Clearly, whether these criteria are met does not depend on judicial
discretion.
[21] Counsel for the appellants sought, then, to contend that the decision of
the Court below was final in effect because it was based on the factual
allegations contained in detailed further particulars furnished by the
prosecution and did not merely decide an abstract legal issue. Counsel went
on to say that the learned judge was seized with the trial and no purpose
could be served by treating his judgment as open to reconsideration. It was
the intention of all the parties, said counsel, that the decision of the judge
should be final and that had the case been a civil one it would have lent itself
to a separation of issues in terms of rule 33(4) and therefore an appealable
judgment.21
[22] Counsel for the respondent adamantly disputed that the prosecution
intended that the decision of the Court below would be regarded as final.
Moreover, there is nothing on record, or relied on by the appellants’ counsel,
to show that any such common intention existed even assuming, in the
appellants’ favour, that the existence of a mere intention, as opposed to a
recorded agreement or stated case, could impose finality not imposed by law
and further assuming that a legal issue in criminal proceedings can indeed be
decided on agreed facts or a stated case. In the circumstances the decision of
the learned judge was not final in law however much he might be disinclined
to alter his view if he were to preside at the trial. His decision is open to
reconsideration at the end of the trial. In addition, it must be borne in mind
that his decision was made before plea, that is to say, before the trial
commenced. It might have been the intention that the learned judge should

20   Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-533B; Hamilton’s case (footnote (11))
at 52E-F par 4.
21   Cf Maize Board v Tiger Oats Ltd and Others 2002 (5) SA 365 (SCA) 374A-B.

preside at the trial but, as a matter of law, he is not seized of the trial as yet.
It follows that all the requirements set in Zweni’s case are not met.
[23] The final argument for the appellants was that if the case was not
appealable on the construction of s 21(1) adopted in Zweni and later cases
that followed it, the subsection had to be re-interpreted in the light of s 39(2)
of the Constitution.22
[24] Before dealing with the effect of s 39(2) it should be observed that
this court said in Moch that the requirements for appealability laid down in
Zweni were not intended to be exhaustive or to cast the relevant principles
‘in stone’.23 In Moch the trial judge refused to recuse himself. This court
held, on appeal against such refusal, that dismissing a recusal application
was comparable with dismissal of an objection to jurisdiction. As the latter
was clearly appealable, so was the former.24  The dismissal of an objection
to an indictment is not comparable with either. It is much the same as
dismissal of an exception in a civil case and nothing said in relation to these
topics serves to indicate that an objection or an exception constitute, in
effect, a challenge to jurisdiction.
[25] In Khumalo25 the Constitutional Court observed that all the
considerations which have led this court to adopt a limited interpretation of
‘judgment or order’ in construing s 20 of the Supreme Court Act can be
accommodated within the expression ‘the interests of justice’.  That is the
criterion set in s 167(6) of the Constitution in relation to access on appeal to
the Constitutional Court. It is indeed such interests which have led to the

22   Section 39(2) reads
‘39(2) When interpreting any legislation, and when developing the common law or customary law, every
court, tribunal of forum must promote the spirit, purport and objects of the Bill of Rights.’
23   Footnote (3), at 10F
24   At 10G-11B.
25   Footnote (13), at  411A-B par 8.

limited interpretation in question. Long experience has taught that in general
it is in the interests of justice that an appeal await the completion of a case
whether civil or criminal. Resort to a higher court during proceedings can
result in delay, fragmentation of the process, determination of issues based
on an inadequate record and the expenditure of time and effort on issues
which may not have arisen had the process been left to run its ordinary
course.26
[26] It is clear, however, that the general rule against piecemeal appeals in
criminal proceedings could conflict with the interests of justice in a
particular case. The possibility of such a conflict was recognised in
Wahlhaus. 27 As an instance when such conflict might arise this court
referred in that matter to the position where a law point is involved which, if
decided in the accused’s favour, would dispose of the criminal charge
against him or a substantial portion of it.28 By that example I understand it to
be implied that there would be no trial or a substantially shortened trial.
[27] Reverting to the provisions of s 39(2) of the Constitution and its
influence on the construction of s 21(1) of the Supreme Court Act, it is, as I
have said, an inevitable consequence of a criminal trial that an accused’s
exercise of the right to liberty and freedom of movement is restricted. But
those are not the only rights to be considered. It is in the public interest that
alleged criminals be subjected to the criminal justice process and that the
prosecution and defence cases be fully ventilated. In the tension between
these competing interests the restrictions on the accused which I have
mentioned remain in place, ameliorated where appropriate by release on
bail. Those considerations by themselves do not warrant giving ‘decision’ a

26   Cf R v Duvivier 6 CCR (2d) 180 cited in S v Friedman (2) 1996 (1) SACR 196 (W) at 202e-f.
27   Footnote (19), at 119A-B.
28   At 120.

more extended meaning than before. What does do so, however, is the
possibility of conflict between the general rule against piecemeal appeals
and the interests of justice in a particular case even if the Zweni requirements
are not met. It is surely not in the interests of justice to submit an accused
person to the strain, expense and restrictions of a lengthy criminal trial if that
can be avoided, in appropriate circumstances, by allowing an appeal to be
pursued out of the ordinary sequence and so obviating the trial or
substantially shortening it.
[28] I am accordingly of the view that it would accord with the obligation
imposed by s 39(2) of the Constitution to construe the word ‘decision’ in
s 21(1) of the Supreme Court Act to include a judicial pronouncement in
criminal proceedings that is not appealable on the Zweni test but one which
the interests of justice require should nevertheless be subject to an appeal
before termination of such proceedings. The scope which this extended
meaning could have in civil proceedings is unnecessary to decide. It need
hardly be said that what the interests of justice require depends on the facts
of each particular case.
[29] In the present matter the only information relevant to that enquiry is
provided in an affidavit deposed to by Mr GL Roberts SC, a Deputy Director
of Public Prosecutions and one of the prosecution’s counsel in the court
below. The affidavit was filed in support of the respondent’s opposition to
an application in that court by three of the appellants for leave to appeal.
[30] What Mr Roberts says is that ‘most if not all of the evidence that will
be led to prove the counts against which the accused object, will have to be
led in any event in respect of the remaining counts against which the
[appellants] have no objection. I refer particularly to count 9, but also the
other counts’.

[31] The offence involved in count 9 is a contravention of s 424 of the
Companies Act 61 of 1973 by the individual appellants in having allegedly
carried on the first appellant’s business recklessly. Apart from the fact that
the dates covered by this count include the dates stated in the other counts,
the transactions which form the subject matter of this count include the
transactions which form the subject matter of counts 1, 2, 3, 4 and 6. As far
as count 12 is concerned it involves four transactions. Two of them form
part the subject matter of count 1. A third forms part of the subject matter of
count 9.
[32] The prosecution of count 9 will alone involve canvassing the facts
relevant to all the counts objected to save for count 7. As against that,
argument at the end of the trial will obviously be longer if the submissions
presented to us on the merits of the objection have to be repeated before the
trial judge.
[33] The appellants did not seek to contradict or qualify the deposition by
Mr Roberts to which I have referred and analysis of the dates and
transactions referred to in the indictment supports what he says.
[34] It is the view on all sides that the trial on the counts to which there
was no objection will be a lengthy one. In the circumstances outlined above
it will not be extended by a material degree if the prosecution case includes
the counts objected to. Consequently it cannot be said, on the record before
us, that the interests of justice require that appellants’ right of appeal against
the findings of the Court below on their objection, be exercised now rather
than at the close of the trial.
[35] In concluding it must be pointed out that if facts are present which
point to the conclusion that the interests of justice require that an appeal
against dismissal of an objection to an indictment or charge be heard out of

the ordinary sequence, the accused has a choice. The relevant facts can be
canvassed before the court hearing an application for leave to appeal against
such dismissal. Alternatively, a declarator that a charge discloses no offence
can be sought in terms of s 19(1)(a)(iii) of the Supreme Court Act29 as was
done in the  case of Attorney-General, Natal v Johnstone & Co Ltd.30
[36] For the reasons given above the decision dismissing the appellants’
objection is not appealable at this stage. The case on the merits of the
objection is consequently not duly before us.
[37] The matter is struck from the roll.

____________________
CT HOWIE
PRESIDENT
SUPREME COURT OF APPEAL

CONCUR:
SCOTT  JA
FARLAM  JA
MATHIYANE  JA
CLOETE  JA

29   This gives the High Court power –
‘in its discretion, and at the instance of any interested person, to enquire into and determine any existing,
future or contingent right or obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination.’
30   1946 AD 256.