S v O'Connell and Others (P15/2005, P71/2005, P34/2006, P65/2006) [2006] ZAWCHC 63; [2007] 2 All SA 293 (C); 2007 (5) BCLR 556 (C) (6 November 2006)

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[2006] ZAWCHC 63
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S v O'Connell and Others (P15/2005, P71/2005, P34/2006, P65/2006) [2006] ZAWCHC 63; [2007] 2 All SA 293 (C); 2007 (5) BCLR 556 (C) (6 November 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
CAPE OF GOOD HOPE
PROVINCIAL DIVISION
Petition Nos: P 15/2005
P 71/2005
P 34/2006 P 65/2006
In the applications for
leave to appeal of
DANIEL O’CONNELL
First applicant
ABDUL GAFFOOR
GANIEF
Second applicant
RONALD OLINCE
Third applicant
GRAHAM GREENTREE
Fourth applicant
RICARDO
ADAMS
Fifth applicant
RASHIED STAGGIE
Sixth applicant
and
THE STATE
Respondent
_____________________________________________________
JUDGMENT ON THE
CONSTITUTIONALITY OF SECTION 309C OF THE CRIMINAL PROCEDURE ACT
DELIVERED
ON 6 NOVEMBER 2006
_____________________________________________________
BLIGNAULT J
:
[1] This
judgment is concerned with the constitutionality of the leave to
appeal procedure contained in section 309C of the Criminal
Procedure
Act 51 of 1977 (“the Criminal Procedure Act”).
[2] The six applicants in
this matter were indicted (with five other accused) in the regional
court at Parow on seven counts relating
to the housebreaking and
theft, and the subsequent possession, of large numbers of firearms
and ammunition from police premises at
Faure, Western Cape Province.
The offences were committed on 7 June 1998. The seven counts may,
for present purposes, be summarised
as follows:
(i) Housebreaking with
the intention of stealing and theft
of various firearms and
quantities of ammunition;
(ii) Unlawful possession
of 20 R5 rifles and 12 R1 rifles;
(ii) Unlawful possession
of 42 tear grenades, 5 light grenades and 2 shock grenades;
(iv) Unlawful possession
of 2 detonaters;
(v) Unlawful possession
of 40 R1 rounds and 810 R5 rounds;
(vi) Unlawful possession
of 12 shotguns and 9 9 mm pistols;
(vii) Unlawful possession
of 398 shotgun rounds and 135 9 mm rounds.
[3] There were originally
11 accused in the matter. The applicants were numbered as follows:
First applicant (Daniel
O’Connell) - accused 3
Second applicant (Abdul
Gaffoor Ganief) - accused 4
Third applicant (Ronald
Olince) - accused 5
Fourth applicant (Graham
Greentree) - accused 6
Fifth applicant (Ricardo
Adams) - accused 7
Sixth applicant (Rashied
Staggie) - accused 11
[4] The charges were
withdrawn against accused 1 and accused 10 and the court ordered that
the charges against accused 8 be tried
separately. The remaining
accused, being the six applicants and Roderick Collins (accused 2)
and Charles Benjamin (accused 9) were
convicted on 8 March 2004 on
the following counts:
Accused 2: Counts 2,
3, 4, 5, 6 and 7.
First applicant (accused
3): All seven counts.
Second applicant (accused
4): Counts 1, 2, 3, 5, 6 and 7.
Third applicant (accused
5): Counts 1, 2, 5, 6 and 7.
Fourth applicant (accused
6): Counts 1, 2, 5, 6 and 7.
Fifth applicant (accused
7): Counts 1, 2, and 6.
Accused 9: Counts 1,
2, 5, 6 and 7.
Sixth applicant (accused
11): Counts 1, 2, 5, 6 and 7.
[5] The accused were
sentenced on 12 May 2005. All of them are to serve lengthy periods
of imprisonment, some of which are to run
concurrently. The
effective periods of imprisonment thus imposed vary from ten to
fifteen years.
[6] Each of the
applicants brought an application in the regional court in terms of
section 309B
of the
Criminal Procedure Act for
leave to appeal
against his conviction and sentence. The regional magistrate refused
each of these applications.
[7] The applicants
thereafter filed petitions to this court in terms of
section 309C
of
the
Criminal Procedure Act. There
have been unfortunate delays in
the processing of these petitions. The reasons for these delays are
complex. They are, however,
not relevant to the issues presently
before us.
[8] First applicant
(accused 3) and second applicant (accused 4) filed separate
applications to this court for leave to appeal against
their
convictions and sentences. In preparing these applications they did
not have the benefit of legal representation. The applications
were
drafted by them in person. These applications are at present still
pending.
[9] Third to sixth
applicants (accused 5, 6, 7 and 11) filed a joint petition for leave
to appeal against their convictions and sentences.
These
applications were lodged on their behalf by an attorney. They are
also still pending.
[10] The above six
applications were consolidated and referred for argument before us in
open court on 3 November 2006 on the question
whether the provisions
of section 309C of the Act are constitutionally valid and, if
invalid, whether the applicants can be exempted
from the requirement
of obtaining leave to appeal.
[11] Advocates J C
Butler, M L Norton and M A O’Sullivan were appointed as
amici
curiae
to represent the interests of first and second applicants.
The third to sixth applicants were represented at the hearing by
advocate
M Gerber, instructed by attorneys Francois Potgieter and
Partners. Mr W B Tarantal of the Office of the Director of Public
Prosecutions
represented respondent. This court is indebted to
counsel for their considerable assistance.
The history of the
leave to appeal procedures contained in
sections 309B
and
309C
of the
Criminal Procedure Act
[12
] Before turning to
the specific arguments that were raised before us, it may be useful
to provide a summary of the history of the
leave to appeal procedures
contained in
sections 309B
and
309C
of the
Criminal Procedure Act
.
At the time when the Constitution of the Republic of South Africa Act
200 of 1993 (“the Interim Constitution) came into operation
any
person convicted of an offence by any lower court had the right, in
terms of
section 309(1)(b)
of the
Criminal Procedure Act, to
appeal
to the High Court (formerly the Supreme Court) against his conviction
and resultant sentence. In terms of
section 309(4)(a)
, read with
section 305
of the
Criminal Procedure Act, that
right was, however,
subject to the following qualification:
‘
No
person who has been convicted by a lower court of an offence, and is
undergoing imprisonment for that or any other offence, shall
be
entitled to prosecute in person any proceedings for the [appeal] of
the proceedings relating to such conviction unless a Judge
of the
Provincial or Local Division having jurisdiction has certified that
there are reasonable grounds for [appeal]'.
[13] Section 25(3) of the
Interim Constitution conferred upon all accused persons a right to a
fair trial. It listed some of the
particular rights that were
covered by the general right to a fair trial. One of these,
specified in para (h), was:
'.
. . the right . . . to have recourse by way of appeal or review to a
higher Court than the court of first instance'.
[14] In
S v Ntuli
1996 (1) SA 1207
(CC) the Constitutional Court held that the
provisions of section 309(4)(a), read with
section 305
of the
Criminal Procedure Act, were
in conflict with an accused person’s
right to a fair trial in terms of section 25(3)(h) of the Interim
Constitution. The court
made the following order:
‘
Section
309(4)(a)
of the
Criminal Procedure Act is
declared to be invalid on
the score of its inconsistency with the Constitution. Parliament is
required to remedy the defect by 30
April 1997, with the result that
our declaration of invalidity is suspended until that happens or that
date arrives, whichever occurs
earlier, when it will come into
force.’
[15] The Constitution of
the Republic of South Africa Act 108 of 1996 (“the Constitution”)
came into effect on 4 February 1997.
Section 35(3) of the
Constitution provides as follows:
‘
Every
accused person has a right to a fair trial, which includes the right-
… … …
(o) of
appeal to, or review by, a higher court.’
[16] The legislature
reacted to the
Ntuli
judgment by introducing, with effect from
28 May 1999, a new procedure contained in
sections 309B
and
309C
of
the
Criminal Procedure Act. (I
propose to refer to those provisions
as the 1999 versions of each of these sections.) In substance the
1999 version of section 309B
provided that an appeal against a
conviction or sentence in a magistrate's court could be lodged only
after leave had been obtained
from that court. If leave were
refused, the 1999 version of
section 309C
of the Criminal Procedure
provided a procedure for the filing of a petition to the appropriate
High Court for leave to appeal.
[17] In
S
v Steyn
2001 (1) SA 1146
(CC), a judgment
delivered on 29 November 2000, the Constitutional Court
held that the 1999 versions of
sections 309B
and
309C
of the
Criminal Procedure Act were
inconsistent with the
Constitution. These sections were declared invalid but the
declaration of invalidity was suspended for a period
of six months
from the date of the order, ie until 29 May 2001.
[18] In terms of the
Criminal Procedure Amendment Act 42 of 2003
the legislature
introduced, with effect from 1 January 2004, new
sections 309B
and
309C
which contain the leave to appeal procedure in its current form.
I shall refer to them as the 2004 versions of
sections 309B
and
309C
.
The full text of
the 2004 versions of
sections 309B
and
309C
[19]
Section 309
of the
Criminal Procedure Act, after
the 2004 amendments, provides,
inter
alia,
as follows:
‘
(1)
(a) Any person convicted of any offence by any lower court
(including a person discharged after conviction) may, subject to
leave
to appeal being granted in terms of
section 309B
or
309C
,
appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction:
[20] The 2004 version of
section 309B
reads as follows:
‘
309B Application
for leave to appeal
(1)
(a) Any accused, other than a person contemplated in the first
proviso to
section 309
() (a), who wishes to note an appeal against
any conviction or against any resultant sentence or order of a lower
court, must apply
to that court for leave to appeal against that
conviction, sentence or order.
(b)
An application referred to in paragraph (a) must be made-
(i) within
14 days after the passing of the sentence or order following on the
conviction; or
(ii) within
such extended period as the court may on application and for good
cause shown, allow.
(2)
(a) Any application in terms of subsection (1) must be heard by the
magistrate whose conviction, sentence or order is the subject
of the
prospective appeal (hereinafter referred to as the trial magistrate)
or, if the trial magistrate is not available, by any
other magistrate
of the court concerned, to whom it is assigned for hearing.
(b)
If the application is to be heard by a magistrate, other than
the trial magistrate, the clerk of the court must submit a
copy of
the record of the proceedings before the trial magistrate to the
magistrate hearing the application: Provided that where
the accused
was legally represented at a trial in a regional court the clerk of
the court must, subject to paragraph (c), only submit
a copy of the
judgment of the trial magistrate, including the reasons for the
conviction, sentence or order in respect of which the
appeal is
sought to be noted to the magistrate hearing the application.
(c)
The magistrate referred to in the proviso to paragraph (b) may,
if he or she deems it necessary in order to decide the application,
request the full record of the proceedings before the trial
magistrate.
(d)
Notice of the date fixed for the hearing of the application must be
given to the Director of Public Prosecutions concerned, or
to a
person designated thereto by him or her, and the accused.
(3)
(a) Every application for leave to appeal must set forth clearly
and specifically the grounds upon which the accused desires
to
appeal.
(b)
If the accused applies orally for such leave immediately after the
passing of the sentence or order, he or she must state such
grounds,
which must be recorded and form part of the record.
(4)
(a) If an application for leave to appeal under subsection (1) is
granted, the clerk of the court must, in accordance with the
rules of
the court, transmit copies of the record and of all relevant
documents to the registrar of the High Court concerned: Provided
that
instead of the whole record, with the consent of the accused and the
Director of Public Prosecutions, copies (one of which must
be
certified) may be transmitted of such parts of the record as may be
agreed upon by the Director of Public Prosecutions and the
accused to
be sufficient, in which event the High Court concerned may
nevertheless call for the production of the whole record.
(b)
If any application referred to in this section is refused, the
magistrate must immediately record his or her reasons for such
refusal.
(5)
(a) An application for leave to appeal may be accompanied by an
application to adduce further evidence (hereafter referred to
as an
application for further evidence) relating to the conviction,
sentence or order in respect of which the appeal is sought to
be
noted.
(b)
An application for further evidence must be supported by an affidavit
stating that-
(i) further
evidence which would presumably be accepted as true, is available;
(ii) if
accepted the evidence could reasonably lead to a different decision
or order; and
(iii) there
is a reasonably acceptable explanation for the failure to produce the
evidence before the close of the trial.
(c)
The court granting an application for further evidence must-
(i)
receive that evidence and further evidence rendered necessary
thereby, including evidence in rebuttal called by the prosecutor
and
evidence called by the court; and
(ii) record
its findings or views with regard to that evidence, including the
cogency and the sufficiency of the evidence, and the
demeanour and
credibility of any witness.
(6)
Any evidence received under subsection (5) shall for the purposes of
an appeal be deemed to be evidence taken or admitted at
the trial in
question.
[21] The 2004 version of
section 309C
reads as follows:
‘
309C Petition
procedure
(1)
In this section-
(a)
'application for condonation' means an application referred to in the
proviso to
section 309
(2), or referred to in
section 309B
(1) (b)
(ii);
(b)
'application for leave to appeal' means an application referred to
in
section 309B
(1) (a);
(c)
'application for further evidence' means an application to adduce
further evidence referred to in
section 309B
(5) (a); and
(d)
'petition', unless the context otherwise indicates, includes an
application referred to in subsection (2) (b) (ii).
(2)
(a) If any application-
(i) for
condonation;
(ii) for
further evidence; or
(iii) for
leave to appeal,
is
refused by a lower court, the accused may by petition apply to the
Judge President of the High Court having jurisdiction to grant
any
one or more of the applications in question.
(b)
Any petition referred to in paragraph (a) must be made-
(i) within
21 days after the application in question was refused; or
(ii) within
such extended period as may on an application accompanying that
petition, for good cause shown, be allowed.
(3)
(a) If more than one application referred to in subsection (1) relate
to the same matter, they should, as far as is possible,
be dealt with
in the same petition.
(b)
An accused who submits a petition in terms of subsection (2) must at
the same time give notice thereof to the clerk of the lower
court
referred to in subsection (2) (a).
(4)
When receiving the notice referred to in subsection (3), the clerk
of the court must without delay submit to the registrar of
the High
Court concerned copies of-
(a) the
application that was refused;
(b) the
magistrate's reasons for refusal of the application; and
(c) the
record of the proceedings in the magistrate's court in respect of
which the application was refused: Provided that-
(i) if
the accused was tried in a regional court and was legally represented
at the trial; or
(ii) if
the accused and the Director of Public Prosecutions agree thereto; or
(iii) if
the prospective appeal is against the sentence only; or
(iv) if
the petition relates solely to an application for condonation, a copy
of the judgment, which includes the reasons for conviction
and
sentence, shall, subject to subsection (6) (a), suffice for the
purposes of the petition.
(5)
(a) A petition contemplated in this section must be considered in
chambers by a judge designated by the Judge President: Provided
that
the Judge President may, in exceptional circumstances, at any stage
designate two judges to consider such petition.
(b)
If the judges referred to in the proviso to paragraph (a) differ in
opinion, the petition must also be considered in chambers
by the
Judge President or by any other judge designated by the Judge
President.
(c)
For the purposes of paragraph (b) any decision of the majority of the
judges considering the petition, shall be deemed to be the
decision
of all three judges.
(6)
Judges considering a petition may-
(a)
call for any further information, including a copy of the record of
any proceedings that was not submitted in terms of the proviso
to
subsection (4) (c), from the magistrate who refused the application
in question, or from the magistrate who presided at the trial
to
which any such application relates, as the case may be; or
(b) in
exceptional circumstances, order that the petition or any part
thereof be argued before them at a time and place determined
by them.
(7)
Judges considering a petition may, whether they have acted under
subsection (6) (a) or (b) or not-
(a)
in the case of an application referred to in subsection (2) (b)
(ii), grant or refuse the application; and
(b)
in the case of an application for condonation, grant or refuse the
application, and if the application is granted-
(i) direct
that an application for leave to appeal must be made, within the
period fixed by them, to the court referred to in
section 309B
(1);
or
(ii) if
they deem it expedient, direct that an application for leave to
appeal must be submitted under subsection (2) within the
period fixed
by them as if it had been refused by the court referred to in
section
309B
(1); and
(c)
in the case of an application for leave to appeal, subject to
paragraph (d), grant or refuse the application; and
(d)
in the case of an application for further evidence, grant or refuse
the application, and, if the application is granted the judges
may,
before deciding the application for leave to appeal, remit the matter
to the magistrate's court concerned in order that further
evidence
may be received in accordance with
section 309B
(5).
(8)
All applications contained in a petition must be disposed of-
(a)
as far as is possible, simultaneously; and
(b)
as a matter of urgency, where the accused was sentenced to any form
of imprisonment that was not wholly suspended.
(9)
Notice of the date fixed for any hearing of a petition under this
section, and of any place determined under subsection (6) for
any
hearing, must be given to the Director of Public Prosecutions
concerned, or to a person designated by him or her, and the accused.’
The Natal Full
Bench judgment in
Shinga
[22] After this matter
had been referred for the hearing of the constitutional issue before
two judges, it came to our notice that
the constitutionality of
sections 309(3A)
,
309B
and
309C
of the
Criminal Procedure Act had
been considered in a judgment of a Full Bench of the Natal Provincial
Division in
Shinga and The Society of Advocates (Pietermaritzburg
Bar) v The State,
Appeal No AR 969/2004, delivered on 3 August
2006.
[23] We may point out
that the question of the constitutionality of the provisions of
section 309(3A)
of the
Criminal Procedure Act, which
deal with the
disposal in chambers of appeals from the lower courts, was also
considered in the
Shinga
judgment. That issue is, however,
not before us as all criminal appeals in this Division are, as a
matter of course, heard in open
court.
[24] The Natal Full Bench
decided in
Shinga
that the 2004 versions of
sections 309B
and
309C
did not adequately address the deficiencies in the 1999 versions
of these sections and the criticism levelled against them by the
Constitutional Court in
Steyn.
The disadvantages to a
convicted person wishing to appeal, the Full Bench held, especially
an unrepresented applicant, have not been
removed. These procedures
limit the rights of an accused person in terms of section 35(3)(o) of
the Constitution and such limitation
could not be justified in terms
of section 36 of the Constitution. Sections 309B and 309C were
accordingly declared invalid (together
with section 309(3A)), and the
matter was referred to the Constitutional Court for confirmation.
[25] We have been
informed that the question of the confirmation of the
Shinga
decision has been enrolled for hearing in the Constitutional Court on
14 November 2006. We have had sight of the heads of argument
that
have been filed to date in the
Shinga
matter in the
Constitutional Court. Counsel for the
amicus curiae
(The
Society of Advocates (Pietermaritzburg Bar)) and counsel representing
the Director of Public Prosecutions in Natal support the
decision of
the Natal Full Bench that sections 309B and 309C of
Criminal
Procedure Act are
inconsistent with the Constitution. Counsel
representing the Minister of Justice and Constitutional Development
defend the validity
of the legislation in question. They contend, in
summary, that the abolition of these sections will lead to an
unacceptable clogging
of the court rolls with unmeritorious appeals.
[26] In view of the
pending hearing of the
Shinga
matter in the Constitutional
Court we had to decide whether to proceed with the present hearing or
not. It would have been convenient
to wait for the decision of the
Constitutional Court in
Shinga
which might provide clarity on
some of the issues raised before us
.
It appeared to us,
however, that it would be unfair to the applicants to cause any
further delay in the determination of the applications
before us.
The applicants are incarcerated and obviously wish to prosecute their
intended appeals. We accordingly proceeded with
the hearing of the
constitutional issue.
The principal
contentions advanced in this court
[27] In a most helpful
argument the
amici curiae
emphasised two vital aspects of the
context in which the constitutionality of
section 309C
of the
Criminal Procedure Act falls
to be determined. They pointed to the
remarks of Madlanga AJ, in paras [13] to [22] of
Steyn,
on the
institutional context, summarised by him in the statement in para
[22] that ‘
the risk of an error leading to an injustice is
substantially greater in the magistrates' courts than in the High
Courts.’
These remarks, they submitted, are as valid today as
they were in 2000.
[28] The second vital
aspect, the
amici
submitted, is the reality of the extent of
legal aid assistance today. Despite the clear wording of section
35(2)(g) of the Constitution
(which provides that an accused person
has the right ‘
to have a legal practitioner assigned to [him] by
the state and at state expense, if substantial injustice would
otherwise result”)
, it is apparent from the provisions of the
2002 Legal Aid Guide, as amended by Circular 2 of 2006, dated 1 April
2006, that the actual
provision of legal aid in a particular case is,
apart from a means test, subject to the Legal Aid Board’s own
screening process.
I revert to this aspect hereunder.
[29] The
amici curiae
did not contend that any limitation of an accused person’s
right of appeal by means of a leave to appeal procedure would
per
se
be invalid. They pointed to the following remarks of Madlanga
J in para [25] of
Steyn
:
‘
A
highly restrictive form of appeal is not appropriate where, as in the
magistrates' courts, the margin of error is greater. In my
view the
procedure under consideration is highly restrictive. The
unsatisfactory features of the ss 309B and 309C procedure discussed
above make it unsuitable for the purpose envisaged in the
Constitution, in that the procedure does not accord with an adequate
reappraisal
and the making of an informed decision. Obviously, the
automatic right of appeal, the right recently displaced by the
impugned sections,
satisfies the constitutional prescripts. I want
to make it clear that there is no intention to suggest that
Parliament may not
come up with an appeal procedure that falls short
of the automatic right of appeal, but still satisfies the
constitutional requirement
of fairness or is justified in terms of
the Constitution. Of course, that is something that will be
considered if and when it arises.’
[30] The
amici curiae
submitted, however, that any qualification or limitation (such as the
procedures presently under consideration) would only be justifiable
if (i) it is motivated by considerations justifying the limitation
and (ii) is not more limited as would be reasonably necessary.
They
submitted that two essential features of the qualifications contained
in the 2004 version of section 309C do not pass either
of these
tests.
[31] The first
objectionable feature is that the present procedure envisages that a
petition would in the normal course of events
be considered by a
single judge in chambers. The
amici curiae
submitted that the
consideration of the petition in chambers would not necessarily
violate the petitioner’s right to a fair trial
but the procedure
should ensure that the hearing in chambers is as meaningful as
possible. They submitted accordingly that a petition
for leave to
appeal should, as a matter of course, be determined by two judges.
The benefit of two minds, as opposed to one, being
applied to the
same factual and legal issues, speaks for itself, particularly in
marginal cases. The
amici
also submitted that these two
judges should have a wide discretion to refer matters for oral
argument. That discretion should not
be confined, as it is at
present, to
‘exceptional circumstances’.
[32] The second
objectionable feature, the
amici curiae
submitted, is that in
terms of the present procedure inadequate material may be made
available to the judge upon which the decision
to grant or refuse
leave to appeal is to be taken. An
‘adequate reappraisal’
and
‘informed decision
’ in respect of the application for
leave to appeal depends upon adequate information being available to
the judges. The full record
should therefore as a matter of course
be placed before the judges and not be excluded in the four specific
situations described
in the proviso to sub-section 309C(4)(c), namely
(i) if
the accused was tried in a regional court and was legally represented
at the trial; or
(ii) if
the accused and the Director of Public Prosecutions agree thereto; or
(iii) if
the prospective appeal is against the sentence only; or
(iv) if
the petition relates solely to an application for condonation,’
The definition of these
four exceptional categories, they submitted, is in any event not
logically or practically justifiable. In
a typical case, for
example, such as that of first and second applicants in this matter,
a convicted person might have had legal
representation at the trial
but by the time a petition is to be launched to the High Court, he
may be without legal aid assistance.
[33] Mr Gerber appeared
on behalf of third to six applicants. He also attacked the
constitutionality of the section 309C procedure
and he associated
himself with the submissions advanced by the
amici curiae.
[34] Mr Tarantal,
appearing on behalf of the Director of Public Prosecutions, defended
the constitutionality of the 2004 version of
section 309C. He
submitted that this procedure adequately addresses the concerns
raised by the Constitutional Court in
Steyn.
He annexed a
number of documents to his heads of argument in order to support the
submissions advanced by him. These documents included
a number of
the submissions made to the Parliamentary Portfolio Committee on
Justice and Constitutional Development in 2002 when
the legislation
in question was considered by it. According to Mr Tarantal it is
apparent from these submissions that the proposed
legislation was
welcomed by a number of interested parties. He also referred to
various statistics in respect of the numbers of
criminal appeals
heard by the courts and submitted that a screening mechanism is
necessary to eliminate unmeritorious appeals. Resource
related
constraints, he submitted, make it practically impossible to
introduce a less restrictive screening mechanism.
Conclusions on the
constitutionality of section 309C
[35] We pointed out above
that we have decided to deal with the applications before us on an
urgent basis. We accordingly do not
propose to provide elaborate
reasons for our decision. We intend to summarise our conclusions in
regard to the constitutional issue
and to provide brief reasons for
those conclusions.
[36] Our conclusions in
regard to the constitutionality of section 309C are twofold. The
first is that we are not persuaded that
any leave to appeal procedure
would necessarily be invalid. There may well be substance in the
general submission advanced by Mr
Tarantal (and by the Minister in
the
Shinga
matter) that an unqualified right of appeal may
lead to an unacceptable proliferation of unmeritorious appeals.
[37] Our second
conclusion, however, is that the present procedure, as contained in
the 2004 version of section 309C, is indeed unconstitutional.
It
would be convenient to discuss the reasons for this conclusion under
three headings, namely legal representation, the single
judge
consideration procedure and the question of the full record.
Legal
representation
[38] We agree entirely
with the contention advanced by the
amici curiae
that the
validity of any leave to appeal procedure can only be judged in the
context of the realities regarding the availability of
legal
representation to accused persons at the time when they apply for
leave to appeal. In para 7.7 of the affidavit filed on behalf
of the
Minister in the
Shinga
case it is said in unqualified terms
that
‘legal aid is made available to those accused deserving
such aid in respect of appeals’.
The material before us,
however, does not support this statement.
[39] We referred above to
para 1.3.3 of the Legal Aid Guide as amended by Circular 2 of 2006
dated 1 April 2006. It appears that
‘where leave to appeal has
not been requested timeously’
legal aid
will only be
granted if
‘there is a reasonable chance that condonation for
the late filing will be granted taking into consideration the reason
for the
delay in applying for leave to appeal and the chances of
success on appeal’.
The Legal Aid Board therefore applies its
own screening process.
[40] It is not clear to
us on what factual material the Legal Aid Board’s screening
criteria are applied, nor what their effect
is in practice. Part of
the factual material placed before us is a report, dated 19 March
2003, which the Legal Aid Board submitted
to the Justice Portfolio
Committee on the subject of criminal appeals. According to this
report the Legal Aid Board received 5 895
applications for legal aid
for criminal appeals during the period 1 January 2002 to 28 February
2003. Of these applications 4 075
were granted. In our view these
statistics are telling. It means, in effect, that about one out of
every three applicants that
applied for legal aid, was unsuccessful.
[41] Annexure ‘MS17’
to the affidavit filed on behalf of the Minister in the
Shinga
matter is a report entitled
‘Statistical Evidence on the Impact
of Appeals on the Administration of Justice: September 2003’.
We
do not propose to discuss these statistics in detail. We do wish to
point out, however, that what has
not
been measured is the
impact of the denial of legal aid to prospective appellants. It is
apparently assumed that those accused persons
who are denied legal
aid and do not pursue their appeals in person, are to be regarded as
unmeritorious
appellants
.
What has
not
been
measured is the number of potential appellants that give up because
they do not qualify for legal aid.
Nor
has the number of
appellants in person whose appeals are struck from the rolls because
they have not complied with the rules relating
to the prosecution of
such appeals, been measured.
[42] The unfortunate
position of the unrepresented accused lay at the heart of the
Constitutional Court’s decisions in
Ntuli
and
Steyn
.
The petitions which first and second applicants filed in the present
case are vivid illustrations before us that the problem has
not yet
been adequately addressed. Until it has been addressed the remarks
made in these decisions of the Constitutional Court remain
valid.
Consideration of
the petition by a single judge
[43] We agree with the
contention advanced by the
amici curiae
that a petition for
leave to appeal should, as a matter of course, be considered by
two
judges
and not only one judge. It is difficult to understand the
reasons for introducing the one judge procedure. The 1999 version of
section 309C that was considered in
Steyn
provided for a
consideration of the petition by two judges. This provision was
found to be unconstitutional and, on our understanding
of the
judgment, nothing was said therein that could be interpreted as an
indication that a one judge procedure
would
be regarded
as acceptable.
[44] The decisions of the
Constitutional Court in
S v Rens
1996 (1) SA 1218
(CC) and S
v Twala (South African Human Rights Commission Intervening
)
[1999] ZACC 18
;
2000
(1) SA 879
(CC) are also relevant. In both cases the Constitutional
Court was required to consider the constitutionality of section 316,
read
with
s 315(4)
, of the
Criminal Procedure Act 51 of 1977
. They
afford a right of appeal against conviction or sentence to any person
convicted of a crime in a High Court only if that person
has been
granted leave to appeal by either that Court or the Supreme Court of
Appeal. In
Rens
these provisions were evaluated against, and
held to be consistent with, the provisions of s 25(3)(h) of the
Interim Constitution
(the Constitution of the Republic of South
Africa Act 200 of 1993), which provided for every accused person to
have a right to a
fair trial which included the right to have
recourse by way of appeal or review to a higher Court.
[45] In
Twala
the
constitutionality of the leave provisions were considered with
reference to equivalent provisions in the Constitution, namely
s
35(3)(o), which accords to every accused person the right to a fair
trial including the right
'of appeal to, or review by, a higher
court'.
[46] In
Rens
the
court placed considerable emphasis on the fact that any accused
person may, upon being refused leave to appeal by the High Court,
petition the Chief Justice for such leave; that the Chief Justice
must appoint two judges to consider the petition and that a third
judge must be appointed if those appointed initially do not agree.
See the reasoning in para [23] of the judgment:
‘
[23]
Section 316(1)(b) of the Act gives the convicted person two bites of
the cherry. On being convicted and sentenced, the accused
person has
an opportunity of approaching the trial Court and seeking leave from
that Court to appeal against the conviction or sentence,
or both. If
the application is refused, the person may then seek leave to appeal
from the Chief Justice by way of petition. The Chief
Justice is
required to refer the matter to two members of the Appellate
Division. Procedural irregularities and points of law are
taken care
of by ss 317-319 in terms of which the accused person is given an
extensive right to appeal and, if leave is refused,
the opportunity
of placing such issues before two Judges of the Appellate Division
through the petition procedure. In all petitions,
whether under s 316
or ss 317-319, if the two Judges of the Appellate Division fail to
agree, a third member of the Appellate Division
is assigned to the
case. The prescribed procedures make provision for argument to be set
out in writing in the petition. In terms
of the Act, the Judges of
the Appellate Division to whom the petition is referred may call for
further information from the trial
Judge or the Judge who heard the
application for leave to appeal, and may also call for oral argument
on the application for leave
to appeal, or refer the matter to the
Appellate Division for its consideration. The Judges of the Appellate
Division will refuse
the leave sought only if they are satisfied that
there are not reasonable prospects of success on appeal.”
This aspect of the
judgment was commented upon in para [20] of the
Twala
judgment:
‘
[20]
The Rens judgment places considerable store on the fact that any
accused person may, upon being refused leave to appeal by the
High
Court, petition the Chief Justice for such leave; that the Chief
Justice must appoint two Judges to consider the petition in
terms of
ss 316, 317 or 319 of the Act; and that a third Judge must be
appointed if those appointed initially do not agree.’
[47] The version of
section 309C in the Bill that was considered by the Parliamentary
Portfolio Committee on Justice and Constitutional
Development
(annexure ‘MS11A’) provided for a consideration of the petition
by two judges. The reason for changing it to one
judge is not clear
to us.
[48] We are accordingly
of the view that the provision in sub-section 309C(5)(a) for the
consideration of the petition by a single
judge, as opposed to two
judges, is a fundamental defect in the 2004 version of section 309C.
For that reason alone the section
is inconsistent with an accused
person’s constitutional right to a fair trial.
The full record
[49] We also agree with
the submission by the
amici curiae
that a full record of the
proceedings in the lower court should as a matter of course be placed
before the judge or judges considering
the petition. The provision in
sub-section 309C that the judge considering a petition may call for a
full record of the proceedings,
does not, in our view, ensure that
‘an adequate reappraisal and the making of an informed decision’
will take place.
[50] There is a further
practical consideration. If the judges are to consider the petition
first and then call for a full record
of the proceedings there will
be an inevitable delay and inconvenience to the judges concerned as
they would have to suspend their
own consideration of the petition
until the record is furnished to them. By then one or both of them
may be on leave or otherwise
not available to deal with the matter
expeditiously.
The relief to be
granted
[51] We have accordingly
concluded that the 2004 version of
section 309C
of the
Criminal
Procedure Act is
inconsistent with the Constitution. We have not
focused in this judgment on the provisions of section 309B but it
follows logically
that section 309B cannot stand on its own. Its
invalidity would follow from the invalidity of section 309C. The
same would apply
to the phrase,
‘subject to leave to appeal
being granted in terms of section 309B or 309C
’ in
section 309
of the
Criminal Procedure Act.
[52
] The provisions of
section 172 of the Constitution read as follows:
‘
172 Powers
of courts in constitutional matters
(1)
When deciding a constitutional matter within its power, a court-
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b) may
make any order that is just and equitable, including-
(i) an
order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an
order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct
the
defect.
(2)
(a) The Supreme Court of Appeal, a High Court or a court of
similar status may make an order concerning the constitutional
validity of an Act of Parliament, a provincial Act or any conduct of
the President, but an order of constitutional invalidity has
no force
unless it is confirmed by the Constitutional Court.
(b)
A court which makes an order of constitutional invalidity may
grant a temporary interdict or other temporary relief to a party,
or
may adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of that Act or conduct.’
[53] The
amici curiae
suggested in argument that instead of merely declaring the impugned
provisions unconstitutional, this court could, through a process
of
reading in certain provisions and reading out other provisions, in
substance redraft the section in a manner that would render
it
consistent with the Constitution. In theory the suggestion is
attractive. It seems to us, however, that the question of such
redrafting should rather be left for the Constitutional Court, should
it agree with our conclusion that section 309C is invalid.
The
Constitutional Court would enjoy the benefit of additional arguments
and evidence that we have not had.
[54] We also wish to draw
attention to an aspect that was not debated before us but which may
merit consideration if section 309C
is to be redrafted. The
provisions of sections 309B and 309C do not define the test to be
applied in considering the merits of an
application for leave to
appeal. It appears to be generally accepted that the test is the
same as the test that is applied by the
High Courts and the Supreme
Court of Appeal in considering applications for leave to appeal
against decisions of the High Courts.
In such cases a reasonable
prospect of success on appeal is an essential requisite (see
S v
Rens, supra, para [7]).
There are, however, cases, emanating in
particular from the regional courts, where the records are
voluminous. The present case
falls into that category. In many
applications for leave to appeal it would therefore be a waste of
time and resources for the judges
concerned to consider the entire
record for purposes of deciding whether to grant or refuse leave to
appeal and then, if leave to
appeal is granted, be required to
consider that record again when the appeal is argued. The position
is even worse when other judges
are appointed to hear the appeal. A
solution to this problem may be to redefine the criteria for leave to
appeal in terms of sections
309B and 309C to allow for a more
pragmatic and less restrictive approach to such applications.
[55] The question then
arises as to what is to be done in respect of the six applications
for leave to appeal that are presently before
us. In view of the
delays which have already occurred, it would be manifestly unjust, so
it seems to us, to await the decision of
the Constitutional Court
before the merits of the present applications for leave to appeal are
considered. In terms of section 172
of the Constitution we have the
power to grant suitable temporary relief. In terms of
section 309
of
the
Criminal Procedure Act an
appellant would ordinarily not be
entitled to prosecute an appeal without having obtained leave to
appeal. It seems to us that the
temporary relief that we are
empowered to grant to the applicants in this case is an order that
their applications for leave to appeal
be argued with reference to
the entire record before two judges and that they be permitted in the
meanwhile to prosecute their intended
appeals in such a manner that
the appeals can be heard in the same forum and at the same time as
the applications for leave to appeal.
We propose to make such an
order.
[56] In the result we
make the following orders:
(a) It is declared that
sections 309B
and
309C
of the
Criminal Procedure Act, and
the
reference to them in
section 309(1)(a)
, are invalid as they are
inconsistent with the Constitution.
(b) This matter is
referred to the Constitutional Court for consideration of the
confirmation of the above order.
(c) It is ordered that
applicants’ applications for leave to appeal be argued with
reference to the entire record of the proceedings
in the regional
court before two judges and that applicants be permitted in the
meanwhile to prosecute their intended appeals in
such a manner that
the appeals can be heard in the same forum and at the same time as
their applications for leave to appeal.
-------------------------
A P BLIGNAULT
Allie J:
I agree.
------------------------
R ALLIE