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[2000] ZACC 24
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S v Steyn (CCT19/00) [2000] ZACC 24; 2001 (1) BCLR 52 (CC); 2001 (1) SA 1146 (CC); 2001 (1) SACR 25 (CC) (29 November 2000)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 19/00
HANS JURGENS
STEYN Applicant
versus
THE STATE Respondent
Heard
on : 22 August 2000
Decided on : 29 November
2000
JUDGMENT
MADLANGA AJ:
Introduction
[1]
This Court has held that the
requirement of first seeking leave to appeal before lodging an appeal against a
conviction or sentence
in a high court is not inconsistent with the
constitutionally guaranteed right of
appeal.
[1]
The present case requires
us to decide on the constitutionality of provisions which introduce a similar
requirement for appeals
from magistrates’ courts. More specifically, we
are called upon to decide whether the provisions of sections 309B and 309C
of
the Criminal Procedure Act 51 of 1977 (the Act) are inconsistent with section
35(3)(o) of the Constitution which provides that
“[e]very accused person
has a right to a fair trial, which includes the right . . . of appeal to, or
review by, a higher court.”
[2]
In substance section
309B
[2]
of the Act stipulates that an
appeal against a conviction or sentence in a magistrate’s court can be
lodged only after leave
has been obtained from that court. If leave be refused,
section 309C
[3]
provides for a
petition to the appropriate high court for leave to
appeal.
The facts
[3]
The applicant and an
amicus curiae
[4]
were convicted
of serious offences and sentenced to substantial terms of imprisonment in
separate proceedings in the regional court
sitting in Pretoria. They each
sought leave from the regional court to
appeal
[5]
to the high court in terms
of section 309B of the Act. Their applications were dismissed. The petitions
which they subsequently
lodged with the Judge President of the Transvaal High
Court in terms of section 309C of the Act were also unsuccessful. The applicant
thereupon sought and was granted direct access to this Court to make the
constitutional challenge mentioned in paragraph 1
above.
The issues
[4]
The applicant contends that
the leave to appeal and petition procedure created by sections 309B and 309C
denies him the right to a
full and meaningful hearing by a higher court. He
points to the fact that prior to the introduction of these provisions there was
an unconditional right of appeal on the full trial record with full oral
argument. By contrast, the right to appeal is now conditional
upon leave
granted either by the magistrate or on petition. The applicant further argues
that an accused person convicted by a magistrate
and thereafter refused leave to
appeal by such magistrate, and whose petition is subsequently refused by a high
court, has no access
at all to the Supreme Court of Appeal, not even by way of
petition to the Chief Justice. In response to this, Mr d’Oliveira
for the
respondent submitted that, in terms of sections 20(4) and 21 of the Supreme
Court Act 59 of 1959, access to the Supreme Court
of Appeal by way of petition
is possible. I shall consider this submission
below.
[5]
In
Rens
and
Twala
[6]
what was in issue was
the constitutionality of the leave to appeal procedure, in respect of high court
trials, provided for in section
316 read with section 315(4) of the Act. This
Court held that the approach to the Supreme Court of Appeal by way of petition,
when
leave to appeal has been refused by a high court, satisfies the
constitutional right of appeal. The test laid down in those cases
was whether
the available procedure ensures that the higher court will be in a position to
make an informed reassessment of the issues
raised.
[7]
Because leave to appeal is
required in both courts, the temptation is to conclude, as did Mr
d’Oliveira in his argument in
this Court, that the magistrates’
courts’ leave to appeal procedure also complies with section 35(3)(o).
The question
is: does it? I propose to deal with this under two headings: the
nature of the magistrates’ courts’ leave to appeal
procedure; and
the institutional context.
The nature of the
magistrates’ courts’ leave to appeal procedure
[6]
The test of “adequate
reappraisal . . . and [the making of] an informed decision” was first
enunciated in
S v Ntuli.
[8]
Ntuli
was concerned, among others, with the question whether the
provisions of section 309(4)(a) read with section 305 of the Act were
inconsistent with the right of appeal then contained in section 25(3)(h) of the
interim Constitution. The effect of the two sections
was to allow the
prosecution of an appeal, in person, by a person serving a term of imprisonment
after having been convicted by a
magistrate’s court, only if such person
had first obtained a certificate from a judge that there were reasonable grounds
of
appeal. Didcott J said:
“The requirement that a Judge’s certificate has to be obtained
obviously operates, in each case hit by it, as a restriction
on the full access
to the Supreme Court which is enjoyed by those who are free to prosecute their
similar appeals to finality and
usable for the determination of the appeals
themselves. That is not, however, the end of the matter. The question which we
must
answer is this. Does a prisoner seeking a certificate exercise his or her
constitutional right ‘to have recourse by way of
appeal or review to a
higher Court’ in that very application, by means of that very application,
and irrespective of its result?
Does the requirement itself cater sufficiently,
in other words, for such ‘recourse by way of appeal or review’?
That
phrase sounds rather vague. But the minimum that it envisages and implies,
I believe, is the opportunity for an adequate reappraisal
of every case and an
informed decision on
it.”
[9]
He
made other observations which in my view are helpful in the determination of
this matter. At paragraph 12 of the judgment he said
the following:
“It does not follow in my opinion that, if leave to appeal is a condition
compatible with s 25(3)(h), the same must necessarily
go for Judges’
certificates. For the similarities between the two mechanisms are accompanied
by a difference important enough,
as I view it, to distinguish the one from the
other.”
[10]
[7]
After setting out the
distinguishing features between the two procedures, Didcott J concluded at
paragraph 16 of the judgment:
“[The procedure requiring judges’ certificates], one therefore sees,
is unsystematic and works in a haphazard way. It
exposes the process to the
real danger that appeals which deserve to be heard are stifled because their
merits never attract judicial
attention. The inherent likelihood of some worthy
appeals suffering that fate surely speaks for itself. The number of cases where
it actually happens is unascertainable, but may well be substantial. . . . [W]e
must apply our minds to the constitutional tolerability
of the statutory
provision in point which, by neglecting to regulate the process, opens the door
to such a state of affairs.”
[8]
I must turn to examine the
leave procedure in the magistrates’ courts to determine whether it too
lends itself to similar criticism.
[9]
After the refusal of leave
to appeal by a magistrate, all that the clerk of a magistrate’s court is
required to submit to the
high court for consideration, along with the petition,
are copies of the refused application for leave and the magistrate’s
reasons for refusing the
application.
[11]
This is a bare
minimum of information that is to be placed before the judges who consider the
petition. Not even the judgment sought
to be appealed against (or reasons for
it)
must
be lodged with the high court. Of course, there is nothing
preventing the petitioner from annexing a copy of those reasons to the
petition.
This will generally not be done, however, if the petitioner is not represented
by a lawyer. Often the judgment refusing
leave is not helpful at all. It does
not explain why, on the available facts, the magistrate was satisfied with the
proof of guilt
or imposed the particular sentence. The present application
illustrates this point. This is all that the magistrate said in refusing
leave:
“Hierdie hof is van oordeel dat ’n ander hof nie tot ander bevinding
sal kom as wat hierdie hof geraak het nie en die
aansoek om verlof word van die
hand
gewys.”
[12]
This
should be contrasted with rule 6 of the rules of the Supreme Court of Appeal
which provides for the furnishing of significantly
more material for
consideration by the judges of appeal, including a copy of the judgment sought
to be appealed against.
[13]
[10]
In
Ntuli
Didcott J
concluded that the high court leave to appeal procedure conduces to the placing
of sufficiently detailed information before
the then Appellate Division and that
this establishes a proper framework for the consideration of petitions. He went
on to say:
“The judges handling each [petition] are furnished as a matter of course
with the basic information which pertains to it.
From that they can tell
whether they have enough material by then to assess the prospects of success on
appeal and may safely proceed
to do so, or whether more is needed and had better
be gathered first. They can see, in particular, how helpful or not they might
find it to obtain and study either the entire record of the trial or some
selected excerpts, with special reference to the passages
cited in the
petition.”
[14]
[11]
In my view the paucity of
information, which in terms of section 309C(3) must be lodged with the high
court, does not allow for an
adequate reappraisal and the making of an informed
decision on the application. This situation is not much improved by the
provisions
of section 309C(5) which make it possible for the judges considering
a petition to call for further information. The language of
these provisions is
permissive. As a result, some judges may insist on the production of the
record. Others may not. Once again
the observations of Didcott J in
Ntuli
are in point:
“No uniform practice prevails there. Some judges obtain the record
habitually, once the case is not the sort where the information
already
available satisfies them that a certificate should be granted straight away.
Others do so rarely, being content by and large
to rely rather on the
magistrate’s account of the trial. The refusal of a certificate on that
footing worries one. Those
judges who do not read the record will have no means
of knowing whether the evidence substantiated the findings made by the
magistrate
on the credibility of witnesses and other factual issues. They will
not learn of any procedural irregularities that may have marred
the trial.
Nothing dispels their ignorance on those scores. Nothing alerts them to flaws
in the magistrate’s findings or
conduct of the proceedings which are
hidden for the time being but the record may in due course reveal. No petition
prepared by
counsel is there to guide them in that direction. Nor is the
possible presence of such defects likely to have been mentioned either
by the
prisoner or even by the magistrate, the one oblivious to the true character of
the features in question, the other failing
to attribute any such character to
them.”
[15]
[12]
The situation of an accused
person, wanting to appeal from a magistrate’s decision, is very much less
favourable than one who
seeks to appeal against a conviction or sentence in a
high court. When an unrepresented accused wants to appeal, after being
convicted
and sentenced in the magistrate’s court, the task of presenting
a properly formulated application to the trial court for leave
under section
309B will probably prove insurmountable. Then there is the even more formidable
barrier of drafting a petition to
the high court for leave to appeal. The
remarks of Didcott J in
Ntuli
, though made in a different context, are
singularly apposite:
“The typical product of such efforts, a product familiar to all with
experience of it and hardly surprising in view of its
source, is a rambling and
incoherent commentary on the trial which misses points that matter, takes ones
that do not, and scarcely
enlightens the judge about
any.”
[16]
The
fact that the petition may — and on the ordinary procedure envisaged by
the statute will — be considered in the absence
of the record exacerbates
the situation.
[17]
In this regard
the points made by Didcott J in
Ntuli
are highly
pertinent.
[18]
There is too great a
risk under this procedure that a genuine miscarriage of justice will not be
picked up.
The institutional context
[13]
In its narrower
sense,
[19]
the object of the right
to a fair trial contained in section 35(3) is “to minimise the risk of
wrong convictions” and
inappropriate sentences “and the consequent
failure of justice”.
[20]
This
object pervades all stages of a trial until the last word has been said on
appeal. In determining what is fair, the context
or prevailing circumstances
are of primary importance — there is no such thing as fairness in a
vacuum. By “context”
I am referring to such prevailing facts and
circumstances as may have a bearing on the content given to a constitutional
right.
Examples of such facts and circumstances might be socio-economic,
political, financial, as well as other resource-related considerations.
In
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and
Others
Ackermann J said:
“[I]t is salutary to bear in mind that the problem cannot be resolved in
the abstract but must be confronted in the context
of South African conditions
and resources — political, social, economic and human. . . . One
appreciates the danger of relativising
criminal justice, but it would also be
dangerous not to contextualise
it.”
[21]
[14]
Without suggesting that
this Court was anticipating how the issue under consideration in this matter
should be disposed of, a
dictum
by Madala J in
Rens
[22]
is of relevance in
this regard. It is this:
“The fact that appeals from the Supreme Court are treated differently from
appeals from the magistrates’ courts is due
to differences in the standing
and functioning of the
courts.”
[23]
In
my view the high courts and magistrates’ courts are not only significantly
different in the two respects mentioned by Madala
J but also in terms of human
and material resources, participation by legal representatives and other
relevant considerations. It
then follows that the context in which the fairness
of the procedure must be judged is different. This in itself may be a
sufficient
basis for concluding that, even though the leave to appeal and
petition procedure meets the test for fairness in respect of high
courts, it
does not do so at the level of magistrates’ courts. Put in another way,
this difference may necessitate distinguishing
the instant case from
Rens
and
Twala
.
[15]
The point of principle is
not so much that high courts and magistrates’ courts function differently
or that there is a difference
in their standing. Those are merely external
signs of the fact that they are inherently different. Since 1656 there has been
a
high court in South Africa,
[24]
and since 1682 a two-tier system of lower and superior
courts.
[25]
As colonisation spread
to the interior, this two-tier system was extended to the whole of what is today
the Republic of South Africa.
[26]
By the time of Union in 1910 there was, in each of the component colonies, an
established system of one or more superior courts
exercising both original
jurisdiction in civil and criminal matters and appellate/review jurisdiction
over lower courts, which exercised
circumscribed and lesser civil and criminal
jurisdiction. The superior courts were seen to have inherent jurisdiction to
grant relief
where the law recognised a right. By contrast, the powers of lower
courts were confined to those afforded them by statute. They
were, as the
expression went, creatures of statute.
[16]
This dichotomy was
reinforced by the South Africa
Act,
[27]
which created the Supreme
Court of South Africa and gave it, through its several provincial and local
divisions, original jurisdiction
over the whole of the country. Subsequent
South African legislation was consistent with that
pattern.
[28]
The interim
Constitution recognised and reinforced this historical hierarchy in chapter 7,
which dealt with the judiciary, and the
distinction was carried through to
chapter 8 of the final Constitution. In the result, we do not only have
different levels of courts
but courts that are historically and inherently
different. Section 173 of the Constitution decrees that the Constitutional
Court,
Supreme Court of Appeal and high courts have inherent power to protect
and regulate their own process, and to develop the common
law, taking into
account the interests of justice, but contains no corresponding provision
regarding magistrates’ courts.
Also, subsections (6) and (7) of section
174 of the Constitution deal separately and differently with the appointment of
judges and
the appointment of other judicial officers. Likewise the
remuneration and removal provisions of the Constitution in relation to
judges
distinguish them from other judicial
officers.
[29]
[17]
A structure in which lower
courts deal with relatively less serious criminal and civil cases, subject to
recourse to higher courts
which also have original jurisdiction in heavier
cases, is recognised in numerous jurisdictions around the world: municipal
courts,
district courts, magistrates’ courts, county courts, and so
forth.
[30]
The basic idea is that
the bulk of comparatively less serious judicial work should be performed at the
lower level(s) as inexpensively
and expeditiously as possible, while it is left
to higher courts to ensure quality control and to cope with more involved work.
It is so that, with the incremental increase of their jurisdiction over time,
magistrates’ courts in South Africa do hear serious
matters as
well.
[18]
In this country the lower
courts play an indispensable role, ordinarily functioning under great pressure.
A criminal court magistrate’s
lot is unenviable: a heavy case load,
numerous postponements and consequent part-heard matters, long hours, difficult
working conditions,
relatively inexperienced legal practitioners, interpreters
and investigating officers, rudimentary library facilities, and an often
unsavoury physical working environment. A particularly stressful feature of
such a magistrate’s task is the high percentage
of accused persons who do
not have the benefit of legal representation and who often have language
problems and cultural and educational
difficulties in presenting a passable
defence.
[31]
The whole scene
differs radically from the high courts where, as Yacoob J observed in
Twala
,
[32]
undefended accused
are usually such from choice. The high court case load is usually lighter, the
human and material support resources
considerably better, and the general
atmosphere infinitely more conducive to fair judicial
proceedings.
[19]
The need for control in
order to ensure qualitative justice is underscored in South Africa by the system
of automatic review whereby
the records of certain criminal proceedings against
undefended accused persons in the magistrates’ courts are routinely
submitted
— and have been for some 150
years
[33]
— to judges of the
high court for assessment as to whether or not substantial justice had been
done.
[34]
It is a system of
judicial supervision whereby high court judges, sometimes acting with the
assistance of the local office of the
prosecuting authority, try to minimise the
incidence and consequences of mistakes in the district magistrates’
courts. The
system is a manifestation of the hierarchical structure and
functioning of high courts and lower courts. The records of automatically
reviewable cases are speedily prepared and transmitted for perusal by judges in
chambers, who have to satisfy themselves, from a
perusal of the record together
with such additional information or evidence as may be required from the
magistrate, that the proceedings
are in accordance with justice. The system was
originally introduced, and has been maintained since, to minimise the risk of
wrong
convictions or unjust sentences. Nothing of the kind has ever existed in
relation to high courts.
[20]
Indeed, it is an integral
function of a superior court to exercise an entirely different kind of review
jurisdiction over the proceedings
in lower courts. High courts have the power
to review and correct the proceedings of lower courts on a variety of
grounds.
[35]
In the case of a high
court, there is no corresponding susceptibility to review. Although the Act
provides for a special entry
procedure in the case of an alleged irregularity
tainting a high court criminal
trial,
[36]
at common law high court
proceedings are not reviewable. Therefore, it is clear that institutionally
there is a much higher degree
of confidence in the regularity of high court
proceedings than is enjoyed by lower courts.
[21]
At the purely functional
level, the difference in status of our lower and high courts is evidenced by the
disparity in jurisdictional
limits. With regard to criminal jurisdiction, the
distinction is still quite marked, although there has been a consistent pattern
of increasing penal jurisdiction for the regional courts since the introduction
of these courts in 1952.
[37]
Nevertheless, the legislature manifestly still recognises a sufficiently marked
disparity in penal jurisdictions, hence the reservation
of the power to impose a
sentence of life imprisonment for certain specified crimes in terms of
section
51
of the
Criminal Law Amendment Act 105 of 1997
to high
courts.
[22]
To sum up: the risk of an
error leading to an injustice is substantially greater in the magistrates’
courts than in the high
courts.
Conclusion on
whether the procedure limits the
section 35(3)(o)
right
[23]
The inclusion of paragraph
(o) in section 35(3) of the Constitution is significant. The right conferred by
the paragraph is directed
at ensuring that there is a reasonable procedure for
correcting errors
[38]
that may have
occurred at the trial stage.
[39]
In
a substantial number of criminal cases, convictions result in prison sentences.
During its term, imprisonment brings the liberty
of the individual to a
halt.
[40]
It also impacts on the
individual’s dignity. Therefore, it cannot be overemphasised that before
this happens, there must
be procedural checks and balances of such a nature that
wrong convictions and inappropriate sentences are reduced to the barest minimum:
an appropriate reassessment mechanism is an important cog in this scheme of
things. For it to serve the desired purpose, the appeal
procedure must be
suited to the correction of error. Where (as in the magistrates’ courts)
the potential for error is greater,
the threshold of what accords with fairness
cannot appropriately be pitched at a similar level as in the procedure for
appeal from
high courts. In those foreign jurisdictions where restrictive
appeal procedures have been introduced, the restrictions have little
to do with
the self-evident truth that a less restrictive appeal procedure is more likely
to lead to the discovery of error than
a restrictive one. They have more to do
with the need to relieve appellate courts of the pressure of work brought to
bear by an
ever-increasing volume of appeal
work
[41]
and considerations relevant
to fairness, such as the need to avoid clogging appeal rolls with frivolous and
unmeritorious
appeals.
[42]
[24]
The automatic right of
appeal undeniably allows for a meaningful reappraisal and the making of an
informed decision by a higher court.
It best ensures the correction of errors.
The intrinsic advantages of an automatic appeal are that the court of appeal is
furnished
with the entire trial record and that it hears oral argument. Errors
warranting correction may be apparent from the record itself.
Oral argument
during an appeal has the benefit of giving more content to the issues to be
determined and assists in clarifying and
bringing them into sharper focus.
Harlon Leigh Dalton
says:
[43]
“By severely restricting or eliminating oral argument, appellate courts
reduce the likelihood that latent issues will be developed
and confusing issues
sorted out, that everyone’s attention will be riveted on the same question
at the same time . . . .”
In a commission report,
Brennan J is reported to have said:
“I have had too many occasions when my judgment of a decision has turned
on what happened in oral argument, not to be terribly
concerned for myself were
I to be denied oral
argument.”
[44]
The
value of oral argument is further illustrated by the experience that convictions
and sentences, that were confirmed on automatic
review in terms of section 302
of the Act, have subsequently, on occasion, been set aside on appeal. By and
large, this occurs as
a result of the crystallisation and clarification of the
issues by oral argument, something which is lacking on automatic
review.
[45]
[25]
A point alluded to above
needs emphasis. 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 sections 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.
[26]
One further argument needs
consideration. As indicated above, the applicant contended that once a high
court has refused a petition,
no recourse for further appeal exists. On the
other hand, Mr d’Oliveira submitted that the provisions of sections 20(4)
and
21 of the Supreme Court Act 59 of 1959 permit an applicant, who has been
unsuccessful before a high court, to seek leave to appeal
against that decision
from the judge and, if that fails, to petition the Chief Justice for leave to
appeal. He argued, accordingly,
that the requirement entrenched in section
35(3)(o) of the Constitution is not infringed. It is not necessary to resolve
the question
of the proper interpretation of sections 20(4) and 21. I am
prepared to assume for the purpose of argument that Mr d’Oliveira
is
correct. The further application for leave to appeal and petition would also be
based on the inadequate record placed before
the high court. The inadequacies
in the procedure provided by sections 309B and 309C would, therefore, not be
cured. Furthermore,
the difficulties facing unrepresented applicants would
remain acute. They would find it difficult to identify and articulate the
grounds motivating their petition to the Supreme Court of Appeal, just as they
would to motivate a petition to a high court. Also,
an appropriate appeal
procedure must exist at the appropriate stage. Some would-be appellants may
give up before reaching the stage
of petitioning the Supreme Court of Appeal.
For these reasons, a further application for leave to appeal, followed by a
petition
to the Chief Justice, would not remedy the defects identified in
sections 309B and 309C.
[27]
For the reasons given
above, I conclude that the attenuated appeal procedure consisting in the leave
and petition procedure contained
in sections 309B and 309C, even if supplemented
by an application for leave to appeal against a high court’s refusal of
leave
and a petition to the Chief Justice, constitutes a limitation of the right
“of appeal to, or review by, a higher court”
as entrenched in
section 35(3)(o) of the Constitution.
[28]
The
amicus
supported
the applicant’s constitutional challenge and in addition advanced
contentions based on sections 9
[46]
and 34
[47]
of the Constitution.
However, in view of the conclusion to which I have come on the applicant’s
challenge under section 35(3)(o),
it is unnecessary to consider the points
raised by the
amicus
.
Justification
[29]
Mr d’Oliveira,
contending that leave to appeal from a high court and from a magistrate’s
court were analogous, and consequently
relying on the judgments of this Court in
Rens
and
Twala
,
[48]
argued that there was no violation of the section 35(3)(o) fair trial right. In
the alternative, he argued that if the challenged
provisions did indeed infringe
such right, the limitation was justifiable in terms of section 36 of the
Constitution.
[49]
[30]
The
principles to be applied in determining a question of justification under
section 36 of the Constitution are settled. The application
of section 36
involves the weighing-up of competing values on a case-by-case basis to reach an
assessment founded on proportionality.
There is no absolute standard for
determining reasonableness. It is a process that requires the balancing of
different
interests.
[50]
[31]
Mr d’Oliveira
contended that the purpose of the impugned provisions was to prevent the
clogging of appeal rolls and to ensure
that hopeless appeals did not waste
valuable court time. These are undoubtedly legitimate and important legislative
purposes which,
on the face of it, relate rationally to the limitation of the
right to appeal effected by the procedure in sections 309B and 309C.
However,
this is a matter on which evidence is important. Before meritorious appeals are
subjected to a procedure that is both
restrictive and potentially unfair, there
should be evidence or objectively determinable factors which adequately indicate
the extent
to which appeal rolls are clogged and the impact hopeless appeals
have on the equation. It is only when there is clarity on such
factors, that
rationality can be determined meaningfully. The reasonableness of the procedure
is ultimately a question of degree
and must be determined with due regard to its
wider contextual setting. What would, among others, have to be determined is
whether
a right of appeal that is consistent with the fair trial principle
— and section 35(3)(o) in particular — is
realistically
unattainable in the light of available resources in the
country.
[51]
[32]
The state has failed to
adduce any evidence on the clogging of appeal rolls, the impact of unmeritorious
appeals, and the existence
of any resource-related problems or other relevant
considerations that could justify the existence of the procedure introduced by
sections 309B and 309C. Clearly it was incumbent on the state to establish
factors that justify these limitations of the right of
appeal.
[52]
In
Ntuli
[53]
a good deal
of statistical information was submitted to this Court relating, among others,
to the number of appeals from lower courts
heard by the various high courts in
1992, 1993 and 1994, and of judges’ certificates applied for and granted.
In the present
case the state produced no such data, nor did it refer to any
objectively determinable factors that could be considered in justification
of
the challenged provisions.
[33]
On the contrary, there is a
cogent objective factor pointing in the opposite direction. The real reason for
the enactment of the
two sections appears to have been this Court’s
decision in
Ntuli.
Mr d’Oliveira conceded as much in his heads of
argument. For close on a hundred years, South African law had recognised a
right to appeal against a conviction or sentence in the magistrates’
courts, which right was qualified in one respect only.
That was the
judge’s certificate requirement struck down in
Ntuli.
[54]
The reason
for its invalidation was that it impaired the appellate component of the fair
trial right and because it discriminated
against unrepresented persons serving
prison sentences.
[55]
The
introduction of sections 309B and 309C levelled the playing field, not by
improving the position of those whom the Act had been
found to prejudice in a
constitutionally impermissible manner, but by cutting down the rights of
all.
[34]
It may well be that a less
restrictive and justifiable means of achieving the purpose contended for by the
state exists. But the
state contented itself in this case with the view that,
because the leave and petition procedure was upheld in the context of high
courts, that procedure must pass muster in the context of magistrates’
courts as well. This explains why no serious attempt
was made to justify the
infringement of section 35(3)(o) and why justification was argued almost as an
afterthought.
[56]
[35]
Where, as in the
magistrates’ courts, the margin of error is higher at the trial stage,
there would have to be a delicate balancing
exercise between allowing for a
procedure that better guarantees the correction of errors, on the one hand, and
considerations that
inform the need for a restrictive appeal procedure, on the
other. These considerations would, among others, include resources (for
example, human and financial) to which the state alluded. All require
evidence.
[36]
As pointed out above, the
effect of a criminal conviction on the liberty and dignity of the individual
makes it imperative that adequate
procedural checks and balances limit wrong
convictions and inappropriate sentences to the barest minimum. The right to
appeal is,
accordingly, of considerable importance in the achievement of a fair
criminal justice system. A leave to appeal procedure which
does not enable an
appeal court to make an informed decision on the application, and which does not
adequately protect against the
possibility of wrong convictions and
inappropriate sentences constitutes a serious limitation of the right to appeal.
In this regard
it would be as well to remember that a trial court’s
reasons for its factual findings and conclusions of law are vital to the
proper
functioning of an appeal process. The following comments by Goldstone J in
Mphahlele v First National Bank of SA
Ltd
[57]
are in
point:
“There is no express constitutional provision which requires Judges to
furnish reasons for their decisions. Nonetheless, in
terms of s 1 of the
Constitution, the rule of law is one of the founding values of our democratic
state, and the Judiciary is bound
by it. The rule of law undoubtedly requires
Judges not to act arbitrarily and to be accountable. The manner in which they
ordinarily
account for their decisions is by furnishing reasons. This serves a
number of purposes. It explains to the parties, and to the
public at large
which has an interest in courts being open and transparent, why a case is
decided as it is. It is a discipline which
curbs arbitrary judicial decisions.
Then, too, it is essential for the appeal process, enabling the losing party to
take an informed
decision as to whether or not to appeal or, where necessary,
seek leave to appeal. It assists the appeal Court to decide whether
or not the
order of the lower court is correct. And finally, it provides guidance to the
public in respect of similar matters.
It may well be, too, that where a
decision is subject to appeal it would be a violation of the constitutional
right of access to
courts if reasons for such a decision were to be withheld by
a judicial officer.”
[37]
It follows that the
justification for a limitation that entails such a disadvantage must be
compelling.
[58]
In general,
statements from the bar, with which Mr d’Oliveira contented himself,
cannot suffice. In the circumstances, the
state has failed to establish that
the section 309B and 309C procedure is reasonable and justifiable and the
alternative argument
based on section 36 of the Constitution must also
fail.
Relief
[38]
The conclusion that the
magistrates’ courts’ leave to appeal and petition procedure is
inconsistent with section 35(3)(o)
of the Constitution necessitates a
declaration that the procedure is
invalid.
[59]
That such declaration
must ensue in this case is self-evident. What is not so straightforward is
whether the declaration must take
effect forthwith. As appears from section
172(1)(b), courts deciding constitutional matters must take the dictates of
justice and
equity into account when making orders. The practical implications
for the administration of justice must also be borne in mind.
In this regard,
the court may adopt what is set out in section 172(1)(b)(i) and
(ii).
[39]
Until May 1999, when the
impugned sections became operational, the high courts were handling automatic
appeals from magistrates’
courts. As indicated under the discussion of
justification, there has been no serious suggestion by the state that automatic
appeals
were done away with because high courts could not cope with them.
Therefore, if we leave aside for a moment the implications of
automatic appeals
in respect of the
Ntuli
situation,
[60]
a declaration of
invalidity is going to place the high
courts
[61]
in the same position as
they were prior to May 1999. Under these circumstances, a declaration of
invalidity that takes effect forthwith
would be appropriate. Does the
Ntuli
situation necessitate a different
approach?
[40]
In
Ntuli
this Court
declared the certificate procedure invalid. After considering the impact that a
sudden increase in automatic appeals
would have on the courts and the need for a
new system that would adequately address that impact, the Court concluded that
it was
necessary to allow time for consideration of options and the adoption of
amending legislation.
[62]
To that
end, the declaration of invalidity was suspended until 30 April
1997.
[63]
[41]
The Department of Justice
did not use the time given to it fruitfully. The “sorry tale” of
delay that followed on the
order
is told in
Minister of Justice v
Ntuli.
[64]
A few days before
the 17 month breathing-space allowed for amendments to the Act was due to
expire, a hurried and ineffectual attempt
was made to obtain an extension of the
period from this Court. In the course of his judgment explaining the
Court’s unanimous
rejection of the application, Chaskalson P said the
following:
“[35] It was recognised in the judgment that, notwithstanding the
importance of these rights, time should be allowed to remedy
the defect in the
Criminal Procedure Act. No information
was placed before this Court at the time
of the hearing of
S v Ntuli
to suggest that the remedial steps required
in order to comply with the interim Constitution would be complicated and would
require
more than the generous period of almost 17 months allowed by the Court
for this purpose.
[36] In view of the importance of the matter, the importance of the rights
involved, and the clear indication in the Court’s
judgment that the
ongoing breach of rights would not be allowed to endure beyond 30 April 1997,
one would have expected a prompt
reaction by the Department of Justice to the
Court’s order, and that steps would have been taken as a matter of urgency
to
determine the course to be pursued to remedy the defect, and to formulate the
legislation, if any, needed for that purpose.
[37] The sorry tale of what in fact happened has already been set out and need
not be repeated. The delays were inexcusable. So,
too, was the delay in
launching the present proceedings, which were initiated only five days before
the period of suspension would
terminate, and in circumstances in which it was
not reasonably possible for a decision to be given before the period of
suspension
had expired.”
[42]
After the refusal of the
application for an extension of time, the department was faced with a dilemma.
Its response was the easy
option of introducing, and piloting through
Parliament, the leave to appeal and petition procedure now in issue. Because
that procedure
had passed muster at high court level, it was presumably assumed
that it would do likewise at the level of magistrates’ courts.
Therefore,
in order to address the
Ntuli
decision,
[65]
the department opted
for — and Parliament accepted — equal but less favourable treatment
for all. As is apparent from
my conclusion, the assumption was wrong and the
option bad.
[43]
What is also apparent is that
little heed has been paid to the serious warnings sounded by Chaskalson P in
Ntuli
(2)
[66]
that:
“. . . an essential component of the administration of justice is the
recognition of the fundamental rights of accused persons
. . . legislation must
be drafted and introduced with the sense of urgency that the situation demands.
. . [and crucially in the
present context] the importance of ensuring that all
relevant information is placed before the Court at the time of the proceedings
for a declaration of invalidity. Such information should be directed both to
the justification for the infringement, if that contention
is to be advanced,
and to the consequences that will ensue if an order of invalidity is made. More
often than not this Court has
been asked to make an order in terms of s 98(5) of
the interim Constitution [i.e. for the suspension of an order of invalidity]
without
having any information before it as to the time needed for remedial
action to be taken. . . . In future more will be required. It
is the duty of
the Minister responsible for the administration of the statute who wishes to ask
for an order of invalidity to be
suspended, whether under the interim or the
1996 Constitution, to place sufficient information before the Court to justify
the making
of such an order, and to show the time that will be needed to remedy
the defect in the legislation. This should be done with due
regard to the
importance of the fundamental rights enshrined in the Constitution, and to the
fact that it is an obligation of the
government to ensure that such rights are
upheld . . . .”
[44]
Ultimately, therefore, and
notwithstanding these pertinent observations, the Court is once again forced to
consider whether to suspend
an order of invalidity, and to do so without
adequate input by the department concerned. Nearly five years have elapsed
since the
judgment was delivered in
Ntuli
, yet nothing effective has been
done to redress the infringement of the fundamental rights of the category of
accused persons it
highlighted. Instead, their rights have been infringed
afresh by analogous and no less invasive provisions which have been imposed
on
all others convicted in the magistrates’
courts.
[45]
The question that looms
again is whether another extension of time should be allowed in the interests of
good government; and, if
so, should that decision be influenced by the same
considerations that dictated the extension in
Ntuli
? What weight, if
any, should be attached to the unsatisfactory response to the
Ntuli
decision or, rather, the lack of an adequate response? The pervading obligation
is to give meaningful content to the command in
section 7(2) of the Constitution
that “[t]he state must respect, protect, promote and fulfil the rights in
the Bill of Rights.”
That Bill, so section 8(1) of the Constitution tells
us, “applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state.” In responding to a suspended order of
invalidity relating to the Bill of Rights, the executive
and the legislature
should be alive to the fact that, until they have acted pursuant to such order,
there is a continuing infringement
of the Constitution. The infringement should
not persist longer than is strictly necessary. It is so that the suspension of
an
order of invalidity and the giving of time to address issues attendant upon
such order are sanctioned by the Constitution
itself.
[67]
However, this mechanism
is intended to avert disorders or dislocation that may arise as a result of an
immediate declaration of
invalidity. This is understandable and accords with
good governance, but the mechanism by no means sanctions tolerance for that
which has already been adjudged inconsistent with the Constitution. Even in the
face of this Court’s suspension of an order
of invalidity, it is
imperative that obligations imposed by the Constitution remain. Any
unconstitutionality must be cured “diligently
and without
delay.”
[68]
The dilatoriness
in addressing the
Ntuli
situation was incompatible with the state’s
constitutional obligations.
[46]
Even though the state has
seen fit not to furnish any hard data, we cannot ignore the probability that the
sudden increase in the
appeal rolls that will result from an immediate
declaration of invalidity, will have a major impact on our court system, the
full
ramifications of which are not immediately imaginable. It is notorious
that high courts are already overburdened and such a sudden
increase in their
workload might well prove impossible to handle. Also, the costs of the
transcription of all records will certainly
have a significant impact on
financial resources. More importantly, the additional transcription workload is
likely to result in
delays in the production of records. In turn, the ripple
effect could be that the hearing of all appeals is delayed. These are
realities
that cannot be ignored. In order to avoid dislocation in the appeal process it
seems necessary to suspend the declaration
of invalidity so that the state may
take necessary, reasonable steps to address the impact of such declaration. Of
course, because
of the previous delay after the decision in
Ntuli
, the
period of suspension must be relatively short. Also, because of the absence of
evidence from the government, there is no tangible
basis for making the period
longer. An appropriate approach is to couple a short period of suspension with
an option for the Minister
to seek an extension of the period of suspension
and/or a variation of terms accompanying the
suspension.
[47]
During the period of
suspension, and in the interests of justice and
equity,
[69]
it is necessary to
ameliorate the adverse effects of the leave to appeal and petition procedure
contained in sections 309B and 309C.
The lodging of the full trial record and
reasons for judgment when the section 309C petition serves before a high court
would go
a long way in that direction. However, if this were to be done in all
petitions, problems of costs and delays would arise. Because
of these practical
considerations it may be necessary to limit the requirement of lodging the
record and reasons for judgment. Accused
persons worst affected by the absence
of the record are those prosecuting appeals in person. It seems appropriate in
respect of
such accused persons that, in addition to the documents mentioned in
section 309C(3), the clerk of the magistrate’s court concerned
must also
submit the record of proceedings and the reasons for conviction, sentence or
both (depending on what is sought to be appealed
against). However, insisting
on the preparation and lodging of the record in all appeals prosecuted in person
may not adequately
address the practical considerations referred to
above.
[48]
A further restriction,
therefore, seems necessary, but before dealing with that, it is necessary to
deal with the implications of
section 302(1)(b) of the Act. This section
reads:
“The provisions of paragraph (a) shall be suspended in respect of an
accused who has appealed against a conviction or sentence
and has not abandoned
the appeal, and shall cease to apply with reference to such an accused when
judgment is
given.”
[70]
What
is envisaged in the section is an appeal proper, not an application for leave to
appeal. Therefore, an application for leave
to appeal does not suspend an
automatic review.
[49]
In proceedings which are
automatically reviewable in terms of section 302 of the Act the record is
prepared, as a matter of course,
for consideration by a judge or judges of the
high court. In such cases, even though the section 309C petition will be
considered
without a record, the automatic review, to a large extent, serves as
a safety valve. Purely as an interim measure, and to address
the highlighted
difficulties, the lodging of records is not necessary in reviewable
cases.
[50]
In my view something should
also be said about the imposition of fines. We cannot ignore the reality that,
because of endemic poverty,
for many in our society an option of a fine would be
a pie in the sky. To them a sentence with the option of a fine means an
effective
term of imprisonment. In the circumstances, I take the view that even
in those cases where a person has been given a sentence with
the option of a
fine, the lodging of the record should be insisted on if the unsuspended portion
of the alternative term of imprisonment
is in excess of three
months.
[51]
On the assumption that
corrective measures taken by the state during the period of suspension will not
render the declaration of invalidity
superfluous,
[71]
upon the expiry of
that period automatic appeals will be restored. A striking down of sections
309B and 309C will necessitate the
concomitant striking down of the words
“subject to section 309B” in section 309(1)(a) of the
Act.
[52]
The applicant and the
amicus
have succeeded in persuading the Court that the impugned
provisions are inconsistent with the Constitution and, therefore, invalid.

Despite their success, the proposed order does not afford them any personal
benefit. Ordinarily litigants approach courts seeking
a personal benefit.
Where, as in the present case, they succeed, but derive no such benefit from
their endeavours, that may be a
disincentive to the making of constitutional
challenges. The development of our constitutional jurisprudence is largely
dependent
upon such challenges. Discouraging challenges might reduce the
momentum of this development. In
S v Bhulwana; S v
Gwadiso
,
[72]
O’Regan J
said:
“Central to a consideration of the interests of justice in a particular
case is that successful litigants should obtain the
relief they seek. It is
only when the interests of good government outweigh the interests of the
individual litigants that the Court
will not grant relief to successful
litigants. In principle, too, the litigants before the Court should not be
singled out for the
grant of relief, but relief should be afforded to all people
who are in the same situation as the litigants (see
US v Johnson
[1982] USSC 132
;
457 US
537
(1982);
Teague v Lane
[1989] USSC 69
;
489 US 288
(1989)).”
[73]
In
my view this is not an appropriate case in which the applicant and the
amicus
should derive a personal benefit. They were legally represented
when their applications for leave to appeal and subsequent petitions
were
brought. I can think of no basis for singling them out for relief and not
subjecting them and others that are in a similar
position to the conditions of
suspension as set out in the order. This is, therefore, a case where the
interests of good government
outweigh the interests of the individual
litigants.
Order
[53]
The following order is
made:
1.
Sections 309B
and
309C
of the
Criminal Procedure Act 51 of 1977
are
inconsistent with the Constitution and are declared
invalid.
2. The words “subject to section 309B” in
section 309(1)
of the
Criminal Procedure Act 51 of 1977
are inconsistent with the Constitution and are
declared invalid.
3. The declarations of invalidity in paragraphs 1 and 2 of this order are
suspended for a period of six months from the date of the
order.
4. During the period of such suspension, clerks of the court shall, when
submitting documents to a high court in terms of
section 309C(3)
of the
Criminal
Procedure Act 51 of 1977
, submit copies of the record of proceedings in the
magistrate’s court and the magistrate’s reasons for the judgment
appealed
against in every case in which —
(a) the applicant for leave to appeal has been
—
(i) sentenced, without the
option of a fine, to a prison sentence of which the unsuspended portion is in
excess of three months, or
(ii) given an option of a fine but that fine has remained unpaid for a period
of two weeks from the date of sentence and the unsuspended
portion of the
alternative term of imprisonment is in excess of three months; and
(b) the applicant for leave to appeal is prosecuting the application for leave
in person; and
(c) there is no automatic review in terms of
section 302
of the
Criminal
Procedure Act 51 of 1977
.
5. The Minister of Justice and Constitutional Development may at any time before
the expiry of the period of suspension provided
for in paragraph 3 above, apply
to this Court for an order varying the terms stipulated in paragraph 4 or
extending the period of
suspension provided for in paragraph 3 or
both.
Chaskalson P, Langa DP,
Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O’Regan J,
Sachs J and Yacoob J concur in
the judgment of Madlanga AJ.
For the applicant : L Wepener SC and JLCJ van Vuuren instructed by Martin
Botha Attorneys.
For the respondent : JA van S d’Oliveira SC, E Matzke and ECJ Wait
instructed by the National Director of Public Prosecutions,
Pretoria.
For the
amicus
: H Kriel instructed by Schwellnus Spies Haasbroek
Inc.
[1]
In
S v Rens
[1995] ZACC 15
;
1996 (1) SA
1218
(CC);
1996 (2) BCLR 155
(CC);
1996 (1) SACR 105
(CC); and
S v Twala
(South African Human Rights Commission Intervening)
2000 (1) SA 879 (CC);
2000 (1) BCLR 106 (CC); 1999 (2) SACR 622 (CC).
[2]
Section 309B
provides as
follows:
“
Application for leave to
appeal
(1) An accused who wishes to appeal against any decision or order of a lower
court must, within 14 days or within such extended period
as may be allowed on
application and on good cause shown, apply to that court for leave to appeal
against the decision or order.
(2) (a) The application must be heard by the magistrate whose decision or
order is the subject of the prospective appeal: Provided
that if that magistrate
is unavailable, the application may be heard by any other magistrate of the
court concerned, to whom it is
assigned for hearing.
(b) Notice must be given to the attorney-general concerned and the accused of
the date fixed for the hearing of the application.
(3) Every application for leave to appeal must set forth clearly and
specifically the grounds upon which the accused desires to appeal:
Provided that
if the accused applies verbally for such leave immediately after the passing of
the decision or order, he or she must
state such grounds and they must be taken
down in writing and form part of the record.
(4) . . . .
(5) . . . .
(6) If the application 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 court of
appeal.”
[3]
Section 309C
provides as
follows:
“Petition
procedure
(1) If an application for leave to appeal under
section 309B(1)
or for an
extension of the period referred to in that subsection or for the extension of
the period within which an appeal must be
noted in terms of
section 309(2)
(hereinafter referred to as an application for condonation), or an application
to call further evidence as contemplated in
section 309B(4)
, is refused, the
accused may, within 21 days of such refusal or within such extended period as
may on good cause be allowed, by petition
addressed to the Judge President of
the division of the High Court having jurisdiction, submit an application for
leave to appeal
or for condonation or for leave to call further evidence, or all
such applications, as the case may be.
(2) An accused who submits a petition as contemplated in subsection (1) must at
the same time give notice thereof to the clerk of
the magistrate’s court
where the application was refused.
(3) When receiving notice of a petition as contemplated in subsection (2), the
clerk of the court must without delay submit copies
of the application concerned
together with the magistrate’s reasons for refusal of the application, to
the registrar of the
court of
appeal.
(4) (a) A petition contemplated
in this section must be considered in chambers by two judges designated by the
Judge President.
(b) If the judges referred to in paragraph (a) differ in opinion, the
petition must also be considered by the Judge President or by
any other judge
designated by the Judge President.
(5) The judges considering the petition
may—
(a) call for any further
information from the magistrate who heard the application for condonation or the
application for leave to
appeal or the application for leave to call further
evidence, or from the magistrate who presided at the trial to which any such
application relates;
(b) order that the application or applications in question or any of them be
argued before them at a time and place appointed by them;
(c) whether they have acted under paragraph (a) or (b) or not—
(i) in the case of an application for condonation, grant or refuse the
application and, if the application is granted, 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, if they deem it expedient, that an
application for leave to appeal must be submitted under subsection (1) within
the period fixed
by them as if it had been refused by the court referred to in
section 309B(1)
;
(ii) in the case of an application for leave to appeal or an application for
leave to call further evidence, grant or refuse the application
or, if they are
of the opinion that the application for leave to call further evidence should
have been granted, they may, before
deciding upon the application for leave to
appeal, or, in the case where the court referred to in
section 309B(1)
has
granted the application for leave to appeal but has refused leave to call
further evidence, set aside the refusal of the said
court to grant leave to call
further evidence and remit the matter in order that further evidence may be
received in accordance with
the provisions of
section 309B(4)
; and
(d) refer the matter to the court of appeal for consideration, whether upon
argument or otherwise, and that court may thereupon deal
with the matter in any
manner referred to in paragraph (c).
(6) Notice must be given to the attorney-general concerned and the accused of
the date fixed for the hearing of an application under
this section, and of any
place appointed under subsection (5) for any
hearing.”
[4]
Mr Gert van Tonder was admitted as
an
amicus
prior to the hearing of this application. He is a convicted
accused who is in a similar position to that of the applicant.
[5]
The applicant against conviction
and the
amicus
against conviction and sentence.
[6]
Above n 1.
[7]
Rens
above n 1 at para 26;
Twala
above n 1 at para 20.
[8]
[1995] ZACC 14
;
1996 (1) SA 1207
(CC);
1996 (1)
BCLR 141
(CC);
1996 (1) SACR 94
(CC) at para 17.
[9]
Id.
[10]
The reference here is to leave
to appeal against a high court judgment.
[11]
Section 309C(3) of the Act.
[12]
What the magistrate said here
is a conclusion and he did not give reasons for the refusal of the application
for leave to appeal.
In my view a magistrate is obliged to give reasons for the
conclusion that the application had to fail. Having said that, I am
still not
convinced that, in the absence of the judgment sought to be appealed against
(and/or reasons for it), reasons for the refusal
of the application would
suffice.
[13]
Rule 6(2)
reads:
“Every such application shall be accompanied
by—
(a) a copy of the order of the court
a
quo
appealed against;
(b) where leave to appeal has been refused by that
court, a copy of that order;
(c) a copy of the judgment delivered by the
court
a quo
; and
(d) where leave to appeal has been refused by that court, a copy of the judgment
refusing such
leave:
Provided that the registrar may, on written request, extend the period for the
filing of a copy of the judgment or
judgments.”
[14]
Above n 8 at para 14.
[15]
Above n 8 at para 15.
[16]
Id.
[17]
See para 9 above.
[18]
Quoted in para 10 above.
[19]
For the broader sense see
S
v Dzukuda and Others; S v Tshilo
2000 (11) BCLR 1252
(CC) at paras 9-11.
[20]
Twala
above n 1 at para
9.
[21]
1996 (1) SA 984
(CC);
1996 (1)
BCLR 1
(CC) at para 133 (footnotes omitted). See also
Pretoria City Council
v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC);
1998 (3) BCLR 257
(CC) at paras 26 and
46.
[22]
Above n 1 at para 28.
[23]
This was with reference to the
then applicable appeal procedure which provided for automatic appeals at the
level of the magistrates’
courts.
[24]
When the Raad van Justitie
(Council of Justice) was established in Cape Town. See Van Winsen et al
Herbstein and Van Winsen The Civil Practice of the Superior Court of South
Africa
4 ed (Juta & Co Ltd, Cape Town 1997) at 2-3.
[25]
When a Court of Petty Cases was
established in Cape Town. In the outlying districts petty civil and criminal
cases were heard by
courts of landdrosts and heemraden, with appeals lying to
the Raad van Justitie. See Van Winsen id at 3.
[26]
For a fuller discussion see
Hahlo and Kahn
The South African Legal System and its Background
(Juta
& Co Ltd, Cape Town 1968) at 237-9; Dugard
South African Criminal Law and
Procedure
Vol IV
Introduction to Criminal Procedure
(Juta & Co
Ltd, Cape Town 1977) at 18-56; Hutchison et al (eds)
Wille’s Principles
of South African Law
8 ed (Juta & Co Ltd, Cape Town 1991) at 30-3; Van
Winsen above n 24 at 2-17.
[27]
1909 (IX Edward 7 chap 9), Part
VI (sections 95-116).
[28]
See for instance the
Administration of Justice Act 27 of 1912, the Supreme Court Act 59 of 1959, and
the Republic of South Africa
Constitution Act 32 of 1961.
[29]
See sections 176 and 177 of the
Constitution.
[30]
Australia: Gibbs et al (eds)
Halsbury’s Laws of Australia
Vol 8 (Butterworths, Adelaide 1996) at
[125-35]; Canada: Hogg
Constitutional Law of Canada
3 ed (Carswell,
Ontario 1992) at 185-90; Ireland: Byrne and McCutcheon
The Irish Legal
System
3 ed (Butterworths (Ireland) Ltd, Dublin 1996) at 80, 89-92;
Netherlands: Chorus et al (eds)
Introduction to Dutch Law
3 revised ed
(Kluwer Law International, The Hague 1999) at 52-4.
[31]
In its report the
Botha
Commission of Inquiry into Criminal Procedure and Evidence
Vol I (RP
78-1971) (Government Printer, Pretoria 1971) made the following observation at
75:
“It is, however, also generally known that many magistrates are,
especially in the early years of their judicial career, inexperienced,
and that
many magistrates, especially in the larger towns and cities, often work under
enormous pressure
without the assistance of legal representation on
behalf of most of the accused persons. To err in such circumstances is
human.”
(Emphasis added)
[32]
Above n 1 at para 21. See
also
Ntuli
above n 8 at para 13.
[33]
A system of so-called automatic
review was first introduced in the Cape Colony by Act 20 of 1856 and has
subsisted in some or other
form since. See Dugard above n 26 at 27.
[34]
In terms of sections 302, 303,
304 and 306 of the Act. This is not to be confused with the
“review” referred to in section
35(3)(o) of the Constitution.
Automatic review serves a special and limited purpose and the constitutional
right of appeal or review
refers to something more than this procedure. It
entails its assertion and exercise by an individual who is aggrieved by a trial
court’s decision.
[35]
In terms of section 24(1) of
the Supreme Court Act 59 of 1959 these include absence of jurisdiction, bias,
malice, gross irregularity,
the admission of inadmissible evidence and the
like.
[36]
Under section 317 of the
Act.
[37]
Regional courts were created in
terms of section 3 of the Magistrates’ Courts Amendment Act 40 of 1952.
This section amended
section 2
of the
Magistrates’ Courts Act 32 of 1944
.
In recent years the jurisdiction of regional courts has been increased
incrementally and at present they can hear all criminal
offences except treason
(section 89(2)
of the
Magistrates’ Courts Act). Their
penal jurisdiction
is also significantly higher than that of district courts.
[38]
Whether on matters of
procedure, analysis of fact, or substantive law.
[39]
Ellerson “The Right to
Appeal and Appellate Procedural Reform” (1991) 91
Columbia LR
373
at 386.
[40]
It is so that the imposition of
a fine impacts on the individual’s patrimony and therefore her property
right may be implicated.
This too is by no means an insignificant
consideration.
[41]
Pattenden
Judicial
Discretion and Criminal Litigation
(Clarendon Press, Oxford 1990) at 332 (on
the position in England and Wales); Ellerson above n 39 at 373-4 (on the
position in the
United States); Duff and Hutton (eds)
Criminal Justice in
Scotland
(Ashgate Publishing Ltd, Aldershot 1999) at 162 (on the position in
Scotland).
[42]
Regarding the necessity for the
restrictive leave to appeal procedure at high court level, Madala J said the
following in
Ren
s above n 1 at para
25:
“It cannot be in the interests of justice and fairness to allow
unmeritorious and vexatious issues of procedure, law or fact
to be placed before
three Judges of the appellate tribunal sitting in open Court to rehear oral
argument. The rolls would be clogged
by hopeless cases, thus prejudicing the
speedy resolution of those cases where there is sufficient substance to justify
an appeal.”
[43]
Dalton “Taking the Right
to Appeal (More or Less) Seriously”
(1985) 95
Yale LJ
62
at 63 n
6.
[44]
Quoted by Ellerson above n 39
at 397, from the Commission on Revision of the Federal Court Appellate System,
Structure and Internal
Procedures: Recommendations for Change
67 FRD 195
(1975)
at 254.
[45]
Oral argument may be heard on
automatic review (section 304(2)(b) of the Act) but more often than not it is
not.
[46]
Section 9 guarantees equality
before the law and protection against unfair discrimination.
[47]
Section 34 guarantees access to
the courts.
[48]
Above n 1.
[49]
Section 36(1)
provides:
“The rights in the Bill of Rights may be limited only in terms of law of
general 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.”
[50]
S v Makwanyane and
Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 104. See also
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR
779
(CC) at paras 86-8;
S v Dlamini; S v
Dladla and Others; S v
Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at para
68;
S v Manamela
and
Another (Director-General of Justice
Intervening
)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at para 33.
[51]
Manamela
above n 50 at
para 32.
[52]
See
De Lange
above n 50
at para 92;
Beinash and Another v Ernst & Young and Others
1999 (2)
SA 116
(CC);
1999 (2) BCLR 125
(CC) at para 27;
Manamela
above n 50 at
para 49;
Christian Education South Africa v Minister of Education
2000
(10) BCLR 1051
(CC) at para 33 n 35.
[53]
Above n 8.
[54]
The requirement was introduced
in
section 103(6)
of the
Magistrates’ Courts Act 32 of 1944
. It was
subsequently included in the Act in section 305 read with section 309(4)(a)
before its repeal.
[55]
Ntuli
was decided under
the interim Constitution where the corresponding provisions were section
25(3)(h), right of appeal, and section
8, right to equality.
[56]
The state’s heads of
argument said nothing at all on justification. Even oral argument on that point
was very brief.
[57]
[1999] ZACC 1
;
1999 (2) SA 667
(CC);
1999 (3)
BCLR 253
(CC) at para 12 (footnotes omitted).
[58]
Manamela
above n 50 at
para 32.
[59]
That is as envisaged in section
172(1) of the Constitution. Section 172(1)
reads:
“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.”
[60]
I.e. convicted and serving
accused persons who want to prosecute their appeals in person.
[61]
As well as magistrates’
courts in so far as they have to furnish reasons for judgments and see to the
lodging of appeal records.
[62]
Above n 8 at para 28.
[63]
The
Ntuli
judgment was
delivered on 8 December 1995.
[64]
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6)
BCLR 677
(CC) (
Ntuli
(2)).
[65]
I.e. the declaration of
invalidity of the “certificate procedure”.
[66]
Above n 64 at paras 40-1.
[67]
Section 172(1)(b) set out above
in n 59.
[68]
Section 237 of the
Constitution.
[69]
Section 172(1)(b) of the
Constitution set out above in n 59.
[70]
Section 302(1)(a) stipulates
that certain sentences are subject to automatic review. It is that automatic
review that gets suspended
in terms of section 302(1)(b).
[71]
Depending on its content,
amending legislation (should that be the option taken) could have that
effect.
[72]
1996 (1) SA 388 (CC); 1995 (12)
BCLR 1579 (CC).
[73]
Id at para 32.