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[2011] ZACC 18
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Qhinga and Others v S (CCT 50/10) [2011] ZACC 18; 2011 (9) BCLR 980 (CC); 2011 (2) SACR 378 (CC) (25 May 2011)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 50/10
[2011] ZACC 18
In the matter of:
MSOBOMVU
QHINGA
…..........................................................................
First
Applicant
LUNGILE
JAMISO
….............................................................................
Second
Applicant
CAMAGU
ZIMELA
…...............................................................................
Third
Applicant
LUVUYO
MCAPHUKISI
…....................................................................
Fourth
Applicant
LIZO
LUMBE
…..........................................................................................
Fifth
Applicant
LINDILE
MAGI
…......................................................................................
Sixth
Applicant
versus
THE STATE
…..................................................................................................
Respondent
Heard on
: 17 February 2011
Decided
on : 25 May 2011
JUDGMENT
MTHIYANE
AJ:
Introduction
This is an application for leave to appeal
against an order of the Supreme Court of Appeal,
1
in which that Court dismissed the applicants’
petition for leave to appeal against convictions and sentences
imposed on
them by the Eastern Cape High Court, Bhisho (High
Court).
2
The applicants seek the setting aside of the Supreme Court of
Appeal’s order, and either:
Its replacement with an order by this Court granting the applicants
leave to appeal against their convictions and sentences
to a full
court of the High Court; or
The remittal of the matter to the Supreme Court of Appeal for
reconsideration of the applicants’ petition.
The relief requires this Court to consider the fairness or
otherwise of the procedure followed by the Supreme Court of Appeal
when it refused the applicants’ petition for leave to appeal.
The essence of the applicants’ complaint in this
respect is
that the judges concerned were obliged to but did not have regard
to the relevant portions of the record of the
proceedings in the
High Court when they considered the petition. Therefore they could
not have conducted an adequate reappraisal
of the case in
accordance with the applicants’ constitutional right “of
appeal to, or review by, a higher court”
under section
35(3)(o) of the Constitution.
The applicants are Mr Msobomvu Qhinga, Mr Lungile Jamiso, Mr Camagu
Zimela, Mr Luvuyo Mcaphukisi, Mr Lizo Lumbe and Mr Lindile
Magi.
They were each convicted in the High Court on two counts of
attempted murder and four counts of robbery with aggravating
circumstances, and were sentenced to long terms of imprisonment.
The respondent is the State. It initially opposed the application,
then withdrew its opposition, but subsequently renewed it
in
written argument. This apparent uncertainty of what stance to adopt
was finally cleared up during oral argument, when the
respondent’s
counsel conceded that this application raised a constitutional
matter and that a remittal of the matter
to the Supreme Court of
Appeal for reconsideration of the applicants’ petition would
be the appropriate remedy.
Before turning to the issues, a brief history of the matter is
apposite.
Proceedings in the High Court
In March 2009, the applicants were convicted in the High Court, per
Dhlodhlo ADJP sitting with an assessor. The applicants
were
implicated in the commission of the crimes solely by statements and
pointings-out they had made to the police or to a
magistrate. The
judgment of the High Court disposed of their admissibility as
follows:
“
The
Court has to consider the evidence adduced. The assailants who
robbed and committed other offences at Newlands were not identified.
The State relies on statements and some pointings-out the accused
made in which they implicated themselves. Trials-within-a-trial
in
respect of the seven accused were held. Rulings were that the
statements and the pointings-out were admissible in evidence.
The
rulings form part of this record. The Court rules finally that the
statements and pointings-out in respect of the accused
are
admissible in evidence.”
3
What is to be noted about this aspect of the judgment is that the
trial court did not describe or discuss its reasons for admitting
the statements and pointings-out, but merely referred to reasons set
out earlier in the record.
The first to fourth applicants and the sixth applicant were each
sentenced to an effective 28 years’ imprisonment and
the
fifth applicant to an effective 22 years’ imprisonment. The
applicants are currently serving their sentences.
In April 2009, the applicants applied to the trial court for leave
to appeal to a full court of the High Court against their
convictions and sentences. The basis of their appeal was that the
statements and pointings-out in which they had incriminated
themselves were wrongly admitted as evidence. The applicants
variously argued that, at the time of making the statements and
pointings-out, they had not been apprised of their right to legal
representation, and that they had been threatened, assaulted
and
tortured by the police. These statements and pointings-out had
therefore not been made freely, voluntarily and without
undue
influence.
The trial court rejected these contentions and refused their
applications for leave to appeal on the ground that there were
no
reasonable prospects of success on appeal. In refusing leave to
appeal, the trial court again did not describe or discuss
the
reasons for its rulings in the trials-within-the-trial by which it
admitted the contested statements and pointings-out
as evidence.
Proceedings in the Supreme Court of Appeal
In May 2009, the applicants petitioned the President of the Supreme
Court of Appeal for leave to appeal against the judgment,
to a full
court of the High Court. In their petition, the applicants again
argued that their statements and pointings-out were
wrongly
admitted as evidence, reiterating the grounds advanced in their
application to the High Court.
A petition for leave to appeal to the Supreme
Court of Appeal must be considered by two judges,
4
whose decision becomes the decision of the
Court. This Court has also held that the Supreme Court of Appeal is
entitled, in
circumstances where no constitutional issues are
raised, to refuse leave to appeal without that Court hearing oral
argument
or providing reasons.
5
On 16 July 2009, the applicants’ petition
was summarily dismissed.
Proceedings in this Court
In May 2010 the applicants approached this Court for leave to
appeal against the order of the Supreme Court of Appeal. They
also
seek condonation of the late filing of their application.
The applicants contend that their right to a
fair trial, which includes the right of “appeal to, or review
by, a higher
court” under section 35(3)(o) of the
Constitution, was infringed. They argue that the Supreme Court of
Appeal did not
have regard to those portions of the record in which
the rulings in the trials-within-the-trial and the reasons for
those rulings
were located. The applicants conclude that the Court
could not have
given proper consideration to their
submissions
, which were concerned solely with
the rulings in the trials-within-the-trial, and therefore that the
petition procedure followed
was unfair.
The Supreme Court of Appeal did not provide reasons for its order.
We therefore did not know whether the Supreme Court of Appeal
had
regard to the relevant portions of the record when it considered
the applicants’ petition. The Chief Justice addressed
a
letter to the President of the Supreme Court of Appeal to enquire
whether the petition judges had regard to the relevant
portions of
the record. In reply, the President of the Supreme Court of Appeal
stated as follows:
“
The
above applicants’ petition to this Court (SCA) for leave to
appeal was dealt with in accordance with the provisions
of section
20(2)(c), read with section 21(3), of Act 59 of 1959. The applicants
were legally represented and the petition was
presented in
accordance with the provisions of Rule 6 of the Rules of the SCA.
Rule 6(5) provides that:
‘
Every
application, answer and reply—
(a) shall—
(i) be clear and succinct and
to the point;
(ii) furnish fairly all such
information as may be necessary to enable the Court to decide the
application;
(iii) deal with the merits of
the case only insofar as is necessary for the purpose of explaining
and supporting the particular
grounds upon which leave to appeal is
sought or opposed;
(iv) . . .; and
(b) shall not—
(i) be accompanied by the
record, or
(ii) traverse extraneous
matters.’
The judges considering the
application may, in terms of Rule 6(6), call for further
submissions, affidavits or the record or portion
of it.
In this case, although the
petitioners’ legal representatives were in possession of the
full record of the trial, they did
not seek to place any portion of
the record before the judges considering the application (Justices
Navsa and Wallis (acting)),
nor did they submit that it was
necessary for the purposes of determining the petition that the
judges should read all or an
identified part of the record.
Petitioners have, on numerous occasions, sometimes unnecessarily,
attached specific pages or portions
of the record to their petition.
This was not done in this case. And the two judges who considered
the petition did not call
for the record or any portion of it, as
they considered that to be unnecessary.”
It is apparent from the letter that the Supreme Court of Appeal did
not call for the relevant portions of the record. Whether
or not
there was a full record when the Supreme Court of Appeal considered
the petition is uncertain. It is apparent, though,
that a record of
some sort was in existence, since the first applicant’s
founding affidavit before that Court makes reference
to “page
634 of the record”. However, in an affidavit in this Court
deposed to by Mr Adriaan Erasmus, the prosecutor
at the applicants’
trial, it is stated that, as at 15 September 2010, “[r]elevant
parts of the record were not
transcribed”. This was because
of a malfunctioning of the microphone recording system in the
courtroom, which prevented
the transcription of twelve days of
proceedings. The respondent submitted that it only received the
record on 15 September
2010. Consequently, even the record
available before this Court is incomplete.
It is worth noting that the rules referred to in the letter from
the President of the Supreme Court of Appeal impose no obligation
on a petitioner to provide the Court with the record. Rather, the
quoted rule 6(5)(b)(i) seems indeed to indicate the opposite.
This
provides that the petition “shall not be accompanied by the
record”, although rule 6(6) empowers the judges
considering
the petition to call for the record or parts of it. For their part,
the applicants assert that they were unaware
that they could
request that the record be placed before the judges of the Supreme
Court of Appeal.
Applicable statutory provisions
At this juncture, it is necessary to note that
section 316(10)(c) of the Criminal Procedure Act
6
(Act), as it read at the time of the petition, generally required
the registrar of the High Court to forward a copy of the
trial
record to the registrar of the Supreme Court of Appeal. However,
section 316(10)(c)(i) provided that, if the accused
were legally
represented at the trial (as the applicants were), “a copy of
the judgment, which includes the reasons for
conviction and
sentence, shall, subject to subsection (12)(a), suffice for the
purposes of the petition.”
7
Section 316(12)(a), as it read at the time of the petition,
provided that the judges considering a petition “may
call
for any further information, including a copy of the record of the
proceedings that was not submitted in terms of the proviso
to
subsection (10)(c)”.
8
This position is mirrored in Supreme Court of Appeal rule 6(6)
.
The corresponding provisions in respect of petitions for leave to
appeal from the Magistrates’ Courts to the High Courts
had
already been declared unconstitutional by this Court in
Shinga
,
9
but similar petitions from the High Courts to the Supreme Court of
Appeal were not directly affected by that declaration of
unconstitutionality. Therefore, the applicants also sought an order
from this Court declaring subparagraphs (i) to (iv) of
section
316(10)(c) of the Act unconstitutional and invalid. In response to
this Court’s judgment in
Shinga
, however, the
Legislature has already enacted an amendment to the Act, to the
effect that subparagraphs (i) to (iv) of section
316(10)(c) have
been deleted by section 16 of the Judicial Matters Amendment Act,
10
which came into force on 10 September 2010. Consequently, the
applicants have abandoned their constitutional challenge to section
316(10)(c) of the Act, and therefore this Court will not need to
pronounce on it.
Issues for determination by this Court
The main issues requiring determination by this Court are the
following:
What is the constitutional standard of a fair procedure for
petitions?
Was the petition properly considered without the reasons for the
rulings?
What is the appropriate relief?
However, this being an application for leave to appeal, a
preliminary issue to be decided is whether leave to appeal should
be granted. Moreover, the application was lodged late and therefore
the first preliminary issue to consider is whether condonation
should be granted.
Condonation
This application was filed in May 2010, more
than 10 months after the Supreme Court of Appeal dismissed the
applicants’
petition. An application for leave to appeal
against an order of the Supreme Court of Appeal is required to be
filed within
15 days of the order.
11
Accordingly, the applicants have sought
condonation of the late filing of their application for leave to
appeal.
It is well established that this Court will only grant condonation
if it is in the interests of justice to do so.
12
Two prominent factors in determining the interests of justice are:
(i) the importance of the constitutional issue raised; and
(ii) the
prospects of success.
The constitutional issue arising in this matter is the right of
appeal or review in terms of section 35(3)(o) of the Constitution.
This is an important constitutional issue indeed, as it concerns
the fairness of the procedure of the Supreme Court of Appeal
in
granting or refusing petitions for leave to appeal. In particular,
this case concerns the obligation, if any, of the Supreme
Court of
Appeal, when considering petitions, to have regard to relevant
portions of the record in order to conduct a fair reappraisal.
In
the light of the rest of this judgment it is clear that the
application in this Court bears prospects of success. Accordingly,
it is in the interests of justice to grant condonation.
Leave to appeal
For the same reasons as set out in considering condonation, this
application raises an important constitutional issue and also
bears
prospects of success. Accordingly, it is in the interests of
justice that leave to appeal be granted. It is now necessary
to
determine whether the appeal should be upheld, and I now turn to
the main issues requiring determination by this Court.
What is the constitutional standard of a fair procedure for
petitions?
In
S v Ntuli
,
13
this Court held that the right of appeal or review envisages, as a
minimum, “the opportunity for an adequate reappraisal
of
every case and an informed decision on it.” This position was
reiterated in
S v Steyn
,
14
in which this Court also held:
“
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.”
15
A significant safeguard of adequate reappraisals of petitions for
leave to appeal is the guarantee that petitions must be considered
by two judges.
16
Moreover, it is required that those judges must make an informed
decision and must therefore have sufficient information before
them
in order to conduct an adequate reappraisal of the correctness of
the convictions and sentences being appealed against.
As a minimum,
this implies that they must have before them the challenged rulings
and the reasons for those rulings, in order
to determine whether
the rulings were justified by the reasons, and whether the reasons
were justified by the evidence. As
stated by this Court in
Steyn
,
“
a trial court’s reasons for its
factual findings and conclusions of law are vital to the proper
functioning of an appeal
process.”
17
This Court has emphasised that a trial court’s
reasons are “essential for the appeal process”,
pointing out
that reasons assist “the appeal Court to decide
whether or not the order of the lower court is correct.”
18
It is important to note that section 316(10)(c)(i) of the Act then
provided that, if the accused were legally represented at
the trial
(as the applicants were), then “a copy of the judgment,
which
includes the reasons for conviction and sentence
,
shall, subject to subsection (12)(a), suffice for the purposes of
the petition.”
19
It was necessary to determine whether the
reasons provided in the judgment of the trial court were indeed
sufficient for a finding
of guilt and thus for the purposes of the
petition. On the law as it stood at the time of the applicants’
petition, it
was required that the appellate court was able to
ascertain and adequately reappraise the reasons for the imposition
of the
convictions and sentences by the trial court.
Was the petition properly considered without the reasons for the
rulings?
We have already observed that the applicants were convicted solely
on the basis of the statements and pointings-out in which
they had
incriminated themselves. This is apparent from the judgment of the
High Court. It is also apparent that the admission
of this evidence
was contested by the applicants, and that trials-within-the-trial
were held in order to determine their admissibility.
In its
judgment, the trial court held the evidence to be admissible, and
stated that its rulings in this regard were to be
found in the
record. The trial court does not discuss the grounds upon which the
evidence was challenged, nor does it discuss
the grounds upon which
it was admitted.
The applicants’ petition to the Supreme Court of Appeal
challenged the rulings in the trials-within-the-trial. These
were
neither included nor discussed in the judgment of the High Court.
They were to be found only in the record. It follows
that the
Supreme Court of Appeal would not have been able to assess whether
those rulings were reasonably open to challenge
on appeal.
We can come to no conclusion other than that the applicants did not
have the benefit of an adequate reappraisal of their case
or an
informed decision on it. Regrettably, the applicants were not
afforded a fair procedure in terms of their right “of
appeal
to, or review by, a higher court”, as contemplated by section
35(3)(o) of the Constitution. The Supreme Court
of Appeal’s
order, accordingly, cannot stand.
What is the appropriate relief?
One form of relief sought by the applicants is the remittal of the
matter to the Supreme Court of Appeal for reconsideration
of the
petition. It is convenient at this stage to refer to the directions
issued by this Court on 1 November 2010, in which
the following
questions were posed to the parties:
“
(a)
Does this Court have the power to set aside an order by the Supreme
Court of Appeal refusing leave to appeal and refer the
matter back
to the Supreme Court of Appeal for reconsideration? If so,
(b) Under what circumstances
will it be appropriate for these powers to be exercised by this
Court?
(c) Do these circumstances
exist in this case?
(d) What is the appropriate
order to be made by this Court?”
Section 172(1)(b) of the Constitution vests this
Court with the power to make any order that is just and equitable
to remedy
a breach of the Constitution.
20
The applicants did not have the benefit of their
right of appeal envisioned in section 35(3)(o) of the Constitution.
It is,
therefore, incumbent on this Court to make a just and
equitable order. In the circumstances, there can be no more
appropriate
relief than remittal to the Supreme Court of Appeal for
reconsideration of the petition having regard to the relevant
portions
of the record. The remaining questions in this Court’s
directions have been answered above.
The applicants’ plea that this Court grants them leave to
appeal against their convictions and sentences to a full court
of
the High Court need therefore not be considered.
The following order is made:
Condonation is granted.
Leave to appeal is granted.
The appeal is upheld to the extent set out in paragraphs (d) and
(e).
The order of the Supreme Court of Appeal in Case No. 304/09, dated
16 July 2009, dismissing the applicants’ petition
for leave
to appeal, is set aside.
The petition is remitted to the Supreme Court of Appeal for
reconsideration.
Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Mogoeng J, Nkabinde J,
Van der Westhuizen J and Yacoob J concur in the
judgment of Mthiyane AJ.
For
the Applicants: Adv L Crouse instructed by Legal Aid South Africa,
Port Elizabeth Justice Centre.
For the
Respondent: Adv Nelly Cassim SC instructed by the State Attorney,
Pretoria.
1
Qhinga
and Others v The State
, Case No. 304/09, Supreme Court of
Appeal, 16 July 2009, unreported.
2
The
State v
Qhinga and Others
,
Case No. CC35/2007, Eastern Cape High Court, Bhisho, 31 March 2009,
unreported.
3
Id
at para 50.
4
Section
21(3)(b) of the Supreme Court Act
59
of 1959.
5
See
Greenfields Drilling CC and Others v Registrar of the Supreme
Court of Appeal and Others
[2010] ZACC 15
;
2010 (11) BCLR 1113
(CC) and
Mphahlele v First National Bank of SA Ltd
[1999]
ZACC 1
;
1999 (2) SA 667
(CC);
1999 (3) BCLR 253
(CC).
6
51
of 1977.
7
Section
316(10) of the Act, prior to 10 September 2010, read as follows:
“
When receiving notice of a
petition as contemplated in subsection (9), the registrar shall
forward to the registrar of the Supreme
Court of Appeal copies of
the—
(a) application or applications that were refused;
(b) the reasons for refusing such application or
applications; and
(c) the record of the proceedings in the High Court in
respect of which the application was refused: Provided that—
(i) if the accused was legally represented at the
trial; or
(ii) if the accused and the prosecuting authority 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 (12)(a),
suffice
for the purposes of the petition.”
8
Section
316(12) of the Act, prior to
10 September 2010
,
read as follows:
“
The judges considering a
petition may—
(a) call for any further information, including a copy
of the record of the proceedings that was not submitted in terms of
the
proviso to subsection (10)(c), from the judge who refused the
application in question, or from the judge who presided at the trial
to which any such application relates, as the case may be; or
(b) in exceptional circumstances, order that the
application or applications in question or any of them be argued
before them
at a time and place determined by them.”
9
Shinga
v The State and Another (Society of Advocates, Pietermaritzburg Bar,
as Amicus Curiae); O’Connell and Others v The
State
[2007] ZACC 3
;
2007 (4) SA 611
(CC);
2007 (5) BCLR 474
(CC).
10
66
of 2008.
11
Rule
19(2).
12
Van
Wyk v Unitas Hospital
and Another (Open Democratic Advice
Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20 and
Brummer v Gorfil Brothers
Investments (Pty) Ltd
and Others
[2000] ZACC 3
;
2000 (2)
SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
13
[1995]
ZACC 14
;
1996 (1) SA 1207
(CC);
1996 (1) BCLR 141
(CC) at para 17.
14
[2000]
ZACC 24
;
2001 (1) SA 1146
(CC);
2001 (1) BCLR 52
(CC) at para 6.
15
Id
at para 36.
16
See
Shinga
above n 9
at paras 46-7.
17
Above
n 14 at para 36.
18
Mphahlele
above n 5 at para 12.
19
Emphasis
added.
20
See
Head of Department, Mpumalanga Department of Education and
Another v
Hoërskool Ermelo and
Another
[2009] ZACC 32
;
2010
(2) SA 415
(CC);
2010 (3) BCLR 177
(CC) at para
97, in which this Court held:
“
The remedial power envisaged
in section 172(1)(b) is not only available when a court makes an
order of constitutional invalidity
of a law or conduct under section
172(1)(a). A just and equitable order may be made even in instances
where the outcome of a
constitutional dispute does not hinge on
constitutional invalidity of legislation or conduct. This ample and
flexible remedial
jurisdiction in constitutional disputes permits a
court to forge an order that would place substance above mere form
by identifying
the actual underlying dispute between the parties and
by requiring the parties to take steps directed at resolving the
dispute
in a manner consistent with constitutional requirements.”
(Footnote omitted.)