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[2018] ZACC 12
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Conradie v S (CCT224/17) [2018] ZACC 12; 2018 (7) BCLR 757 (CC) (25 April 2018)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 224/17
In
the matter between:
DANE
CONRADIE
Applicant
and
THE
STATE
Respondent
Neutral citation:
Conradie v S
[2018] ZACC 12
Coram:
Mogoeng
CJ, Zondo DCJ, Cameron J, Froneman J, Jafta J,
Kollapen AJ, Kathree Setiloane AJ, Madlanga J,
Mhlantla J,
Theron J and Zondi AJ
Judgments:
Froneman J (unanimous)
Decided
on:
25 April 2018
Summary:
Section 35(3)(o) of the Constitution — right to a fair
trial— is trial record of proceedings relevant for leave to
appeal
application?
ORDER
1.
The application for leave to appeal is dismissed.
JUDGMENT
FRONEMAN
J (Mogoeng CJ, Zondo DCJ, Cameron J, Jafta J, Kollapen AJ,
Kathree Setiloane AJ, Madlanga J, Mhlantla J,
Theron J
and Zondi AJ concurring):
[1]
The
applicant was convicted on two counts of rape
[1]
in the Wynberg Regional Magistrate’s Court (Regional Court) and
sentenced to 18 years’ imprisonment. Both counts
were
taken together for purposes of sentence. He was also declared
unfit to possess a fire-arm.
[2]
He was granted leave to appeal to the High Court of South
Africa, Western Cape Division, Cape Town (High Court) where
the
appeal against the convictions was dismissed, but the sentence was
reduced to an effective term of 12 years’ imprisonment.
[3]
A further application for special leave to appeal
[4]
was refused by the Supreme Court of Appeal, as was an additional
application for reconsideration of that order by the President
of the
Supreme Court of Appeal.
[5]
[2]
The applicant seeks leave to appeal to this Court against the
decision of the High Court in respect of the conviction and
sentence,
alternatively for the matter to be referred back to the
Supreme Court of Appeal to “reconsider the applicant’s
application
for special leave to appeal after having regard to the
record of proceedings pertaining to the application”.
[3]
The
basis for the application is the contention that the trial record was
necessary for both applications in the Supreme Court of
Appeal. The
applicant contends that without regard to the trial record his right
to a fair hearing on appeal as contemplated
by section 35(3)(o) of
the Constitution could not have occurred.
[6]
Condonation
[4]
The Supreme Court of Appeal dismissed the applicant’s
application on 25 July 2017. The applicant contends
that he was only informed of this decision on 31 July 2017,
and has since then “made every effort to attain legal
advice
and assistance” on the matter. His application in this
Court was filed on 5 September 2017. In the light of
the difficulties
in obtaining legal advice it is in the interest of justice to grant
condonation for the late filing of the application.
Leave
to appeal
[5]
The
object of the right to a fair trial to minimise the risk of wrong
convictions, inappropriate convictions and the consequent
failure of
justice “pervades all stages of a trial until the last word has
been said on appeal”.
[7]
The requirement of first seeking leave to appeal before lodging an
appeal against a criminal conviction or sentence in a
High Court is
not, however, inconsistent with the constitutionally guaranteed right
of appeal.
[8]
[6]
The
general test for the constitutional adequacy of leave to appeal
procedures is that it must provide for an “adequate reappraisal
. . . and [making of] an informed decision” in respect of the
decision against which leave to appeal is sought.
[9]
The application of this test depends on the context within
which it is applied, and that context includes our court
hierarchy.
[10]
These
institutional concerns led this Court to differentiate between leave
to appeal procedures in respect of appeals from
the Magistrates’
Court and those from the High Court.
[11]
In regard to the former it has held that the absence of a trial
record vitiated the legislative provisions that allowed consideration
of an application for leave to appeal without the record.
[12]
[7]
But the same considerations do not necessarily apply to direct
appeals from the High Court, sitting as a court of first instance.
In
Twala
Yacoob J stated:
“
The
ambit of the right enshrined in section 35(3)(o) must be determined
by having regard to the context in which it appears and
the purpose
for which it is intended. The right of appeal to, or review by,
a higher court is not a self-standing right;
it is an incidence or
component of the right to a fair trial contained in section 35(3) and
it appears in that context. . . . [T]he
purpose of section
35(3), read as a whole is to minimise the risk of wrong convictions
and the consequent failure of justice, and
section 35(3)(o) is
intended to contribute towards achieving this object by ensuring that
any decision of a court of first
instance convicting and sentencing
any person of a criminal offence would be subject to reconsideration
by a higher court. The
provision requires an appropriate
reassessment of the findings of law and fact of courts of first
instance and is clearly not intended
to prescribe in a technical
sense, the nature of the reassessment that will always be
appropriate. The reason for this is
that the nature of the
reassessment that is appropriate will depend on the prevailing
circumstances. Section 35(3) does
not provide for
specifics. It creates a broad framework within which the
lawmaker is afforded flexibility in order to provide
for the kind of
reassessment mechanism which is both appropriate and fair.”
[13]
[8]
Adopting
that approach, the then provisions of section 316 of the
Criminal Procedure Act,
[14]
dealing with applications for leave to appeal in criminal cases heard
at first instance in the High Court, were held not to be
inconsistent
with the provisions of section 35(3)(o) of the Constitution.
[15]
The procedure under the section allowed consideration of the
application, or petition, for leave to appeal in the Supreme Court
of Appeal without the necessity of the trial record being available,
albeit with provisions allowing the Supreme Court of Appeal
Judges
dealing with the matter to call for further information.
[16]
[9]
A similar legislative provision obtained in
Qhinga
,
another decision of this Court:
“
At
this juncture, it is necessary to note that section 316(10)(c) of the
Criminal Procedure 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.’ 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)’. This position is
mirrored in Supreme Court of
Appeal rule 6(6).”
[17]
(Footnotes omitted.)
[10]
The
constitutional validity of these provisions was not decided upon in
Qhinga
.
[18]
The matter concerned an application for leave to appeal against
the finding of the High Court of South Africa, Eastern
Cape
Local Division, Bhisho.
[19]
A
petition for leave to appeal was brought in the Supreme Court of
Appeal challenging the rulings in the trials-within-the-trial
in the
High Court. These were neither included nor discussed in the
judgment of the High Court. They were to be found
only in the
record. The Judges deciding the petition did not call for the
record or for the reasons for the rulings.
Leave to appeal and
the appeal succeeded to the extent that the petition was remitted to
the Supreme Court of Appeal for reconsideration
on the ground
that the Supreme Court of Appeal would not have been able to assess
whether those rulings were reasonably open to
challenge on
appeal.
[20]
[11]
None of this assists the applicant. He challenges the
findings of fact and credibility made in the Regional Court and
confirmed
on appeal by the High Court. The reasons for these
findings served before the Supreme Court of Appeal in the application
for special leave and the President in the application for
reconsideration. In both judgments they are detailed and
extensive.
These were not applications for leave to appeal from
the High Court sitting as a court of first instance. The
applicant
was seeking a third and then fourth bite of the cherry in
the Supreme Court of Appeal.
[12]
In essence the applicant is seeking an appeal on the facts,
clothed in the garb of an infringement of his fair trial rights. The
facts of the sexual assaults were largely common cause. The
applicant’s defence that the complainant consented to the
sexual
acts was rejected in the Regional Court and the rejection
confirmed on appeal. In both instances extensive reasons were
given
for the finding in the judgments, including the overwhelming
improbability of consensual sex in the particular circumstances. In
these circumstances it is not in the interest of justice to grant
leave to appeal. No fair trial rights have been infringed.
Order
[13]
The application for leave to appeal is dismissed.
For the Applicant:
A du Toit
instructed by Riley Incorporated.
For the Respondent:
S M Galloway
instructed by the Director of Public Prosecutions, Western Cape.
[1]
Contraventions of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
.
[2]
Section 103(1)
of
Firearms Control Act 60 of 2000
.
[3]
Conradie
v S
,
unreported judgment of the High Court of South Africa, Western Cape
Division, Cape Town , Case No A229/2016 (15 February 2017)
at para
51.
[4]
Section 16(1)(b)
of the
Superior Courts Act 10 of 2013
.
[5]
Id at
section 17(2)(f).
[6]
Section 35
reads:
“
(3)
Every accused person has a right to a fair trial, which includes the
right—
.
. .
(o)
of appeal to, or review by, a higher court.”
[7]
S v
Steyn
[2000] ZACC 24
;
2001 (1) SA 1146
(CC);
2001 (1) BCLR 52
(CC) at para
13.
[8]
See
Steyn
id;
S v
Twala
[1999]
ZACC 18
;
2000 (1) SA 879
(CC);
2000 (1) BCLR 106
(CC) and
S
v Rens
[1995]
ZACC 15; 1996 (1) SA 1218 (CC); 1996 (2) BCLR 155 (CC).
[9]
See
Steyn
id at para 6 referring to
S
v Ntuli
[1995] ZACC 14
;
1996 (1) SA 1207
(CC);
1996 (1) BCLR 141
(CC).
[10]
Steyn
id at
paras 13-22.
[11]
Id.
[12]
Id.
[13]
Twala
above
n 8 at para 9.
[14]
51 of 1977.
[15]
Twala
above
n 8 at para 22.
[16]
Id at para 1.
[17]
Qhinga
v S
[2011]
ZACC 18
;
2011 (2) SACR 378
(CC);
2011 (9) BCLR 980
(CC) at para 17.
[18]
Id at para 18.
[19]
Id at para 1.
[20]
Id at paras 31-2 and 35.