S v Rens

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J and Trengove AJ
• Judgment Date: 28 December 1995
• Citation: 1996 (1) SA 1218 (CC)
• Docket Number: CCT 1/95
• Hearing Date: 19 May 1995
• Counsel: D J Charters for the applicant at the request of the Court. C A Cilliers for the State.
• Court: Constitutional Court

Madala J:

[1] After hearing an application for leave to appeal against conviction and sentence, Rose Innes J of the Cape of Good Hope Provincial Division suspended the proceedings and referred this case to us on the question: C

'Whether the provision of s 316 of the Criminal Procedure Act 51 of 1977 relating to applications by an accused convicted of an offence before a superior Court for leave to appeal against his conviction or sentence and providing in terms of s 315(4) of the said Act that such appeal shall be (heard) only if such leave to appeal is granted and not as of D right, are unconstitutional by reason of inconsistency with s 25(3)(h) of the Constitution of the Republic of South Africa 1993 and of no force and effect pursuant to s 4 of the Constitution.'

[2] Section 316(1)(b) of the Criminal Act 51 of 1977 ('the Act') - alleged to be in conflict with s 25(3)(h) of the Constitution - states: E

'An accused convicted of any offence before a superior Court may, within a period of 14 days of the passing of any sentence as a result of such conviction or within such extended period as may on application (in this section referred to as an application for condonation) on good cause be allowed, apply-

(a)

. . .

(b)

F if the conviction was by any other Court, to the Judge who presided at the trial or if he is not available or, if in the case of a conviction before a Circuit Court the said Court is not sitting, to any other Judge of the Provincial or Local Division of which the aforesaid Judge was a member when he so presided,

for leave to appeal against his conviction or against any sentence or G order following thereon (in this section referred to as an application for leave to appeal), and an accused convicted of any offence before any such Court on a plea of guilty may, within the same period, apply for leave to appeal against any sentence or any order following thereon.'

[3] The matter was argued before us by Mr Charters who appeared on behalf H of Mr Peet Rens, the accused in the Court a quo; Mr Cilliers represented the State. Mr Rens was neither an applicant nor an appellant before this Court, but purely for reasons of convenience and also because the last proceedings by him or on his behalf in the Court a quo were in the form of an application, I shall refer to him, in this matter, as the applicant, and to the State as the respondent, again for the same reasons. I

[4] The applicant was charged with and convicted of abduction and of attempted murder, and received a suspended sentence and a fine in respect of the first charge and ten years' imprisonment on the second. He then sought to appeal against the conviction on both counts as well as against the sentence imposed on the charge of attempted murder. For purposes of J this judgment it is not necessary for me to deal with the

Madala J

A grounds on which the application for leave to appeal was based, or with any arguments advanced in favour of or against the application. Suffice it to say the Rose Innes J came to the conclusion that there was no reasonable prospect of another Court reversing the conviction or interfering with the sentence of imprisonment. He accordingly would have B refused the application for leave to appeal but for the constitutional issue in respect of which he had no jurisdiction.

[5] Section 25(3)(h) forms part of chap 3 of the Constitution which sets out the entrenched fundamental rights and freedoms. It provides:

'25(3) Every accused person whall have the right to a fair trial, which C shall include the right-

. . .

(h)

to have recourse by way of appeal or review to a higher Court than the court of first instance. . . .'

It was contended on behalf of the applicant, in the Court a quo, that this section afforded him an automatic right to appeal, and that, therefore, D the provisions of s 316(1)(b) of the Act were unconstitutional in that they were repugnant to and in conflict with s 25(3)(h). If this submission is correct, it means that a person convicted in the superior Courts does not require leave in order to appeal to a higher Court that the Court of first instance. E

[6] The legal provisions relating to appeals in criminal proceedings in the superior Courts in South Africa are set out in chap 31 of the Act. Section 315 provides that an appeal in terms of chap 31 shall lie not as of right but in accordance with the provisions of ss 316-319. These

provision are a legacy of a preceding Act, the Criminal Procedure Act 56 F of 1955 [1] , whose predecessor, the Criminal Procedure and Evidence Act 31 of 1917, which consolidated the different procedure codes existing at Union, also contained substantially similar provisions. [2]

[7] Applications for leave to appeal are governed by s 316 of the Act. A person who has been convicted by a superior Court may apply for leave to G appeal against such conviction and/or sentence, and must satisfy the Court, on a balance of probabilities, that there are reasonable prospects of success. [3] Such application may be made orally at the end of the trial by the accused or by the accused's legal representative to the presiding Judge. Alternatively, the accused person may submit a written application H for leave to appeal within a prescribed period. The procedure allows for condonation of late applications in appropriate circumstances. The test of reasonable prospects of success on appeal is lower than that which is applied in deciding whether the appeal ought to succeed or not. [4] If the trial Judge refuses the application for leave to appeal, s 316(6) provides that the accused may petition the Chief Justice. I shall deal with this I

Madala J

A procedure later. The underlying purpose of these requirements is to protect the appeal Court - either the Appellate Division of the Full Court of the Provincial or Local Division - against the burden of having to deal with appeals in which there are no prospects of success.

[8] The leave to appeal procedure contained in 2 316 is supplemented by B the provisions of s 317 of the Act. This section makes provision for the special entry of an alleged irregularity or illegality in connection with the proceedings, and s 319 makes provision for questions of law to be reserved for consideration by the Appellate Division.

[9] In terms of the special entry provision of ss 317 and 318, the accused C is afforded the opportunity to appeal to the Appellate Division against the decision of a superior Court, acting as a Court of first instance, where the accused alleges there has been an irregularity or illegality in connection with the proceedings which has resulted in prejudice.

D [10] An application for a special entry is ordinarily made to the Judge who presided over the trial proceedings. The Judge to whom the application is made is obliged to make the special entry unless he or she is of the view...