S v Steyn

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Madlanga AJ
• Judgment Date: 29 November 2000
• Hearing Date: 22 August 2000
• Docket Number: CCT 19/00
• Citation: 2001 (1) SA 1146 (CC)
• Court: Constitutional Court
• Counsel: W L Wepener SC (with J L C J van Vuuren) for the applicant. J A van S d'Oliveira SC (with E Matzke and E C J Wait) for the respondent. H Kriel for the amicus curiae.

S v Steyn
2001 (1) SA 1146 (CC)

2001 (1) SA p1146

Citation	2001 (1) SA 1146 (CC)
Case No	CCT 19/00
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Madlanga AJ
Heard	August 22, 2000
Judgment	November 29, 2000
Counsel	W L Wepener SC (with J L C J van Vuuren) for the applicant.; J A van S d'Oliveira SC (with E Matzke and E C J Wait) for the respondent.; H Kriel for the amicus curiae.

Flynote : Sleutelwoorde B

Criminal procedure — Appeal — From magistrate's court to High Court — Leave to appeal — Constitutional validity of provisions of ss 309B and 309C of Criminal Procedure Act 51 of 1977 — Situation of accused person wanting to appeal from magistrate's decision very much less favourable than one who seeks to appeal against conviction or C sentence in High Court, especially if accused unrepresented — Fact that petition can be considered in absence of record exacerbating situation — Paucity of information before Court assessing petition not allowing for adequate appraisal and making informed decision — Risk too great under this procedure that genuine miscarriage of justice will not D be picked up — High Courts and magistrates' courts not only significantly different in respect of standing and functioning but also in terms of human and material resources, participation by legal representatives and other relevant considerations — Context in which fairness of procedure in those courts had to be judged different — This in itself sufficient basis for concluding that, even though leave to E appeal and petition procedure meeting test for fairness in respect of High Courts, not doing so at level of magistrates' courts — For it to serve desired purpose, appeal procedure to be suited to correction of error — Where potential for error greater, threshold of what accords with fairness cannot appropriately be pitched at similar level as in procedure for appeal from High Courts — Attenuated appeal procedure F consisting in leave and petition procedure contained in ss 309B and 309C constituting limitation of right 'of appeal to, or review by, a higher Court' as entrenched in s 35(3)(o) of Constitution of the Republic of South Africa Act 108 of 1996 — As limitation not justified, ss 309B and 309C in conflict with Constitution. G

Criminal procedure — Review — Automatic review — Suspension of automatic review pending appeal — Section 302 of Criminal Procedure Act 51 of 1977 envisaging appeal proper, not application for leave to appeal — Application for leave to appeal not suspending automatic review.

Constitutional law — Legislation — Validity of — Sections 309B and 309C of H Criminal Procedure Act 51 of 1977 — Attenuated appeal procedure consisting in leave and petition procedure contained in ss 309B and 309C constituting limitation of right 'of appeal to, or review by, a higher Court' as entrenched in s 35(3)(o) of Constitution of the Republic of South Africa Act 108 of 1996 — As limitation not justified, ss 309B and 309C in conflict with Constitution. I

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Right of appeal to, or review by, a higher Court as entrenched in s 35(3)(o) of Constitution — Appeal from magistrate's court to High Court — Sections 309B and 309C of Criminal Procedure Act 51 of 1977 — Situation of accused person wanting to appeal from magistrate's decision very much less favourable than one who seeks to appeal against conviction or sentence in High Court, especially if accused unrepresented — Fact that petition can be considered in absence of record exacerbating situation — Paucity of information before Court assessing petition not allowing for adequate appraisal and making informed decision — Risk too great under this procedure that genuine miscarriage of justice will not be picked up — High Courts and magistrates' courts not only significantly different in respect of standing and functioning but also in terms of human and material resources, participation by legal representatives and other relevant considerations — Context in which fairness of procedure in those courts to be judged different — This in itself sufficient basis for concluding that, even though leave to appeal and petition procedure meeting test for fairness in respect of High Courts, not doing so at level of magistrates' courts — For it to serve desired purpose, appeal procedure to be suited to correction of error — Where potential for error was greater, threshold of what accords with fairness cannot appropriately be pitched at similar level as in procedure for appeal from High Courts — Attenuated appeal procedure consisting in leave and petition procedure contained in ss 309B and 309C constituting limitation of right 'of appeal to, or review by, a higher Court' as entrenched in s 35(3)(o) of Constitution of the Republic of South Africa Act 108 of 1996 — As limitation not justified, ss 309B and 309C in conflict with Constitution.

Headnote : Kopnota

In S v Ntuli 1996 (1) SA 1207 (CC) (1996 (1) SACR 94; 1996 (1) BCLR 141) the Constitutional Court struck down as being unconstitutional s 309(4)(a) of the Criminal Procedure Act 51 of 1977, which provided that a person who was serving a period of imprisonment imposed by a lower court could only prosecute any review of those proceedings if a Judge had J

2001 (1) SA p1147

certified that there were reasonable grounds for review. The declaration of invalidity was A postponed to permit the Legislature to remedy the defect. After an abortive attempt to obtain an extension of the time period within which the defect had to be remedied, the Criminal Procedure Act was amended, by inserting s 309B and s 309C, to the effect that before an accused in a lower court could appeal to a higher Court the leave of the trial court had to be obtained. In the absence thereof the accused was entitled to petition the Judge President of the relevant High Court. B The clerk of the magistrate's court submitting the petition to the High Court was merely required to submit the petition, copies of the refused application for leave to appeal and the magistrate's reasons for refusing it. The applicant, who had been convicted in a magistrate's court and refused leave to appeal, applied for, and was granted, direct access to the Constitutional Court to challenge the C constitutionality of ss 309B and 309C, more particularly in that they infringed s 35(3)(o) of the Constitution of the Republic of South Africa Act 108 of 1996. The State relied, inter alia, on the fact that the procedure for obtaining leave to appeal from a High Court had been found to be not unconstitutional.

Held, that the paucity of information, which in terms of s 309C(3) had to be lodged with the High Court, did not allow for an D adequate reappraisal and the making of an informed decision on the application. (Paragraph [11] at 1.)

Held, further, that the situation of an accused person, wanting to appeal from a magistrate's decision, was very much less favourable than one who sought to appeal against a conviction or sentence in a High Court. When an unrepresented accused wanted to E 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 s 309B would probably prove insurmountable. Then there was the even more formidable barrier of drafting a petition to the High Court for leave to appeal. The fact that the petition could - and on the ordinary procedure envisaged by the statute would - be considered in the absence of the record exacerbated the situation. F There was too great a risk under this procedure that a genuine miscarriage of justice would not be picked up. (Paragraph [12] at 2.)

Held, further, that the High Courts and magistrates' courts were not only significantly different in respect of their standing and functioning but also in terms of human and material resources, participation by legal representatives and other relevant G considerations. It then followed that the context in which the fairness of the procedure had to be judged was different. This in itself could be a sufficient basis for concluding that, even though the leave to appeal and petition procedure met the test for fairness in respect of High Courts, it did not do so at the level of magistrates' courts. (Paragraph [14] at 3.) H

Held, accordingly, that the risk of an error leading to an injustice was substantially greater in the magistrates' courts than in the High Courts. (Paragraph [22] at 4.)

Held, further, that for it to serve the desired purpose an appeal procedure had to be suited to the correction of error. Where (as in the magistrates' courts) the potential for error was greater, the threshold of what accorded with fairness could not appropriately be I pitched at a similar level as in the procedure for appeal from High Courts. (Paragraph [23] at 5.)

Held, further, that the unsatisfactory features of the s 309B and s 309C procedure made it unsuitable for the purpose envisaged in the Constitution, in that the procedure did not accord with an adequate reappraisal and the making of an informed decision. The attenuated appeal procedure consisting J

2001 (1) SA p1148

in the leave and petition procedure contained in ss 309B and 309C, even if supplemented by an A application for leave to appeal against a High Court's refusal of leave and a petition to the Chief Justice, constituted a limitation of the right 'of appeal to, or review by, a higher Court' as entrenched in s 35(3)(o) of the Constitution. (Paragraphs [25] and [27] at 6a and 6b.)

Held, further, that the State had failed to establish that the s 309B and s...