S v Steyn

• Jurisdiction: South Africa
• 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
• Judgment Date: 29 November 2000
• Citation: 2001 (1) SACR 25 (CC)
• Hearing Date: 22 August 2000
• Counsel: L Wepener SC and J L C J van Vuuren for the appellants. J A van S d'Oliveira SC, E Matzke and E C J Wait H Kriel for the amicus curiae.

Madlanga AJ:

Introduction

E [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. F More specifically, we are called upon to decide whether the provisions of ss 309B and 309C of the Criminal Procedure Act 51 of 1977 ('the Act') are inconsistent with s 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 s 309B [2] of the Act stipulates that an appeal against a conviction or sentence in a G magistrate's court can be lodged only after

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leave has been obtained from that court. If leave be refused, s 309C [3] provides for a petition to the A appropriate High Court for leave to appeal.

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The facts

A [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 s 309B of the Act. Their applications were dismissed. The petitions which they subsequently lodged with the Judge B President of the Transvaal High Court in terms of s 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 para [1] above.

The issues

C [4] The applicant contends that the leave to appeal and petition procedure created by ss 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 D 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 E Chief Justice. In response to this, Mr D'Oliveira for the respondent submitted that, in terms of ss 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 F procedure, in respect of High Court trials, provided for in s 316 read with s 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 G 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'

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leave to appeal procedure also complies with s 35(3)(o). The question is: does it? I propose to deal A 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 B S v Ntuli. [8] Ntuli was concerned, among others, with the question whether the provisions of s 309(4)(a) read with s 305 of the Act were inconsistent with the right of appeal then contained in s 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 C 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 D 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 E 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 F determination of this matter. At para [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] G

[7] After setting out the distinguishing features between the two procedures, Didcott J concluded at para [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 H 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.' I

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[8] I must turn to examine the leave procedure in the magistrates' courts to determine whether it too lends itself to A 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 B 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. C 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 D 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 E 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: F

'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, G with special reference to the passages cited in the petition.' [14]

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[11] In my view the paucity of information, which in terms of A s 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 s 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 B 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 C straight away. Others do so rarely...