Shinga v the State and Another (Society of Advocates (Pietermaritzburg Bar) Intervening as Amicus Curiae); S v O'Connell and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabine J, O'Regan J, Sachs J, Van der Westhuizen J, Yacoob J, Kondile AJ and Van Heerden AJ
• Judgment Date: 08 March 2007
• Counsel: A A Watt for the first respondent. N Cassim SC (with S M Lebalala) for the second respondent. A van Zyl SC (with C van Schalkwyk) for the Amicus Curiae.
• Docket Number: CCT 56/06
• Court: Constitutional Court

Yacoob J:

Introduction

[1] These are confirmation proceedings. [1] They concern the constitutionality of some requirements in the procedure for criminal appeals from magistrates' courts. The findings of invalidity of two High Courts B concerning these provisions have been referred to this Court for confirmation. The first is a unanimous judgment delivered by a Full Bench [2] in the KwaZulu-Natal High Court [3] declaring ss 309(3A), 309B and 309C of the Criminal Procedure Act [4] to be inconsistent with the fair-trial rights guaranteed in the Constitution (the Shinga judgment). The C second, delivered some three months after the Shinga judgment and a few days before oral argument in the confirmation proceedings was heard, is a unanimous judgment [5] of the Cape High Court [6] declaring the procedure and requirements set out in ss 309B and 309C of this legislation to be inconsistent with the Constitution (the O'Connell judgment). The O'Connell judgment was to hand when we heard D argument in Shinga. However, the formal confirmation referral of the O'Connell decision was received by the Registrar of this Court only after argument in Shinga had been concluded. Since the constitutionality of ss 309B and 309C had already been fully debated in the Shinga matter and because there was no appeal in the O'Connell matter, it was deemed E unnecessary to entertain further argument in relation to the O'Connell confirmation proceedings. This judgment therefore decides both the Shinga and O'Connell cases.

[2] The interaction between this Court and Parliament concerning the constitutional validity of the criminal-appeal procedure in respect of F judgments of the magistrates' courts has spanned more than ten years. This is the third occasion on which this Court has been called upon to consider the procedure for criminal appeals from the magistrates' courts. This Court has twice previously declared aspects of these prescriptions to be inconsistent with the Constitution. [7] Parliament responded each time by putting in place a procedure and requirements different from G those that had been declared unconstitutional in an effort to remedy the defect. It is advisable in the circumstances to set out this interaction in some detail. It is the context within which the correctness or otherwise of the declarations of invalidity in this case may be considered. H

Yacoob J

Criminal appeals from the magistrates' courts after 1994 A

[3] At the inception of the new constitutional order in 1994, criminal appeals against conviction or sentence by a magistrate were governed by certain provisions in the Criminal Procedure Act which created a regime generally described as conferring an automatic right of appeal upon the accused. Although this Act did permit 'any person convicted of any B offence' by any magistrates' court to appeal against that conviction to the High Court, [8] the right did not apply to everyone. The right was qualified in that any convicted person 'undergoing imprisonment' was not entitled to appeal in person unless a High Court judge [9] certified that 'reasonable grounds' for appeal existed. [10] In effect the right of appeal was available C only to convicted people who were not in prison and to convicted people who were in prison but who enjoyed legal representation. All people who were in prison and who had no legal representation had to apply for a judges' certificate. For the sake of completeness, I might add that all appeals whether automatic or consequent upon a judges' certificate were argued in open court before two or three judges. D

[4] The constitutionality of this limitation on the right to appeal of unrepresented imprisoned people was challenged in this Court 11 years ago in the matter of Ntuli. [11] In that case, this Court measured the limitation of the right to appeal against the fair trial guarantee in the interim Constitution [12] which conferred the right to a fair trial, including E the right 'to have recourse by way of appeal or review to a higher Court than the Court of first instance'. This Court held the judges' certificate requirement to be inconsistent with the interim Constitution and invalid. Salient features of that judgment for present purposes are set out:

(a)

The judgment pointed out that the statute prescribed no procedure F by which the judges' certificate might be applied for and that, in practice, the procedure was set in motion by a 'communication from the prisoner' which Didcott J described as follows:

'He or she has usually composed that, either alone or with the help of some imprisoned sea lawyer. The typical product of such efforts . . . is a G rambling and incoherent commentary on the trial which misses points that matter, takes ones that do not, and scarcely enlightens the Judge about any. The only impressions of the case which the Judge gains at the start are those derived from the reasons given by the magistrate for the conviction and the sentence. And they will remain sole impressions unless the record is procured and read.' [13] H

(b)

In relation to the procurement of the record, this Court said:

'Some judges obtain the record habitually, once the case is not the sort .

Yacoob J

where the information already available satisfies them that a certificate A should be granted straight away. Others do so rarely, being content by and large to rely rather on the magistrate's account of the trial. The refusal of a certificate on that footing worries one. Those judges who do not read the record will have no means of knowing whether the evidence substantiated the findings made by the magistrate on the credibility of witnesses and other factual issues. They will not learn of any procedural irregularities that may B have marred the trial. Nothing dispels their ignorance on those scores. Nothing alerts them to flaws in the magistrate's findings or conduct of the proceedings which are hidden for the time being but the record may in due course reveal.' [14]

(c)

Then in relation to what was required by the interim Constitution: C

'[T]he minimum that it envisages and implies, I believe, is the opportunity for an adequate reappraisal of every case and an informed decision on it.' [15]

[5] The reasoning depicted in the previous paragraph may be summarised as follows. The quality of representations made by an unrepresented D accused in support of an application for a judges' certificate was so poor that it was ordinarily very difficult if not impossible to make any appropriate reassessment of the findings of the magistrate without recourse to the record. On this basis, as I have already said, the judges' certificate requirement was found to be inconsistent with the interim Constitution. [16] The declaration of invalidity was suspended for a period E of about one year and five months [17] to enable Parliament to cure the defect.

[6] Parliament responded two years later [18] by passing legislation [19] aimed at curing the defect by amending the criminal-appeal procedure (the first F amendment). The legislation came into force only on 28 May 1999 with the result that an automatic right of appeal became available to everyone for some two years. The effect of this legislation may, to the extent relevant, be summarised as follows:

(a)

All appeals without exception were subject either to leave to appeal granted by a magistrate [20] or, absent leave granted by the magistrate, G leave granted on petition to the Judge President of the High Court concerned. [21] Automatic criminal appeals from magistrates' courts were abolished altogether.

(b)

Sections 309B and 309C constituted a single leave-to-appeal procedure with two possible stages. Only if leave to appeal was refused J

Yacoob J

by the magistrate in the application for leave postulated by s 309B A did s 309C become applicable.

(c)

The material aspects of s 309C for these proceedings were the following. First, as I have already pointed out, refusal of leave to appeal by the magistrate obliged an accused, intent upon pursuing an appeal, to petition the Judge President of the High Court having B jurisdiction for leave to appeal. [22] Secondly, the clerk of the Court was obliged to submit to the Registrar of the relevant High Court only two documents: a copy of the application for leave to appeal to the magistrate and the magistrate's reasons for the refusal of the application. [23] Thirdly, the petition had to be considered in Chambers C by two judges but if the two judges differed, the petition had also to be considered by a third judge. [24] Fourthly, the judges hearing the petition were empowered to call for any further information from the magistrate who heard the application. [25]

(d)

It would have been noted that, despite the decided accent in Ntuli D on the importance of the record and the difficulties of relying only on the reasons of the magistrate in applications for judges' certificates, the clerk of the Court in applications for leave to appeal was not obliged to provide the record or even the judgment of the magistrate concerned on the merits. It was left to the judges E considering the petition to decide whether any further information should be called for.

(e)

The first amendment also introduced a new s 309(3A) [26] which sought to authorise the disposal of an appeal after leave had been granted in Chambers and upon written argument; not in open F Court and after hearing oral argument. This could be done, however, only if the parties agreed and if the Judge President of the Court concerned directed. [27]

[7] After the judgment in Ntuli had been given and before any remedial legislation had been enacted, this Court was called upon to consider G the constitutional validity of the application for leave-to-appeal procedure for criminal appeals from the High...