Qhinga and Others v S (CCT 50/10)  ZACC 18 (25 May 2011)
The Constitutional Court in South Africa recently considered an application for leave to appeal against a dismissal by the Supreme Court of Appeal of a petition filed by the applicants on the basis that relevant portions of the record of the proceeding in the High Court were not properly considered in the applicants’ petition. It was held that the applicants did not have the benefit of a right of appeal or review by a higher court as envisioned in s 35(3)(o) of the Constitution and thus the order made by the Supreme Court of Appeal was dismissed, the petition was set aside and the matter remitted to the Supreme Court of Appeal for reconsideration.
Seven applicants were convicted in the Eastern Cape High Court (trial court) on two counts of attempted murder and for four counts of robbery with aggravating circumstances. Each was sentenced to long terms of imprisonment. The applicants were implicated in the commission of the crimes solely by statements or pointing-outs they had made to the police or to a magistrate.
The trial court held that "the State relies on statements and some pointings-out the accused made in which they implicated themselves. Trials-within-a-trial in respect of the seven accused were held. Rulings were that the statements and the pointings-out were admissible in evidence. The rulings form part of the record. The Court rules finally that the statements and the pointings-out in respect of the accused are admissible in evidence."
In April 2009, the applicants applied to the trial court for leave to appeal to a full court of the High Court against their convictions and sentences on the basis that their incriminating statements and pointings-out were incorrectly admitted as evidence. The applicants argued that they had not made their statements and pointings-out freely, voluntarily and without undue influence. At the time of making them, they had not been told of their right to legal representation and they had been threatened, tortured and assaulted by police. The trial court rejected their application for leave to appeal on the ground that the applicants had no reasonable prospects of success.
In May 2009, the applicants petitioned the President of the Supreme Court of Appeal for leave to appeal against the judgement of the trial court again on the grounds that their statements and pointings-out were wrongly admitted as evidence. The Constitutional Court has held that where no constitutional issues are raised the Supreme Court of Appeal can refuse leave to appeal without hearing oral argument or providing reasons. In July 2009 the applicants' petition was summarily dismissed.
In May 2010, the applicants applied to the Constitutional Court for leave to appeal against the order of the Supreme Court of Appeal on the grounds that their right to a fair trial, including "appeal to, or review by, a higher court", under s 35(3)(o) of the Constitution was infringed. The applicants argued that the petition procedure of the Supreme Court of Appeal was unfair and that their submissions were not properly considered. The applicants suggested that this was because the Supreme Court of Appeal did not have regard to relevant portions of the trial court's record regarding the admission of the applicants' statements and pointings-out, which required consideration in order for the Supreme Court of Appeal to conduct a fair reappraisal.
The Constitutional Court noted that the trial court did not discuss or describe or publish its reasons for its rulings in the trials-within-the-trial in which it admitted statements and pointings-out, it merely referred to the reasons set out in an earlier record. The Supreme Court of Appeal did not provide any reasons for its order and therefore the Constitutional Court could not comment on whether the relevant records of the trial court were considered by the Supreme Court of Appeal before it dismissed the applicants' petition.
The Constitutional Court concluded that "the applicants did not have the benefit of an adequate reappraisal of their case or an informed decision on it... [and] were not afforded a fair procedure in terms of their right 'of appeal to, or review by, a higher court', as contemplated by section 35(3)(o) of the Constitution." The order of the Supreme Court of Appeal was therefore set aside and the applicants' petition remitted to the Supreme Court of Appeal for reconsideration.
Relevance to the Victorian Charter
Section 24 of the Charter states that "A person charged with a criminal offence or party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing". This is distinct from s 35(3)(o) of the South African Constitution, as it does not specifically mention of the right to appeal or review by a higher court. The case of Qhinga highlights the importance of the right to appeal or review a decision from a judicial court or tribunal in order to ensure the judiciary is held accountable and the integrity of the legal system is maintained. For these reasons, s 24 of the Charter arguably does not go far enough and should be amended to include a right to appeal to higher courts for review of decisions.
The decision is at http://www.saflii.org/za/cases/ZACC/2011/18.html.
Bridie Murray is a graduate and Daniel Creasey is a Senior Associate with DLA Piper.