The application of a woman, sentenced to life imprisonment, for special leave to appeal against an earlier court ruling was refused in the Constitutional Court on Tuesday.
Rethea Bierman was convicted of murder and of two other offences relating to the unlawful possession of a firearm and ammunition by the Pretoria High Court.
She has said that her constitutional rights were infringed when the High Court allowed a priest, who heard her confession, to testify in the trial.
Reverend G Bothma, a minister of the Dutch Reformed Church, testified that Bierman had confessed to him that she was guilty of the charge of murder during one of his visits to her in prison.
Bierman argued before the Constitutional Court that allowing Bothma’s testimony was in breach of her right to privacy and her right to a fair trial.
She further asserted that if Bothma’s evidence had not been admitted by the High Court, she would not have been convicted.
However the Constitutional Court said in its judgment that Bierman’s conviction rested on the testimony of several witnesses.
A friend of Bierman, Mrs H Botha, had testified that Bierman also confessed her involvement in the crime to her on two occasions.
There was also direct evidence of her involvement in the crime given by an accomplice.
Bothma was advised by his lawyers before he testified that the confession was not privileged and that he was therefore a competent witness.
Counsel for Bierman argued in the High Court that Bothma’s evidence should not be admitted, but the court held that it was not in the interests of justice to exclude the evidence.
Bierman’s applications for leave to appeal against the conviction were refused both by the High Court and the Supreme Court of Appeal in Bloemfontein.
She then sought special leave to appeal to the Constitutional Court on the ground that her constitutional rights were infringed by the High Court.
The State opposed the application for special leave to appeal on the basis that Bierman did not raise the question of the infringement of her constitutional rights in her application for leave to appeal to Appeal Court.
The State also argued that Bierman’s conviction was not dependent on Bothma’s evidence alone.
The judgment said it appeared that Bierman did not raise crisply the question of the common law principles governing the admissibility of Bothma’s evidence in her application for leave to appeal to the Appeal Court.
In particular, she did not argue that the admission of that evidence resulted in an infringement of her constitutional rights.
It said it was clear that special leave to appeal against a decision of the Appeal Court would only be granted when it was in the interests of justice to do so.
Bierman’s failure to raise the constitutional issues concerning the admissibility of Bothma’s evidence in her application to the Appeal Court inhibited her ability to raise them in the Constitutional Court.
As a result of that failure, the court did not have the benefit of the Appeal Court’s consideration of these issues which related directly to established principles of the common law and to the application of such principles.
Also, according to the judgment, Bierman had failed to establish that she had reasonable prospects of success in the Constitutional Court.
”It is not in the interests of justice to grant leave to appeal against a criminal conviction on a point of law where a decision favourable to the applicant will not result in the conviction being set aside.”
The Constitutional Court was satisfied, based on relevant material before it, that it was not able to form a clear view, even if Bothma’s evidence was to be held constitutionally inadmissible, that there was no reasonable prospect that this would lead to the conviction being set aside.
Under these circumstances the application was refused.
However the court said it must be noted that in refusing the application, it had not considered the law governing the admissibility of the evidence of statements made to ministers of religion.
This matter would be considered in the future in an appropriate matter. All the Constitutional Court judges concurred with the judgment. – Sapa