The Constitution Court (Concourt) on Thursday declared unconstitutional certain sections of the Criminal Procedure Act governing the rights of convicts to appeal against their convictions and sentences.
”The effect of the order is that a person seeking to appeal his or her conviction now has the right to have the record from their previous trial sent to the appellate court; to have the application for leave to appeal considered by two judges; and, if leave to appeal is granted, to argue the appeal in an open hearing in the high court,” Justice Kate O’Regan ruled.
The matter arose from two cases — Shinga vs state from the Pietermaritzburg High Court, and O’Connell and others vs State from the Cape High Court — and related to Section 309 of the 1977 Act.
The first issue related to when a high court hears an application for leave to appeal once a magistrate’s court has refused this.
The Act says the high court should consider the trial record, except in certain circumstances. The Concourt ruled that a court record must be provided in all applications to make the process fair.
A second issue related to the provision that just one judge could hear an application for leave to appeal.
The Concourt said there were ”powerful reasons” to have more than one judge consider such applications, partly because of the usefulness of ”collegial discussion” in making a fair assessment, and partly because ”a refusal of leave to appeal is the end of the road for an accused”.
It thus ruled that two judges should be involved.
The Concourt said the third issue related to the provision that requires a high court to hear an appeal in chambers without hearing oral argument unless the interests of justice require otherwise. The Pietermaritzburg High Court found that hearing appeals in open court was a key part of a fair trial; the Concourt agreed and ruled the section unconstitutional.
Finally, the Concourt rejected the Pietermaritzburg High Court’s conclusion that the application for leave to appeal procedure was bad in its entirety, and thus left the rest of the procedure as it was. — Sapa