Nicko Ntuli was convicted by a regional magistrate of rape, attempted murder and assault with intent to do grievous bodily harm, and sentenced to an effective term of 13 years’ imprisonment. He was unrepresented at trial and, being incarcerated and without legal representation, sought to appeal his conviction and sentence in person. Under sections 309(4)(a) and 305 of the Criminal Procedure Act 51 of 1977, an unrepresented prisoner could not prosecute an appeal in person unless a judge certified that there were reasonable grounds for appeal. Ntuli wrote an informal letter complaining about his trial, which was treated by a judge as both a notice of appeal and an application for a judge’s certificate. Although the judge found no prospects of success, he referred to the Constitutional Court the question whether the statutory requirement of a judge’s certificate was consistent with section 25(3)(h) of the interim Constitution, which guarantees the right of recourse by way of appeal or review to a higher court.
Sections 305 and 309(4)(a) of the Criminal Procedure Act were declared unconstitutional and invalid to the extent that they required unrepresented prisoners to obtain a judge’s certificate before prosecuting an appeal in person. The Court suspended the effect of the declaration of invalidity to allow Parliament time to correct the defect, in the interests of justice and good government.
This case is a foundational decision on the constitutional right of appeal in South African criminal procedure. It affirmed that access to appeal must be real and effective, not merely formal, and that procedural mechanisms which disproportionately burden unrepresented prisoners violate both the right to a fair trial and equality before the law. The judgment accelerated reform of appellate procedures and reinforced the substantive conception of fairness introduced by the interim Constitution.