Pennington and Summerley v The State

The appellants were convicted in January 1992 in the Witwatersrand Local Division on 172 counts of fraud and sentenced to effective terms of imprisonment. Their trial and convictions occurred before the interim Constitution came into force. They unsuccessfully appealed their convictions and sentences to the Supreme Court of Appeal (then Appellate Division), which dismissed the appeal in May 1997, holding that the fairness of the trial had to be assessed under the law applicable at the time of the trial. The appellants then purported to appeal directly to the Constitutional Court, alleging infringements of their rights to dignity and a fair trial under the 1996 Constitution, relying on alleged trial delays, lack of legal representation at crucial stages, inadequate explanation of rights, and admission of evidence. At the time, no legislation or rules existed regulating appeals from the Supreme Court of Appeal to the Constitutional Court under section 167(6) of the 1996 Constitution.

Leave to appeal to the Constitutional Court was refused, with the result that the appeal was dismissed.

The case is significant for clarifying the Constitutional Court’s appellate jurisdiction over decisions of the Supreme Court of Appeal and confirming that, even in the absence of enabling legislation, appeals require leave in the interests of justice. It also reaffirmed the principle of non-retroactivity of the Bill of Rights in criminal proceedings completed before constitutional protections came into force.