The applicant was convicted by the South Eastern Cape High Court on two counts of fraud. Both the High Court and the Supreme Court of Appeal refused leave to appeal. The applicant sought special leave to appeal from the Constitutional Court. During the trial, the applicant gave evidence that his decision not to provide certain information to the police was an exercise of his right to silence in terms of section 35(1)(a) of the Constitution. The trial judge found this evidence unacceptable in the circumstances and appeared to draw an adverse inference from the applicant's silence.
Special leave to appeal refused. All justices (Chaskalson P, Langa DP, Ackermann J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Du Plessis AJ and Skweyiya AJ) concurred in the judgment of Yacoob J.
The Constitutional Court will refuse special leave to appeal, even where a constitutional issue is raised, if the evidence against the accused is so compelling that there is no reasonable prospect that the convictions will be set aside on appeal. The Court need not decide a constitutional question where doing so would serve no practical purpose in determining the outcome of the case. The mere existence of a potentially meritorious constitutional issue does not automatically warrant the granting of special leave to appeal if the appeal would inevitably fail on other grounds.
The Court did not make definitive pronouncements on the substantive constitutional issue raised. However, the judgment implicitly suggests sympathy with the principle that adverse inferences should not be drawn from an accused's exercise of the constitutional right to silence under section 35(1)(a) of the Constitution. By assuming in favour of the applicant that drawing such an adverse inference was not permissible, the Court indicated that this constitutional protection of the right to silence is significant, even though it did not formally decide the issue. This approach suggests that in an appropriate case, the Court might well find that drawing adverse inferences from the exercise of the right to silence is constitutionally impermissible.
This case demonstrates the Constitutional Court's approach to granting special leave to appeal in criminal matters. It illustrates that the Court will decline to decide constitutional issues, even potentially meritorious ones, where determining such issues would serve no practical purpose because the outcome of the appeal is clear on other grounds. The case reinforces the principle that the existence of a constitutional issue alone is not sufficient for the Constitutional Court to grant leave to appeal if there is no reasonable prospect of success. It also confirms the Court's discretionary approach to deciding constitutional matters only when necessary.