J D Pennington and M E Summerley v The State

The two appellants were convicted in the Witwatersrand Local Division in January 1992 on 172 counts of fraud. The first appellant was sentenced effectively to six years imprisonment (half conditionally suspended) and the second to seven years. Their appeal to the Supreme Court of Appeal was dismissed on 16 May 1997. On 26 May 1997 they lodged a notice purporting to appeal to the Constitutional Court, claiming their rights to human dignity and a fair trial under sections 10 and 35(3) of the 1996 Constitution had been infringed. The trial occurred before the interim Constitution came into force. The appeal raised procedural questions about whether leave to appeal was required to approach the Constitutional Court from the Supreme Court of Appeal, whether the 1996 Constitution applied retroactively to the trial, and how the Constitutional Court should regulate appeals from the Supreme Court of Appeal in the absence of enabling legislation or rules.

• Whether the Constitutional Court has appellate jurisdiction to hear appeals from the Supreme Court of Appeal on constitutional matters
• Whether leave to appeal is required for such appeals in the absence of specific legislation or rules
• Whether the Constitutional Court can regulate its own procedure using its inherent powers under section 173 of the 1996 Constitution
• Whether the 1996 Constitution applies retroactively to trials completed before its enactment
• Whether appellate delays constitute an infringement of the right to a fair trial
• Whether applications for leave to appeal must be heard in public

The notice of appeal was treated as an application for leave to appeal. The application for leave to appeal was dismissed. A procedure was established for future appeals from the Supreme Court of Appeal requiring leave to be obtained within 14 days in terms of rule 10.

The binding legal principles established are: (1) The Constitutional Court has appellate jurisdiction to hear appeals from the Supreme Court of Appeal on constitutional matters under sections 167(3)(a) and 168(3) of the 1996 Constitution. (2) Leave to appeal from the Supreme Court of Appeal to the Constitutional Court is required, as contemplated by section 167(6) of the 1996 Constitution. (3) The Constitutional Court may exercise its inherent power under section 173 to regulate its own process and establish procedural requirements in the absence of enabling legislation or rules, when necessary in the interests of justice. (4) The 1996 Constitution does not apply retroactively to criminal trials completed before its enactment. The fairness of such trials must be assessed according to the law in force at the time of the trial. (5) Item 17 of Schedule 6 provides that pending proceedings must be disposed of as if the new Constitution had not been enacted unless the interests of justice require otherwise, but this does not extend to retrospective application to completed proceedings. (6) An appeal inherently contains the complaint that the court a quo erred in terms of the law applicable at the time, not in terms of law that subsequently came into operation. (7) Applications for leave to appeal in criminal matters do not require a public hearing under section 35(3) of the Constitution.

The Court made several non-binding observations: (1) Even if appellate delays were to constitute an infringement of constitutional rights (a question left open), the appropriate remedy would not be to set aside convictions or reduce sentences in cases where appeals are unsuccessful, as this would be contrary to the public interest and would bring the administration of justice into disrepute. The Canadian jurisprudence on appellate delay was discussed but not definitively adopted. (2) The Court noted that it was unnecessary to decide whether the inherent power under section 173 is subject to the same constraints as the inherent power previously recognized in the Appellate Division. (3) Chaskalson P observed that undue delay in hearing criminal appeals is obviously undesirable, particularly when appellants are in custody, though this does not necessarily constitute an infringement of the right to a fair trial. (4) The Court noted there are sound practical reasons for dealing with applications for leave to appeal in chambers rather than in open court, as otherwise court rolls would be clogged resulting in additional expense and delays. (5) The Court observed that section 34 (the right to a fair public hearing) likely does not apply to criminal proceedings, as section 35 deals specifically with criminal proceedings.

This case is of fundamental importance in South African constitutional law for establishing the procedural framework for appeals from the Supreme Court of Appeal to the Constitutional Court. It confirmed the Constitutional Court's position as the highest court in constitutional matters and its appellate jurisdiction over all other courts. The judgment exercised the Court's inherent power under section 173 to regulate its own process in the absence of enabling legislation, establishing that leave to appeal is required even from the Supreme Court of Appeal. The case also reaffirmed the principle of non-retroactivity of the Constitution established in Du Plessis v De Klerk and S v Mhlungu, clarifying that completed trials cannot be challenged based on constitutional standards that did not exist at the time. It established the practice that applications for leave to appeal can be dealt with in chambers rather than in open court. The judgment filled a critical procedural vacuum during the transitional period from the interim to the final Constitution.