Msobomvu Qhinga and Others v The State

Six applicants were convicted in the Eastern Cape High Court, Bhisho in March 2009 on two counts of attempted murder and four counts of robbery with aggravating circumstances. They were sentenced to long terms of imprisonment (mostly 28 years, one to 22 years). The convictions were based solely on statements and pointings-out the applicants made to police or magistrates. Trials-within-a-trial were held regarding admissibility of these statements, and the trial court ruled them admissible, but the trial judgment did not set out the reasons for these rulings in detail, merely referring to rulings that formed part of the record. The applicants applied for leave to appeal to the trial court, which was refused. They then petitioned the Supreme Court of Appeal (SCA) for leave to appeal, which was summarily dismissed on 16 July 2009 by two judges without reasons. The applicants then approached the Constitutional Court, arguing their right to appeal had been violated because the SCA did not have regard to the relevant portions of the record containing the trials-within-a-trial rulings when considering their petition. The application was filed late (May 2010, over 10 months after the SCA order).

• Whether condonation should be granted for the late filing of the application for leave to appeal
• Whether leave to appeal should be granted
• What is the constitutional standard for a fair petition procedure under section 35(3)(o) of the Constitution
• Whether the Supreme Court of Appeal properly considered the petition without having regard to the reasons for the rulings in the trials-within-a-trial
• What is the appropriate remedy where an appellate court fails to conduct an adequate reappraisal of a petition for leave to appeal
• Whether this Court has power to remit a matter to the Supreme Court of Appeal for reconsideration

Condonation granted. Leave to appeal granted. Appeal upheld. The order of the Supreme Court of Appeal dismissing the applicants' petition for leave to appeal is set aside. The petition is remitted to the Supreme Court of Appeal for reconsideration.

The right of appeal under section 35(3)(o) of the Constitution requires, as a minimum, an adequate reappraisal of every case and an informed decision. For judges considering a petition for leave to appeal to make an informed decision, they must have before them the challenged rulings and the reasons for those rulings, in order to determine whether the rulings were justified by the reasons and whether the reasons were justified by the evidence. Where an appellate court dismisses a petition without having regard to the relevant portions of the record containing the challenged rulings and reasons (which were not set out in the trial court's judgment), the petitioner has not had the benefit of an adequate reappraisal and the procedure violates section 35(3)(o). The Constitutional Court has power under section 172(1)(b) to remit a matter to an appellate court for reconsideration where a constitutional right of appeal has been violated.

The Court noted that section 316(10)(c)(i)-(iv) of the Criminal Procedure Act (which allowed for petitions to be considered based only on the judgment in certain circumstances) had been declared unconstitutional in Shinga v The State in relation to petitions from magistrates' courts to High Courts. The Legislature had already amended the Act by deleting these subparagraphs before this judgment, so the Court did not need to pronounce on their constitutionality in the context of petitions from High Courts to the Supreme Court of Appeal, and the applicants abandoned this ground. The Court observed that Supreme Court of Appeal Rule 6(5)(b)(i) actually provides that a petition "shall not be accompanied by the record," though Rule 6(6) empowers judges to call for it. The Court noted uncertainty about whether a complete record existed when the SCA considered the petition, as there were transcription problems due to microphone malfunction covering twelve days of proceedings.

This case clarifies the constitutional requirements for a fair petition procedure under section 35(3)(o) of the Constitution. It establishes that an appellate court considering a petition for leave to appeal must have before it, at minimum, the challenged rulings and the reasons for those rulings in order to conduct an adequate reappraisal. The case demonstrates the Court's willingness to use its remedial powers under section 172(1)(b) to remit matters to lower courts where constitutional rights have been violated, rather than deciding the merits itself. It reinforces earlier jurisprudence in S v Ntuli and S v Steyn regarding the minimum standards for appeals and the importance of trial court reasons for the functioning of the appeal process. The judgment implicitly addresses problems with section 316(10)(c) of the Criminal Procedure Act (though that provision had already been amended by the time of judgment), which allowed petitions to be considered based only on the judgment without the full record in certain circumstances.