S v Shinga and S v O'Connell and Others

These are two separate criminal appeal matters referred to the Constitutional Court for confirmation of declarations of constitutional invalidity made by two High Courts. Mr Shinga was convicted of robbery in the Regional Court and sentenced to 10 years imprisonment. He was granted leave to appeal. The KwaZulu-Natal High Court declared sections 309(3A), 309B and 309C of the Criminal Procedure Act unconstitutional. In O'Connell, six applicants were convicted of serious firearms offences. The magistrate refused leave to appeal and they petitioned the High Court. The Cape High Court declared sections 309B and 309C unconstitutional. Both matters concerned the criminal appeal procedure from Magistrates' Courts to High Courts, which had been amended twice by Parliament following previous Constitutional Court rulings in Ntuli and Steyn that found earlier versions unconstitutional.

• Whether section 309(3A) which requires appeals to be disposed of in chambers on written argument (unless the court orders oral argument) is consistent with the constitutional right to a fair trial and appeal
• Whether section 309C(4)(c) which exempts certain categories of cases from the requirement to send the trial record to petition judges is constitutionally valid
• Whether section 309C(5)(a) which allows a single judge (rather than two) to consider petitions for leave to appeal is constitutionally compliant
• Whether the leave-to-appeal procedure in sections 309B and 309C as a whole is constitutionally sound

The Court confirmed the declaration of invalidity of section 309(3A) in its entirety. The proviso to section 309C(4)(c) and its four sub-paragraphs were severed. In section 309C(5)(a), the words "a judge" and the proviso were severed and replaced by reading in "two judges". The orders apply to all criminal appeals where judgment has not been delivered within 14 days. The Shinga appeal was referred back to the KwaZulu-Natal High Court to be finalized. The registrar was directed to inform all Judges President and the Legal Aid Board of the judgment.

The binding legal principles are: (1) Section 35(3)(o) of the Constitution guarantees the right to appeal or review by a higher court, which requires that appeals be as fair as trials. (2) A fair appeal requires the opportunity to present oral argument in open court. Disposing of appeals in chambers on written argument alone violates principles of open justice, transparency and fairness. (3) An "adequate reappraisal" of a criminal conviction and sentence requires that petition judges have access to the full trial record in all cases. Exceptions that deny the record to certain categories of applicants cannot be justified. (4) Two judges (not one) must consider petitions for leave to appeal from Magistrates' Courts, consistent with the approach taken for High Court appeals and to ensure quality through collegial discussion. (5) While a leave-to-appeal procedure is constitutionally permissible and can help prevent unmeritorious appeals, it must provide for adequate reappraisal through access to the full record and consideration by at least two judges.

The Court expressed grave concern about reports that legal aid is often not granted to enable convicted persons to make applications for leave to appeal after conviction, despite legal aid being granted for trial. The Court observed that persons granted legal aid for trial on the basis that substantial injustice would otherwise result should ordinarily be entitled to legal aid to apply for leave to appeal. The Court directed the registrar to draw this paragraph to the attention of the Legal Aid Board. The Court also emphasized the judicial character and delicacy of the task conferred on magistrates in determining whether to grant leave to appeal, requiring intellectual humility and integrity in considering whether another court may reach a different conclusion. The Court noted the unfortunate delay in Mr Shinga's case - two and a half years since leave to appeal was granted, with the appeal still not decided - highlighting the urgency of resolving the constitutional issues. The judgment also traced the decade-long interaction between the Court and Parliament concerning criminal appeal procedures, showing how Parliament had twice attempted to cure constitutional defects identified by the Court.

This is the third occasion the Constitutional Court has addressed the constitutional validity of criminal appeal procedures from Magistrates' Courts, following Ntuli and Steyn. The judgment firmly establishes key constitutional principles: (1) appeals must ordinarily be heard in open court with oral argument, not in chambers on written submissions; (2) the full trial record must be available to judges considering leave to appeal in all cases; (3) two judges (not one) must consider petitions for leave to appeal; (4) the right to appeal under section 35(3)(o) requires "adequate reappraisal" which necessitates these procedural safeguards. The case demonstrates the Court's commitment to open justice principles and highlights the particular vulnerabilities of unrepresented accused persons in the criminal justice system. It also shows the Court's willingness to use remedies of severance and reading-in to cure constitutional defects while preserving the functional operation of the statute.