The State v J M Twala

Mr Twala was convicted of murder by Cameron J in the Witwatersrand High Court on 25 February 1998. His application for leave to appeal was dismissed by the presiding judge. He then petitioned the Supreme Court of Appeal for leave to appeal and leave to lead further evidence, which was refused on 23 November 1998. Twala wrote to the Constitutional Court claiming that he had been frustrated in exercising his right to appeal and that the criterion for determining reasonable prospects of success was applied unfairly and arbitrarily. He was impecunious and had spent most of his money seeking to exercise his right of appeal. The Constitutional Court treated his application as raising the constitutional question of whether sections 316 and 315(4) of the Criminal Procedure Act 51 of 1977 (which require leave to appeal from convictions in the High Court) comply with section 35(3)(o) of the Constitution.

• Whether sections 316 and 315(4) of the Criminal Procedure Act 51 of 1977, which require leave to appeal against convictions in the High Court, are consistent with section 35(3)(o) of the Constitution
• Whether section 35(3)(o) of the Constitution confers an unqualified right to appeal without leave, or whether it permits a leave to appeal procedure
• Whether there is a material difference between section 25(3)(h) of the interim Constitution and section 35(3)(o) of the final Constitution regarding the right to appeal
• What is meant by 'appeal to, or review by, a higher court' in section 35(3)(o) - does it require a technical meaning or a broad meaning of reassessment
• Whether the omission of the phrase 'to have recourse by way of' from section 35(3)(o) (which appeared in section 25(3)(h)) indicates an intention to create an absolute right of appeal

The application for leave to appeal was dismissed. Sections 316 and 315(4) of the Criminal Procedure Act 51 of 1977 were found to be consistent with section 35(3)(o) of the Constitution.

Section 35(3)(o) of the Constitution does not confer an unqualified right to appeal in a technical sense, but rather requires provision for an appropriate reassessment of issues by a higher court, provided the statutory procedure is fair in all circumstances as demanded by section 35(3). The words 'appeal' and 'review' in section 35(3)(o) do not have technical meanings but should be interpreted broadly as requiring reassessment. There is no material difference between section 25(3)(h) of the interim Constitution and section 35(3)(o) of the final Constitution - the omission of the phrase 'to have recourse by way of' does not indicate an intention to create an absolute right of appeal. Sections 316 and 315(4) of the Criminal Procedure Act 51 of 1977, which require leave to appeal from High Court convictions, are constitutional because they provide for fair reassessment through a petition procedure involving at least two Supreme Court of Appeal judges, with various procedural safeguards, and preserve automatic appeal rights for certain irregularities and questions of law.

The Court observed that the purpose of section 35(3)(o) is to minimize the risk of wrongful convictions and consequent failures of justice by ensuring reconsideration by a higher court. The Court noted that it cannot be in the interests of justice and fairness to allow meritless and vexatious issues to clog the roll of the Supreme Court of Appeal with hopeless cases. Regarding concerns about unequal access for impecunious accused persons, the Court noted that section 35(3)(g) provides for state-funded legal representation where substantial injustice would otherwise result, and such representation should ordinarily include assistance with leave to appeal applications and petitions in serious High Court matters. Whether a breach of section 35(3)(g) has occurred must be determined on a case-by-case basis. The Court emphasized that when interpreting constitutional provisions, changes in language between the interim and final Constitution could indicate changed meaning, but should not necessarily be understood as such if the language in context does not require it - the change may simply reflect a desire to use plain language.

This case is significant in South African jurisprudence because it authoritatively confirmed that the constitutional right to appeal under section 35(3)(o) of the 1996 Constitution does not create an absolute, unqualified right to appeal from High Court convictions without leave. It established that the fair trial right encompasses appropriate reassessment by a higher court through procedures that are fair in all circumstances, but does not require automatic appeals regardless of merit. The judgment clarified that there is no material difference between the interim Constitution's section 25(3)(h) and the final Constitution's section 35(3)(o), despite different wording. It confirmed the constitutionality of the leave to appeal procedure for High Court criminal convictions, which remains the law. The case also illustrates the Constitutional Court's purposive and contextual approach to interpreting Bill of Rights provisions, considering international law (Article 14(5) ICCPR), and balancing access to justice with the need to prevent court rolls being clogged with meritless appeals. It established important principles about how criminal appeal rights should be understood within the broader fair trial guarantee.