sections in criminal procedure act declared unconstitutional
9 March 2007

The Constitutional Court yesterday declared invalid sections of the Criminal Procedures Act which it felt limited the rights of convicts to appeal against their convictions and sentences.

The court ruled that appeals to a higher court should be decided by at least two judges in an open court. The Criminal Procedure Act made it possible for a judge to decide an appeal in chambers.

The court also said a full trial record from magistrate’s courts should be furnished to the high court in appeal petitions in order for the high court to reappraise the matter.

The case was opposed by Justice Minister Brigitte Mabandla, who argued that the sections were necessary to avoid clogging the court rolls.

On the issue of deciding an appeal in chambers, the court found that hearing appeals in open court was an important aspect of a fair trial procedure.

“The section makes dangerous inroads into our system of justice, which ordinarily requires court proceedings that affect the rights of parties to be heard in public.

“It provides that an appeal can be determined by a judge behind closed doors. No member of the public will know what transpired,” said Judge Zac Yacoob, writing for a unanimous court.  Yacoob said the survivors of crime, those accused of it and the broader community had a right to see that justice was done in criminal matters.  “Seeing justice done in court enhances public confidence in the criminal justice process and assists victims, the accused and the broader community to accept the legitimacy of that process.  “Open courtrooms foster judicial excellence.”

On the issue of a single judge to consider leave to appeal, Yacoob said there were “powerful” reasons for requiring more than one judge to reconsider a criminal record to determine whether leave to appeal should be granted.

He said a decision by a single high court judge that leave should not be granted was the end of the road for the accused.

“Many of the criminal cases heard by regional courts are of a serious nature and can result in long periods of imprisonment. Collegial discussion in considering a record is valuable and enhances the quality of reappraisal of a record.”  Yacoob said if it was appropriate for two judges in the Supreme Court of Appeal to consider applications for leave to appeal to it from judgments of the high court, the question to be asked was why one judge was enough to consider petitions for leave to appeal from the magistrate’s court.

“Unless cogent reasons have been given for a different approach, it must follow that two judges of the high court ought in the first instance to consider petitions for leave to appeal against decisions of magistrates for the procedure to result in an adequate reappraisal,” Yacoob said

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