changes by constitutional court in the procedure for criminal appeals from magistrate’s court
13 March 2007


The court confirmed the constitutional invalidity of a section in the Criminal Procedure Act which allowed a high court judge to decide an appeal in chambers without hearing oral argument unless the court felt it was required.

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

The court also declared invalid a subsection in the Criminal Procedure Act which stated that one judge should consider an application for leave to appeal. It said two judges should consider such applications.  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.

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, thus rendering courts accountable and legitimate.”

On the issue of a single judge to consider applications for leave to appeal, Yacoob said there were “powerful” reasons for requiring more than one judge to reconsider a criminal trial 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 whose conviction and sentence would then stand.

Many of the criminal cases heard by regional courts are of a very 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 and it is not surprising therefore that it has been the general practice in our courts for more than one judge to be engaged in such reconsideration.”

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 is why one judge is enough to consider petitions for leave to appeal from the magistrates’ 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.

www.businessday.co.za