The right to a fair trial in subsequent criminal proceedings : how the Constitutional Court took matters into its own hands in Shinga v The State

Abstract

For the third time since 1996, the Constitutional Court had to decide in 2007 on the constitutionality of provisions in the Criminal Procedure Act 51 of 1977 relating to applications for leave to appeal, petitions, and appeals from criminal proceedings in the magistrates’ courts. After examining the history of criminal appeals from the magistrates’ courts by considering post-1994 case law and related legislative amendments, the Constitutional Court took matters into its own hands, and amended the Act. In its judgment, the court made it clear that all subsequent criminal proceedings, for example appeals and reviews, should meet the requirements of a fair trial as set out in s 35(3) of the Constitution of the Republic of South Africa, 1996. Although the procedures of applying for leave to appeal by way of an application or a petition have undergone serious judicial and legislative scrutiny over the past few years, the Constitutional Court stated that these procedures are necessary in order to identify and prevent unmeritorious appeals. The Constitutional Court ordered that in future the full record of the court a quo be sent to the High Court when a convicted person files a petition, that two judges consider the petition (who may also order that the petition be argued before them) and that, if leave to appeal is granted, the appeal be heard in an open court on oral argument. The order was made with immediate effect.