Qhinga and Others v S (CCT 50/10) [2011] ZACC 18; 2011 (9) BCLR 980 (CC); 2011 (2) SACR 378 (CC) (25 May 2011)

Qhinga and Others v S (CCT 50/10) [2011] ZACC 18; 2011 (9) BCLR 980 (CC); 2011 (2) SACR 378 (CC) (25 May 2011)

The Constitutional Court held that the Supreme Court of Appeal failed to meet the constitutional standard of fairness required by section 35(3)(o) of the Constitution when it refused the applicants' petition for leave to appeal without considering the relevant portions of the record, specifically the rulings and reasons from the trials-within-the-trial. The absence of these reasons prevented an adequate reappraisal of the case and an informed decision, thereby infringing the applicants' right of appeal or review by a higher court. The Court found that the only just and equitable remedy was to set aside the Supreme Court of Appeal's order and remit the petition for reconsideration,...

Citation
[2011] ZACC 18
Parties
Applicant: Msobomvu Qhinga; Applicant: Lungile Jamiso; Applicant: Camagu Zimela; Applicant: Luvuyo Mcaphukisi; Applicant: Lizo Lumbe; Applicant: Lindile Magi; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
25 May 2011
Case Number
CCT 50/10
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Dismissal of Petition for Leave to Appeal by the Supreme Court of Appeal.
Outcome
Appeal upheld to the extent that the Supreme Court of Appeal's order is set aside and the petition is remitted for reconsideration.
Judges
Mthiyane AJ, Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Van der Westhuizen J, Yacoob J
Legal Topics
Right of Appeal, Fair Trial, Section 35 3 O, Petition Procedure, Admissibility of Evidence
Criminal Law Constitutional Law Right of Appeal Fair Trial Section 35 3 O Petition Procedure Admissibility of Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Msobomvu Qhinga

Applicant

Lungile Jamiso

Applicant

Camagu Zimela

Applicant

Luvuyo Mcaphukisi

Applicant

Lizo Lumbe

Applicant

Lindile Magi

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Dismissal of Petition for Leave to Appeal by the Supreme Court of Appeal.

Legal Issues

  1. 1 Whether the Supreme Court of Appeal's procedure in refusing the petition for leave to appeal met the constitutional standard of fairness.
  2. 2 Whether the applicants' right of appeal or review by a higher court under section 35(3)(o) of the Constitution was infringed.
  3. 3 Whether the Supreme Court of Appeal was required to have regard to the relevant portions of the record when considering the petition.

Ratio Decidendi

The Constitutional Court held that the Supreme Court of Appeal failed to meet the constitutional standard of fairness required by section 35(3)(o) of the Constitution when it refused the applicants' petition for leave to appeal without considering the relevant portions of the record, specifically the rulings and reasons from the trials-within-the-trial. The absence of these reasons prevented an adequate reappraisal of the case and an informed decision, thereby infringing the applicants' right of appeal or review by a higher court. The Court found that the only just and equitable remedy was to set aside the Supreme Court of Appeal's order and remit the petition for reconsideration,...

Court Disposition

Appeal upheld to the extent that the Supreme Court of Appeal's order is set aside and the petition is remitted for reconsideration.

Orders

  • Condonation is granted.
  • Leave to appeal is granted.