S v O'Connell and Others (P15/2005, P71/2005, P34/2006, P65/2006) [2006] ZAWCHC 63; [2007] 2 All SA 293 (C); 2007 (5) BCLR 556 (C) (6 November 2006)

S v O'Connell and Others (P15/2005, P71/2005, P34/2006, P65/2006) [2006] ZAWCHC 63; [2007] 2 All SA 293 (C); 2007 (5) BCLR 556 (C) (6 November 2006)

The court held that sections 309B and 309C of the Criminal Procedure Act, as amended in 2004, are inconsistent with the Constitution. The procedure for leave to appeal unduly restricts the right of access to courts and a fair trial, particularly for unrepresented accused. The consideration of petitions by a single judge and the lack of guaranteed access to the full record undermine the adequacy of reappraisal and informed decision-making. The court found that these defects are fundamental and cannot be justified by resource constraints or the need to screen unmeritorious appeals. Accordingly, sections 309B and 309C, and the reference to them in section 309(1)(a), were declared invalid....

Citation
[2006] ZAWCHC 63
Parties
Applicant: Daniel O'Connell; Applicant: Abdul Gaffoor Ganief; Applicant: Ronald Olince; Applicant: Graham Greentree; Applicant: Ricardo Adams; Applicant: Rashied Staggie; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 November 2006
Case Number
P15/2005, P71/2005, P34/2006, P65/2006
Procedural Posture
Leave to Appeal / High Court Hearing on Constitutional Validity of Leave to Appeal Procedure
Outcome
Sections 309B and 309C of the Criminal Procedure Act, and the reference to them in section 309(1)(a), are declared invalid as inconsistent with the Constitution. The matter is referred to the Constitutional Court for confirmation. Applicants are granted temporary relief to prosecute their appeals before two judges...
Judges
Blignault, Allie
Legal Topics
Leave to Appeal, Right of Access to Courts, Fair Trial Rights, Legal Aid, Petition Procedure, Constitutional Invalidity
Criminal Law Constitutional Law Civil Procedure Leave to Appeal Right of Access to Courts Fair Trial Rights Legal Aid Petition Procedure +1 more

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Parties

Daniel O'Connell

Applicant

Abdul Gaffoor Ganief

Applicant

Ronald Olince

Applicant

Graham Greentree

Applicant

Ricardo Adams

Applicant

Rashied Staggie

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / High Court Hearing on Constitutional Validity of Leave to Appeal Procedure

Legal Issues

  1. 1 Whether sections 309B and 309C of the Criminal Procedure Act are consistent with the constitutional right to a fair trial and appeal.
  2. 2 Whether the leave to appeal procedure unduly restricts access to justice for unrepresented accused.
  3. 3 Whether consideration of petitions by a single judge and limited access to the full record are constitutionally valid.

Ratio Decidendi

The court held that sections 309B and 309C of the Criminal Procedure Act, as amended in 2004, are inconsistent with the Constitution. The procedure for leave to appeal unduly restricts the right of access to courts and a fair trial, particularly for unrepresented accused. The consideration of petitions by a single judge and the lack of guaranteed access to the full record undermine the adequacy of reappraisal and informed decision-making. The court found that these defects are fundamental and cannot be justified by resource constraints or the need to screen unmeritorious appeals. Accordingly, sections 309B and 309C, and the reference to them in section 309(1)(a), were declared invalid....

Court Disposition

Sections 309B and 309C of the Criminal Procedure Act, and the reference to them in section 309(1)(a), are declared invalid as inconsistent with the Constitution. The matter is referred to the Constitutional Court for confirmation. Applicants are granted temporary relief to prosecute their appeals before two judges...

Orders

  • It is declared that sections 309B and 309C of the Criminal Procedure Act, and the reference to them in section 309(1)(a), are invalid as they are inconsistent with the Constitution.
  • This matter is referred to the Constitutional Court for consideration of the confirmation of the above order.