CCT50/10

[2011] ZACC 18

2011 (9) BCLR 980 (CC)

2011 (2) SACR 378 (CC)

Mthiyane AJ

25 May 2011

http://hdl.handle.net/20.500.12144/3627

Application for leave to appeal against an order of the SCA: Qhinga and Others v S, Case No. 304/09, Supreme Court of Appeal, 16 July 2009, unreported, in which the SCA dismissed the applicants' petition for leave to appeal against convictions and sentences imposed on them by the Eastern Cape High Court, Bhisho: S v Qhinga and Others, Case No. CC35/2007, Eastern Cape High Court, Bhisho, 31 March 2009, unreported.

An application for leave to appeal seeking to set aside the dismissal of a petition for leave to appeal by the Supreme Court of Appeal. The applicants were convicted of attempted murder and robbery with aggravating circumstances solely on the basis of statements and pointings-out, admitted as evidence after trials-within-the-trial were conducted. The High Court judgment did not give reasons for admitting the evidence. In their petition to the SCA the applicants challenged the admissibility rulings. The SCA dismissed the petition summarily. The record of the trial proceedings had not been forwarded to the SCA, because it was not required in terms of section 316(10)(c) of the Criminal Procedure Act 51 of 1977 as it read at the time of the petition. The judges considering the petition had also not called for the record in terms of section 316(12)(a) of the Criminal Procedure Act as it read at the time. The applicants argued that the SCA could not have adequately considered their petition without access to the reasons for admitting the statements and pointings-out, which were located only in the record. The Court held that the applicants were not afforded a fair procedure by the SCA as required by their fair trial right "of appeal to, or review by, a higher court" in terms of section 35(3)(o) of the Constitution. Leave to appeal was granted, the dismissal of their petition by the SCA was set aside and the petition was remitted to the SCA for reconsideration. Judgment: Mthiyane AJ (unanimous).