Case CCT 224/17 
[2018] ZACC 12
Judgement Date: 25 April 2018

Media Summary of Judgment

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

Today the Constitutional Court handed down judgment in an application for leave to appeal against a decision of the High Court of South Africa, Western Cape Division, Cape Town (High Court) in respect of conviction and sentence, alternatively for the matter to be referred to the Supreme Court of Appeal to “reconsider the applicant’s application for special leave to appeal after having regard to the record of proceedings pertaining to the application”.

The facts of the sexual assault were largely common cause. The applicant, Mr Conradie’s defence is that the complainant consented to the sexual acts. That defence was rejected by the Wynberg Regional Magistrate’s Court (Regional Court) where he was convicted on two counts of rape and sentenced to 18 years’ imprisonment and declared unfit to possess a fire-arm. The rejection of his version was further confirmed on appeal, in the High Court, where his appeal against the conviction was dismissed, but his sentence was reduced to an effective term of 12 years; imprisonment. In both instances, extensive reasons were given for the finding in the judgments, including the overwhelming improbability of consensual sex in the particular circumstances. A further application for special leave to appeal was refused by the Supreme Court of Appeal, as was an additional application for reconsideration of that order by the President of the Supreme Court of Appeal. The Supreme Court of Appeal did not have regard to the trial record.

In the Constitutional Court, the applicant contends that his right to a fair hearing – as contemplated in section 35(3)(o) of the Constitution – was infringed by the Supreme Court of Appeal not having regard to the trial record.

In a unanimous judgment penned by Froneman J, the Constitutional Court found that the object of the right to a fair trial is to minimise the risk of wrong convictions, inappropriate conviction and the consequent failure of justice. The general test for the constitutional adequacy of leave to appeal procedure is that it must provide for an adequate reappraisal and making of an informed decision in respect of the decision against which leave to appeal is sought. The Constitutional Court confirmed its previous finding that the application of this test depends on the context within which it is applied and also differentiates between leave to appeal procedures in respect of appeals in the various courts. There are instances where the absence of a trial record will vitiate the legislative provisions that allowed consideration of an application for leave to appeal without the record, and instances where that consideration would not necessarily apply.

The Constitutional Court found that none of this jurisprudence assists the applicant as he is in essence seeking an appeal on facts that were found to be credible by the Regional Court and confirmed on appeal by the High Court. The Constitutional Court therefore dismissed the application.n 

The Full judgment here.