Conradie v S (CCT224/17) [2018] ZACC 12; 2018 (7) BCLR 757 (CC) (25 April 2018)

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The Applicant was convicted on two counts of rape the Regional Magistrate’s Court and sentenced to 18 years’ imprisonment. Subsequent to sentence being handed down in the Wynberg Regional Magistrate’s Court, the Applicant was granted leave to appeal to the High Court, Western Cape Division (“High Court”) where the appeal against the convictions was dismissed; however, the sentence was reduced to an effective term of 12 years’ imprisonment.

A further application for special leave to appeal was refused by the Supreme Court of Appeal (hereinafter the “SCA”), as was an additional application for reconsideration of that order by the SCA’s President.

As such, the Applicant sought leave to appeal to the Constitutional Court against the decision of the High Court in respect of the conviction and sentence, alternatively, for the matter to be referred back to the SCA to reconsider the application for special leave to appeal after having regard to the record of proceedings pertaining to the application.

The basis for the application is the contention that the trial record was necessary for both applications in the SCA. The Applicant contended that, without regard being had to the trial record, his right to a fair hearing on appeal as contemplated by section 35(3)(o) of the Constitution could not have occurred.


The Constitutional Court reiterated that the reason behind affording every person the right to a fair trial is to minimise the risk of incorrect and/or inappropriate convictions and the consequent failure of justice stemming therefrom.

The test the court will consider in determining whether to grant leave to appeal is whether there is a chance of “adequate reappraisal” in respect of the decision upon which appeal is sought. Essentially, a court will look at whether an applicant has any prospect of success in pursuing the appeal in a higher court before leave to appeal is granted.

The context in which the aforementioned test is applied is largely dependent on a number of factors, the most pertinent in this case being the court hierarchy system. The Constitutional Court therefore differentiated between leave to appeal procedures in respect of appeals from the Magistrates’ Court and those from the High Court. In respect of the Magistrates’ Courts, it has been held that the absence of a trial record vitiated the legislative provisions that allowed consideration of an application for leave to appeal without the record. However, the same is not necessarily applicable to the legal processes of a High Court.

In the present matter, Froneman J referenced Yacoob J’s judgement in S v Twala in determining the ambit of the right to a fair trial, which entails regard being had to the context in which it appears and its intended purpose. The right to appeal to a higher court is not self-standing and absolute; it is incidental to, or a component of, the right to a fair trial as envisaged in S35(3) of the Constitution.

This provision however requires an appropriate reassessment of findings of facts and law, which will be dependent on the circumstances of each particular case. Section 35(3) is therefore intended to be an overarching framework to the right to a fair trial to which flexibility is awarded to the lawmaker in order to provide for a reassessment mechanism which is appropriate and fair in light of the relevant factors.

Pertinent to this case, section 316 of the Criminal Procedure Act (“CPA”), which addresses applications for leave to appeal in criminal cases heard in a High Court as the court a quo, was deemed constitutionally valid. The procedure under section 316 of the CPA allows for application for leave to appeal before the SCA to be made without the consideration of the trial record or without same being available to the court.

The Court in this matter opined that the Appellant, disgruntled with the judgments handed down by the Regional and High Court, sought to challenge the factual findings of his case, disguising same as an infringement of his fair trial rights and, furthermore, that it was not in the interest of justice to grant leave to appeal. The trial record was not necessary in determining this ruling, as all possible aspects were considered. Thus, no fair trial rights were infringed in not considering the trial record.


The trial record of the court a quo is not essential in granting a leave to appeal application, as long as ruling are made extensive of associated facts and law, the trial record need not be a pertinent factor to consider when granting leave to appeal.

Written by Divina Naidoo and supervised by Jarryd Spargo, 23 August 2018

Conradie v The State

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