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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the matter between:-
J D PENNINGTON M E SUMMERLEY
and
CASE NO:
1997 -05- 2 7
_BRAAMFONTEIN 2017
1ST APPELLANT 2ND APPELLANT
THE STATE RESPONDENT
FILING SHEET
KINDLY TAKE NOTICE that the Appellants hereby file their Notice of Appeal.
DATED AT JOHANNESBURG ON THIS THE 26TH DAY OF MAY 1997
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KJRSUMMERLEY
•>' Attorney 28 St John Road HOUGHTON
Johannesburg 2198 P O Box 46165 ORANGE GROVE 2119
Tel: (011) 487 3013 REF: MR K SUMMERLEY
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To: The Registrar of the Constitutional Court
Recieved copy hereof this day of May 1997
for:
AND
TO: Attorney General Johannesburg
its- 1 .
1997-05-2 &
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ATTORtfeV-GENERAL
AND
TO: The Registrar of the Supreme Court of Appeal of South Africa Bloemfontein
Received copy hereof this day of May 1997
for:
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No:
In the matter between
J D PENNINGTON FIRST APPELLANT
M E SUMMERLEY SECOND APPELLANT
and
THE STATE RESPONDENT
NOTICE OF APPEAL
BE PLEASED TO TAKE NOTICE that J D Pennington and M E Summerley ('the accused'), respectively the first and second appellants in this matter, hereby note an appeal to the Constitutional Court of South Africa in terms of s 167 of the Constitution of the Republic of South Africa 108 of 1996 ('the present constitution') against the dismissal of their appeal against conviction from the decision of Gordon AJ in the Witwatersrand Local Division of the Supreme Court of South Africa on the following grounds:
A. AS TO THE APPLICATION OF THE PRESENT CONSTITUTION
1. The above Honourable Court erred in concluding that, since the trial in this matter was concluded well before the interim constitution came into operation, the constitutional provisions upon which the accused relied were inapplicable to this case when it should have held that the present constitution was applicable since
1.1. the delay in the prosecution of the accused to finality constituted an element of the accused's complaint of want of due process in the manner and procedures of their prosecution;
and
1.1.1. the new constitution -
1.1.1.1 .was the governing law while the delays continued and when they culminated;
and/or
1.1.2. is, by clause 17 of Schedule 6, expressed to govern in pending cases when the interests of justice so require and they so require in the present case since the fundamental rights of the accused - in particular, the right to due process that finds its expression in the constitutional right to dignity and to a fair trial - would otherwise be infringed.
B . THE APPEAL BASED ON THE RIGHT TO DUE PROCESS
2. The above Honourable Court erred in characterizing the processual issue before the court as one concerned only with whether the accused had been give a fair trial when it should have held that the issue was whether, by reason of the
individual or cumulative effect of the delays in prosecuting the accused to finality and the manner in which the trial was conducted, particularly in the light of the absence of legal representation on behalf of the accused, there had been an infraction of the fundamental rights of the accused to due process within the contemplation of the Bill of Rights in Chapter II of the present constitution ('the Bill of Rights') (in particular the right to human dignity (s 10) and a fair trial (s 35(3)).
3. The above Honourable Court erred in holding that
3.1. an appeal on the basis of defects in process could succeed only if there had been a procedural irregularity or illegality in the trial and such irregularity or illegality resulted in a failure of justice;
and
3.2. no failure of justice occurred in the present case;
when it should have held that
3.3. an appeal might succeed on the grounds of a want of due process that finds its expression in the constitutional right to dignity and to a fair trial in section 10 and 35(3) of the Bill of Rights even though no failure of justice had occurred;
and
3.4. that there had been such a want of due process as a result of the delays in prosecuting the accused to finality and/or the manner in which the trial was conducted, particularly in the light of the absence of legal representation on behalf of the accused.
C. THE APPEAL BASED ON THE RIGHT TO A FAIR TRIAL;
4. The above Honourable Court erred in holding that only unacceptable delays in the prosecution of a case to finality can operate to make a trial unfair within the meaning of the present constitution when it should have held that
4.1. acceptable as well as unacceptable delays must be taken into account when determining whether an accused has suffered actual or potential prejudice in the preparation and presentation of the defence;
4.2. the delays in the prosecution of this case to finality, acceptable as well as unacceptable, did have such an effect;
and
4.3. the result was to infringe the accused's right to a fair trial under s 35(3) of the Bill of Rights;
4.4. the infraction had the effect of vitiating their trial and thus the resulting conviction.
5. The above Honourable Court erred in holding that the delays it found to be unacceptable created no illegality or irregularity in the proceedings when it should have held that -
5.1. they caused actual or potential prejudice to the accused in the preparation and presentation of their defence;
and
5.2. the result was to infringe the accused's right to a fair trial under s 35(3) of the Bill of Rights;
5.3. the infraction had the effect of vitiating their trial and thus the resulting conviction.
6. The above Honourable Court erred in holding that the lack of legal
representation created no illegality or irregularity in the proceedings when,
given the right (conferred by s 35(3) of the present constitution) to legal representation if substantial injustice would otherwise result, it should have held that
6.1. want of legal representation in a matter as complex as this was such as to have the propensity to cause the accused substantial injustice and did have this result;
and
6.2. in consequence, there was an infraction of the right of the accused to a fair trial within the contemplation of s 35(3) of the present constitution;
6.3. the infraction had the effect of vitiating their trial and thus the resulting conviction.
7. The above Honourable Court erred in holding that the presiding judge in the trial court was under no obligation to explain to the accused, at the
commencement of the case for the defence, the elements of the substantive law of fraud and principles of common purpose when, having regard in particular to the complexity of the case and the fact that the accused were unrepresented, 7.1. the presiding judge should have done so if the accused were to receive
a fair trial within the contemplation of s 35(3) of the present constitution;
7.2. the infraction of the fundamental rights of the accused had the effect of vitiating their trial and thus the resulting conviction.
8. The above Honourable Court erred in holding, in effect, that no actionable irregularity was committed by permitting the state to use the confession of G M Trail (accused No 1) as the basis for the cross-examination of the appellants if there is no indication that the trial Judge used it against them when it should have held that
8.1. the confession was wholly inadmissible in the proceedings and thus could not be used against the accused in any manner whatsoever;
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8.2. by using the confession as a basis for cross-examination, the state was able to solicit responses from the accused that was prejudicial to their case;
8.3. in consequence there was an infraction of the accused's right to a fair trial as contemplated by s 35(3) of the present constitution;
and
8.4. the infraction of the fundamental rights of the accused had the efFect of vitiating their trial and thus the resulting conviction.
