Issued by: Ministry of Justice
I have studied the judgment of the Constitutional Court ruling in the case of the Minister of Justice versus Nicko Ntuli, which was delivered on 5 June 1997. At the outset I want to say that I agree fully with the sentiments expressed by the Court in its judgment. The Government must comply with the orders of not only the Constitutional Court but all Courts of the land. I would consequently like to apologise for the failure to comply timeously with the original order of the Constitutional Court. Appropriate steps are being taken to remedy shortcomings in our system to ensure that due and timeous attention are accorded to judgments of our courts.
Whilst the Ministry fully endorses the sentiments expressed by the Constitutional Court and regrets the fact that remedial legislation was not enacted prior to 30 April 1997, the reality of the situation is that the High Courts, which have an enormous workload, could become clogged with appeals. The Department is also faced with the reality of being obliged to fund most appeals resulting from the legal position as it now stands after today's judgment. As a result of this reality my Ministry and the Department have been required to consider various options on how to deal with the matter in a manner which would strike a balance between the rights of an accused/convicted person and the interests of the administration of justice and good governance, but within the framework of the Constitution.
An option which has been raised which should possibly be given serious consideration is to introduce a screening process, where appeals with merit can be distinguished from those without merit. As indicated, however, any such process will have to be just, equitable and reconcilable with the Constitution, and particularly with the right to equality in section 9 and with the procedural rights in section 35 thereof. A screening process already exists in terms of section 316 of the Criminal Procedure Act, 1997, in the form of leave to appeal, which at present only applies in respect of appeals from decisions of the High Courts. Consultations in this regard revealed that a similar requirement of leave to appeal to the trial court could be introduced in respect of the lower courts. In the event of trial courts refusing to grant leave to appeal, the High Court can then be approached by way of petition. This would entail an amendment of the Criminal Procedure Act, 1977. Since the new Constitution would seem to grant all convict persons an unlimited right of appeal, such an approach might not be fully in line with the provisions of the new Constitution. A Constitutional amendment might consequently be unavoidable. Draft legislation along these lines has been prepared by my Department for consultation with the relevant role-players.
ISSUED ON BEHALF OF MINISTER OMAR BY PAUL SETSETSE CELL : 0832524770 CAPE TOWN 5 JUNE 1997