Re-assessing the Compatibility of the Requirement for Leave to Appeal with the Constitution of South Africa: Evaluating the Duty to Explain the Refusal of Leave to Appeal

Abstract

The Constitution of South Africa provides that every accused person has a right to a fair trial, which includes the right to appeal to a higher court. It is trite law that the right to appeal is not absolute but is limited by the requirement of leave to appeal. While the leave to appeal requirement is generally compatible with the Constitution, the leave to appeal processes must be in line with constitutional principles of justice and fairness. Giving reasons for refusal of leave to appeal should be treated as an essential component of the leave to appeal processes. This study discusses the judicial practice of not providing reasons for the refusal of leave to appeal, and how this practice is incompatible with the Constitution. The study argues that giving reasons for refusal of leave to appeal is a constitutional and inherent judicial obligation which must be fulfilled to ensure compliance with the Constitution. The study concludes that refusing leave to appeal without providing reasons unreasonably restricts the right to access courts and the right to a fair trial, which includes the constitutionally protected right to appeal. The study recommends that s316 of the Criminal Procedure Act and s17 of the Superior Court Act should be amended to require judges to provide reasons for refusing leave of appeal.