How the ConCourt fixes the mess that courts have made

With President Jacob Zuma dominating headlines across the board this year there has been little time to focus on other courts, one of the few arms of government which appear to be working – for the most part – properly.

When courts have fumbled badly, it’s the Supreme Court of Appeal (SCA) which – for the most part – has had to sort their mess out.

During March the SCA reversed the murder convictions of Nndwambi and Tshivhangwalo Mudau by the Thohoyandou High Court for the murder of Robert Mandiwana and attempted murder of Raymond Lishivha.

Their convictions were overturned by Justice B H Mbha who cited “serious misdirections, gross procedural irregularities and material non-observance of the statutory requirements” in his judgement.

“Furthermore, there was a serious violation of the appellants constitutional right to a fair trial as required by s 35(5) of the Constitution,” Mbha found.

In June the Louis Trichardt Regional Court sentenced the stepfather of a 10-year-old girl to three life terms imprisonment on rape counts, which eventually culminated in an effective 10-year sentence.

The stepfather appealed the conviction and sentences of the three rape charges and the SCA found the court upheld two of the appeals but had dismissed the appeals in respect of other charges saying the 10-year-old complainant was not an unwilling participant in the sexual acts in question before handing down a five-year sentence.

The Director of Public Prosecutions, Gauteng, won the subsequent appeal to the SCA which found the court “exercised its sentencing discretion based on a wrong principle or erroneous view of the law.”

The matter was referred back the Louis Trichardt court for re-sentencing.

Then in November convicted murderer Oscar Pistorius’s widely decried sentence of six years for killing Reeva Steenkamp was set aside and the SCA handed him 13 years for murder, receiving credit for time served.

The SCA found contradictions in Pistorius’ evidence as to why he shot at the toilet door that fateful evening and had offered no explanation for having fired the fatal shots once he became aware there was a person inside the toilet cubicle.

Pistorius has approached the Constitutional Court in an attempt to overturn his new sentence.

The highest court in the land, the Constitutional Court – or ConCourt as it is colloquially known – is the final arbiter of all legal disputes, and in one instance had people clutching their pearls when the “Dagga Couple” brought a case pleading for the legalisation of cannabis.

While all ConCourt cases are of constitutional importance, one case relating to the Sexual Offences Act has the power to make life for South African sexual predators very difficult and hold them to account.

Eight people became known as the Frankel 8 when they tried to prosecute billionaire business man Sidney Frankel for various alleged sexual assaults performed up to 30 years ago.

Because the time period had prescribed, the eight were unable to seek criminal justice. As the matter wound its way through the various courts, Frankel died.

The Frankel 8 however have pushed to have the 20-year prescription on certain sexual offences removed and the matter is sitting with the ConCourt Justices.

Judgement is expected next year.

– amandaw@citizen.co.za

//