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Proposed amendments to the CPA in relation to appeals, including the simplification of appeals, appeals on fact by the State, and abolition of stated cases and related matters
AMENDMENT BILL
CRIMINAL PROCEDURE ACT AMENDMENT BILL, 2001
BILL
To amend the Criminal Procedure Act, 1977, so as to provide for the Director of Public Prosecutions to appeal on questions of fact and to simplify appeals by a convicted person and the Director of Public Prosecutions; to bring the provisions of the Criminal Procedure Act relating to appeals into line with the provisions of the Constitution and those applicable to civil cases; and to provide for matters connected therewith.
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
______ Words underlined with a solid line indicate insertions in existing enactments
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-
(a) the substitution for paragraph (a) of subsection (1) of the following paragraph:
65 Appeal to High [superior] court[84] with regard to bail
(1) (a) An accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or by the imposition by such court of a condition of bail, including a condition relating to the amount of bail money and including an amendment or supplementation of a condition of bail, may appeal against such refusal or the imposition of such condition to the High [superior] court having jurisdiction or to any judge of that court if the court is not then sitting.
(b) The appeal may be heard by a single judge.
(c) [A local division of the Supreme Court shall have jurisdiction to hear an appeal under paragraph (a) if the area of jurisdiction of the lower court in question or any part thereof falls within the area of jurisdiction of such local division.]
(c) the substitution for subsection (3) of the following subsection:
(3) The accused shall serve a copy of the notice of appeal on the [attorney-general] Director of Public Prosecutions and on the magistrate or, as the case may be, the regional magistrate, and the magistrate or regional magistrate shall forthwith furnish the reasons for his decision to the court or judge, as the case may be.
(a) the substitution for paragraph (a) of subsection (1) of the following paragraph:
65A Appeal by [attorney-general] Director of Public Prosecutions against decision of court to release accused on bail
(1) (a) The [attorney-general] Director of Public Prosecutions may appeal to the High [superior] court having jurisdiction, against the decision of a lower court to release an accused on bail or against the imposition of a condition of bail as contemplated in section 65 (1) (a).
(b) The provisions of section 310A in respect of an application or appeal referred to in that section by a[n attorney-general] Director of Public Prosecutions, and the provisions of section 65 (1) (b) and (c) and (2), (3) and (4) in respect of an appeal referred to in that section by an accused, shall apply [mutatis mutandis] with the necessary changes with reference to a case in which the [attorney-general] Director of Public Prosecutions appeals in terms of paragraph (a) of this subsection.
(b) the substitution for paragraph (a), (b) and (c) of subsection (2) of the following paragraphs:
(b) The provisions of section 316 in respect of an application or appeal referred to in that section by an accused, shall apply [mutatis mutandis] with the necessary changes with reference to a case in which the [attorney-general] Director of Public Prosecutions appeals in terms of paragraph (a) of this subsection.
(c) Upon an appeal in terms of paragraph (a) or an application referred to in paragraph (b) brought by a[n attorney-general] Director of Public Prosecutions, the court may order that the State pay the accused concerned the whole or any part of the costs to which the accused may have been put in opposing the appeal or application, taxed according to the scale in civil cases of that court.
(c) the substitution for subsection (3) of the following subsection:
3. Section 309 of the Principal Act is hereby amended by-
(a) the substitution for paragraph (a) of subsection (1) of the following paragraph:
309 Appeal from lower court by person convicted
(1)(a) Any person convicted of any offence by any lower court (including a person discharged after conviction) may, subject to section 309B, appeal against such conviction and against any resultant sentence or order to the High court [provincial or local division] having jurisdiction.
(b) the substitution for paragraph (b) of subsection (1) of the following paragraph:
(b) Where, in the case of a regional court, a conviction takes place within the area of jurisdiction of one High court [provincial division] and any resultant sentence or order is passed or, as the case may be, is made within the area of jurisdiction of another High court [provincial division], any appeal against such conviction or such sentence or order shall be heard by the last mentioned court [provincial division].
(c) the substitution for subsection (3) of the following subsection:
(3) The High court [provincial or local division] concerned shall thereupon have the powers referred to in section 304 (2). [, and, unless the appeal is based solely upon a question of law, the] The court [provincial or local division] shall, in addition to such powers, have the power to increase any sentence imposed upon the appellant or to impose any other form of sentence in lieu of or in addition to such sentence: Provided that, notwithstanding that the court [provincial or local division] is of the opinion that any point raised might be decided in favour of the appellant, no conviction or sentence shall be reversed or altered by reason of any irregularity or defect in the record or proceedings, unless it appears to such court [division] that a failure of justice has in fact resulted from such irregularity or defect.
the substitution for subsection (4) of the following subsection:
(4) When an appeal under this section is contemplated, the provisions of section 307 and 308A shall, with the necessary changes, apply with reference to any sentence or order against which an application in terms of section 309B is made or pending an application in terms of section 309C; Provided that where a court has convicted an accused of an offence contemplated in Schedule 5 or 6, the court shall, in considering the question whether to grant or extend bail, apply the provisions of section 60(11) (a) or (b), as the case may be, and the court shall take into account-
(a) the fact that the accused has been convicted of such offence; and
the sentence which the court has imposed.
(d) the substitution for subsection (5) of the following subsection:
(5) When a High court [provincial or local division of the Supreme Court] gives a decision on appeal against a decision of the magistrate's court and the former decision is appealed against, such [division of the Supreme C] court has the powers in respect of the granting of bail which a magistrate's court has in terms of section 307.
4. Section 310 of the Principal Act is hereby amended by-
(a) the substitution for subsection (1) of the following subsection:
310 Appeal from lower court by prosecutor
(1) When a lower court has in criminal proceedings given a decision in favour of the accused [on any question of law, including an order made under section 85 (2)], the [attorney-general] Director of Public Prosecutions or, if a body or a person other than the [attorney-general] Director of Public Prosecutions or his representative, was the prosecutor in the proceedings, then such other prosecutor may subject to subsection (3), appeal against the acquittal or other decision to [require the judicial officer concerned to state a case for the consideration of] the High court [provincial or local division] having jurisdiction[, setting forth the question of law and his decision thereon and, if evidence has been heard, his findings of fact, in so far as they are material to the question of law].
(b) the deletion of subsection (2):
(2) [When such case has been stated, the attorney-general or other prosecutor, as the case may be, may appeal from the decision to the provincial or local division having jurisdiction.]
(c) the substitution for paragraph (a) in subsection (3) of the following paragraph:
(3)(a) The provisions of section 309 (2) and 309 (3A) as well as sections 309B and 309C shall apply with the necessary changes with reference to an appeal under this section.
(d) the insertion of paragraph (b) in subsection (3) of the following paragraph:
(b) The Director of Public Prosecutions or other prosecutor shall, at least 14 days before the day appointed for the hearing of the application, cause to be served by the sheriff upon the accused in person a copy of the notice: Provided that if the sheriff is not able so to serve a copy of the notice, it may be served in any other manner that may on application be allowed.
(e) the substitution for subsection (4) of the following subsection:
(4) If the appeal is allowed, the court which gave the decision appealed from shall, subject to the provisions of subsection (5) and after giving sufficient notice to both parties, reopen the case in which the decision was given and deal with it in the same manner as it should have dealt therewith if it had given a decision in accordance with the law as laid down by the High court [provincial or local division] in question.
(f) the substitution for subsection (5) of the following subsection:
(5) In allowing the appeal, whether wholly or in part, the High court [provincial or local division] may itself convict and/or impose such sentence or make such order as the lower court ought to have imposed or made, or it may remit the case to the lower court and direct that court to take such further steps as High court [provincial or local division] considers proper.
(g) the insertion of subsection (6):
(6) Upon an application for leave to appeal referred to in subsection (3)(a) or an appeal in terms of this section, the presiding officer or the court, as the case may be, may order that the State or other prosecutor pay the accused concerned the whole or any part of the costs to which the accused may have been put in opposing the application or appeal, taxed according to the scale in civil cases of the court concerned.
(5) Section 310A of the Principal Act is hereby amended by-
(a) the substitution for subsection (1) of the following subsection:
310A Appeal by [attorney-general] Director of Public Prosecutions against sentence of lower court
(b) the deletion of subsection (2)
[(2) (a) A written notice of such an application shall be lodged with the registrar of the provincial or local division concerned by the attorney-general, within a period of 30 days of the passing of sentence or within such extended period as may on application on good cause be allowed.
(b) The notice shall state briefly the grounds for the application.]
(c) the substitution for subsection (3) of the following subsection:
(3) The [attorney-general] Director of Public Prosecutions shall, at least 14 days before the day appointed for the hearing of the application for leave to appeal, cause to be served by the [deputy] sheriff upon the accused in person a copy of the notice[, together with a written statement of the rights of the accused in terms of subsection (4)]: Provided that if the [deputy] sheriff is not able so to serve a copy of the notice, it may be served in any other manner that may on application be allowed.
(d) the deletion of subsection (4):
[(4) An accused may, within a period of 10 days of the serving of such a notice upon him, lodge a written submission with the registrar concerned, and the registrar shall submit it to the judge who is to hear the application, and shall send a copy thereof to the attorney-general.]
(e) the substitution for subsection (5) of the following subsection:
(5) Subject to the provisions of this section, section 309 (2) and 309(3)(a) as well as sections 309B, 309C and 309D shall apply [mutatis mutandis] with the necessary changes with reference to an appeal in terms of this section.
(f) the substitution for subsection (6) of the following subsection:
6. Section 311 of the Principal Act is hereby amended by-
(a) the substitution for subsection (1) of the following subsection:
311 Appeal to Supreme Court of Appeal [Appellate Division]
(b) the substitution for subsection (2) of the following subsection:
(2) If an appeal brought by the [attorney-general] Director of Public Prosecutions or other prosecutor [under this section or section 310] is dismissed, the court dismissing the appeal may order that the appellant pay the respondent the costs to which the respondent may have been put in opposing the appeal, taxed according to the scale in civil cases of that court: Provided that where the [attorney-general] Director of Public Prosecutions is the appellant, the costs which he is so ordered to pay shall be paid by the State.
7. Section 313 of the Principal Act is hereby amended by-
(a) the substitution for the section of the following section:
313 Institution of proceedings de novo when conviction set aside on appeal or review
The provisions of section 324 shall, [mutatis mutandis], with the necessary changes, apply with reference to any decision [conviction and sentence] of a lower court [that are] set aside on appeal or review on any ground referred to in that section.
8. Section 314 of the Principal Act is hereby amended by-
(a) the substitution for subsection (1) of the following subsection:
314 Obtaining presence of convicted or acquitted person in lower court after setting aside of acquittal, sentence or order
9. Section 315 of the Principal Act is hereby amended by-
(a) the substitution for subsection (1) of the following subsection:
315 Court of appeal in respect of high [superior] court judgments
(b) the substitution for subsection (2) of the following subsection:
(2) (a) If an application for leave to appeal in a criminal case heard by a single judge [of a provincial or local division] (irrespective of whether he or she sat with or without assessors) is granted under section 316, the court or judge or judges granting the application shall, if it, he or she or, in the case of the judges referred to in subsection (8) of that section, they or the majority of them, is or are satisfied that the questions of law and of fact and the other considerations involved in the appeal are of such a nature that the appeal [does not] requires the attention of the Supreme Court of Appeal, direct that the appeal be heard by that court [a full court].
(b) Any such direction by the court or a judge of a High court [provincial or local division] may be set aside by the Supreme Court of Appeal [Appellate Division] on application made to it by the accused or the attorney-general or other prosecutor within one month [21 days], or such longer period as may on application to the Supreme Court of Appeal [Appellate Division] on good cause be allowed, after the direction was given.
(c) Any application to the Supreme Court of Appeal [Appellate Division] under paragraph (b) shall be submitted by [petition] application addressed to the Chief Justice, and the provisions of section 316 (6), (7), (8) and (9) shall apply [mutatis mutandis] with the necessary changes in respect thereof.
(c) the deletion of subsection (3):
(3) [An appeal which is to be heard by a full court, shall be heard-
(a) in the case of an appeal in a criminal case heard by a single judge of a provincial division, by the full court of the provincial division concerned;
(b) in the case of an appeal in a criminal case heard by a single judge of a local division other than the Witwatersrand Local Division, by the full court of the provincial division which exercises concurrent jurisdiction in the area of jurisdiction of the local division concerned;
(c) in the case of an appeal in a criminal case heard by a single judge of the Witwatersrand Local Division-
(i) by the full court of the Transvaal Provincial Division, unless a direction by the judge president of that provincial division under subparagraph (ii) applies to it; or
(ii) by the full court of the said local division if the said judge president has so directed in the particular instance.]
(d) the substitution for subsection (5) of the following subsection:
(5) In this Chapter-
(a) 'court of appeal' means, in relation to an appeal which in terms of subsection (1) [(3)] is heard or is to be heard by a full court, the full court concerned and, in relation to any other appeal, the Supreme Court of Appeal [Appellate Division];
[(b) 'full court' means the court of a provincial division, or the Witwatersrand Local Division, sitting as a court of appeal and constituted before three judges.]
10. Section 316 of the Principal Act is hereby amended by-
(a) the substitution for subsection (1) of the following subsection:
316 Applications for condonation, for leave to appeal and for leave to lead further evidence
[(a) if the conviction was by a special superior court, to that court or any judge who was a member of that court or, if no such judge is available, to any judge of the provincial or local division within whose area of jurisdiction the special superior court sat; and
(b) if the conviction was by any other court,] to the judge who presided at the trial or if he is not available or, if in the case of a conviction before a circuit court the said court is not sitting, to any other judge of the High court with jurisdiction [provincial or local division of which the aforesaid judge was a member when he so presided],
for leave to appeal against his or her conviction or against any sentence or order following thereon (in this section referred to as an application for leave to appeal), and an accused convicted of any offence before any such court on a plea of guilty may, within the same period, apply for leave to appeal against any sentence or any order following thereon.
(b) the substitution for subsection (1A) of the following subsection:
(1A) (a) No appeal shall lie against the judgment or order of a full court given on appeal to it [in terms of section 315 (3)], except with the special leave of the Supreme Court of Appeal [Appellate Division] on application made to it by the accused or, where a full court has for the purposes of such judgment or order given a decision in favour of the accused [on a question of law], on application [on the grounds of such decision made to that division] by the [attorney-general] Director of Public Prosecutions or other prosecutor against whom the decision was given.
(b) An application to the Supreme Court of Appeal [Appellate Division] under paragraph (a) shall be submitted by [petition] application addressed to the Chief Justice within one month [21 days], or such extended period as may on application by [petition] application so addressed on good cause be allowed, after the judgment or order against which appeal is to be made was given.
(c) The accused or [attorney-general] Director of Public Prosecutions or other prosecutor shall, when submitting in accordance with paragraph (b) the application for special leave to appeal, at the same time give written notice that this has been done to the registrar of the court against whose decision he wishes to appeal[, and thereupon such registrar shall forward a certified copy of the record prepared in terms of subsection (5) for the purposes of such judgment or order, and of the reasons for such judgment or order, to the registrar of the Appellate Division.]
(d) The provisions of subsections (2), (7), (8) and (9) shall apply [mutatis mutandis] with the necessary changes with reference to any application and [petition] an application contemplated in paragraph (b) of this subsection.
(e) Upon an appeal under this subsection the provisions of section 322 shall apply [mutatis mutandis] with the necessary changes with reference to the powers of the Supreme Court of Appeal [Appellate Division].
(c) the substitution for subsection (5) of the following subsection:
(5) (a) If an application under subsection (1) for leave to appeal is granted and the appeal is not [under section 315 (3)] to be heard by the full court [of the provincial or local division from which the appeal is made], the registrar of the court granting such application shall cause notice to be given accordingly to the registrar of the Supreme Court of Appeal [court of appeal] without delay, and shall cause to be transmitted to the said registrar a certified copy of the record prepared in terms of the rules of that court [, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the attorney-general, copies (one of which shall be certified) may be transmitted of such parts of the record as may be agreed upon by the attorney-general and the accused to be sufficient, in which event the court of appeal may nevertheless call for the production of the whole record.]
(b) If an application under subsection (1) for leave to appeal is granted and the appeal is under [section 315 (3)] to be heard by the full court [of the provincial or local division from which the appeal is made], the registrar shall without delay prepare a certified copy of the record prepared in terms of the rules of that court, [including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the attorney-general, copies (one of which shall be certified) may be prepared of such parts of the record as may be agreed upon by the attorney-general and the accused to be sufficient, in which event the court of appeal may nevertheless call for the production of the whole record.]
(d) the substitution for subsection (6) of the following subsection:
(6) If an application under subsection (1) for condonation or leave to appeal is refused or if in any application for leave to appeal an application for leave to call further evidence is refused, the accused may, within a period of one month [twenty-one days] of such refusal, or within such extended period as may on good cause be allowed, by [petition] application addressed to the Chief Justice submit his application for condonation or for leave to appeal or his application for leave to call further evidence, or all such applications, as the case may be, to the Supreme Court of Appeal [Appellate Division, at the same time giving written notice that this has been done to the registrar of the provincial or local division (other than a circuit court) within whose area of jurisdiction the trial took place, and of which the judge who presided at the trial was a member when he so presided, and such registrar shall forward to the Appellate Division a copy of the application or applications in question and of the reasons for refusing such application or applications].
(e) the substitution for subsection (7) of the following subsection:
(7) (a) The [petition] application shall be considered in chambers by two judges of the Supreme Court of Appeal [Appellate Division] designated by the Chief Justice.
(b) If the judges differ in opinion, the [petition] application shall also be considered in chambers by the Chief Justice or by any other judge of the Supreme Court of Appeal [Appellate Division] to whom it has been referred by the Chief Justice.
(f) the substitution for subsection (8)(d) of the following subsection:
(8) The judges considering the [petition] application may-
...
(d) refer the matter to the Supreme Court of Appeal [Appellate Division] for argument and consideration, whether upon argument or otherwise, and that court [division] may thereupon deal with the matter in any manner referred to in paragraph (c).
(g) the substitution for subsection (9)(a) of the following subsection:
(9) (a) The decision of the Supreme Court of Appeal [Appellate Division] or of the judges thereof considering the [petition] application, as the case may be, to grant or refuse any application, shall be final.
(h) the substitution for subsection (10) of the following subsection:
(10) Notice shall be given to the parties [attorney-general] concerned [and the accused] of the date fixed for the hearing of any application under this section, and of any place appointed under subsection (8) for any hearing.
11. Section 316B of the Principal Act is hereby amended by-
(a) the substitution for subsection (1) of the following subsection:
316B Appeal by Director of Public Prosecutions [attorney-general against sentence of superior court]
(b) the substitution for subsection (2) of the following subsection:
(2) The provisions of section 315 and 316 in respect of an application or appeal referred to in those sections [that section] by an accused, shall apply [mutatis mutandis] with the necessary changes with reference to a case in which the [attorney-general] Director of Public Prosecutions or other prosecutor appeals in terms of subsection (1) of this section.
(c) the substitution for subsection (3) of the following subsection:
(3) Upon an appeal in terms of subsection (1) or an application referred to in subsection (2), brought by the [attorney-general] Director of Public Prosecutions or other prosecutor, the court may order that the State or such other prosecutor pay the accused concerned the whole or any part of the costs to which the accused may have been put in opposing the appeal or application, taxed according to the scale in civil cases of that court.
12. Section 317 of the Principal Act is hereby repealed.
13. Section 318 of the Principal Act is hereby repealed.
14. Section 319 of the Principal Act is hereby repealed.
15. Section 320 of the Principal Act is hereby amended by-
(a) the substitution for the section of the following section:
320 Report of trial judge to be furnished on appeal
The trial judge [or judges, as the case may be, of any court before whom a person is convicted] shall [, in the case of an appeal under section 316 or 316B or of an application for a special entry under section 317 or the reservation of a question of law under section 319 or an application to the court of appeal for leave to appeal or for a special entry under this Act], furnish to the registrar a report giving his, her or their opinion upon the case or upon any point arising in the case, and such report, which shall form part of the record, shall without delay be forwarded by the registrar to the registrar of the court of appeal.
16. Section 321 of the Principal Act is hereby amended by-
(a) the substitution for subsection (1) of the following subsection:
321 When execution of sentence may be suspended
The execution of the sentence of a [superior] High court shall not be suspended by reason of any appeal against a conviction [or by reason of any question of law having been reserved for consideration by the court of appeal], unless-
(a) ......
(b) the [superior] High court from which the appeal is made [or by which the question is reserved] thinks fit to order that the accused be released on bail or that he be treated as an unconvicted prisoner until the appeal [or the question reserved] has been heard and decided:
Provided that when the accused is ultimately sentenced to imprisonment the time during which he was so released on bail shall be excluded in computing the term for which he is so sentenced: Provided further that when the accused has been detained as an unconvicted prisoner, the time during which he has been so detained shall be included [or excluded] in computing the term for which he is ultimately sentenced [, as the court of appeal may determine.]
(b) the substitution for subsection (2) of the following subsection:
(2) If the court orders that the accused be released on bail, the provisions of sections 66, 67 and 68 and of subsections (2), (3), (4) and (5) of section 307 shall, [mutatis mutandis] with the necessary changes, apply with reference to bail so granted, and any reference in-
(a) section 66 to the court which may act under that section, shall be deemed to be a reference to the [superior] High court by which the accused was released on bail;
(b) section 67 to the court which may act under that section, shall be deemed to be a reference to the magistrate's court within whose area of jurisdiction the accused is to surrender himself in order that effect be given to any sentence in respect of the proceedings in question; and
(c) section 68 to a magistrate shall be deemed to be a reference to a judge of the [superior] High court in question.
17. Section 322 of the Principal Act is hereby amended by-
(a) the substitution for subsection (1)(a) of the following subsection:
322 Powers of court of appeal
(1) In the case of an appeal in terms of this Act [against a conviction or of any question of law reserved], the court of appeal may-
(a) allow the appeal [if it thinks that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a failure of justice]; or
(b) the substitution for subsection (2) of the following subsection:
(2) Upon any [an] appeal [under section 316 or 316B] against any sentence, the court of appeal may confirm the sentence or may delete or amend the sentence and impose such punishment as ought to have been imposed at the trial.
(c) by the deletion of subsection (4):
(4) [Where a question of law has been reserved on the application of a prosecutor in the case of an acquittal, and the court of appeal has given a decision in favour of the prosecutor, the court of appeal may order that such of the steps referred to in section 324 be taken as the court may direct.]
[84] The Act uses in other parts the pre-Constitutional terminology. It is assumed that the high courts will have been organised in terms of the Constitution by the time this bill is before Parliament.
[85] This deletion is dependent upon the abolition of local divisions as envisaged by the Constitution.
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