|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South African Law Commission |
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
2.1 Appeal is one of the two forms of post-trial control in South African criminal procedure. An appeal is appropriate when it is alleged that the court came to a wrong conclusion on the facts or misinterpreted the law. Review, on the other hand, is used when the procedure adopted is objected to. Although there are similarities between review and appeal, there are also important differences. Both procedures provide a remedy against incorrect decisions.
2.2 Since our law relating to criminal procedure is based upon English law, it is not necessary to deal with the Roman Dutch law in this regard.
2.3 After the second British occupation of the Cape the law of evidence and procedure was brought into line with the English system. At the establishment of the Union of South Africa a person who was convicted by an inferior court could appeal against the conviction sentence as of right. In order to place some perspective on the matter, it should be remembered that the sentencing jurisdiction of lower courts was limited to six months of imprisonment, something that was only increased in 1977.
2.4 The position at present is the following. Any person convicted of any offence by any lower court (district or regional court), even if such person is merely discharged upon conviction, may appeal against such conviction and against any resultant sentence or order. This general principle is subject to exceptions but they are not germane to the present inquiry.
2.5 As noted, the person convicted and sentenced by a lower court was since 1910 entitled as of right to appeal without leave. During the 1990's the Law Commission conducted an investigation into the limitation of the right of appeal from lower courts. The Commission’s investigation focussed on the right of an accused person to appeal and in the course of the investigation a number of screening procedures to exclude the prosecution of unfounded appeals was considered and rejected. In spite of its final recommendation, the unqualified right to appeal without leave was removed by the CRIMINAL PROCEDURE AMENDMENT ACT 76 OF 1997 which came into operation on 28 MAY 1999.
2.6 This amending act was precipitated by the judgment in S v Ntuli,[1] in which the Constitutional Court declared that the provisions relating to judges's certificates for imprisoned convicted persons, namely section 309 (4)(a) of the Criminal Procedure Act, 1977 (Act 51 of 1977), and by implication also section 305 thereof, to be in conflict with the Constitution.
2.7 The amending legislation requires all persons convicted in the lower courts and who wish to appeal, to apply to the trial court for leave to appeal, failing which the accused person has the right to petition the Judge President of the High Court having jurisdiction for the necessary leave.
2.8 Until 1879 no appeal was allowed in criminal cases tried in the superior courts. Thereafter the rights of accused persons were somewhat extended. The Criminal Procedure and Evidence Act 31 of 1917, for instance, made provision for a special entry to be made if the proceedings were “irregular or not according to law”. If such an entry were made, an appeal by leave of the judge was allowed against the conviction, but there was no remedy if the petition for a special entry was refused.
It also provided that the judge could on his own accord reserve any question of law that might have arisen during the trial for decision by the Appellate Division. In addition, either the accused or the prosecutor could apply for such a reservation. On appeal the court was entitled to give the order the court below should have made.
Of interest is the fact that the prosecution had the right to appeal the suspension of any sentence and that the court of appeal was entitled to set the suspension aside. Already in 1935 the Appellate Division was given the right to increase the sentence imposed in spite of the fact that the accused or the State had only appealed on the reserved question of law.
2.9 There was no right of appeal for either the accused or the prosecution on the merits of the case.[2] The reason for the limited right of appeal is historical and must be seen in the context of the criminal procedure at that time. As mentioned, all criminal cases which involved a possible sentence of imprisonment in excess of six months were heard by a superior court. That court consisted of a judge and a jury. (There were some exceptions but they were also governed by the principles applicable to jury trials.)[3] An appeal on fact where findings of credibility and demeanour are relevant is not feasible against a judgment in a jury trial because a jury does not give reasons for its verdict.
2.10 This limitation upon the powers of the court of appeal gave rise to artificial rules. Gardiner & Lansdown [4] summed the then existing rules up as follows:
But the evidence on which a Court is entitled to convict is evidence on which reasonable men could properly convict. If the evidence cannot be so described, then the Appellate Division will set aside the verdict, not as deciding the facts itself, but because the Court of trial has not, in its opinion, discharged the duty cast upon it. That is a question of law.
2.11 After the Lansdown Commission had examined the desirability of granting a right of appeal from superior courts in 1947, the Appellate Division became, as far as the accused was concerned, a court of appeal in the full sense of the word. In terms of Act 37 of 1948 an accused could with the leave of the trial court appeal to the Appellate Division against a conviction or sentence imposed by a superior court. If such leave was refused by the trial court, the accused could petition for leave to the Chief Justice.
2.12 At this stage it became more and more apparent that the jury system in South Africa had serious flaws. A fuller right of appeal for an accused was therefore imperative. In addition, jury trials were on the decline and the Appellate Division, in dealing with appeals from judges who were obliged to give reasoned judgments, was able to re-judge the merits of such cases more easily. Abuses of the jury system, e g the unjustified acquittal of illicit diamond dealers, were initially dealt with by removing such cases from juries. But because of the numerous limitations of the right of an accused to have a jury trial, it fell in disuse and was later abolished.
2.13 The methods by which a criminal case can reach the Supreme Court of Appeal are these:
(i) An appeal against a conviction or sentence with the leave of the trial court.
(iii) Consideration of a question of law reserved by the trial court, either mero motu or at the request of the State or the accused (section 319).
If in these three cases leave is refused by the trial court, leave can be obtained from the Chief Justice.
(iv) An appeal by the Minister concerning a question of law on which a superior court gave a decision in a criminal case (section 333). This appeal can have no legal consequences for the accused and the acquittal stands, irrespective of the judgment of the Supreme Court of Appeal.
(v) If an appeal against a decision of a lower court is dismissed in the High Court, a convicted person could note an appeal to the Supreme Court of Appeal. In terms of section 21(2) read with section 20(4) of the Supreme Court Act, 59 of 1959, the High Court sitting as a court of appeal is required to grant leave before the appeal can be prosecuted further. If it refused leave to appeal, the convicted person may approach the Chief Justice for leave by petition.
In addition, an appeal from a single judge can also be heard by the Full Court (a three-judge bench of the High Court concerned). An appeal against a decision of the Full Court requires special leave by the Supreme Court of Appeal.
2.14 The Act provides for limited appeals by the State relating to findings of not guilty. The relevant provisions are section 310 (Appeal from the lower court by the prosecutor), and section 311 (Appeal to the Appellate Division). There is, in addition, the provisions of section 319 relating to the reservation of questions of law. Separate provision is also made for appeals against sentence by the State in sections 310A and 316B. Last, there is the right of appeal against the granting of bail. These provisions are discussed below.
2.15 Section 310 allows the State and private prosecutors to appeal against a decision in a lower court, but only upon points of law. In terms of section 310(1), points of law include successful objections which may be raised in limine in terms of section 85(2) of the Act, i e, objections to the charge sheet. However, before the State may appeal in terms of section 310, a lower court must have handed down a decision on a question of law in favour of the accused.
2.16 The decision of a magistrate that the findings of fact do not support a conviction on the charge against the accused, or that the findings of fact do support a conviction of a crime other than the one with which the accused was charged are, amongst others, decisions upon a question of law.[5] S v Zoko[6] held that a decision whereby an accused is acquitted of the offence charged but convicted of a lesser offence is also appealable by the State. In this case the accused was charged with culpable homicide and the evidence established that the accused had intended to kill the deceased. Because he was not negligent, the magistrate found him not guilty of culpable homicide but guilty of assault with the intent to do grievous bodily harm. On appeal the conviction was changed to one of culpable homicide because the magistrate had erred in holding in law that a conviction of culpable homicide was not competent where there is an intention to kill.
2.17 An appeal in terms of section 310 proceeds on the basis of a stated case which is drawn up by the magistrate at the request of the DPP. In the stated case the magistrate sets out the findings of fact and the formulation of the question of law concerned. Although the magistrate is obliged to formulate the findings of fact for purposes of the appeal, the court of appeal is not bound thereby and may have regard to the facts as they appear from the record.
2.18 Section 311 of the Act makes provision for an appeal on questions of law from the High Court sitting as a court of appeal (either from a lower court or from a single judge) to the Supreme Court of Appeal. It does not provide for an appeal on a question of law against a decision by the High Court sitting as a court of first instance. If the appeal by the State is successful, the Supreme Court of Appeal may substitute the acquittal with a conviction and it may sentence the accused appropriately. If the appeal fails, the court dismissing the appeal may order that the appellant pay the costs to which the accused may have been put in opposing the appeal. Where the DPP is the appellant, the costs so ordered have to be paid by the State.
2.19 The DPP has to obtain leave to appeal from the appropriate court and before leave is granted the court has to be satisfied that there are reasonable prospects of the appeal succeeding and that the appeal is of material importance for the State and/or the accused in the sense that one or both parties have a material interest in an authoritative answer of the question of law.[7]
2.20 In Attorney-General, Transvaal v Kader [8] the respondent refused to testify as a State witness in a criminal trial in the regional court, inter alia, with offences in terms of s 54(1) of the Internal Security Act. The regional magistrate thereupon embarked on an enquiry in terms of section 189 during which the respondent testified that the main reason why he did not want to testify was that he feared that he would not be able to withstand the stress of the court proceedings and that he would be mentally scarred for life, as well as that he feared ostracism by his community. At the conclusion of the enquiry the magistrate held that the respondent had not discharged the onus of showing that he had a just excuse for his refusal to testify and sentenced him to two years' imprisonment.
The Transvaal Provincial Division upheld his appeal, holding that the expression 'just excuse' in section 189 was not limited to a 'lawful excuse', and that if it were humanly intolerable for a person to testify, it would constitute a just excuse. It found on the facts that if the respondent had been compelled to testify he would have suffered severe psychic pain and there would moreover have been a very substantial risk of suicide and accordingly held that it would have been humanly intolerable for the respondent to have to testify.
2.21 In an appeal by the Attorney-General in terms of section 311 the legal question concerned the meaning of 'just excuse' and the contention that it meant 'lawful excuse' only. The Appellate Division upheld the legal finding of the court below.
2.22 It was also contended for by the Attorney-General that the provincial division had erred by not correctly applying the principles set out in S v Dhlumayo and Another[9] in that it had not properly evaluated the evidence in the light of the findings of the trial magistrate. The AD held that a court of appeal which does not properly apply the guidelines set out in Dhlumayo's case does not commit an error of law - at most it would be guilty of dealing with the appeal on facts in an unsatisfactory manner. Such an 'error' can only be corrected if an appeal on the facts were available to the dissatisfied party, which it was not. Whether it was humanly intolerable for the respondent to have to testify was a question of fact and therefore unassailable on appeal by the State.
2.23 Section 319 provides that if any question of law arises on the trial in a superior court, that court may reserve that question for the consideration of the Supreme Court of Appeal. The provision deals with three possibilities.
It provides for the court itself to formulate a question mero motu. In other words, if the court is in doubt about its decision to discharge the accused, it may formulate a legal question for the Supreme Court Appeal. There are no recent instances of the use of this power.
Next, the accused may apply for the reservation of a legal question. As pointed out by Hiemstra (ed Kriegler), this is an anachronism and of no practical consequence because of the rights of appeal an accused has.
Last, it provides for the prosecutor to apply for the reservation of a legal question and provides the only ground on which the State may 'appeal'. In this regard it is similar in effect to section 310.[10]
2.24 The question whether a matter is one of law or of fact is a vexed one and in a sense artificial. As pointed out, the rules on the matter were developed initially in order to give substance to the accused's limited right of appeal. Magmoed v Janse van Rensburg and Others [11] ( the so-called Trojan Horse case) decided that a genuine question of law is whether the proven facts bring the conduct of the accused within the ambit of the crime charged. Such a question involves an enquiry as to the essence and scope of the crime charged by asking whether the proven facts in the particular case constitute the commission of the crime. But a question of law is not raised by asking whether the evidence establishes one or more of the factual ingredients of a particular crime where there is no doubt or dispute as to what those ingredients are.
2.25 If the court decides to reserve a question of law, it must state the question reserved and direct that it be specially entered in the record and that a copy of the question be transmitted to the registrar of the Appellate Division. S v Nkwenja en 'n ander [12] held that when a question of law as intended in section 319 is reserved, there must be certainty concerning all the facts to which the question relates and the trial Court must mention those facts in its judgment as part of the reserved question. This remains a problem as illustrated by S v Venter 1999 (2) SACR 231 (SCA). For some reason or other trial judges often fail to comply with this requirement and for that simple reason the State's right of appeal is sometimes more illusory than real (see Director of Public Prosecutions Natal v Magidela 2000 (1) SACR 458 (SCA)). The section is also unclear because it does not prescribe the procedure to be followed upon the reservation of a question which gives rise to serious practical difficulties.[13]
2.26 If the reserved question is answered in favour of the State an acquittal may be substituted with a conviction and a suitable sentence may be imposed. Ex parte Minister van Justisie: In re S v Seekoei [14] held that by 'acquittal' in section 322 (4) is meant a finding whereby the accused is set free completely. Where someone stands trial on a charge and is then convicted of an offence whereof he, according to the provisions of the Act, could be convicted, it cannot be said that there was an “acquittal” (of the offence charged) as intended. The court accordingly held that the trial court should not have reserved certain questions of law where the accused, on a charge of housebreaking with intent to rob and robbery, had been convicted of housebreaking with intent to steal and theft as such conviction (which was a competent verdict on the charge) was not an 'acquittal'. There appears therefore to be a distinction without any reason between cases under section 310 (as interpreted in S v Zoko (supra)) and those under section 319.[15]
2.27 Despite some objections[16] in extending the State's right of appeal to inadequate sentences, the Criminal Law Amendment Act, 107 of 1990, granted the Attorney-General the right to appeal against sentences imposed by lower and by superior courts. The change in the law was precipitated by “lenient” sentences imposed by a circuit court in a case concerning interracial violence. The public outcry - rightly or wrongly - was such that Mrs Helen Suzman introduced a motion in Parliament for the impeachment of the judge concerned.
2.28 The Attorney-General always had and the DPP still has the right, when the accused has appealed against his conviction and /or sentence, to apply to the court of appeal to increase the sentence. In addition, a rule of practice exists in terms of which an accused cannot, once notice has been given by the Attorney-General that an increase of sentence on appeal would be sought, stultify the application by unilaterally withdrawing the appeal. [17] Du Toit et al[18] are of the opinion that this right of the DPP should be used sparingly, as has been the right of the DPP to cross appeal.
2.29 Apart from these rights of the DPP, a court of appeal is entitled, where an accused appeals either on conviction or sentence (or both), to increase the sentence if it is of the opinion that the trial court passed an inadequate sentence.[19]
2.30 Before an appeal against sentence by the DPP can succeed, the under- or over-emphasis of relevant factors must have resulted in an unreasonable or improper exercise of the penal discretion. In other words, the same principles which apply to an appeal on sentence by an accused person apply to appeals by the Director of Public Prosecutions. [20]
2.31 The advantage of giving the State a right to appeal against a lenient sentence is evidenced by the few reported instances where this right of appeal has been utilised.[21]
2.32 Upon an application for leave to appeal or an appeal the judge or the court, as the case may be, 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 application or appeal, taxed according to the scale in civil cases of the high court concerned.
2.33 Until 1995 the State had no right to appeal against the decision of a lower court to release an accused on bail or against the imposition of a condition of bail. By the introduction of section 65A by Act 75 of 1995, the DPP now has such a right. Similarly, the DPP may now appeal to the Supreme Court of Appeal against any decision of a high court to release an accused on bail, another right that did not exist previously.
2.34 Leave to appeal is required and the State may be ordered to pay the costs of the accused.
2.35 A problem identified is that the appeal from a single judge lies to the Supreme Court of Appeal. There is no reason why it should not first lie to the Full Court as is the case with other appeals. Appeals to the Supreme Court of Appeal usually take longer to reach the Supreme Court of Appeal than reaching a full court and, since the order granting bail is not suspended pending an appeal,[22] the appeal will usually have become academic by the time the matter is heard by the Supreme Court of Appeal.[23]
[1] 1996(l) SA 1207 (CC).
[2] Solicitor-General v Malgas 1918 AD 489.
[3] R v Feinstein 1924 AD 240.
[4] SA Criminal Law & Procedure 5th ed (1946) vol 1 p 599.
[5] S v Zoko 1983 (1) SA 871 (N) at 875C.
[6] 1983 (1) SA 871 (N).
[7] Attorney-General, Transvaal v Nokwe & Others 1962 (3) SA 803 (T).
[8] 1991 (4) SA 727 (A).
[9] 1948 (2) SA 677 (A).
[10] It was introduced subsequent to R v Herbst 1942 AD 434.
[11] 1993 (1) SACR 67 (A).
[12] 1985 (2) SA 560 (A).
[13] Ibid.
[14] 1984 (4) SA 690 (A).
[15] Cf the judgment of Streicher JA in De Lange & Nyanda v S (Supreme Court of Appeal case no 160/98 decided on 31 May 1999.
[16] JH van Rooyen A perspective on the Criminal Law Amendment Bill 1990 SA Journal For Criminal Justice 162 at 168.
[17] S v Kellerman 1997 (1) SACR 1 (A).
[18] Du Toit, E; DeJager, FJ; Paizes,A; Skeen, A S, Van der Merwe, S Commentary on the Criminal Procedure Juta, Cape Town at 30-42D.
[19] Section 309(3) of the Criminal Procedure Act, 51 of 1977.
[20] S v Shapiro 1994 (1) SACR 112 (A).
[21] See e g the facts in S v Madlala 1994 (1) SACR 245 (A,) S v Di Blasi 1996 (1) SACR 1 (A) and more recently S v Salzwedel 2000 (1) SA 786 (SCA).
[22] On the Continent the rule is often that an appeal by the State suspends the release of the accused.
[23] Cf S v Ramokhosi 1999 (1) SACR 497 (SCA).
SAFLII:
|
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/other/zalc/report/2000/2/2000_2-CHAPTER-2.html