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4.1 In the discussion paper the Commission concluded that there exists an unfortunate perception that while crime is rampant, nothing much is done to protect society and that the rights contained in the Bill of Rights - which the State ought to protect - are being violated on an unprecedented scale by criminals who in many instances go unpunished due to numerous flaws in the criminal justice system. Emphasis was placed upon the words of O'Linn J's already quoted in the previous chapter. [45]
4.2 The credibility of the criminal justice system is under strain. Acquittals which the press and the public cannot or wish not to understand, contribute thereto in no mean measure. There are also acquittals which are the result of bias (real or perceived), incompetence or lack of skill and experience which bring the justice system in disrespect. The existence of a right of appeal ought to contribute materially to restore the credibility of and respect for the system. The public will then know that there is an independent reappraisal of the matter available. Criticisms directed at individual judicial officers will be deflected.
4.3 The lack of skills at the prosecutorial level gives rise to serious problems. Where the prosecutor is inexperienced or incompetent the fair trial model also collapses. The extent of this problem has recently received some judicial attention.[46]
4.4 The failure of the prosecutor to be an adversary is amply illustrated in S v Manicum[47] where the prosecutor showed a total lack of interest in or commitment to the prosecution. On appeal the judge commented as follows on the conduct of the prosecutor:
"When I said it was alarming I was not being extravagant with language. There were the two contradictory versions and to think that a prosecutor would in these circumstances have no questions, is incredible. It demonstrates a total lack of competence on the part of the prosecutor and a deplorable attitude of the authorities to put a case in the hands of a prosecutor who just did not care, did not want to care and who, even it she had cared, was not able to contribute a single morsel of cross-examination to assist the magistrate to unravel the issue."[48]
4.5 The mere existence of the possibility of an appeal will mean that judicial officers will be more careful in judging cases and the “opting out” of difficult cases on specious grounds will no longer be possible.
4.6 The country and its legal system is in transition. Judicial ethics is becoming a burning issue. Without a reassessment in the ordinary course of appeals of acquittals it may be difficult to determine whether a judicial officer has acted unethically in finding a person not guilty.
4.7 This Commission is under an obligation to simplify the criminal procedure. For this reason the Commission deemed it necessary to bring the provisions of the Criminal Procedure Act into line with the Constitution and the provisions applicable to civil cases (where appropriate). The Commission also deemed it necessary to consider the provisions in respect of appeals on bail and concluded that they be brought into line with the provisions dealing with the requirement of leave to appeal. The multiple provisions dealing with appeals cannot be justified and a simple appeal for the accused and a similar appeal by the State would contribute to the simplification of the criminal procedure. In the result
4.8 Important is that the problems associated with determining whether an appeal is one of fact or of law will fall away. In spite of well developed case law,[49] the question remains one of great difficulty.[50] It is no wonder that in income tax appeals, as a result of requests from the (then) Appellate Division, the distinction was abandoned after many years of expensive and unnecessary litigation.
4.9 The right of appeal of the state will have to be subject to restraints, such as leave to appeal and limiting the right to the DPP. A general obligation to pay costs if the appeal is unsuccessful will also be necessary.
4.10 It was assumed what was said concerning the DPP will also apply to a private prosecutor.
4.11 Having carefully considered the numerous countervailing factors, the Commission was of the view that, for the reasons set out, on balance there was merit in extending the right of the State to appeal on questions of fact:
4.12 The Commission therefore recommended that the Criminal Procedure Act be amended to make provision for the right of the State (Director of Prosecutions or Prosecutor) to appeal on questions of fact from both lower and superior courts and to reduce the ways in which appeals may be prosecuted.
4.13 As stated above some of the Commission’s proposed amendments were not strictly relevant to the issue, but since the Committee's brief was also to simplify the Act, other obvious and noncontentious matters were also dealt with. In particular, the sections under scrutiny were checked for consistency with the Constitution.
4.14 For the sake of convenience the comments received on the Commission’s recommendations are discussed under the following headings:
4.15 Mr JJ Smit, Director of Public Prosecutions Bophuthatswana, supports the principle that the State should have the right to appeal on a question of fact against a decision of a lower court as well as a High Court. He points out that in fact this is the case in the erstwhile Bophuthatswana since 1992 when Act 51of 1977 was amended by the Bophuthatswana Criminal Procedure Amendment Act, 62 of 1992. The procedure set out in the discussion paper is preferred since it is the same as that of an accused who appeals. The reasons for introducing the right outlined in the discussion paper are supported.
4.16 The Criminal Procedure Section in the Directorate:- Judicial Training (Criminal Courts) - Justice College supports certain of the proposed amendments, in particular the proposal providing for an appeal by the State on questions of fact. The view is expressed that the Commission's evaluation in Chapter 4 of Discussion Paper 89, particularly paragraphs 4.19 to 4.30, aptly sums up the position. Section 9 (1) of the Constitution provides for everyone's right to "equal protection and benefit of the law", and granting the State the right to appeal on fact will ensure that this right can be enforced.
4.17 The South African Police Service is of the view that public interest in the criminal justice system should rather be seen as representative of society and demands that criminals should be punished. Society has always in one way or another been affected by crime and acquittal of criminals often lead to questions the public and the press cannot answer or fail to understand. The creation of a right to appeal ought to restore credibility and respect for the criminal justice system. It will ensure that guilty persons do not escape punishment. The South African Police Services supports the views and recommendations contained in the discussion paper.
4.18 The Director of Public Prosecutions, Pietermaritzburg, fully supports the introduction of the proposed amendments. He does not foresee any practical problems in respect of the wording of the proposed amendments. He proposes that the reference to the high court in the last line of the proposed amended version of section 309(3) must also be amended to read "court" instead of the existing "division".
4.19 The Director of Public Prosecutions, Eastern Cape, supports the principle that a DPP should have the right to appeal on questions of fact. He is of the view that the time is ripe for such a development. The introduction of the principle that a DPP can appeal against an inadequate sentence had no dire consequences. The public is upset about a perceived failure of the criminal justice system to tackle crime adequately and a situation in which an unjust verdict must simply be accepted because there is no legal remedy to correct it, is unacceptable. From time to time that a criminal court takes the line of least resistance by basing a discharge on a question of fact, thus saving the problem of having to deal with a stated case on appeal. Another difficulty sometimes encountered is that a lower court thwarts a possible State appeal on a question of law by wording the stated case in such a way that the State has no chance of success.
4.20 He is of the view that even if a trial court has in fact no intention of blocking a State appeal procedure, aggrieved members of the public could still acquire such a perception in a given case and feel (even if wrongly) that an appeal by the State was deliberately blocked. It would be far better to avoid such perceptions by having a transparent appeal procedure on facts. He proposes that the new title "Director of Public Prosecutions" should be used instead of "Attorney-General". The proposed amendments do not set out the test which a court of appeal should apply before allowing a State appeal on fact. In his view it is correct to leave this to the courts of appeal to evolve a suitable formula. Legislative provision for the appropriate test could prove to be problematic.
4.21 The judges of the High Court, Pietermaritzburg point out that the discussion paper has been circulated amongst the Judges of that Court and, without exception, everybody is in favour of the proposed right of appeal subject to leave being granted.
4.22 At the request of the Law Society of the Cape of Good Hope its Criminal Law and Procedure Committee met to consider discussion paper. The Committee noted with approval the comments in paragraph 4.20 of the discussion paper. The problem of having to countenance acquittals based on the incompetence or lack of experience is a matter the committee has commented on in the past. To maintain the integrity of the system, incompetent people should not be allowed to deal with complex matters. The consequence of such appointments is costs for both the State and the defence. A wrong public perception is created as a result of incompetent personnel.
4.23 Mr AP De Vries, SC, Director of Public Prosecutions, Witwatersrand Local Division, points out that the discussion paper submitted for comment canvasses all relevant issues and necessitates only a short discussion.
4.24 He points out that an accused's right to appeal against his conviction/sentence or any adverse decision is an internationally accepted (human) right. Fairness dictates that the State should be afforded a similar right. The granting of this right to the State should primarily be rooted in (a) fairness and (b) the interests of society. In the present criminal justice system the odds are heavily stacked against the State. The increase of sophisticated criminals, the lack of experienced prosecutors and judicial officers are some of the elements which have affected the efficient administration of justice. Further, a current perception is that the rights of an accused are treated preferentially to those of society in general. This has resulted in the perception that the system protects criminals and neglects the victims. There can be little, if any, doubt that affording the State a right to appeal on facts would go a very long way to restore credibility and respect in the justice system.
4.25 In its most essential form an appeal is a review of the findings and decisions of a lower court based on certain facts and not a retrial on the same facts. If the findings or decisions of the lower court are found, on good grounds, to be defective then the appeal court must in the interests of justice correct them. In these circumstances an accused person cannot be allowed to claim as a right the benefit of a decision which is objectively not in accordance with justice. To allow this would bring the administration of justice into disrepute and would negate the essential right of every member of society to the proper administration of justice. In this context, any objection on the basis of the double jeopardy principle is devoid of any merit. The State's right to appeal against sentence (section 310A) has, since its inception, operated properly and has fulfilled its function. An appeal on facts should be afforded to the State on the same basis and with the same limitations. Practice has indicated that the right to appeal against sentence is exercised with circumspection and there is no doubt that the same will apply to an appeal on facts. The limited and cautious exercise of the right to appeal against sentence should allay any fears that the State will exercise the right to appeal on facts indiscriminately. There can be no doubt that the State's right to appeal on facts will be a formidable weapon in the State's arsenal, perhaps not so much to use than to wield. (See paragraphs 4.19 - 4.24 of the discussion paper.) It will have a very positive effect on society in general and victims of crime in particular. It will impact on the dispensing of justice by judicial officers and could well curb the unscrupulous criminal who wishes to take advantage of shortcomings in the system.
4.26 In dealing with these, some of the smaller issues will be canvassed between brackets and the major objections will be considered later.
4.27 Mr TJ Monyemangene, magistrate Pretoria North, raises objections to the proposed amendments. He is of the view that granting the State and more particularly the DPP the right to appeal on a question of fact will not only be unfair to the accused but also unconstitutional. In the first place the double jeopardy principle negates this and the plea of autrefois acquit will be obsolete. The accused person cannot be tried twice on the basis of the very same set of facts, notwithstanding the fact that it be due to error on the side of the judicial officer or incompetence on the part of the State as well. The State, and more particularly the DPP is not in a position to be objective, whereas the judicial officer adjudicates all the facts before him presented by both parties. Hence an accused person will be prejudiced if the DPP is granted the right to appeal on an acquittal. The extension of this right could only result in more cases going on appeal and promote tension in the relationship between State as prosecuting authority and judicial officer as separate entity. (In the view of the Commission the arguments contained in the last three sentences are devoid of any merit and need not be addressed.)
4.28 Dr L Jordaan, of the Department of Criminal Law and Procedure, UNISA, questions the validity of the argument that a prosecution appeal against an acquittal on the merits was never introduced in South African law because, at the time when juries presided in superior courts in South Africa, appeals were not possible against acquittals. She submits that the jury-system argument amounts to an oversimplification of the development of South African law in this area and the discussion paper fails to explain why a state appeal against an acquittal purely on the factual merits has not been introduced by the legislature since abolition of the jury system.
4.29 Closer scrutiny of the historical development of the institutions of appeal and review in Roman-Dutch, English law and eventually South African law, reveals that these remedies were introduced essentially to serve the interests of an accused person who had been wrongly convicted.[51] This is also evident from an overview of the historical development of the institutions of appeal and review by Jordaan.[52] In English law, the source of the rule (prohibiting state appeals against acquittals on the merits) is not ascribed solely to the fact that juries preside in superior courts but the rationale underlying the rule has been identified as "... the right of a person who has been acquitted by a court of competent jurisdiction after a trial on the merits of a criminal charge, to be spared the renewed jeopardy of an appeal against acquittal".[53] (With respect, there has never been a rule prohibiting appeals by the prosecution - the situation simply was that the right of appeal had never been granted. No-one in English law had a right of appeal as of right.)
4.30 The Supreme Court of Appeal emphasised the traditional policy and practice in South African law in Magmoed v Janse van Rensburg[54], namely that an acquittal on the merits by a competent court in a criminal case should be treated as final and conclusive. The court preferred to give a narrow interpretation to the concept "question of law", observing that to hold otherwise "would be opening the door to appeals by the prosecution against acquittals contrary to the traditional policy and practice of our law". Her own research has led her to believe that the absence of legislation which provides for a state appeal purely on the facts can be ascribed to the policy identified in the Magmoed case.
4.31 Secondly, the discussion paper states that the question whether a matter is one of law or of fact is a vexed one, and, in a sense, artificial. She concedes that our law in this regard has not always been altogether clear. During the period before provision was made for a full right of appeal by the accused against the merits of his conviction, the content given by the courts to the concept "question of law" could perhaps be described as artificial. However, in Magmoed v Janse Van Rensburg the Supreme Court of Appeal made it fairly clear what amounts to a genuine question of law. The importance of the decision in Magmoed lies also in the broader principle borne out in the case, ie that a narrow interpretation should be given to the concept "question of law". The underlying policy is that the accused's interest in finality ought to be protected. (Dr Jordaan has, unfortunately not considered that cases in the SCA after Magmoed had to deal with the same vexed problem and that the answer is not self-evident.)
4.32 Thirdly, in the comparative study contained in the discussion paper it is stated[55] that there is no international covenant on human rights the Commission is aware of that prohibits an appeal by the prosecuting authority in the case of an acquittal on the merits of the case, or, conversely, creates a right for an acquitted person not to have the acquittal set aside on appeal. Dr Jordaan points out that this is correct. She, however, refers to the double jeopardy 'Provisions of the International Covenant on Civil and Political Rights.[56] In broad terms, these provisions state that no one shall be liable to be tried or punished for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of each country. She submits that the inclusion of the word “finally” implies that all possible appeal procedures provided for by the state law have been exhausted.
4.33 The right of the state to appeal against the merits of an acquittal has not as yet been challenged in international tribunals. Dr Jordaan is of the view that in terms of the wording of the above-mentioned provisions the decisive question is whether an accused had been finally acquitted in accordance with the law and penal procedure of his country. It may be argued that the word “law” also includes the constitutional law of a country. The South African double jeopardy provision (s 35(3)(m)) does not include the word “finally” to describe the acquittal. It merely states that "every accused person has a right to a fair trial which includes the right not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted."
4.34 She is of the view that it may be argued that because the drafters did not add the proviso that the accused should have been "finally" acquitted, they intended to afford the accused protection also against state appeals. Hence it may depend on the interpretation of the South African double-jeopardy provision whether a prosecution appeal against an acquittal on the merits will be found to comply with international standards.
4.35 With reference to the right of the State to appeal on questions of fact in Germany she points out that it needs to be explained why the prosecutor may appeal against an acquittal handed down in a lower court on both matters of fact and the law. The reason is that the proceedings in the so-called Amtsgericht is of a summary nature and the adjudicators in these lower courts are not only judges, but also lay-people. Legal commentators point out that, because there is a greater risk that mistakes may be made in these courts, both parties may appeal on matters of fact and law against decisions of these courts.[57] The appeal is also not purely on the record. In fact, both the prosecution and the accused have a right to a new trial before a court of second instance. From superior courts the prosecution may appeal on a point of law only. (It is the understanding of the Commission that in the Amptsgericht the judges are assisted by lay persons, much like assessors in South Africa. The lay persons do not decide cases on their own. It is further the understanding that the last statement is correct if the reference to “superior courts” is a reference to courts of appeal and not trial courts.)
4.37 Dr Jordaan points out that a person accused of a serious crime in America may elect to be tried by a jury or by a judge sitting as sole adjudicator of the facts and the argument that jury trials is the reason why the State cannot appeal on questions of fact is therefore invalid. A judge in a so-called bench trial cannot acquit against the evidence and must give reasons for his findings. Therefore, the grounds on which his verdict of acquittal is based, is identifiable. The state is nevertheless prohibited from appealing against an acquittal handed down in a bench trial, even if it was based on erroneous legal grounds.[58] It follows that there are other considerations behind the prohibition on prosecution appeals against acquittals.[59] (The Commission cannot accept the argument. In both appeals even the accused has a very limited effective right of appeal on the merits. For the prosecution to have a right of appeal in bench trials on the merits is unthinkable. It would not make sense to grant the prosecution a right of appeal in bench cases because it would offend against the equal protection provision of the US constitution. On a practical level, no-one would be prepared to submit to a bench trial, knowing that it had a risk of an appeal by the prosecution.)
4.37 The discussion paper argues that "a court once removed from the heat of a trial is often better able to judge the rationality of factual conclusions, the correct finding of the law and the fairness of the proceedings". Read in the sense that the institutions of appeal and review are remedies essentially available to a convicted person, this statement cannot be questioned. Dr Jordaan, however, doubts that this statement was uttered in the context of the desirability of state appeals against acquittals. A reconsideration by a court of appeal of factual findings made by a trial court which had resulted in a conviction may lead to a finding that there is reasonable doubt that the accused is guilty of the crime charged. In accordance with the presumption of innocence, a finding that the state had failed to prove the guilt of the accused beyond reasonable doubt, requires that the conviction be set aside. However, a reconsideration by a court of appeal of factual findings which had resulted in an acquittal in the trial court creates the risk that an innocent person may be convicted. The core value which underpins the double-jeopardy rule is protection of the innocent against being convicted.
4.38 Giving the state more than one opportunity to get a conviction creates the risk that an innocent person may in fact be convicted. Dr Jordaan refers to Friedman [60]who explains that "[i]n many cases an innocent person will not have the stamina or resources effectively to fight a second charge. And knowing that a second proceeding is possible an innocent person may plead guilty at the first trial. But even if the accused vigorously fights the second charge he maybe at a greater disadvantage than he was at the first trial because he will normally have disclosed his complete defence at the former trial. Moreover, he may have entered the witness box himself. The prosecutor can study the transcript and may thereby find apparent defects and inconsistencies in the defence evidence to use at the second trial".
4.39 Dr Jordaan contends that the considerations advanced by Friedman are equally valid to state appeals on the factual merits of an acquittal (a view with which the Commission cannot agree simply because not one of the considerations apply to an appeal). In her view the further arguments advanced in the discussion paper, ie that very few acquittals will be appealed against and that a court of appeal will be reluctant to set aside an acquittal, do not address the concerns of the double-jeopardy prohibition: the minimisation of the possibility or risk that an innocent person may be convicted. A state appeal on the merits of an acquittal creates precisely this kind of risk.
4.40 Dr Jordaan refers to the Botha Commission’s report where it was pointed out (at 31 of its report) that:
"Omdat 'n verhoorhof die voordeel het om die getuies te sien en aan te hoor, en dus in 'n baie gunstiger posisie is om hul geloofwaardigheid te bepaal .... [sou dit] in die omstandighede uiters onbillik wees om 'n vrygespreekte beskuldige aan een of twee appèlle te onderwerp ... Die algemene indruk wat die beskuldigde as persoon, en die hele atmosfeer van die verhoor, op die voorsittende regterlike beampte maak, is uiters belangrik, maar dit is faktore wat vir slegs die verhoorhof beskikbaar is."
(Dr Jordaan does not deal with the criticism in the previous report of this sweeping statement.) She submits that the discussion paper sidesteps a proper interpretation of the constitutional guarantee against double jeopardy by offering the explanation that "appeal proceedings are simply an extension of the same proceedings". (Dr Jordaan likewise does not deal with the authorities quoted by the Commission in support of this statement.) On this basis one may also argue that a retrial upon the setting aside of an acquittal and a further appeal on a point of law against the finding of the court in the second trial, and another trial following the second appeal amount to the "same proceedings".
4.41 Determination of the stage of proceedings at which the accused's right to finality becomes operative demands a purposive interpretation of the constitutional guarantee against double jeopardy. This involves a consideration of the values which the rule seeks to protect. (It is of interest also that the so-called continuing-jeopardy theory was rejected in the context of state appeals in American constitutional double-jeopardy jurisprudence.) The discussion paper also questions why the state may appeal against a grant of bail, a sentence and an acquittal on a point of law, but not against the factual merits of an acquittal. She explains that an appeal against the granting of bail does not implicate double jeopardy: there is not a second trial after a previous acquittal or conviction. Secondly, an appeal against sentence also does not implicate double jeopardy. It will demand a very broad purposive interpretation, negating the literal meaning of the words in the guarantee to come to the conclusion that an appeal by the state against sentence amounts to a violation of the rule. Thirdly, an appeal on a question of law may be justified on the basis that it serves the public interest that the applicable law be maintained. An appeal on a point of law arguably complies with the criteria of reasonableness and justification required for limitation of rights.[61] (Dr Jordaan does not deal with the consequences of such appeals, a matter dealt with by the Commission.)
4.42 Dr Jordaan emphasises that the appeal on a point of law and sentence is an exceptional remedy. Friedland[62] warns that:
"[olne danger in conceding any form of Crown appeal is that after it has been in operation for some time the legal profession tends to forget that the remedy is an exceptional one and the procedure becomes accepted as normal and routine .... The accused should not be subjected to a second proceeding after an error-free trial in which the prosecutor's only complaint is that the jury acquitted in spite of evidence of guilt. There must necessarily be such acquittals in a system which requires a very high degree of proof before the accused can be convicted ... All the double jeopardy dangers are present in this situation including the danger that the prosecutor will use the threat of an appeal to force the accused to plead guilty at the first hearing. Assuming that a Crown appeal is desirable at all, there should be some finding of error before a second trial can be justified".
4.43 Dr Jordaan concedes that it is of great concern that accused persons are, from time to time, acquitted as a result of prosecutorial incompetence. This is a problem encountered in many jurisdictions. The Department of Justice will have to find appropriate ways and means of addressing the problem of prosecutorial incompetence. However, failure of the prosecutor as an adversary and the perception of the public that the guilty are (as a result) set free, do not per se justify infringement of the accused's constitutional right to be protected against double jeopardy. In Williams[63] the Constitutional Court pointed out that the fact that society has not yet established mechanisms to deal with certain problems, does not justify infringement of fundamental rights of the individual. Implementation of the recommendation in the discussion paper that the state's right to appeal be extended to questions of fact means that the accused will be afforded less protection against double jeopardy in the new constitutional dispensation than in terms of the common law and should be rejected on the ground that it amounts to a violation of the fundamental human right to be protected against double jeopardy. (The Commission believes that since the appeal will be decided on the record, it will hardly ever be a remedy for prosecutorial incompetence.)
4.44 Mervyn E. Bennun, a former lecturer in law at the University of Exeter, argues that there are serious flaws in the reasons advanced for the views expressed by the Commssion; and, secondly, that the proposed changes are not needed as existing law is broadly sufficient to deal with the problems which the suggested changes are designed to address.
4.45 He points out that a criminal trial is not to be seen as some form of game, and it is unhelpful to insist that the parties must set-out to engage with each other on a level playing-field. A fair trial does not require equality between prosecution and defence; indeed it is difficult to conceive what this might actually mean. The presumption of innocence is, however, central to the idea of a fair trial. It loads the dice against the prosecution so that in the absence of proof (conventionally tested against a standard of "reasonable doubt" in Anglo-Saxon jurisprudence) the outcome of the trial must be deemed to be a foregone conclusion. Moreover, the prosecution must generally discharge its burden without any assistance from the defence, for there can be no expectation that the defence will, or can be compelled to, make good any deficiencies in the prosecution's case. The prosecution as an arm of the State will invariably, for all practical purposes, have far greater resources at its disposal for the preparation and conduct of its case than the defence can possibly muster, notwithstanding the availability of legal aid.
4.46 His view is that a better basis for analysis is to seek for a balance between the interests of both prosecution and defence that there should be a fair trial; and, on the other hand, the need for finality, certainty, and legitimacy in the context of the efficient deployment of the available resources. He points out that misunderstanding the jurisprudence of criminal trials leads also to problematical implications of the observation by Mr Justice O'Linn in S v. van den Berg, as quoted in the discussion paper, to the effect that the criminal court's role and the primary aim of criminal procedure "should be to ensure that substantial justice is done".
4.47 He is of the view that if these comments are intended to be a general review of the jurisprudence of criminal trials then they are not unreasonable though a little superficial. If this passage, however, is the basis of a justification of a right in the prosecution to appeal against an acquittal then it must be said that it arouses the greatest possible disquiet. It is alarming that they may be relied on to justify making in South Africa a change that should not have been made in Namibia.
4.48 It was apparently O'Linn J‘s view that the defence had not been conducted to accepted ethical standards. O’Linn J stated unequivocally that the defence had exploited the ignorance of the magistrate and of the prosecutor. Elsewhere in his judgment O'Linn J referred to what might be called the logistical handicaps under which prosecutions were conducted in Namibia at the time: a lack of proper funding and of experienced and qualified staff. These factors can be extended further and other reasons why a trial might be regarded as unsatisfactory can be noted: the failure of the State to provide and to ensure and protect the independence and impartiality of the Bench; the lack of independent and competent defence and prosecution advocates; and the failure to ensure the application of the rules of natural justice. All these matters obviously render a trial unsatisfactory, and indeed all are matters which have troubled the South African legal system in the past. Implicit in the view taken of the trial in Van den Berg's case is that, even if one limits the problems to those referred to by O'Linn J, it is still possible to characterize the trial as a "fair" one. This cannot possibly be right. O'Linn J himself made the point that substantial justice means not only that the defence should have its interests protected, but the prosecution also.
4.49 In the Discussion Paper, the point is made that -
The public interest is not simply to have the law declared. The public interest goes much wider and it includes that guilty persons who have been subjected to a fair trial should not be acquitted because of error or incompetence.
According to him this statement is misleading in the context of the present discussion, for it suggests that a "fair trial" is possible despite error or incompetence and this is the faulty basis of the entire paper. A trial which is characterized by error or incompetence - as clearly occurred in Van den Berg’s case - is simply not a fair trial, and it is for that reason that the proceedings should be set aside. It would be impossible to state that the result, whether an acquittal or a conviction, is a just or a fair one; the outcome is unsafe, and even though a retrial might lead to superficially the same conclusion it must not be permitted to stand.
4.50 The provisions for prosecution appeals with regard to bail and sentence are very different from what is being proposed and cannot possibly constitute any argument in support thereof.
4.51 The discussion paper reviews as a supposed objection to the proposed change, the implications for the operation of the principle that an accused person may not be subjected to a second trial for the same offence following an acquittal on the facts. He submits that the discussion paper falls down in its application of the "double jeopardy" rule in the context of its
proposals. It argues that, following a trial, any attempt to retry the accused must necessarily be contrary to the rule, and it replies that in fact the appeal is "simply an extension of the same proceedings". This is correct, but surely this can only be so on condition that the first proceedings were in fact a proper trial in which the accused was placed genuinely in jeopardy. It seems that in principle a plea of autrefois acquit or autrefois convict should be available in such a case, but it does not seem to be unreasonable or contrary to principle if, on raising such a plea, the court should be able to consider a prosecution argument that the first proceedings were so defective as to be a nullity.
4.52 There does not seem to be direct authority on the point. However, it has been established that the plea of autrefois acquit is available only if the previous acquittal has been on the merits. It may be the case that clarity is needed to ensure that, where proceedings have been concluded in what purports to be an acquittal, there shall be no barrier to these being set aside on the grounds that there has been a miscarriage of justice. It does not seem to be against principle to ensure that the "double jeopardy" rule should not apply in such a case. This appears to be the view taken by the court in Moodie' s case,[64] where a conviction was set aside on appeal on the grounds that the presence of the deputy sheriff in the jury room during its deliberations had been a fatal irregularity. Hoexter ACJ said,
Counsel for the accused argued that there was a lis terminata when the accused was convicted. That argument is not sound. In the present case the conviction of the accused did not produce a lis terminata because it was set aside on appeal.
This fact also disposes of the argument that the accused was in jeopardy during the trial at which he was convicted. This court held that the judgment convicting the accused was invalid by reason of an irregularity in the procedure which occurred before the verdict. It held in effect that no verdict given by the jury could in those circumstances be legally valid, and it follows that the accused never was in jeopardy of being legally convicted at his trial.
4.53 This and other cases reviewed by Du Toit et al [65] seem to support the case being made out here. While there may be a semantic objection to describing what took place at the proceedings as a "verdict"' if there was no jeopardy behind it, the principle is clear. With respect, it suggests that the present law may possibly require - at most - amendment to clarify the situation regarding mistrials because of some of the reasons advanced by the discussion paper such as bias or incompetence, rather than procedural irregularities as in Moodie's case. He submits, however, that these changes would not be to create a right for the prosecution to appeal against an acquittal on the facts but to make provision for a re-trial. If the improprieties of the first hearing which purported to be a trial are the reason why the prosecution wishes to have the evidence heard again, then these further proceedings must not be regarded as placing the accused in jeopardy a second time. The alternative is to accord legitimacy to grossly defective proceedings which have been conducted in violation of the rules of natural justice.
4.54 Van den Berg's case is a clear example of this. The essence of the autrefois convict or autrefois acquit pleas is that there has already been a proper trial which placed the accused genuinely in jeopardy of conviction. Where a trial is so flawed that, whatever the outcome, it cannot stand, then it may well be the case that space needs to be made in South African criminal procedure for the verdict to be set aside and a new trial ordered. However, this is not what the discussion paper envisages. The discussion paper claims that it is part of the public interest that "guilty persons who have been subjected to a fair trial should not be acquitted because of error or incompetence.” The discussion paper says:
The credibility of the criminal justice system is under strain. Acquittals which the press and public cannot or wish not to understand, contribute thereto in no mean measure. There are also acquittals which are the result of bias (real or perceived), incompetence or lack of skill and experience which bring the justice system into disrespect.
These statements are unexceptionable but raise issues which need consideration. Proceedings under such a shadow can clearly not be described as "good" or "fair" trials, nor can they be permitted to stand unchallenged: the discussion paper makes it clear how the legitimacy of the criminal justice system is endangered. However, we must begin to deal with the matter in the spirit which must characterize the criminal justice system from the outset.
4.55 He submits that any attempt to deal with unsatisfactory acquittals which "the public cannot live with" by the means proposed will simply leach away hard-won gains in the struggle to establish legitimacy for the criminal justice system. If trials are faulty because of the quality of the personnel responsible for them, then in the long term the only correct remedy is to address that problem: that is the illness, and the quality of the trial is no more than the symptom and the proposed changes are merely cosmetic and ad hoc. We must keep our eyes focused at every moment on the correct horizon, even it is the more distant one. We do not solve our problems by hunting down someone we wish to convict by means of an ad hoc procedure which confuses the separate roles and functions of the various components of the court. If the argument were in favour of a procedure for a retrial, setting aside the first proceedings on the grounds of their unsatisfactory nature, then it would be another matter. This is, however, precisely what the proposed changes to the Criminal Procedure Act do not envisage; their entire thrust is along the lines of an appeal.
Ad the proposed amendment, the insertion of subsection (5) to section 65:
4.56 Justice College is of the view that due to the urgent nature of bail appeals (Prokureur - Generaal, Vrystaat v Ramokhosi 1997 (1) SACR 127 (0)) it would be unwise to extend the provisions of section 309B and 309C and thereby Rule 67 of the Magistrate's Court Act, 1944 (Act 32 of 1944) to such appeals because of the length of time then available to a magistrate to supply reasons for his/her decision. At present, in terms of section 65 (3), the magistrate is required to forthwith furnish the reasons for his decision" whereas if leave is first to be sought a number of time periods come into play that could delay such hearing. This has also been the view in no less than three (as yet) unreported judgments from various High Courts, namely Witwatersrand (Siwela v S), Eastern Cape (Maseko v S) and Western Cape (Mohammed v S). It is thus not clear why it was thought necessary to make the 'leave to appeal' provisions applicable to bail appeals. The State could also, when attempting to appeal the granting of bail, suffer, as delays here could then also prejudice the State. It is suggested that the status quo be retained.
4.57 The Director of Public Prosecutions, Eastern Cape points out that clause 1 (b) of the proposed amendments seek to amend section 65 (5) of Act 51 of 1977 by requiring leave to appeal also in bail appeals. At present, the weight of judicial opinion in at least three Divisions of the High Court is that in spite of recent amendments requiring leave to appeal against rulings in lower courts, there is no such requirement in the case of a bail appeal. He is in favour of retaining the principle that there be an automatic right of appeal against refusal of bail. Bail appeals are always urgent, and the process of requiring leave to appeal, and if refused, a petition, will add considerably to the delay in disposing of bail appeals. As far as he is aware, High Courts are not inundated with fruitless bail appeals, and so there is no real need to limit bail appeals.
4.58 The Criminal Law and Procedure Committee of the Law Society of the Cape of Good Hope recommends that the proposed amendment to Section 65, specifically the proposed insertion of subsection (5) (The provisions of sections 309B and 309C shall apply, mutatis mutandis, to an appeal under this section), be rejected for the following reasons -
The committee points out that the 'urgency' is not adequately addressed in this procedure. This will add to the legal costs of the accused, who in the majority of cases cannot meet his/her financial obligations. This suggests that the State is trying to save costs by violating of the rights of the accused. There are enough problems where an accused has to obtain legal aid for a bail application. The committee is of the view that the envisaged procedure will still not necessarily alleviate the burden of the High Court, which in fact can only be alleviated by increasing the judiciary and prosecutorial staff.
Ad the proposed amendment, the substitution of subsection (2) of Section 65A:
4.59 Justice College agrees that the proposed amendment is necessary to expedite appeals from a High Court as court of first instance, but the suggested proposition takes away any subsequent appeal to the Supreme Court of Appeal against the full High Court's decision. A suitable amendment would thus be necessary to ensure this is retained.
Ad the proposed amendment, the substitution of section (3) of Section 309:
4.60 Justice College proposes that the punctuation of the suggested substituted subsection (3) in its current form require attention and suggests that in the second line of text a full stop be inserted after 304(2)." , and that the sentence. "The court..." begin with a capital "T”.
Ad the proposed amendment, the substitution of subsection (3) (a) of section 310:
4.61 Justice College is of the view that it appears to be unnecessary to make the provisions of section 309D applicable mutatis mutandis (with the necessary changes) to appeals by the prosecutor. (Section 309D deals solely with the explanation of rights to unrepresented accused.)
Ad the proposed amendment, the substitution of subsection (3) (b) of section 310:
4.62 Justice College suggests that the reference to "deputy sheriff ' ought merely refer to "sheriff.
Ad the proposed amendment, the insertion of sub section (6) in section 310:
4.63 Justice College proposes that:
(i) the reference to "magistrate" should be replaced with "presiding officer" as the former excludes a regional magistrate by definition; and
(ii) The reference to "high" court in the second last line ought to be replaced by the word "that' 'and the word "concerned' omitted.
Ad the proposed amendment, the substitution of subsection (5) of section 310A:
4.64 Justice College proposes that the reference to section 309D is unnecessary.
Ad the proposed amendment, the substitution of subsection (6) of section 310A:
4.65 Justice College proposes that:
(i) the reference to "magistrate" ought to be replaced by the word "presiding officer";and
(ii) the reference "provincial or local division concerned" ought to read "that court".
Ad the proposed amendment, the substitution of subsection (1) of section 314:
4.66 Justice College proposes that:
(i) the heading to section 314 ought to read:
"Obtaining presence of acquitted or convicted person in lower court after setting aside of acquittal, sentence or order"; and
(ii) that the words "an acquittal," be inserted prior to "sentence"?
Ad the proposed amendment, the substitution of subsection (2) of section 315:
4.67 Justice College proposes that in the second last line the words "does not require"should be replaced with "requires".
Ad the proposed amendment to section 316B:
4.68 The Director of Public Prosecutions, Eastern Cape points out that clause 11 amends section 316 B of the Criminal Procedure Act. Section 316(B)(1) refers to an appeal by a Director of Public Prosecutions or other prosecutor, whereas subsections and (3) only refer to a Director of Public Prosecutions. He suggests that the concept or other prosecutor be applied consistently.
Ad the proposed substitution of subsection (1) of section 321:
4.69 Justice College proposes that the references throughout to "superior court ' should all be amended to read "High court”.
Ad section 324 of the Criminal Procedure Act, 1977
4.70 The Criminal Law and Procedure Committee of the Law Society of the Cape of Good Hope points out that while the South African judicial system recognises the concept of double jeopardy, it appears that these provisions would operate in conflict therewith. It would perhaps be more appropriate for the court of appeal to have the discretion to require a re-prosecution depending on its views of the nature and extent of the irregularity.
General comment
4.71 Justice College proposes that:
(i) Whilst these various amendments are being sought it would be appropriate to amend all these sections by removing the words "attorney-general" and replacing them with "Director of Public Prosecutions" as well as "with the necessary changes" being inserted wherever "mutatis mutandis "appears.
(ii) During July, 1999 a proposal for an amendment to section 309(4) was submitted to HDW as the current wording of section 309(4) only covers situations where leave to appeal is granted but excludes a sentenced prisoner's right to have his or her bail extended, or for that matter, the right to apply for bail, pending petition of the Judge President following a refusal of leave to appeal in a magistrates court. The suggested wording for the text reads as follows:
“(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 a petition 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
(b) the sentence which the court has imposed."
[45] S v Van den Berg 1996 (1) SACR 19 (N).
[46] In S v Van den Berg 1995 4 BCLR 479 (Nm) O'Linn J said the following about Namibia: "In a developing country like Namibia, the prosecution suffers from all the constraints caused by lack of financial means, experience and proper qualifications". See also Van Dijkhorst 1998, 136. S v Motsasi 1998 2 SACR 35 (W).
[47] 1998 2 SACR 400 (N).
[48] At 403h-i.
[49] Cf Magmoed supra; Attorney-General, Transvaal v Nokwe 1962 (3) SA (T); S v Petro Louise Enterprises 1978 (1) SA (T); Secretary for Inland Revenue v Cadac Engineering 1965 (2) SA (A); Grobbelaar v Workmen's Compensation Commissioner 1978 (3) SA (T); Attorney-General Transvaal v Kader 1991 (4) SA 727 (A).
[50] Latterly, S v Venter 1999 (2) SACR 231 (SCA)) and De Lange & Nyanda (Supreme Court of Appeal case 160/98 of 31 May 1999).
[51] See the report of the Botha Commission RP 78/1971 at 31, citing from Coutts The Accused at 19 that "[a] Survey of appeals procedures reveals the fact that they are primarily aimed at safeguarding the interests of the accused ... rather than at the protection of the interests of the public".
[52] Aspects of double jeopardy Unpublished doctoral thesis 1997 319 - 327, 416-425.)
[53] See Paliwala and Cottrell "Appeals by the prosecution against sentences and acquittals: a survey of the situation in some commonwealth countries Secretariat 2, quoting from the Australian case of Thompson v Mastertouch TV Series Pty Ltd (1978) TRRS 306, 115, 119-120.
[54] 1993 (1) SACR 67 (A) at 101 h.
[55] At 15 - 16.
[56] Article 14(7)) and article 4 of Protocol 7 of the European Convention on Human Rights.
[57] See Roxin C Strafverfahrensrecht 24 ed 1995 at 391.
[58] See in general Office of legal policy "Report to the Attorney-General on double jeopardy and government appeals of acquittals" University of Michigan Journal of Law Reform 1989 at 883.
[59] For a discussion of these other considerations, see Jordaan "Appeal by the prosecution and the right of the accused to be protected against double jeopardy" CILSA 1999 at 20-22.
[60] Double Jeopardy 1969 at 4.
[61] See Cilsa XXX1 1999 at 22 -23 for the arguments in this regard.
[62] Double Jeopardy 1969 at 296.
[63] 1995 (7) BCLR 861 (CC).
[64] S v Moodie 1962 (1) SA 587 (A) at 596.
[65] Etienne du Toit, et al. Commentary on the Criminal Procedure Act Cape Town, South Africa: Juta & Co., 1997, p 15-9.
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