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5.1 In the formulation of recommendations cognisance will be taken of possible objections to the proposed changes, international developments, international Human Rights documents and the Bill of Rights and its possible implications for the right to appeal and the comments received on the discussion paper.[66]
5.2 To err is human and protection against error is necessary.[67] Judicial officers are fallible with regard to the findings of fact and of law. 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.[68] Through appeal and review proceedings consistency and uniformity in the application of the law may be achieved. It furthers equality before the law. A right of the prosecuting authority to appeal, although seldom if ever protected in constitutions, recognises these realities and values and it is therefore an essential component of a deliberative and rational decision-making process, a core characteristic of a judicial system which gives expression to the value of the rule of law.
5.3 The question is more fully dealt with in chapter 3. For purpose of evaluation it is significant to note that not a single International Human Rights document denies the State a right of appeal in a criminal case. In other words, there is no internationally recognised basic human right that an accused person has not to be subjected to an appeal in the event of a discharge or the imposition of an inadequate sentence. The only provision which should be considered in this regard is the double jeopardy protection.
5.4 From the brief comparative study in chapter 3 certain definite patterns emerge:
In the Anglo-American systems with their innate belief in jury systems - in the USA it is constitutionally mandated - factual finding of a jury are sacrosanct. In the result even the accused has a very limited effective right of appeal on the merits. For the prosecution to have under these circumstances a right of appeal 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.
It is of some significance to take note of the fact that in Canada there is a right of appeal by the Attorney-General on the merits against a decision of the lower courts where, presumably, there is no jury. In the higher courts where jury trials take place, the situation is different. India, too, allows an appeal by the prosecution on matters of fact.[69]
In the UK and the Commonwealth generally, there are now five possible basic sets of situations in relation to trial on indictment -
(a) no right of appeal by the prosecutor;
(b) a right of appeal or "reference" on a point of law, but with no affect on the outcome of the trial giving rise to it;
(c) a right of appeal against leniency of sentence;
(d) a substantive right of appeal on a point of law against acquittal;
(e) a substantive right of appeal on law, mixed law and fact, and fact alone, against acquittal.
These categories are not all mutually exclusive and there are in some jurisdictions combinations of the rights under (b) and (c), or under (c) and (d) or (e). Moreover, appeals may be brought sometimes only with leave of the trial court or the appeal court (or either), sometimes without the need to obtain leave, or sometimes under a combination of restricted and unrestricted rights depending on the nature of the appeal.
In those jurisdictions which allow the prosecutor to appeal from trials on indictment the power is used sparingly. There are obvious reasons for this such as the public expense involved in appeals and retrials and the embarrassment to the public prosecutor in losing appeals, with its attendant danger of his department being branded as an instrument of persecution. In cases of appeals against acquittal, or against the imposition of non-custodial sentences, there may be matters of tracing the accused, of re-arrest, and sometimes also of re-opening issues of bail.
In all continental systems the prosecuting authority has at least one right of appeal against an acquittal of an accused on the merits of the case.
Closer home, and more relevant to the South African position, is the experiment in Namibia and those parts of the country which formed part of Bophuthatswana where provision was made for the right of the Attorney-General to appeal all matters, including questions of fact.
5.5 In terms of the Criminal Procedure Act the State (in general terms) can appeal in respect of proceedings from the lower courts as well as from the High Courts -
(a) questions of law;
(b) inadequate sentences; and
(c) the granting of bail
There is no appeal on the merits of an acquittal.
5.6 An important consideration is whether or not an extension of the right to appeal would be constitutionally sound. Section 35(3) (o) does not constitutionalise the current rules and procedures of appeal and review, but from them the core elements of appeal and review can be extracted. These include:
(a) the reconsideration of a court decision (or a review of proceedings) by a higher court,
(b) a reconsideration of the merits of decisions on law or fact (or the fairness of the proceedings) on the basis of the full record of the proceedings (and such additional information as need be), and
(c) the exercise of the right within reasonable time limits.
The Constitution is silent on the right of the State to prosecute appeals and the emphasis is on the right of an accused person. If one bears in mind that the supposed negative right of not to have an acquittal reconsidered is a right of the accused and not one of the State, the omission is significant. Once it is accepted that the provisions concerning appeals on bail, sentence and on legal points are not unconstitutional,[70] there is no reason to imagine that an appeal on the merits by the State would be.
The appeal is merely an extension of the proceedings in the lower court.[71]
5.7 The main objection against the extension of the right of the prosecuting authority to appeal matters of fact is the so-called double jeopardy principle. The argument is that “an accused who has been acquitted on the facts - 'on the merits' - is in a similar position with regard to appeals by the State as to a retrial, in that he may not be put in 'jeopardy' twice for the same offence: nemo debit bis vexari pro una et eadem causa.”[72] The same argument was raised in opposition to the amendment in 1990 which permitted State appeals on sentence.[73]
This objection has again been raised in the comments on the discussion paper by Dr Jordaan and Mr Monyemangene.
5.8 Dr Jordaan argues that the proposed amendment would infringe the double jeopardy rule. She submits that 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.
5.9 Secondly she argues that there is a difference in appeals by the state against bail, against sentencing and questions of law and appeals by the state on facts. 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, according to her, 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. In her opinion 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.
5.10 The right against double jeopardy is of recent heritage in international instruments but it has a venerable history at common law and in national constitutions. The double jeopardy rule in its traditional form is also endorsed in our Constitution in that it provides that an accused person may not be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted.[74] In South African law the maxim ne bis in idem is upheld by the defences of autrefois acquit and convict. In the Commission’s view two core values underlie this right. The first is the need to secure finality of judgments. It is in the interest of an accused person as well as the administration of justice that there should be finality in criminal cases. The re-prosecution of an accused person for the same conduct subjects him to the same embarrassment, expense and ordeal. The second value is the safeguarding against state oppression by placing constraints on the prosecution authority when it seeks to institute successive prosecutions with regard to the same conduct.
5.11 The extended meaning contended for in the objection is not part of the rule. As mentioned, the appeal proceedings are simply an extension of the same proceedings and is not a retrial. This view was confirmed in Attorney-General, Eastern Cape v D[75] in the following terms:
An appeal is not a retrial or a trial de novo. It merely obliges the Court to make a decision on a record of the evidence placed before the court a quo. As such it is an extension or continuation of the lis between the State on the one hand and the accused person on the other.
5.12 In 1971 the Botha Commission of Inquiry [76] considered the question in another legal and social context (at the time the State did not have the right to appeal against the granting of bail or a sentence imposed and there was no Bill of Rights). The Commission realized that the double jeopardy argument is flawed because an appeal on legal points was permissible and tried to address the dilemma thus:
8.03. The considerations are different where a question of law is in issue, because it is in the public interest that the applicable law be maintained. Where an accused is thus acquitted merely because of the trial court's erroneous view as to what the law is, the law is not maintained, and it is in the public interest that the law applicable be determined and declared by a superior court, not only for the specific case, but for all future cases of a similar kind. Although it is in the public interest that an alleged offender should be brought before the court and on conviction be punished, the public interest is not further served by an appeal against the acquittal on the peculiar facts of the particular case of such an alleged offender.
5.13 The rationalization is unconvincing. 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 clear error or incompetence. What the report failed to consider is the fact that a successful appeal by the State under the existing regime - i e an appeal on a question of law - potentially has serious personal consequences for the accused. He may be found guilty and sentenced to imprisonment for whatever term is appropriate. Another aspect overlooked in the report is that the court of appeal retains a discretion to disallow an appeal if it is of the view that by upholding the appeal an injustice to the accused will be done.[77]
5.14 The public interest question was dealt with in detail by O'Linn J in S v Van den Berg[78] when he quoted Wessels CJ in R v Omar 1935 AD 230 at 323 that the role of the court is:
... to see that substantial justice is done, to see that an innocent person is not punished and that a guilty person does not escape punishment'
and those of Curlewis CJ in R v Hepworth 1928 AD 265 at 277:
' A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a Judge's position in a criminal trial is not merely that of an umpire to see that the rules of the game are applied by both sides. A judge is an administrator of justice, not merely a figure-head, he has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done. . . “
O'Linn J was conscious that these words were used in another context, but proceeded to state that
“the words express the basic aim of the courts and the provisions of the Criminal Procedure Act to ensure substantial justice, by ensuring that an innocent person is not punished and that a guilty person does not escape punishment.
A perception exists in some circles that the fundamental right to a fair trial focuses exclusively on the rights and privileges of accused persons. These rights, however, must be interpreted and given effect to in the context of the rights and interests of the law-abiding persons in society and particularly the persons who are victims of crime, many of whom may be unable to protect themselves or their interests because they are dead or otherwise incapacitated in the course of crimes committed against them.”
5.15 These views also present another perspective on another paragraph of the Botha Commission report which reads:
8.02. I suppose that it must be conceded that it sometimes happens that a trial Court wrongly acquits an accused on the facts or imposes an inadequate sentence, but that is no sufficient reason why the state should be given the right to appeal in such cases. The interests of the State and those of a condemned person are not comparable, and considerations which justify a right of appeal to a condemned person to appeal against his conviction on the merits and against the punishment imposed, do not hold good for the State.
5.16 As mentioned in chapter 3, many legal systems with exemplary human rights background accept the right as axiomatic.
5.17 There is no doubt, as was pointed out in Magmoed v Janse van Rensburg and Others[79] that the procedures of our criminal justice system and the decisions of our courts evince a general policy of concern for an accused person in a criminal case and that a similar concern for the interests of the prosecutor cannot be detected. The various measures to protect the interests of the accused and to ensure that he is not wrongly convicted place, pro tanto, limitations on the power of the prosecution to obtain a conviction. In the light of the law as it stands, Corbett CJ was unable and unwilling to extend the State's right to appeal on questions of fact.
The question can validly be raised whether, within a constitutionally protected fair trial system, an undue lack of concern for the interests of prosecutor can any longer be justified.
5.18 The same arguments were raised by Prof van Rooyen when he objected to the introduction of the right of appeal against sentence. He also relied upon the Botha Commission report which raised the same argument in this context. Despite these objections, the Act was amended during 1990 and gave the State the right to appeal against sentences imposed by both lower and higher courts. There has been no call to repeal the provision and it is serving its purpose. The same arguments can be raised against the right of the state to appeal the grant of bail, but the Legislature nevertheless introduced the right during 1995. It remains a policy decision on which views legitimately may differ. Policy is not immutable and social and political forces do impinge on it and changing circumstances often require a proper rethink of the underlying rationale.
5.19 It needs to be pointed out that in S v Sonday and Another[80] the power of a court of appeal to increase the sentence imposed upon an offender was found not to offend the Constitution. In Attorney-General Eastern Cape v D[81]the court pointed out that this power was originally based on the common law but it has now been statutorily enshrined. The provisions of section 310A which empowers the Director of Public Prosecutions to appeal against sentence merely provide a procedure where under the State can appeal against the sentence. Furthermore, the court held that there is nothing inherently unfair about the procedure and refused to refer the matter to the Constitutional Court as there was in the court’s view no reasonable prospect of success. Professor Steytler also argues that the procedure is constitutional because a legitimate objective is served if a too lenient sentence is imposed because it undermines society’s confidence in the administration of justice.[82] With reference to American case law Steytler argues that the same importance of finality which attaches to a conviction does not apply to sentences. Sentences are by definition imprecise and an accused has no right to know beforehand what the exact limit of the sentence will be. There is no need for double jeopardy protection in such a case because the need for finality to assuage an accused’s anxiety before the court returns its verdict on guilt or innocence cannot be said to apply in equal measure to the determination of a proper sentence.
5.20 Professor Steytler[83] also argues that the prosecutor’s right to appeal on questions of law is not unconstitutional. He points out that after an acquittal the prosecutor may appeal on a point of law and the court of appeal may direct, if it finds in favour of the prosecution, that the lower court reopens the case and proceed with it in the correct way. The same applies where a High Court is the trial court. The prosecutor may challenge an acquittal if the trial judge reserves a question of law for consideration by the Supreme Court of Appeal and where the latter decides the question in favour of the prosecution, it may order a trial de novo. He argues that where an acquittal is based on a wrong answer to a legal question, and not the merits, an appeal on the question of law, although militating against an accused’s interest in finality, cannot be said to be an abuse of prosecutorial power. In his view it is a proper application of state power to ensure that the law is correctly applied in the instant case as well as in future cases. Dr Jordaan also concedes that such an interpretation is justified and she regards it as a justifiable limitation of the double jeopardy rule.
5.21 The Commission disagrees with the arguments put forward by Dr Jordaan that there is no comparison between a prosecution appeal against bail, sentence or a question of law on the one hand and an appeal an facts on the other hand. Such appeals represent a broadening of the state’s power to institute and prosecute appeals and in particular the right of the state to appeal on questions of law provide sufficient motivation to support an extension of the prosecution’s right to appeal to questions of fact. Even if it is accepted that such an extension infringes the protection against double jeopardy, which, in the Commission’s view, it does not, it can be argued that it is a justifiable limitation of the protection against double jeopardy.
5.22 Another objection raised by the Botha Commission (par 8.04) was that such an appeal against an acquittal on the merits could, in the nature of things, seldom succeed. (The same holds good for appeals against sentence and the granting of bail.) One would hope that it will be the case, but it does not affect the principle of the matter. Courts of appeal do not easily or eagerly interfere with factual findings.
5.23 Then there is the question of costs, also raised by the Botha Commission (par 8.05). This is not a new problem or concern. It has been addressed in the original provisions of the Act of 1977 contained in section 311(2), also in the introduction of an appeal against sentence in sections 310A and 316B (but for reasons that are not at all clear, not in sections 310 and 317) and in that against the grant of bail (section 65A): If the state is unsuccessful, it has to pay the accused's costs. It has also been dealt with similarly in the Namibian statute. In any event, there is the provision of the Bill of Rights which entitles an accused person to have a legal practitioner assigned by the state at state expense, if substantial injustice would otherwise result. The possibility of an adverse costs order will have an inhibiting effect upon the Director of Public Prosecutions to appeal cases with little merit.
5.24 It can also be argued that an extension of the right to appeal to the Director of Prosecutions may result in numerous unmeritorious appeals being lodged or in a clogging of court roles or an increased workload which neither the courts nor the court officials would be able to cope with. This argument has little merit. It will be necessary for the state to obtain leave to appeal and in that way unmeritorious appeals will be weeded out timeously. One must assume that the Director of Public Prosecutions is a responsible independent functionary who will not abuse any procedural right accorded to the State. In any event, any amendment should limit the right of appeal to the Director of Public Prosecutions and not extend it to any dissatisfied public prosecutor.
5.25 A substantial increase in the work load of the courts is unlikely. The introduction of the right to appeal against sentence has not brought about any substantial number of appeals, but those that were prosecuted were of substance. In the Supreme Court of Appeal there has been not quite a handful of such cases since the introduction of the right some ten years ago. Its workload ought not to be affected in any significant degree because appeals on fact should, in principle, be dealt with by the Full Court. It must, in addition, be borne in mind that since the introduction of the requirement of leave to appeal from lower courts in May 1999, the number of appeals to be heard by the High Courts must of necessity be reduced.
5.26 The views of Mr M Bennun have been set out above. They will not be repeated. In the main they are based upon the double jeopardy argument put forward by Dr Jordaan and which have been dealt with above.
In addition, he argues in effect that the object of the proposal is to validate unfair trials. That is in the Commission's view a misconception. If a trial in unfair, an appeal by the DPP cannot make it fair and it cannot lead to a conviction.
5.27 For the reasons set out in paragraph 5.21 the Commission is unable to support the proposition of Mr Mennun that the right of the state to appeal against sentences, bail or on questions of law cannot be used to support an extension of the state’s right to appeal to include questions of fact. The Commission concedes that the right to appeal on questions of fact should be limited to those cases where a miscarriage of justice occurred on the evidence before the court. The intention is not to give the state a second bite of the cherry. The state cannot rectify its own errors on appeal.
5.28 It was submitted in the comments 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. 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.
5.29 Upon re-evaluation the Commission concedes that there is merit in not extending the requirement of leave to appeal to bail proceedings and recommends no changes to the existing procedure.
5.30 The Commission accepts the proposed amendments by Justice College contained in paragraphs 4.59-4.71 and recommends that the draft Bill be amended accordingly.
5.31 The Commission recommends that provision be made for the Director of Public Prosecutions to appeal on questions of fact as provided for in the draft Bill in Annexure A.
[66] See in general Jordaan Appeal by the Prosecution [1999] 32 CILSA 1, an article based upon the author's doctoral thesis.
[67] Bassiouni (1993 280) 3 Duke journal of Comparative and International Law 235 286.
[68] HC Nicholas The Credibility of Witnesses 1985 SALJ 32.
[69] Cf Kalawati v The State of Himachal Pradesh AIR 1953 SC 131 [ 40 CN 35].
[70] Cf 1 S v Sonday 1994 (2) SACR 810 (C).
[71] Kalawati v The State of Himachal Pradesh supra
[72] Van Rooyen 1970 CILSA 360. Cf R v Brasch 1911 AD 525.
[73] An edited version of the submission was published in 1990 South African Journal of Criminal Justice 162.
[74] This is not an absolute rule because it is arguable that a retrial in the event of formal defects in the hearing is permitted. The Act, in any event, permits it.
[75] 1997 (1) SACR 473 (ECD at 475).
[76] Commission of Inquiry into Criminal Procedure and Evidence RP78/1971 Government Printer Pretoria at 30.
[77] Magmoed v Janse van Rensburg and Others 1993 (1) SA 777 (A) at 827G-828C.
[78] 1996 (1) SACR 28-33.
[79] The Trojan Horse case 1993 (1) SACR 67 (A); 1993 (1) SA 777 (A).
[80] 1994 (2) SACR 810 (C).
[81] 1997(1) SACR 473 (ECD) at 475.
[82] N Steytler Constitutional Criminal Procedure - A commentary on the Constitution of the Republic of South Africa , 1996 Butterworths 1998 at 385.
[83] Constitutional Criminal Procedure - A commentary on the Constitution of the Republic of South Africa, 1996 at 387.
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