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CHAPTER 1

ORIGIN OF THE INVESTIGATION AND SOME INTRODUCTORY REMARKS

1.1 During 1989, the former Minister of Justice requested the Commission to investigate the possibility of simplifying criminal procedure, with particular reference to a number of questions, one of which was whether the State should be given the right of appeal against sentence. Owing to the extent of the investigation the Commission decided to publish several working papers dealing with different aspects of the investigation.

1.2 During 1997 the then Minister was approached by Advocate Kahn SC (the Attorney General of the Cape) to have the law changed to allow the Attorney-General (now Director of Public Prosecution) to appeal on a question of fact , i e, relating to the merits of the case.

1.3 The Minister requested the Law Commission to include an investigation into the matter in its programme as part of its investigation dealing with the simplification of criminal procedure. Such an investigation was subsequently included in the Commission’s broader investigation in project 73 (Simplification of criminal procedure). At its meeting on 26 November 1998 the Commission’s project committee resolved to proceed with the investigation. During January 2000 the Commission published a discussion paper for general information and comment. The closing date for comments was 31 March 2000, but it was at the request of a number of respondents extended until 31 April 2000.

1.4 As the law stands at present, an accused can appeal, subject to certain procedural qualifications, against any aspect of bail, a conviction or sentence in a criminal case. The accused may also have proceedings in lower courts reviewed and, in the case of the High Court, have irregularities dealt with by way of appeal or special entry.

1.5 The State, on the other hand, may appeal (also subject to similar procedural qualifications) against the grant of bail, an acquittal on a legal ground and also against an inadequate sentence. Experience has shown that these rights are used sparingly by the State. What the State does not have is any right to appeal against a finding of not guilty in relation to the facts of the case - the so-called appeal on the merits. The difference between questions of law and fact is often one of extreme difficulty to judge or apply and there are many reported cases dealing with the distinction. The same problem arose in the context of, for instance, tax appeals and because of the ever present difficulty the distinction in tax cases has been abolished without any deleterious effect.

1.6 In the present context there are conflicting policy considerations. The one is that an accused person has benefits and protections - some which are protected by the Constitution - which the prosecution, representing the community and the victims of crime, does not always enjoy. The administration of justice in South Africa (especially with regard to criminal procedure) has followed the English tradition and has always been characterised by liberality and respect for the individual.

1.7 On the other hand, there are the interests of society, whose members (not only the victims) also enjoy the rights contained in the Bill of Rights and are entitled to a just and fair decision in criminal cases. They have an interest in the conviction and sentencing of a person who is clearly guilty and who, because of incompetence or obvious errors in the trial court, go free. It cannot be doubted that a significant number of criminals go unpunished due to numerous flaws in the administration of the criminal justice system.

1.8 In considering the question whether a procedure such as the right to appeal should be changed, it is also imperative to consider whether the system, which denies the State a full right of appeal, satisfies present demands and whether changes may contribute towards achieving justice in the administration of the criminal law. Some regard must be given to cost and time and one must balance all relevant factors. Any proposed amendment should be principled, simplify the relevant procedures and improve the present system and should not be seen as an attempt at crisis management.

1.9 In the end the question essentially boils down to this: since the State has a right of appeal in connection with bail, sentence and questions of law, why should it not have a similar right in relation to factual matters? In other words, why should the right of appeal not be general? Because that is the issue, the intention of the Commission is not to reconsider the rights of the convicted to appeal or the existing rights of appeal afforded to the State - all subjects dealt with in earlier reports and, to some extent, in recent legislation - but to focus on the limited issue at hand. The Commission’s brief is to simplify criminal procedure and in the course of the investigation it became clear that some changes, which are not directly related to the limited issue at hand, are also necessary. Some of these changes are cosmetic while others are aimed at simplifying criminal appeals generally. The Commission used this opportunity to also address these non contentious issues and its recommendations are included in the draft Bill.

1.10 Only once in the past was the present problem considered by a South African commission, namely the so-called Botha Commission which drafted the Criminal Procedure Act of 1977. Because of objections against a similar proposal, it decided to make no recommendations. The views of the Botha Commission will be dealt with later in this report.