TOPIC 18

CRIMINAL APPEALS FROM LOWER COURTS

RIGHT OF APPEAL

 An accused person has a right of appeal from conviction/sentence/order of a lower

court
 S309 of CPA, s35(3)(o) of Constitution
 Appeal lies against
o Conviction
o Sentence
o Order
o Any combination thereof

RIGHT OF APPEAL NO LONGER AUTOMATIC

 Prior to 1997 accused had automatic right of appeal from conviction/sentence/order of

lower court
 In 1997 Parliament passed legislation requiring leave to appeal from lower court
 CC struck down these provisions: S v Steyn
 In 2003 Parliament passed further legislation requiring leave to appeal (introduced
some qualifications in order to overcome declaration of unconstitutionality in Steyn’s
case)
 A Provincial Division (Npd) has once again declared the provision unconstitutional : CC
has to still decide whether to confirm.

S v Steyn

Facts

.The applicant and an amicus curiae4 were convicted of serious offences and
sentenced to substantial terms of imprisonment in separate proceedings in the regional
court sitting in Pretoria. They each sought leave from the regional court to appeal5 to the
high court in terms of section 309B of the Act. Their applications were dismissed. The
petitions which they subsequently lodged with the Judge President of the Transvaal High
Court in terms of section 309C of the Act were also unsuccessful. The applicant thereupon
sought and was granted direct access to this Court to make the constitutional challenge

Issue
The present case requires us to decide on the constitutionality of provisions which introduce
a similar requirement for appeals from magistrates’ courts. More specifically, we are called
upon to decide whether the provisions of sections 309B and 309C of the Criminal Procedure
Act 51 of 1977 (the
Act) are inconsistent with section 35(3)(o) of the Constitution which provides that “every
accused person has a right to a fair trial, which includes the right . . . of appeal to, or review
by, a higher court.”
Judgment

Prior to the introduction of sections 309B and 309C of the Criminal Procedure Act in May
1999 a person convicted and sentenced in a magistrates' court had an unconditional right of
appeal. These sections require that such persons first obtain the leave of the magistrate and
if refused the high court can be asked for leave to appeal. Mr Steyn was convicted and
sentenced to a long term of imprisonment by the regional court sitting in Pretoria. His
application to that court for leave to appeal and his petition to the Transvaal High Court
were unsuccessful. He then approached this Court contending that the provisions infringe
his right of appeal to a higher court in terms of section 35(3)(o) of the Constitution. The
state's argument was that since the leave and petition procedure in respect of appeals
against high court judgments had previously been found to be valid by this Court, that had to
hold true in respect of magistrates' court appeals as well.

Acting Justice Madlanga, writing for a unanimous Court, held that the procedure does
infringe the right of appeal, which requires that there be an informed reappraisal of the
case. However, crucial material, such as the record of proceedings in the trial court and its
judgment are not necessarily available to the high court when it considers a petition, nor is it
compulsory for that court to hear oral argument. The high court might accordingly not be in
a position to make an informed decision as to whether or not leave to appeal should be
granted. Particularly in cases where the petitioner is unrepresented, there is too great a risk
under this procedure that a genuine miscarriage of justice will not be picked up. Also
magistrates function under great pressure and are often faced with unrepresented accused
and must contend with relatively inexperienced legal practitioners and investigating officers,
rudimentary library facilities and other resource-related impediments. In such
circumstances, the risk of errors leading to an injustice is substantially greater than in the
high courts. This greater margin of error calls for a less restrictive appeal procedure at the
level of magistrates' courts.

The state also sought to justify the procedure on the grounds that it prevented the clogging
of appeal rolls and ensured that hopeless appeals did not waste valuable court time.
However, the state failed to establish this. Therefore, the procedure could not be justified in
terms of section 36 of the Constitution.

The court accordingly declared the procedure to be inconsistent with the Constitution and
invalid. In the interests of justice and equity, however, it suspended the declaration of
invalidity for a period of 6 months. The suspension was necessary to enable the state to take
steps to address the impact of the number of cases that would be added to the court rolls.
The relatively short period of suspension was aimed at getting government to respond
quickly to the declaration of invalidity. To protect the rights of would-be appellants during
this period the full trial record and reasons for the magistrate's judgment must be lodged
with a petition to the high court in certain circumstances such as where the person seeking
to appeal against conviction and sentence had no legal representation or would spend a
substantial period in prison.
PRESENT POSITION
 CPA introduced to require leave to appeal in certain circs from lower courts re
conviction, sentences and orders
 Leave to appeal required,
Except where:
o Accused is under 14 at time of commission of offence
o Accused is over 14 but under 16 at time of commission of offence in regional
court, was not legally represented, and was sentenced to unsuspended
imprisonment.
 Appeals decided in chambers based on written report unless the judge decides it is
desirable to hear oral arguments = this was struck down as unconst in S v Shinga

S v Shinga

Facts: challenged the validity of certain sections of the CPA

Court:

Section 309(3A)

that the section, by providing that a criminal appeal could be determined by a

Judge behind closed doors, made dangerous inroads into the requirement that
court proceedings affecting parties' rights be heard in public, and was inimical to
the rule of law, the constitutional mandate of transparency and justice itself.
Survivors of crime, those accused thereof and the broader community have the
right to see that justice is done in criminal matters.

Must be in line with s 35(3)(o) - a review or appeal should be as fair as the trial
itself. To deny them the right to present oral argument in open court was
fundamentally unfair.

Section 309C(4)(c)
the record of the case should as a matter of course be placed before the petition
Judges on the basis that an adequate reappraisal was not possible without it.
There was no justification for any of the exceptions to this principle contained in s
309C(4)(c)(i) - (iv). Section 309C(4)(c) was accordingly unconstitutional to the
extent that each of the exemptions constituted an unjustifiable barrier to the right
of review or appeal

Section 309C(5)(a)
more than one Judge should reconsider a criminal record to determine whether
leave to appeal should be granted for the following reasons: (a) if leave was not
granted, that was the end of the road for the accused; (b) many such cases were
of a very serious nature and could result in long periods of imprisonment; and (c)
collegial discussion in considering a record was valuable and enhanced the quality
of the reappraisal and was general practice in our courts. The constitutional
requirement of an adequate reappraisal of the criminal record required that two
Judges consider it. Section 309C(5)(a) limited this right, there was no justification
for the limitation, and the subsection was therefore inconsistent with the
Constitution to the extent that it provided for the petition for leave to appeal to
be heard by a single Judge.

Sections 309B and 309C

leave-to-appeal procedure was desirable because it allowed
unmeritorious appeals to be identified and prevented, and avoided a waste of
judicial resources.

further, that the judicial task of determining whether leave to appeal should be
granted should be approached with intellectual humility and integrity, neither
overzealously endorsing the ineluctable correctness of the decision reached nor
over-anxiously referring indubitably correct decisions to an appellate Court. (

further, that the leave-to-appeal procedure in ss 309B and 309C required that the
magistrate's judgment be provided in every petition. In addition, as a result of
the present judgment, in all cases the record was to be provided and the petition
considered by two Judges. This allowed an adequate reappraisal of whether the
applicant for leave to appeal was correctly convicted and appropriately sentenced,
and was consistent with the provisions of s 35(3)(o) of the Constitution. In these
circumstances, the declaration of invalidity of the provisions as a whole could not
be confirmed.

s 309B and 309C procedure was unconstitutional in only two respects, apart from
which it was not inconsistent with the Constitution. It would NOT be in the
interests of justice to declare the whole of these sections invalid. The appropriate
remedy was severance in respect of s 309C(4)(c), and a combination of
severance and reading-in in s 309C(5)(a). Both applications for confirmation
upheld in part and dismissed in part.

Conclusion

The Natal Provincial Division (NPD) and the Cape Provincial Division (CPD) of the
High Court found certain provisions of the Criminal Procedure Act C 51 of 1977
(the Act) relating to the procedure for criminal appeals from magistrates' courts
to be inconsistent with the fair-trial rights in s 35(3)(o) of the Constitution of the
Republic of South Africa, 1996, and therefore invalid. These findings were then
referred to the Constitutional Court for confirmation in terms of s 172(2)(a) of the
Constitution.

 Application for leave to appeal to addressed to trial court

 If trial court refuses leave accused may petition Judge President of High Court with
jurisdiction
 Application and noting of appeal to be done within time limits laid down ( Rule 67 of
Magistrates Court Rules, Rule 51 of High Court Rules)

EXECUTION OF SENTENCE NOT SUSPENDED PENDING APPEAL OR REVIEW

 Noting of appeal or review does not suspend execution of sentence unless bail is
granted : s 309(4)(b) read with s307.

APPLICATION FOR LEAVE : PROCEDURE

 Application fro leave normally be in writing

 If made immediately after sentence application may be done orally, in which case court
records it.
 Must set out grounds of appeal
 If accused does not require leave there must be written notice of appeal with grounds
mentioned : fact and/ or law appealed against - rule 67 (3).
 Clerk of the court prepares record and forwards to HC: rule 67 (13)
…. But note that the ultimate responsibility of ensuring that the docs land up at the HC
lies with the appellant (HC rule 51(3))

TIME FOR LODGING APPEAL

 There are strict time limits for noting an application for appeal or an appeal
 Rule 67 allows for 15 days to note the appeal, this can be extended on good cause: s
309(2)…this is known as condonation
 General principle for condonation is that there must be reasonable explanation of delay,
and reasonable prospects of success on appeal – see S v Leon *

S v Leon 1996 (1) SACR

Facts
The appellant had been convicted in the regional courting 1977 on five counts of
contravening various provisions of the insolvency Act and was sentenced to a total effective
sentence of two years imprisonment. Om the same day he was sentenced he noted an
appeal against the sentence on three of the counts on which he had been convicted.
Then days later he noted an additional appeal on conviction on three counts of which he had
pleaded not guilty.
He was released on bail and fled the country with his family. He returned to SA 15 years
later thinking that it would be forgotten. He was arrested two years after his return .
Applied for condonation in terms of s309(2) of the Criminal Procedure Act for his non-
compliance with the time limits prescribed by the rules of court relating to appeals. The
application was dismissed by the Provincial Division ;’ on appeal:

Issue

Whether condonation in terms of s309(2) of the Criminal Procedure Act for his non-
compliance with the time limits prescribed by the rules of court relating to appeals could be
granted

Judgment

Held that it was a relevant factor for the Court to consider that the appellant was absent
from the country for 15 years and was a fugitive of justice.
Further that the Court a quo was fully justified in its conclusion that it was clear from the
admitted facts that the reason for the extraordinary delay in bringing application was due
entirely to the appellants fault.
Held
Further that the Court a quo had given due consideration to all the merits of the appeal and
had properly dismissed the application.
PROCEDURE FOR HEARING APPEAL

 Prior to appeal the parties must submit heads of argument: High court rule 51(4)
 Appeals are heard by two judges, unless JP assigns more than two judges to a case
 Appeals are decided on written argument in chambers in absence of counsel, unless
judges decide that oral argument is desirable in interests of justice [This is a new
provision]

POWERS OF COURT ON APPEAL

 Basically the same as an automatic review: provided in s 309(3) and 304(2) (topic 18)
i. Confirm, alter. Quash conviction and where appropriate substitute
conviction on other alternative charges
ii. Confirm, reduce, alter or set aside sentence order
iii. Set aside or correct proceedings
iv. Give such judgment or impose such sentence or give such order as lower
court ought to have given
(note: this includes the power to upgrade the conviction to a more serious
offence)
v. Remit case to magistrate with instruction to deal with the matter as HC may
see fit
vi. Make any order suspending execution of sentence or releasing on bail as
seems appropriate

 on appeal sentence can be increased : s 309(2)

see S v Salzwedel

Facts

The respondents, all young white people and members of a right wing political organisation
taken it upon themselves to patrol white suburbs of East London and beat up blacks when
they found them there. Shortly before the 1994 election ,the deceased and others were
travelling in a vehicle through East London. Their vehicle broke down near a white suburb .
while they were waiting the respondents attacked them . The other escaped but the
deceased , frail and hunchbacked, did not . He was beaten to death. The crime was clearly
motivated by racism as no evidence that eth deceased and other were there for criminal
purposes. The respondents were charged with murder and convicted . A forensic
criminologist testified that the respondents had been influenced by culture of racism within
their families and she recommended imprisonment was not an effective sentence.
Accepting this the trial Judge held that the respondents had all been influenced to behave as
they did and that the forces that influenced them were irresistible to their young minds.
Consequently , they received a suspended sentence of 12 years.
Appeal by the State against the leniency of the sentences:

Judgment
The court of appeal was entiltled to interfere with the sentencing in a case were the
sentence was ‘ disturbingly inappropriate ‘ or totally out of proportion to the gravity of the
offence, or sufficiently disparate, or vitiated by human misdirections of a nature which
showed that the trail court had not exercised its discretion reasonably.
Over emphasis on the person circumstances and under emphasis on the gravity of the
offence constituted a misdirection.
In passing sentence the court had overemphasised the accuseds personal circumstances ,
without balancing those against eth serious nature of the crime , the very aggravating
circumstances, the consequences for others, and the interests and legitimate expectations
of SA community at a very crucial tiem in transition.
Also failed to have regard that the approach of a judge in sentencing is not that of a
psychiatrist. Had to take into consideration all the aims of sentencing, including retribution;
the psychiatrist was concerned with diagnosis and rehabilitation.
The fact of the respondents background explained their conduct but did not mitigate it.
A lengthy imprisonment would also serve another important purpose of sending a message
that the courts will not tolerate the commission of such serious crimes.

Held
Thus, the accused’s were sentenced to 12 years , with two suspended ( in light of facts had
already done community service)

APPROACH OF APPEAL COURT

 To findings of fact relating to conviction

o R v Dhlumayo
 To sentence
o S v Anderson
o S v Giannoulis
o S v Jiminez
o S v Salzwedel

 If there was no material misdirection by the trial court then the appeal court will only
intervene with the sentence if there is a striking disparity between what the trial court
imposed and what the appeal court would have imposed
 If there was misdirection of the trial court, the appeal court is at large and imposes the
sentence it thinks fit
 Note that the same test applies whether the argument is that the sentence was too
severe or too lenient

S v Jiminez

Facts
The appellant ,a foreign national, had pleaded guilty to and been convicted of dealing in
drugs, in that he brought a large quantity of cocaine into the country. No evidence led as to
the quantity and value of the cocaine. After the appellant had been convicted the
magistrate merely confirmed with his legal representative that the appellant did not dispute
the value of the cocaine. The trail court held that it was bound to sentence in terms of the
Criminal law Amendment Act , but had found compelling circumstances for not doing so and
sentenced for 12 years. Took into account : first offender, relatively young , and a student
and married with a young daughter in a foreign country and committed the offence to assist
his brother. But also regarded seriousness of the offence.

Court
No doubt that in sentencing should have regard to public policy and interest. The procedure
that the trial court adopted meant that it had not factored the value of the cocaine to form
part of the offence in respect of which he had been convicted.
Hence all the elements of the scheduled offence would not have been proven and the courts
had no jurisdiction to impose the minimum sentence. So court below wrong in concluding
the appellant as one who fell under the legislation.
Although the court below had been so incorrect, of assuming that the appellant had been
convicted of an offence described in the minimum sentencing legislation , that assumption
had not been accorded undue significance. Court had been fully aware that it was not
bound by the legislation and it had been entitled to take general account of the policy
embodied in the legislation , and had done so properly. Accordingly , there had been no
material misdirection of part of the court in having regard to the minimum sentence
legislation.

Further , that the crime committed by the appellant had been serious- result in grave harm
to others. The appellants conduct warranted a lengthy sentence even though he was a first
offender in a foreign country.

Conclusion
Therefore it cannot be said that the sentence of 12 years is disturbingly inappropriate, or
that the court had not exercised its discretion properly .
Appeal dismissed.

S v Anderson

Facts
The accused , a youth of 19 years old, was convicted by the Magistrate of assault with intent
to do grievous bodily harm and sentenced to 12 months imprisonment . He had attacked the
compliant with a jagged bottle, an 18 year old , which was unprovoked and caused wounds
that gave rise to disfiguring scars.He appealed against this conviction . The appeal was
dismissed. Eventually , it went to the Bloemfontein SCA:

Judgment
The court of appeal will not alter a sentence, the determination whereof has been arrived at
by the exercise of a discretionary power , merely because it would have exercised that
discretion differently.
There must be more than that. Such court after careful consideration of all the relevant
circumstances as the nature of the offence committed and the person of the accused, will
determine what it thinks the proper sentence should be , and if the difference between the
sentence and the sentence actually imposed is so great that the inference can be made that
the trial court acted unreasonably ,and therefore improperly, the Court of appeal will alter
the sentence.
If there is not that degree of difference the sentence will not be interfered with.

The court of appeal in fact increased the sentence to two and half years from 12 months,
holding that the attack showed that the accused had a vicious and cruel streak in his
character which was not subdued by corporal punishment or the fact that he had a
suspended sentence hanging over his head from 1962 were he was convicted on a charge of
culpable homicide, of assault to do grievous bodily harm.
Held

Appeal dismissed ,and the sentence increased.

 Where the conviction or sentence is set aside pm appeal or review bc s 112 or 113
was not properly applied. Appeal court MUST remit to lower court for proper
compliance (ito s 312)
 Where conviction and sentence set aside on appeal on grounds of technical
irregularity accused can be retried (ito s 313 read with s 324)
 If appeal is dismissed, can further appeal to SCA…

FURTHER APPEAL TO THE SCA

 If appeal dismissed by High Court accused can further appeal to SCA

 This is via s 20 Of eth Supreme Court Act
 Leave of High court needed: if refused, accused can petition SCA for leave

APPEALS BY STATE

 State has a limited right of appeal

o On questions of law: see s 310 of CPA; and s 311 (adverse finding of law by
HC under s 309)
o On sentence: s310 A of CPA
 State cannot appeal against findings of fact
 Procedures relating to State appeals will be covered in Crim Proc B