Section D: Post trial issues and remedies

Section D: Post trial issues and remedies

24 Post-trial issues and remedies Introductory note Besides the constitutional right to appeal to or have a matter reviewed by a higher court than the trial court (s 35(3)(o) of the Constitution), post-trial remedies are crucial in the endeavours of the criminal justice system to do justice to the accused or to the system as a whole where there is uncertainty that justice has been done, or in the case of urgent pleas by those incarcerated to be released from prison. The repeated appeal processes by the State in the Oscar Pistorius matter are examples of the quest by the State to ensure that justice had been done to the victim and to the justice system as a whole (see the annexures attached especially relating to the question of law reserved; the leave to appeal and the decision by the Supreme Court of Appeal (SCA). In this matter the State appealed the conviction on a lesser offence on a legal issue and succeeded and later petitioned for leave to appeal against the new sentence imposed. The decision of the SCA is pending). In this section post-trial remedies are examined which refer to the following: z the powers of the Divisions of the High Court to review a conviction and/or sentence or order of lower courts; z the powers of the superior courts to hear and decide an appeal against a conviction and/or sentence (superior courts are the Constitutional Court, the Supreme Court of Appeal and the Divisions of the High Court of South Africa); z the executive powers of the President of South Africa to bestow the administrative remedies of mercy or free pardon on convicted accused (s 84 of the Constitution) or to allow fresh evidence after appeal procedures have been exhausted (s 327 of the CPA). Each of these remedies will be discussed in sections 24.1 24.4 below. Contrary to the appeal and review remedies available to the convicted accused as constitutional rights, the power of the President to bestow the administrative remedies of mercy or free pardon and to expunge criminal records is not a constitutional right but a discretionary power. Obviously such public discretionary powers must be rationally exercised and such exercise is subject to the courts reviewing powers. Post-trial issues are connected with reviews such as automatic reviews and with appeals as well as the issue of the limitation on the constitutional right of the leave to appeal and the issue of applying (petitioning) for special leave to appeal to be granted by the Supreme Court of Appeal after being refused by a High Court. (Note that the Superior Courts Act 10 of 2013 does not prefer the term petitioning of the Supreme Court of Appeal when leave to appeal has been refused by a High Court but rather uses the phrase in s 17(2)(b) of bringing an application to the Registrar of the Supreme Court of Appeal.) Post-trial issues and remedies 3

The approach in respect of child offenders who are protected in terms of s 28 of the Constitution, relating to automatic review or appeal, will be discussed separately as far as procedures are concerned (see section 24.3 below). Legislation z Criminal Procedure Act 51 of 1977 (CPA): Sections 271A 271DB, 302, 304, 309, 309B, 309C, 271(1), 276B, 286(2)(c), 310A, 311, 315, 316, 317(1), 318, 321(1), 322, 325 and 327 z The Superior Courts Act 10 of 2013: Sections 15, 16, 17, 20 and 22 z The Child Justice Act (CJA): Sections 84, 85, 86, 87 and 98 z The Constitution of the Republic of South Africa, 1996 (the Constitution): Sections 28, 34, 35(3)(i), 35(3)(o), 35(5), 83, 84 and 179(4) Case law z Attorney-General, Transvaal v Moores (SA) (Pty) Ltd 1957 (1) SA 190 (A) z Director of Public Prosecutions, Gauteng v Pistorius 2016 (2) SA 317 (SCA); [2015] ZASCA 204 z Director of Public Prosecutions, Western Cape v Kock 2016 (1) SACR 539 (SCA) z Magmoed v Janse van Rensburg and Others 1993 (1) SA 777 (A); 1993 (1) SACR 67 (A) z Porritt v National Director of Public Prosecutions 2015 (1) SACR 533 (SCA) z President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) z R v Adams 1959 (3) SA 753 (A) z R v Brasch 1911 AD 525 z R v Carr 1949 (2) SA 693 (A) z R v D 1953 (4) SA 384 (A) z R v Deetlefs 1953 (1) SA 418 (A) z R v Foley 1926 TPD 168 z R v Jantjies 1958 (2) SA 273 (A) z R v Maharaj 1958 (4) SA 246 (A) z R v Mpompotshe 1958 (4) SA 471 (A) z R v Sibande 1958 (3) SA 1 (A) z R v Sittig 1929 TPD 669 z R v Swanepoel 1945 AD 444 z R v Theunissen 1952 (1) SA 201 (A) z R v V 1953 (3) SA 314 (A) z R v Van H 1959 (3) SA 648 (T) z R v Van Heerden 1956 (1) SA 366 (A) z S v Abrahams 1990 (2) SACR 420 (A) z S v Alexander (1) 1965 (2) SA 796 (A) z S v Basson 2003 (2) SACR 373 (SCA) z S v Basson 2005 (1) SA 171 (CC) z S v Basson 2007 (1) SACR 566 (CC) 4 CRIMINAL PROCEDURE WORKBOOK

z S v Boekhoud 2011 (2) SACR 124 (SCA) z S v Citizen Newspapers (Pty) Ltd; Perskorporasie van Suid-Afrika Bpk 1981 (4) SA 18 (A) z S v Conradie 1972 (2) PH H109 (T) z S v De Jager 1965 (2) SA 612 (A) z S v De Vos 1970 (2) SA 590 (C) z S v Du Toit 1966 (4) SA 627 (A) z S v Du Toit 1979 (3) SA 846 (A) z S v E 1979 (3) SA 973 (A) z S v F 1983 (1) SA 747 (O) z S v GR 2015 (2) SACR 79 (SCA) z S v Gumede 1992 (2) SACR 237 (N) z S v H 1998 (1) SACR 260 (SCA) z S v Horne 1971 (1) SA 630 (C) z S v Human 1979 (3) SA 331 (E) z S v Kalogoropoulos 1993 (1) SACR 12 (A) z S v Kellerman 1997 (1) SACR 1 (A) z S v Khoasasa 2003 (1) SACR 123 (SCA) z S v Khoza 2010 (2) SACR 207 (SCA) z S v Lehnberg 1976 (1) SA 214 (C) z S v Louw 1990 (3) SA 116 (A) z S v Mabena 2007 (1) SACR 482 (SCA) z S v Maepa 1974 (1) SA 659 (A) z S v Matshona 2013 (2) SACR 126 (SCA) z S v Matshoba 1977 (2) SA 671 (A) z S v McKenzie 2003 (2) SACR 616 (C) z S v Mdlalose 1972 (1) PH H10 (A) z S v Mofokeng 1962 (2) SA 385 (A) z S v Mofokeng 1962 (3) SA 551 (A) z S v Mokgeledi 1968 (4) SA 335 (A) z S v Morgan 1993 (2) SACR 134 (A) z S v Motha 1987 (1) SA 374 (T) z S v Naidoo 1987 (3) SA 834 (N) z S v Ndweni 1999 (2) SACR 225 (SCA) z S v Njaba 1966 (3) SA 140 (A) z S v Nzimande 2010 (2) SACR 517 (SCA) z S v Peter 1989 (3) SA 649 (CkA) z S v Phewa 1962 (3) SA 370 (N) z S v Pretorius 1991 (2) SACR 601 (A) z S v Roux 1974 (2) SA 452 (N) z S v Smith 2012 (1) SACR 567 (SCA) z S v Stander 2012 (1) SACR 537 (SCA) z S v Thekiso [2012] ZASCA 129; (73/2012) (25 September 2012) z S v Tladi 1989 (3) SA 444 (B) z S v Tonkin 2014 (1) SACR 583 (SCA) z S v Van Wyk 2015 (1) SACR 584 (SCA) z S v Zulu 2003 (2) SACR 22 (SCA) Post-trial issues and remedies 5

Prescribed additional sources z Chapters 20, 21 and 22 Criminal Procedure Handbook by Joubert JJ (ed) (12 edition, 2017) 24.1 REVIEW Note that there are no automatic or ordinary review proceedings to review High Court decisions, but only to appeal against such decisions to a higher court in terms of s 317 of the CPA. Question 67 X (an adult person in his mid-thirties) is charged in a lower court with armed robbery. He is convicted by the magistrate, who has held the substantive rank of magistrate for ten years and is sentenced as follows: a fine of sixty thousand rand (R60 000) or fourteen (14) months imprisonment, plus a further two years imprisonment suspended for five years on condition that he behaves himself properly during the period of suspension. Discuss the regularity or otherwise of this sentence and explain the post-trial procedure relevant to this matter. (10) Answer This question deals with the facts where X is charged in a lower court with armed robbery and found guilty by a magistrate who has held the substantive rank of magistrate for ten years. X is sentenced to a fine of R60 000 or 14 months imprisonment, plus a further two years imprisonment suspended for five years on condition that he behaves himself properly during the period of suspension. The aspects relevant to this question, and discussed below, are as follows: 1 The jurisdiction of the court in respect of the (a) offence committed and (b) sentence; 2 the correctness of the charge and sentence; 3 the automatic reviewability of the sentence (which is not the same as a court s normal jurisdiction and is determined by s 302 of the CPA). 4 Note that the issue of an appeal by the State against the sentence with the leave of the court is relevant to answering this question. Although it is not discussed here (see 24.2 below) you have to include it in a discussion relating to a general question referring to post-trial procedures without specifying the correct procedure. It is advisable when answering any question dealing with the regularity of a sentence, that you are familiar with the jurisdiction of the courts, as discussed in chapter 2. Obviously, the most important point is the jurisdiction in respect of offences and punishment. 6 CRIMINAL PROCEDURE WORKBOOK

1 Jurisdiction 1(a) Jurisdiction in respect of offences In order to impose a valid sentence, a court must have jurisdiction to try the relevant offence. Higher courts may try any offence that has not prescribed. Please note that a lower court consists of either a magistrate s court (district court) or a regional court. (i) (ii) 1(b) A magistrate s court may try all cases except murder, treason and rape and compelled rape (see s 89 of the Magistrates Courts Act 32 of 1944). Therefore, in principle this court may try armed robbery. Armed robbery is not a separate offence; it is the offence of robbery and the elements of the crime are those of robbery no intent to commit offence with aggravating circumstances needs to be proven. The correct charge should have been robbery. Proof of circumstances such as described in s 1(1)(b) of the CPA on the occasion when the crime was committed, may constitute aggravating circumstances. A regional court may try all cases except treason (see s 89 of the Magistrates Courts Act 32 of 1944). Accordingly, it is also competent to try robbery ( armed robbery ). Jurisdiction in respect of punishment (i) A district court may sentence an accused to a fine of R120 000 and/or three years imprisonment per charge. (ii) A regional court may sentence someone to a fine of R600 000 and/or 15 years imprisonment per charge. (iii) The jurisdiction of a lower in respect of punishment may expressly be increased by law. Hence the fine of R60 000 is regular in respect of both courts. If the sentence was imposed by virtue of the provisions of minimum sentencing legislation (s 51(1) of the Criminal Law (Sentencing) Amendment Act 38 of 2007), then the regional court would have an increased sentencing jurisdiction and the sentence would be within the court s jurisdiction but not appropriate for armed robbery. (iv) The alternative imprisonment of 14 months is added to the suspended imprisonment of two years. It therefore is three years and two months. Accordingly, the sentence is regular in the regional court, but irregular in the district court, because the latter s jurisdiction is exceeded by two months. 2 The suspended sentence (a) (b) A sentence may, at the discretion of the court, be suspended for a maximum period of five years, as in this case. The conditions must be relevant to the offence and reasonable. They must also be stated clearly and unambiguously, which is not the case here. Post-trial issues and remedies 7

3 Automatic reviewability (a) (b) Only certain sentences of district courts are subject to automatic review, while sentences of regional courts are not, except in cases of contempt in facie curiae. The following sentences are subject to automatic review: (i) Sentences of imprisonment for a period exceeding three months or a fine exceeding R6 000 (amount amended since 30 January 2013), if imposed by a judicial officer who has not held the substantive rank of magistrate or higher for seven years. (ii) Sentences of imprisonment for a period exceeding six months or a fine exceeding R12 000 (amount amended since 30 January 2013), if imposed by a judicial officer who has held the substantive rank of magistrate or higher for seven years or longer. (iii) In both the above instances, the sentence is reviewable only if the accused was not assisted by a legal adviser during the trial and at the time of sentence. This sentence is therefore subject to automatic review, if imposed by a district court. (We wish to stress again that this question deals with the review position in respect of an adult accused and not in respect of a child-offender; that will be discussed in 24.3 below. In the case of a child being sentenced to imprisonment or to residence in a child and youth care facility, however, none of the following factors has any impact on assessing the automatic reviewability of a sentence imposed on a child: the duration of the presiding officer s term; whether or not the child was assisted by legal representation; the forum of the court (district or regional court) what is important for automatic reviewability is whether the juvenile has been imprisoned, and whether the sentence has been suspended; all such sentences are automatically reviewable by a single judge of the High Court s 85(1) of the CJA.) Question 68 In terms of the Superior Courts Act 10 of 2013, what are the grounds for review of proceedings emanating from lower courts to a Division of a High Court with jurisdiction? Answer Section 22(1) of the Superior Courts Act 10 of 2013 provides that: (1) The grounds upon which the proceedings of any Magistrates Court may be brought under review before a court of a Division are (a) absence of jurisdiction on the part of the court; (b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer; (c) gross irregularity in the proceedings [for example, the failure of the magistrate to warn the undefended accused facing a sentence of imprisonment for life, that he was 8 CRIMINAL PROCEDURE WORKBOOK

(d) entitled to legal counsel, amounts to a gross irregularity vitiating the entire trial S v GR 2015 (2) SACR 79 (SCA)]; and the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence. The section 22(1) provisions do not affect the provisions of any other law such as the provisions of the CPA (ss 302 304) or CJA (ss 85 and 86) relating to the review of proceedings from magistrates courts. (Note that the procedural irregularity, namely where the court rejected admissible or competent evidence, resonated in the legal reasoning of the Supreme Court of Appeal in the Pistorius matter see Pistorius the SCA judgment, which is discussed in the next section.) 24.2 APPEAL Question 69 What is an appeal? Answer See paragraph 21 of Pistorius the SCA judgment on appeal (Director of Public Prosecutions, Gauteng v Pistorius 2016 (2) SA 317 (SCA); [2015] ZASCA 204. An appeal against the conviction and/or sentence is a complete rehearing without the leading of evidence where a court s conclusions of both fact and law may be challenged in a higher court by having regard to the evidence on record only. 1 Besides the Constitutional Court, other higher courts are courts deciding appeals which in terms of s 309 of the CPA originate from lower courts, and which lie to a Division of the High Court of South Africa with jurisdiction. 2 In terms of s 16(1)(a) and (b) of the Superior Courts Act 10 of 2013 provision is made for the appropriate court to approach on appeal. In case of (a) an appeal against any decision of a Division of the High Court as a court of first instance [ie as the trial court], upon leave having been granted (i) where the court consisted of a single judge, the appeal is made to the Supreme Court of Appeal or to a full court of that Division, depending on the directions issued in terms of s 17(6); or (ii) where the court consisted of more than one judge, the appeal is made to the Supreme Court of Appeal; (b) an appeal against any decision of a Division of the High Court on appeal to it, lies to the Supreme Court of Appeal upon special leave having been granted by the Supreme Court of Appeal. Irrespective of the above, please note that if the State pursuant to a judgment (delivered by a trial court) in terms of s 310A of the CPA appealed against the sentence, the State does not have a further right to appeal against the sentence Post-trial issues and remedies 9

imposed by a High Court sitting as a court of appeal (that is where the appeal court amended the sentence imposed by the trial court against which sentence the State appealed), unless the legislature specifically in clear terms allows it. The CPA expressly provides the State s right of appeal and consequently the provisions of s 16(1)(b) and s 17 of Act 10 of 2013 are not applicable Director of Public Prosecutions, Western Cape v Kock 2016 (1) SACR 539 (SCA) paras 18 19. Although the Supreme Court of Appeal has inherent jurisdiction to regulate its own procedure, it has no inherent or original jurisdiction to hear appeals from courts other than the High Courts. Its jurisdiction is confined to that bestowed upon it by ss 20 and 21 of the Superior Courts Act 10 of 2013. In terms of these sections the jurisdiction of this court is limited to appeals against decisions of the High Court and not directly from lower courts S v Tonkin 2014 (1) SACR 583 (SCA). Question 70 Is the right to challenge a trial court s finding on appeal an unlimited or absolute right or is it subject to leave to appeal? Discuss with reference to both the position in the lower courts and High Courts as courts of first instance (the trial courts ). Alternatively stated: Is leave to appeal a prerequisite in respect of all ordinary criminal matters in order to challenge findings on appeal? Answer Except in respect of certain matters such as by virtue of some constitutional issues or of s 331 of the CPA, or in terms of s 15 of the Superior Courts Act 10 of 2013, or in terms of the CJA, leave to appeal is required when a judgment, sentence or order of a lower court or that of a Division of the High Court is challenged on appeal (in terms of s 309 of the CPA relating to lower courts, and s 315 of the CPA relating to High Courts). Leave to appeal must be granted by a lower court or the High Court trying the matter (as a court of first instance). An application for leave to appeal may be accompanied by an application for condonation for the late submission of the application for leave to appeal and/or an application to adduce further evidence relating to the prospective appeal see ss 309B(5) and 316(5) of the CPA. The process is as follows: 1 In respect of criminal proceedings tried in a lower court, such lower court may grant or deny leave to appeal (in terms of s 309 of the CPA). If leave to appeal has been denied by such lower court because the appellant could not show reasonable prospect of success on appeal (a) and the appellant wishes to take the matter further, the appellant must in terms of s 309C of the CPA apply or petition for leave to appeal from the Division of the High Court having jurisdiction such petition is considered by two judges in chambers (s 309C(5)); and (b) if leave to appeal has also been denied by the Division of the High Court having jurisdiction, and the appellant wishes to take the matter 10 CRIMINAL PROCEDURE WORKBOOK

further, the appellant must apply to the Supreme Court of Appeal for special leave to appeal (in terms of s 16(1)(b) of Act 10 of 2013). Besides the ordinary threshold (relating to the test for leave to appeal) of reasonable prospects of success on appeal, the appellant also has to show special circumstances which will justify the granting of special leave. In such a case the Supreme Court of Appeal will either grant or deny special leave to appeal to the Supreme Court of Appeal or strike the matter from the roll if the matter cannot be entertained by that court (see Director of Public Prosecutions, Western Cape v Kock 2016 (1) SACR 539 (SCA)). The Supreme Court of Appeal will generally not entertain the merits of the appeal but only the merits of the application. If the matter entails constitutional issues special leave to appeal can be requested from the Constitutional Court on an application. 2 In respect of criminal proceedings tried in a Division of the High Court before a single judge, that court may either grant leave to appeal to the Supreme Court of Appeal or to the full court of that Division, or deny leave to appeal to the Supreme Court of Appeal or to the full court of that Division (s 315(1) and (2)(b) of the CPA). Where the trial court denied leave to appeal and the appellant wishes to take the matter further, the Supreme Court of Appeal must be approached on petition for leave to appeal to the Supreme Court of Appeal. 3 Where the full court of a Division of the High Court before more than one judge hears an appeal under s 315(3) and after that appeal the appellant wishes to appeal to the Supreme Court of Appeal, the appellant must, in terms of s 316(3) of the CPA, by means of a petition apply to the Supreme Court of Appeal for special leave to appeal to that court (see s 316(3) of the CPA, read with s 17(3) of Act 10 of 2013, which prescribes that special leave must be applied for within 30 days after delivery of the decision against which leave to appeal is sought). Question 71 What are the governing principles relevant to an application for leave to appeal, with specific reference to the requirements for valid grounds of appeal on which the application for leave is based? Alternatively formulated: Comment on the validity of the following notice of appeal on the grounds: The State failed to prove its case beyond reasonable doubt, The defence s version is reasonably possibly true or The judgment was against the weight of the evidence and contrary to the law. (15) Answer Please note that the question does not indicate the forum or court where the trial was conducted and concluded, and calls for a wider discussion. The main Post-trial issues and remedies 11

threshold in respect of an application for leave to appeal, irrespective of whether the court is the High Court or a lower court where the application for leave to appeal has been made, is to establish whether leave to appeal should have been granted, that is whether the appellant has shown that he has reasonable prospects of success on appeal. What the test of reasonable prospects of success suggests is an objective and dispassionate decision, based on the facts and the law on which the court of appeal could reasonably arrive at a conclusion different to that of the trial court see S v Mabena 2007 (1) SACR 482 (SCA) para 22; also S v Khoasasa 2003 (1) SA 123 (SCA); S v Thekiso [2012] ZASCA 129; (73/2012) (25 September 2012). In order to succeed, therefore, the appellant must convince the court on a sound and rational basis to come to the conclusion that there are prospects of success on appeal. Rationality requires that those prospects are not remote but have to have a realistic chance of succeeding. An argument such as a mere possibility of success is not sufficient; nor that the case is arguable on appeal or that the case cannot be categorised as hopeless see S v Smith 2012 (1) SACR 567 (SCA) para 7; S v Matshona 2013 (2) SACR 126 (SCA). See below for a brief discussion on the requirements and procedure relating to applications for leave to appeal and grounds of appeal. Note that an application for special leave to appeal to the Supreme Court of Appeal must show, in addition to the ordinary requirement of reasonable prospects of success, that there are special circumstances which merit a further appeal to this court. Examples are that the appeal raises a substantial point of law, or that the matter is of very great importance to the public or appellant or that the prospects of success are so strong that the refusal of leave to appeal would probably result in a denial of justice S v Van Wyk 2015 (1) SACR 584 (SCA) para 21. 1 Application for leave in the lower court a) Where the accused is the prospective appellant Subject to s 84 of the CJA, s 309(2) of the CPA provides that an appeal and leave to appeal application shall be noted and prosecuted in the manner prescribed by the rules of the magistrates courts. Section 309B provides that a convicted accused who wishes to appeal against the conviction and/or sentence or order of a lower court must, within 14 days after passing the sentence or order following the conviction, apply to the trial court for the application to be heard by the trial magistrate. If the trial magistrate whose decision, sentence or order is challenged on appeal is not available, the application may be heard by another magistrate presiding. The record of the proceedings or part thereof must be made available to the magistrate other than the trial magistrate hearing the application. An application for leave to appeal may be accompanied by an application to adduce further evidence relating to the conviction, order or sentence in respect of which the appeal is sought. Such application must be accompanied by an affidavit stating that further evidence which would presumably be accepted as true, is available; if accepted, the evidence could reasonably lead to a different 12 CRIMINAL PROCEDURE WORKBOOK

decision or order; and there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial. If leave to appeal has been denied, the accused must in terms of s 309C(2) approach the Division of the High Court with jurisdiction within 21 days by means of a petition for leave to appeal. If this court refuses to grant leave to appeal, the accused may approach the Supreme Court of Appeal for special leave to appeal see the discussion above. b) Where the State is the prospective appellant Where the State in terms of s 310 of the CPA wishes to appeal a decision of a lower court with regard to a legal question, an application for leave to appeal is not required but the State must approach the trial court to state a case for the consideration of the Division of the High Court with jurisdiction, and to formulate such question of law. Where the State wishes to appeal a sentence imposed in a lower court, the State must bring an application for leave to appeal before a judge in chambers, who may either grant or deny leave to appeal s 310A(1). In terms of s 311 the opportunity is given to the State, with special leave of the Supreme Court of Appeal, of a further appeal against the decision of the High Court in respect of the question of law decided in favour of the accused. 2 Grounds of appeal relevant to an application for leave to appeal in a lower court Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused desires to appeal s 309B(3)(a). If the accused applies orally for such leave immediately after the passing of the sentence or order, he must state such grounds, which must be recorded and form part of the record. Grounds of appeal should not embody arguments or conclusions reached by an appellant. What is regarded as clear and specific grounds? Each case must be considered in the light of its own circumstances. It was held in S v Horne 1971 (1) SA 630 (C) at p 631G 632A: A notice of appeal which states that appeal is noted against the conviction on the ground that it is against the weight of evidence and bad in law, tells the Court nothing, or rather it tells it no more than that the grounds are based both on fact and law. That is not enough. The Rule provides in simple unambiguous language that the appellant must lodge his notice in writing in which he must set out clearly and specifically the grounds on which the appeal is based. He must do this for good reason These advantages may well be frustrated where the appellant uses the blanket phrase against the weight of evidence and bad in law. The court held that the governing principle is that the magistrate presiding in the court a quo must know what the issues that are challenged are, so that he can deal with them in his findings or order; that counsel for the State must be duly informed so that he can prepare and present arguments which will assist the court of appeal in its deliberations; finally, that the court itself should be appraised of the grounds so that it can know on which portions of the record to Post-trial issues and remedies 13

concentrate and what preparation, if any, it should make in order to guide and stimulate argument in court. It is therefore advisable to give a full explanation of each separate ground for appeal. These guidelines are still sound, although Horne was decided at a time when the accused s rights of appeal to a higher court were unlimited. See also S v McKenzie 2003 (2) SACR 616 (C). 3 Application for leave to appeal in a Division of the High Court a) Where the accused is the prospective appellant Subject to s 84 of the CJA, s 316(1) of the CPA requires that every application by a convicted accused for leave to appeal shall be brought to the court which tried the matter ie the trial court. The application for leave to appeal could be brought against the conviction, the sentence or order of the trial court. Another judge may hear the application if the trial judge is not available. The record of the proceedings or part thereof must be made available to the said other judge hearing the application. An appeal against a decision or order of a Division of the High Court shall be prosecuted once leave to appeal has been granted, either to the Supreme Court of Appeal or to the Full Court depending on the direction of the trial judge (s 315). If the accused or the Director of Public Prosecutions (DPP) petitions against such order, a matter that has been directed to the Full Court may be set aside by the Supreme Court of Appeal, on good cause shown (s 315(2)(b)). If the party verbally applies for leave immediately after the passing of the sentence by a High Court, it must state the grounds, which must be taken down in writing, and which will form part of the record s 316(4). b) Where the State is the prospective appellant The State has an opportunity to appeal a legal question by virtue of s 319 of the CPA. The prosecutor may apply to the trial court to reserve a question of law for the decision of the Supreme Court of Appeal. The grounds upon which any exception or objections to the indictment are taken shall be deemed to be questions of law against which the State may appeal in terms of this section (s 319(2)). If the court refuses to reserve a question of law the State may approach the Supreme Court of Appeal by means of an application to reserve the question of law. The prosecutor may also appeal the sentence imposed in a Division of the High Court with the leave of the trial court; if such leave to appeal is refused the prosecutor may petition the Supreme Court of Appeal for leave to appeal s 316B of the CPA, read with s 316. 4 Grounds of appeal relevant to an application for leave to appeal in a Division of the High Court Section 316(2)(a) provides that every application for leave to appeal in a High Court must set forth clearly and specifically the grounds upon which the accused desires to appeal. This entails that the grounds of appeal must conform to the following principles: 1) Generally, clarity and specificity are requirements. 14 CRIMINAL PROCEDURE WORKBOOK

2) The findings of fact and rulings of law appealed against must be clearly specified. 3) The grounds of appeal must be specific and clear to allow the respondent to know what issues he has to meet. Grounds of appeal are bad if they are so widely formulated that the appellant is free to canvass or argue every fact, finding or ruling of law. Grounds of appeal are also bad if they are so vaguely formulated that they are of no value to the trial court, or to the appeal court, or to the respondent. 4) Grounds of appeal are bad in general if they fail to specify the grounds of appeal in clear and unambiguous terms. 5) The application must succinctly set out in what manner it is alleged the High Court erred and the judgment must be subjected to a critical analysis, either as to the findings of fact or as to the exposition. A generalised attack on the findings of the High Court is insufficient, as is reliance on the notice of appeal, or a repetition of the grounds of appeal S v Van Wyk 2015 (1) SACR 584 (SCA) para 22. 6) If special leave is sought, reasons must be given why special leave is justified. The special circumstances relied upon must be clearly and succinctly set out. This is not an invitation to law practitioners to conjure up the requisite special circumstances if they do not exist. If these specific requirements are not adhered to, the application may be rejected by the Registrar of the Supreme Court of Appeal or an adverse order de bonis propriis may be granted S v Van Wyk 2015 (1) SACR 584 (SCA) para 22. 5 Consequences of badly drafted or argued grounds of appeal Fatally defective applications for leave to appeal could be struck down or the application postponed, condoned or cured by an amendment granted by the court hearing the application or the appeal court. 6 Order of the court on an application for leave to appeal 1 Leave to appeal may be granted or denied. Reasons for such refusal must be given. When a decision is taken as to whether an application to appeal is granted, consideration must be given to the question whether the applicant has a reasonable prospect of success. 2 When leave to appeal is granted, the leave may be limited to particular grounds of appeal. But if leave to appeal is granted generally, without restricting the grounds, all issues may be canvassed on appeal R v Jantjies 1958 (2) SA 273 (A). Where leave to appeal has been granted on limited grounds, the Supreme Court of Appeal may be approached for an extension of such grounds. The Supreme Court of Appeal has the power to grant leave to appeal on wider grounds than those allowed by the trial judge R v Mpompotshe 1958 (4) SA 471 (A) at 473. A Division of the High Court does not, however, have the power to grant leave for the extension of grounds of appeal after leave to appeal has been granted on particular grounds by that Division R v Van H 1959 (3) SA 648 (T). Post-trial issues and remedies 15

3 An applicant may amend his application for leave to appeal within a prescribed time but it is within the court s discretion to grant or refuse such application. 4 Where the accused has appealed against the sentence and received leave to appeal, the court does not have the power to order an amendment of the grounds of appeal to include an appeal against the conviction. The only remedy in such a case is to apply for condonation for late application for leave to appeal S v Zulu 2003 (2) SACR 22 (SCA). Question 72 The High Court ruled that the charges set out in the indictment against the accused are not valid and quashed the indictment. The prosecution disagrees with this decision and wants to take the matter further. The DPP argues that seeing that the order is not an acquittal, the prosecution has no further recourse against the decision. Discuss whether you agree with the prosecutor or the DPP, with reference to case law, and refer to relevant rules of the CPA. (10) Alternatively X is charged in a Division of the High Court on a charge of murder but convicted on a lesser charge of culpable homicide. The prosecution asks the court to reserve questions of law for the decision of the SCA but these were denied by the court. On petitioning to the SCA the questions of law were reserved. The defence argues that there was no acquittal on the main charge and the finding of the court on the accused s defence of self-defence were factual findings and not a point of law barring the prosecution from an appeal. Discuss these issues with reference to the SCA s findings in the Oscar Pistorius case. Answer 1 The State (also referred to as the prosecution) can only take a matter of law on appeal - R v Brasch 1911 AD 525. 2 It is the duty of the prosecution to consider whether or not the court has erred on the law Attorney-General, Transvaal v Moores (SA) (Pty) Ltd 1957 (1) SA 190 (A). 3 Section 319 of the CPA makes provision for an appeal on the basis of a reserved question of law that arises on the trial conducted in a High Court. Prior to the ruling of the Constitutional Court in S v Basson 2007 (1) SACR 566 (CC), the ruling by the Supreme Court of Appeal was that a question of law could only be reserved upon the conviction or acquittal of an accused. Consequently, since an order upholding an exception to a charge or the quashing of an indictment amounted to neither a conviction nor an acquittal, it could not be reserved for consideration by the Supreme Court of Appeal see R v Adams 1959 (3) SA 753 (A). Section 319(1) of the CPA provides: 16 CRIMINAL PROCEDURE WORKBOOK

(1) If any question of law arises on the trial in a superior court of any person for any offence, that court may of its own motion or at the request either of the prosecutor or the accused reserve that question for the consideration of the Appellate Division, and thereupon the first-mentioned court shall state the question reserved and shall direct that it be specially entered in the record and that a copy thereof be transmitted to the registrar of the Appellate Division. 4 The Constitutional Court in Basson (above), appreciating the prosecutorial mandate arising from its constitutional duty to prosecute those offences that threaten or infringe the rights of citizens, held that one of the purposes of s 319 was to grant the State the right to appeal to the Supreme Court of Appeal on a point of law. The court held that nothing in the provisions of s 319(1) suggests that the State may only request a reservation of a question of law that pertains to an acquittal or a conviction of an accused. The court was of the view that s 319(2) clearly points to an intention on the part of the legislature to permit an appeal against any order upholding any objection against an indictment by way of a reservation of a question of law. Section 319(2) states that: The grounds upon which any objection to an indictment is taken, shall, for the purposes of this section [s 319(1)], be deemed to be a question of law. 5 Section 319 is available to the prosecution or the accused, and the court may mero motu raise a question of law to be reserved for the Supreme Court of Appeal s attention. 6 Consequently, the State may apply for a reservation of a question of law where the court quashed the indictment. The following question arises from this: Does the same procedure apply when the accused objects to the charge sheet and it is quashed by the lower court? Section 85(2)(a) of the CPA provides that the court, if it decides that an objection under s 85(1) is well founded, may make such order relating to the amendment of the charge or the delivery of particulars as the court deems fit. If the prosecutor for whatever reason either fails or refuses to amend the charge or to provide any particulars, or if the charge sheet was so flawed that it could not be remedied, the court may quash the charge sheet (s 85(2)(b)). Section 310 of the CPA provides that where the lower court in criminal proceedings has given a decision in favour of the accused on any question of law, which includes an order made under s 85(2) (this could mean either an order in terms of s 85(2)(a) or s 85(2)(b)), the prosecution may appeal against such decision. The appeal prosecutor requests the court in writing to state a case. The judicial officer in the stated case for the attention of the High Court is to set out: (i) (ii) the findings of fact based on the evidence, and only in so far as these findings of fact are relevant to the question of law given in favour of the accused; and the question of law; and Post-trial issues and remedies 17

(iii) the court s decision and reasons for such findings. Only when such a case has been stated, the prosecutor may appeal the decision to the High Court. If the court refuses to state the case, the prosecution may petition the High Court in the case of a lower court decision, or petition the Supreme Court of Appeal, in the case where the High Court refuses to reserve the question of law. Answer to the alternative question See paras 7, 9, 21 and 29 32 of Pistorius the SCA judgment on appeal (Director of Public Prosecutions, Gauteng v Pistorius (96/2015) [2015] ZASCA 204 (3 December 2015)). In the appeal in the said Pistorius matter the State appealed on a question of law reserved under s 319 of CPA, where the State sought in effect to appeal against the acquittal of the accused (in this instance the acquittal on the charge of murder and a conviction on culpable homicide as a competent verdict). The Supreme Court of Appeal held that he was guilty of murder and ruled that the the High Court were to impose a sentence on murder afresh. An application by Pistorius for leave to appeal to the Constitutional Court was denied. Further findings made by this court, are the following: 1 The Supreme Court of Appeal questioned the correctness of S v Seekoei 1982 (3) SA 97 (A) and held that a conviction on a competent verdict is to be regarded as an acquittal on the main count and not as a total acquittal and does not prohibit an appeal by the State on a question of law reserved. 2 The Supreme Court of Appeal ruled also on the correctness of the trial judge s decision on the inferences of the fact to be drawn from the evidence and excluding certain relevant evidence at arriving at an opinion as to whether the accused established a particular defence and acted with a particular intention such as dolus directus or dolus eventualis, as points of law. The Supreme Court of Appeal held that the trial court incorrectly applied the principles thereof, which constitutes an error of law. The court also held that the inference of fact is to be drawn from the totality of the evidence and the fact of the trial court not taking all the relevant evidence into account in determining the presence or otherwise of dolus eventualis also constitutes an error of law. Question 73 What is the procedure in terms of s 310 once the State has succeeded with the appeal on a question of law? (5) Answer If the appeal is allowed, the High Court which gave the decision on the question of law shall reopen the case and deal with it in the same manner as it should have dealt with it if the lower court had given a decision in accordance with the law as decided by the High Court: in other words, the High Court deals with the appeal in accordance with the decided question of law and could either allow 18 CRIMINAL PROCEDURE WORKBOOK

the appeal in part or wholly, and make such order as the lower court ought to have made, or remit the case to the lower court to take such steps as the High Court directs (R v Brash 1911 AD 525; s 310(4) and (5)). Question 74 Discuss the difference between an appeal on the facts and an appeal on a question of law. Illustrate the difference with reference to case law. (10) Answer An appeal on the facts is based on factual findings which are made by the trial court. The latter is normally in a much better position to adjudicate on the facts, as it hears the evidence (particularly viva voce evidence) first hand. To this end, courts of appeal are usually very reluctant to interfere with a factual finding of the trial court. The findings of the court a quo may actually be based on the demeanour of the witnesses. The court must always, if it relied on the demeanour of witnesses for a factual finding, state as much in its findings. The court should, furthermore, give reasons as to why it relies on such demeanour. However, the demeanour of witnesses is but one of the factors that should be considered by the court in its adjudication of evidence. It cannot be the only factor. Therefore, a court of appeal will only be willing to interfere with such finding if it is convinced that it is wrong. It is trite law that if there is no misdirection on the facts, then there is a presumption that the trial court s evaluation of the evidence as to the facts is correct, and therefore interference is unnecessary. Note that the reasons given by the court must be those of the majority (ie the assessors and the presiding officer) and not of the presiding officer alone S v Kalogoropoulos 1993 (1) SACR 12 (A). If the question is whether a correct inference has been drawn from the facts, which facts themselves are not in dispute, the court of appeal is in as favourable a position as the trial court. Similarly, the court of appeal can determine just as well as the trial court whether corroborative evidence (where this is required) is present. An appeal on a question of law may be noted by either the accused or the State and deals with the question whether the trial court applied the law correctly in a given matter. In an appeal on a question of law, the question is not whether the court of appeal would have made the same finding, but whether the trial court could have made such a finding. A question of law arises only when the facts upon which the trial court based its judgment could have another legal consequence than that which the trial court had found. Accordingly, whether the trial court s factual findings are right or wrong, is totally irrelevant in order to determine whether the court erred in law S v Basson 2003 (2) SACR 373 (SCA). The question of law, therefore, cannot be whether the evidence supports the finding of the court, because that would be a question of fact. The State may not appeal a question of fact but only a question of law. Consequently, establishing whether a specific issue is one of fact or one of law is vital to the decision. It is important for the court when adjudicating on an appeal on a question of law, not to be Post-trial issues and remedies 19

deluded by the presentation of a question of fact masquerading as a question of law. In S v Nzimande 2010 (2) SACR 517 (SCA), the Supreme Court of Appeal dealt with a case in point. In casu the appellant, a qualified attorney, Mr Nzimande, was charged in the regional court with 197 charges of fraud and acquitted on all charges. Basically it was alleged that the appellant submitted false claims to the Legal Aid Board for attending court proceedings or appearing in court for a specific period of time or on specific court days, where the objective facts, however, indicated that the appellant or his firm could not have attended court or appeared on that specific day or time. The appellant claimed that he lacked the required intention to defraud, because his practice did not sustain proper bookkeeping practices and that he therefore was only negligent. The magistrate court found negligence, but not intention to defraud which is required to be proven in a charge of fraud. The prosecution appealed against this decision. The High Court upheld the appeal in favour of the State and held that the inferences drawn from the facts were legal reasoning to determine whether such facts constitute the offence charged. The court reasoned that the offence is based on the legal elements or requirements of the offence and, accordingly, the resulting issue can only be a legal question. The Supreme Court of Appeal, correctly so, did not agree. The High Court also reasoned that the evidence points to the mental state of the appellant, that is, whether dolus in any of its forms was present and was proved (dolus directus or dolus eventualis). The court held that as a matter of law the appellant should have found the appellant guilty. Mr Nzimande appealed this finding to the Supreme Court of Appeal. The Supreme Court of Appeal held that the appeal is a question of fact. With reference to Magmoed v Janse van Rensburg and Others 1993 (1) SA 777 (A); 1993 (1) SACR 67 (A) and S v Basson 2005 (1) SA 171 (CC), the court found that inferences drawn from facts are secondary facts (as opposed to direct evidence constituting primary facts). An inference of fact and a question as to whether the trial court correctly decided the issue, is a question of fact. As the court in Magmoed (above) at 810H 811D stated: It is seldom in a case of murder that there is direct evidence of the perpetrator s actual state of mind. Consequently, whether the unlawful killing was accompanied by dolus in one of its forms on his part is normally a matter of inference from the primary facts. Clearly this is an inference of fact and any question as to whether the trial court correctly decided this issue is a question of fact. The Supreme Court of Appeal held in Nzimande that the true complaint by the State was not whether the magistrate erred in law, but that he had drawn an incorrect inference from the facts. That is a question of fact and not of law. The appeal was struck off the roll, as the State does not have the right to appeal an acquittal on the facts. In S v Boekhoud 2011 (2) SACR 124 (SCA) the Supreme Court of Appeal held that the decision by the trial court to uphold the accused s plea that the court lacked jurisdiction in relation to certain theft and fraud crimes that were committed in a foreign country, is a legal question that could form the basis of an appeal by the State. 20 CRIMINAL PROCEDURE WORKBOOK

Question 75 [This question embraces a number of issues relevant also to topics discussed in other chapters and indicates the integrated nature of issues with which the courts are normally confronted to decide on appeal or review.] X is a habitual offender who is charged with the crime of assault with the intention to do grievous bodily harm. During his trial the presiding officer, P, who is X s uncle and who has been bearing a grudge against X for many years, agreed with the prosecutor, B, to pay B an amount of R25 000 in order to fabricate additional evidence against X in order to secure a conviction as well as a heavy sentence. X is accordingly convicted and sentenced to 20 years imprisonment without the possibility of parole. X is extremely aggrieved by his sentence and the procedure followed during his trial. Advise X as to his possible remedy (or remedies) in this regard as well as the procedure to be followed. Approach your answer from the position that the trial court is either a regional court or a Division of the High Court. (15) Answer There are three distinct issues involved in this question all relevant to post-trial procedures as the trial court is functus officio after the imposition of the sentence. 1 Issues relating to the trial (1) Bias of court In terms of s 34 of the Constitution every person has the right to be tried before an independent and impartial tribunal or forum this implies that judicial officers must always act in a fair and unbiased manner towards the accused and the prosecution. Judicial officers are required to be fair and impartial in their adjudication of cases so that justice is not only done, but is also seen to be done. No person who has an interest in the case to be tried or harbours any feeling of hostility to the detriment or prejudice of the accused in respect of the matter to be tried, should adjudicate on such matter. P, who carried a personal grudge against X, should therefore not have presided over the matter and should have recused himself. The test applied when the recusal of a judicial officer is sought on grounds of an apprehension of bias, was formulated by the Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) para 48 (the SARFU case) as follows: The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case that is a mind open to persuasion by the evidence and the submissions of counsel. (2) Bias of prosecutor In terms of s 179(4) of the Constitution prosecutors are supposed to exercise their functions without fear, favour or prejudice. B was given an amount of R25 000 in order to fabricate evidence against X. This in itself may be regarded as a violation Post-trial issues and remedies 21