Part 9- Appeal And Review Flashcards
What does a review and appeal entail?
Both applications are directed at attacking the judgment or sentence of a lower court.
- Whereas an appeal is concerned with the final outcome of the decision based on a question of law or fact;
- A review is concerned with the manner in which the decision was reached.
What part of the constitution is the right to an appeal and review?
The right of appeal or review by a higher court forms part of the right to a fair trial in terms of s 35(3)(0) of the Constitution.
What would constitute irregular conduct during proceedings?
Where an irregularity took place during the proceedings, such as the presiding officer not permitting an accused to call a relevant witness, such conduct on the part of the court would constitute irregular conduct.
In what case did the court explain which procedure, appeal/review, is suitable?
The appropriate procedures to follow is set out in S v Mwambazi.
What does an irregularity entail?
An irregularity does not concern itself with the result, but rather with the manner in which the court arrived at the decision. See Ellis Morgan; Ellis Dessai
What are the differences between a review and appeal?
- An irregularity does not concern itself with the result, but rather with the manner in which the court arrived at the decision. See Ellis Morgan; Ellis Dessai 1909 TS 576 at 581.
2) Whilst an appeal can be brought on any ground (law or fact) a review is confined to certain specified grounds.
3) A party is confined solely to the record in an appeal whereas a review brought by affidavit can contain matters extraneous to the trial. (see S v Mwambazi 1991 2 SACR 149 (NM).
3) A review is generally not concerned with the facts unless such act in and of itself amounts to a gross irregularity.
4) An appeal must be brought within a specific time whilst a review within a reasonable time.
5) An appeal is lodged by way of application for leave to appeal whereas a review is brought by way of notice of motion.
6) No permission is required to be sought to lodge a review, whereas in an appeal, leave must be sought from the presiding officer. Should same be refused, the appellant may petition the court of appeal for leave. The test to be applied is whether there is a prospect(s) that the higher court may disagree.
When may criminal proceedings be reviewed in the HC?
Criminal proceedings may be reviewed in the High court based on:
1) Automatic review in terms of s 303;
2) Extraordinary review in terms of s 304 (4);
3) The review of proceedings before the imposition of sentence in terms of s 304A; and
4) Setting down a case for argument in terms of s 306.
When will sentences go for automatic review?
The bulk of work of a judge of the high court has to do with the automatic review of the certain sentences of lower courts.
Rationale for this rests on the fact that judges are assumed to be more experienced and the nature of sentence imposed.
What does the automatic review procedure entail?
The judge is confined to the record of the proceedings and must issue a certificate at the end thereof to the effect that the proceedings were conducted in accordance with justice but not laws, meaning that the judge may agree with the sentence but find that there were certain legal technicalities in the matter that were illegal but which nevertheless did not render the trial unfair
When will a sentence not be subject for automatic review?
An accused who was assisted with legal representation during trial and sentence does not render the case subject to automatic review.
Which sentences are subject to automatic review?
The following sentences are subject to automatic review:
1) Imprisonment for period exceeding 3 months imposed by presiding officer who has not held the substantive rank of a magistrate for seven years and sentences exceeding 6 months imposed by presiding officer who has held the substantive rank of a magistrate for seven years or longer;
2) A sentence where fine exceeds R3000 imposed by presiding officer who has not held the substantive rank of a magistrate for seven years and fines which exceed R6000 imposed by presiding officer who has held the substantive rank of a magistrate for seven years or longer.
The sentences are reviewed irrespective of being coupled on any conditions or whether suspended for any period of time. An appeal against conviction or sentence suspends an automatic review in terms of s 302(1).
On what grounds can a review of lower court proceedings be brought on review to the HC?
There are limited grounds upon which a review of lower court proceedings may be brought on review in the High court. Such instances would include the following:
1) Absence of jurisdiction on the part of the lower court;
2) Bias on the part of the presiding officer;
3) Gross irregularity in the proceedings; or
4) Admissibility of inadmissible evidence.
What is the court of review required to do when reviewing the proceedings of a lower court?
The court of review must decide solely whether the proceedings in the lower court were in accordance with the tenets of justice. It is not required of the court of review to agree with the sentence imposed.
What must a court of review refrain from doing when reviewing the proceedings of a lower court?
A judge would be reluctant to interfere with the exercise of the discretion of the presiding officer who was steeped in the atmosphere of the proceedings and in a far better position to adjudicate the matter.
Technicalities are not examined in detail and neither is the evidence as it would be on appeal.
What powers does a review court have?
A review court would have the power to, inter alia:
1) Confirm, alter or quash a conviction;
2) Reduce or set aside a sentence of any order of the lower court. It can even correct an error but it has no power to increase the sentence;
3) Convict the accused on an alternative count whether she was convicted on of two or more counts and the court quashes a particular conviction;
4) Make such order and or impose such conviction and or sentence that the magistrate ought to have imposed;
5) Remit the matter to the magistrate with specific instructions to deal with the matter in certain respects; or
6) Hear any evidence and summon any person to give evidence or produce relevant to shed new light on the matter. The matter would in such an instance be referred back to the magistrate to re-consider the fresh evidence.