Part 9- Appeal And Review

Question 0

What does a review and appeal entail?

Answer 0

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.

Question 1

What part of the constitution is the right to an appeal and review?

Answer 1

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.

Question 2

What would constitute irregular conduct during proceedings?

Answer 2

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.

Question 3

In what case did the court explain which procedure, appeal/review, is suitable?

Answer 3

The appropriate procedures to follow is set out in S v Mwambazi.

Question 4

What does an irregularity entail?

Answer 4

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

Question 5

What are the differences between a review and appeal?

Answer 5

• 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.

Question 6

When may criminal proceedings be reviewed in the HC?

Answer 6

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.

Question 7

When will sentences go for automatic review?

Answer 7

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.

Question 8

What does the automatic review procedure entail?

Answer 8

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

Question 9

When will a sentence not be subject for automatic review?

Answer 9

An accused who was assisted with legal representation during trial and sentence does not render the case subject to automatic review.

Question 10

Which sentences are subject to automatic review?

Answer 10

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).

Question 11

On what grounds can a review of lower court proceedings be brought on review to the HC?

Answer 11

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.

Question 12

What is the court of review required to do when reviewing the proceedings of a lower court?

Answer 12

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.

Question 13

What must a court of review refrain from doing when reviewing the proceedings of a lower court?

Answer 13

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.

Question 14

What powers does a review court have?

Answer 14

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.

Question 15

What is the procedure when a case must go on review?

Answer 15

Once sentence imposed that is subject to review, the clerk of the court must transmit the record to the registrar of the High court having jurisdiction no later than one week after determination.

There should be no delay which is unreasonable, such delays in submitting the record reflect on the accused’s right to a fair and speedy trial, and an unreasonable delay could in itself entitle the judge to hold that the proceedings were not in accordance with justice.

Question 16

What is the Magistrate entitled to do before the record of proceedings is sent for review?

Answer 16

The magistrate may append such remarks as he considers desirable onto the record.

Question 17

What is the accused entitled to do before the review is sent on review?

Answer 17

The accused is entitled, within 3 days after conviction, to supply any written statement or argument in support of his case to John clerk of the court to be transmitted to the registrar with the record.

As soon as possible, the record must be submitted by the registrar to a judge in chambers.

Question 18

What is the test used by the court of review when reviewing a case?

Answer 18

The test used by the court on review is whether justice has been done, notwithstanding technical irregularities. This means ‘real and substantive justice’ regarding the interests of the accused.

The judge who receives the documents in chambers must certify on record that the proceedings are in order if, in his opinion, the proceedings were in accordance with justice.

Question 19

What must the judge in chambers review when reviewing a case?

Answer 19

The judge must certify on the record whether the proceedings are in order if they were in accordance with justice.

Even if case was sent for review merely on sentence, the judge may still consider the judgment itself.

Question 20

What does an extraordinary review entail?

Answer 20

Should it be brought to attention of judge that proceedings were ‘not in accordance with justice’ then the procedure as set out in automatic review will apply.

This will occur where proceedings are not subject to automatic review in terms of s302 of the CPA. Neither does it apply to sentences imposed by regional court magistrates.

Question 21

Who may bring proceedings under extraordinary review?

Answer 21

Any person having an interest in the matter may qualify for review under this process, example: public prosecutors, magistrates, or accused persons.

Question 22

Where in the Constitution does it allow for appeals?

Answer 22

In S v Shinga v The State it was established that leave to appeal was consistent with the right to a fair trial in terms of s 35(3)(o) of the Constitution since it wards off unmeritorious appeals.

Question 23

When can an appeal take place?

Answer 23

Appeals can take place at any stage after conviction, sentence when an order or even a s174 is given, but is subject to leave to appeal.

Question 24

Who qualifies for automatic right to appeal?

Answer 24

Juveniles qualify for automatic rights to appeal.

Question 25

What must the court take into consideration when determining whether or not to grant a leave to appeal?

Answer 25

In deciding whether to grant leave to appeal the court must consider the reasonable prospect of a higher court disagreeing.

Where leave to appeal is refused, the applicant may then petition the higher court.

Question 26

What must happen before appeal rights can be exercised?

Answer 26

It is in the best interests of all persons that matters in lower courts finalise themselves before appeal rights are exercised.

The exception is where grave injustice would otherwise result or justice not attained.

Question 27

When will an appeal court interfere with the sentence of a lower court?

Answer 27

An appeal court will only interfere with the sentence of a lower court where the lower court failed to exercise a judicial discretion such as where the magistrate misdirects himself or imposed a sentence beyond her jurisdiction.

Question 28

Apart from a lower court failing to exercise a judicial discretion, when else will an appeal court interfere with the sentence imposed by the lower court?

Answer 28

An appeal court will also interfere on sentence where no reasonable court would have imposed such sentence in that the sentence induces a ‘sense of shock’.

Question 29

Which courts on appeal may increase the sentence imposed by lower courts?

Answer 29

All High courts with criminal appeal jurisdiction may increase the sentence imposed by the lower court in terms of the provisions of s309(3) and s322(6) of the CPA as well as s22 of the Supreme Court Act. It is as much in the interests of justice that a guilty person is adequately punished as it is that he should be convicted (See S v Grundlingh).

S v Sonday is authority for the fact that the practice of giving applicant’s notice of possible increase of their sentences was a violation of their constitutional rights since the applicant must still be permitted the opportunity of making representations.

Question 30

When may an accused withdraw his appeal?

Answer 30

An accused can withdraw her appeal at any stage except where she has received notification of a possible increase of sentence.

In such event, withdrawal may only take place subject to the permission of the court.

Question 31

When must an appellant get leave of the court to withdraw an appeal?

Answer 31

Where the prosecution of the appeal has progressed to the point where the court of appeal has taken cognizance of the matter or where the appeal is called for argument in open court, the appellant may not withdraw the appeal without the leave of the court.

Question 32

How does an accused apply for leave to appeal?

Answer 32

Since no absolute right of appeal exists, leave to appeal must be made, and in the event of the application being dismissed, the applicant may petition the court of appeal.

Question 33

When must an accused apply for leave to appeal?

Answer 33

An accused sentenced by a lower court must in terms of s309B apply to the presiding magistrate for leave to appeal within 14 days of passing of sentence.

Should leave be dismissed, the appellant may apply in terms of section 309C to the Judge President of the High Court having jurisdiction, within 21 days of the application for leave having been refused.

Question 34

What duty does a court have with regard to an unrepresented accused’s right to an appeal?

Answer 34

An unrepresented accused must in terms of s309D be informed of his rights to appeal.

Question 35

Where can an accused appeal a decision of a single judge of in the HC?

Answer 35

An appeal against a decision of a single judge of the High Court may be directed to be heard by a full bench of three (3) judges of the provincial division having jurisdiction.

Except a decision appealed against in the South Gauteng High Court (s315(3)(b)) which can be directed to be heard by the provincial division of a full bench of the South Gauteng High Court as directed by the Judge President. .