DEPARTMENT: JUSTICE AND CONSTITUTIONAL DEVELOPMENT
BUSINESS UNIT: COURT SERVICES
STATISTICAL EVIDENCE ON THE IMPACT OF APPEALS ON THE
ADMINISTRATION OF JUSTICE

1 INTRODUCTION
Currently, every accused person convicted in a magistrate’s court has the right of appeal to the high court. In State v Steyn the Constitutional Court made provision in its order for the automatic right of appeal in cases where the accused had been sentenced to more than three month’s imprisonment and where the accused, if given the option of a fine, had failed to pay the fine within two weeks of sentence. The Constitutional Court therefore ruled that the provisions of sections 309B and 309C of the Criminal Procedure Act 51 of 1977 are unconstitutional. These provisions had sought to require an accused to obtain leave to appeal before appealing against conviction and/or sentence to a high court.
Furthermore, the unconstitutional sections of the Criminal Procedure Act provided that only the judgment and not the entire record was to be forwarded to the high court in the first instance. For much the same reasons as applied in State v Ntuli the Constitutional Court held that judges need to see the full record and not only the judgment. Following this ruling, the Minister for Justice and Constitutional Development decided that the automatic right to appeal must once again take effect from 1 June 2001. From that date, therefore, there was no longer a "filter mechanism" between the magistrates’ courts and the high courts in respect of criminal appeals.
The Minister subsequently requested the Department of Justice and Constitutional Development to monitor the impact of the automatic right of appeal on the administration of justice. Objective evidence would be needed to determine whether there are justifiable grounds for limiting an accused person’s automatic right of appeal.
Impact in this instance can be measured in a number of ways, such as by asking: (1) has the number of appeals being submitted to the high courts increased? (2) Of the numbers that are being submitted to high courts, what is the proportion of "hopeless" appeals (i.e. the proportion dismissed)? (3) What demands are being placed on the Department’s budget in terms of the transcription of records relating to appeals? (4) has there been an increase in the demand for Legal Aid in respect of appeals? And (5) what measures have the high courts been required to take to deal with the increase in the number of appeals?
To effectively measure the impacts described above appropriate information would need to be collected and analysed. This report presents such information in three parts: firstly, statistical information obtained from a special survey of the lower and high courts carried out by the Business Unit: Court Services is presented. This is supplemented by comparative information from the Department’s annual statistical return. Secondly, information supplied by the Legal Aid Board is provided. Lastly, information submitted by Directors of Public Prosecutions to the office of the Deputy National Director of Public Prosecutions completes the picture.
2 SURVEY OF LOWER AND HIGH COURTS
BACKGROUND
The Department of Justice instituted a survey of both the lower and the high courts to gather the information that would be required to determine the impact of appeals on the administration of justice.
The following information in respect of the lower courts was gathered:
The number of appeals entered with and without legal representation
The cost of the transcription of records relating to appeals
The outcome of outstanding requests for leave to appeal (prior to 1 June 2001)
High courts were requested to provide the following information:
The number of appeals dealt with, with and without legal representation
The number of appeals pending, withdrawn or struck off the roll, dismissed, upheld or partially upheld
The number of appeals remitted to lower courts, and
The time spent by judges on preparation and in court
This information was requested from the head of office in the case of the lower courts and registrars in respect of the high courts. The period covered by the survey was from 1 June 2001 to 31 May 2002. This 12-month period was divided into four quarters, with a separate return being required for each quarter. An example of the return used for the lower courts is attached as Annexure A, and for the high courts as Annexure B. An identical questionnaire was used for all four quarters. The information was submitted direct to national office, and collated by the Directorate: Court Information.
The rate of returns received from both the lower and high courts was initially extremely poor. A written reminder was circulated during June 2002. Telephonic contact was made with the Registrars of High Courts from whom information was outstanding. In the end, after considerable follow-up work, a 100% return was received from high courts. The Local Divisions of Durban and Port Elizabeth indicated that they do not deal with appeals, and these courts are therefore not included in the tables below.
The statistical information in respect of the high courts will be presented first.
2.2 STATISTICAL INFORMATION RELATING TO THE HIGH COURTS
Two tables depicting the high court information relating to appeals are presented below: Table 1 gives a summary of the information for the 12-month period, but given separately for the four quarters. A selection of the information contained in this table is given graphically in Charts 1 to 5. Table 2 is also a summary of the information for the 12-month period, but given separately for the various high courts.
Clear trends are evident: In Chart 1, one can note that the number of appeals dealt with was more or less constant, with the exception of the third quarter, which included the recess period, when fewer appeals were dealt with. However, in Chart 2 it is clearly evident that the number of appeals pending drastically increased during the 12-month period. This is particularly true in respect of the appeals being received from the regional courts. It is the last quarter in particular that has shown a considerable increase in the number of cases pending namely, from 396 (regional court cases) in the third quarter to 707 (regional court cases) in the fourth quarter.
The reader should note that while totals are given in the tables in most instances for the various types of statistics, such as total number of appeals dealt with, total number of appeals dismissed etc., in the case of number of appeals pending, only the figure supplied by the court for the last month of each quarter is reflected in Table 1, and for the last month of the fourth quarter in Table 2. It was felt that it would make no sense to add the number of appeals pending over the full 12-month period, since the number of pending cases are a reflection of the situation at a specific point in time.
From Chart 3 it is clearly evident that the number of appeals dismissed has also increased substantially namely, from 188 in the first quarter to 453 in the fourth quarter (i.e. a 141% increase). This information should be compared with the data contained in Chart 4, which shows that the number of appeals upheld or partly upheld also increased, but not at the same rate as the number dismissed – the increase in this instance was 70%. This suggests that twice as many appeals are being dismissed, as are being upheld or partly upheld. This finding is significant, since it indicates that approximately half of the additional workload now expected of the high courts in respect of appeals is to no avail.
Chart 5 gives an indication of the increase in the number of hours spent by judges on appeals. Although the survey requested information on hours spent in preparation as well as hours spent in court, the information relating to preparation time was rather poorly completed, with less than half of the high courts being in a position to provide the data. Johannesburg High Court, furthermore, was not able to provide any information on number of hours spent by judges on appeals. Therefore, although the integrity of the information contained in this section is suspect, it does give one an idea of the increased workload being experienced by judges.
Moving to Table 2: This table gives the reader an indication of the workload of individual high courts in respect of appeals. Clearly, Pietermaritzburg and Pretoria High Courts are dealing with the most number of appeals, while Johannesburg High Court also deals with a relatively large number of appeals.
Unfortunately, a number of the high courts either did not understand the request for information on cases pending, or were not in a position to provide it – four of the high courts indicated no cases pending in the last month of each quarter. While this may be true in respect of perhaps Mmabatho and Thohoyandou High Courts, it is regrettable that Pietermaritzburg, carrying the highest workload in respect of appeals, was not able to provide this information. This should be borne in mind when considering the trend depicted in Chart 2 – the considerable increase that is evident from the graph would no doubt be even greater if the missing information were to be taken into account.
Comparative information relating to the number of appeals being dealt with by the high courts is presented in Table 3. This information is taken from the Department’s normal statistical return, which is carried out annually, and covers the 12-month period from 1 July of any particular year to 30 June of the following year. The information presented in Table 3 covers the period July 2000 to June 2001. This is a 12-month period occurring just prior to the period covered by the special return on appeals described above, and is therefore quite useful for comparison purposes. Unfortunately Johannesburg, Kimberley and Umtata High Courts did not submit a return for the 2000/2001 reporting year.
From a study of Table 3, and taking into account that the statistics on appeals reflected in Table 3 relate to only eight high courts, compared to eleven high courts in Tables 1 and 2, the following information is noteworthy:
2 202 appeals were received during the 2000/2001 reporting year, compared to the 4 047 appeals dealt with during the period covered by the special return on appeals.
687 cases were pending as at the end of the 2000/2001 reporting period, compared to the 1 089 cases pending as at the end of May 2002.
A comparison of these two sets of data indicates, therefore, that there has been a definite increase in the number of appeals being submitted to and dealt with by the high courts, and that there has been an increase in the number of appeals pending at the high courts.
A summary and conclusions with regard to this high court information is provided at the end of the report.
2.3 STATISTICAL INFORMATION RELATING TO THE LOWER COURTS
As indicated in paragraph 2.1 above, the rate of return from the lower courts was rather poor. This should be borne in mind when the information presented below is considered. The specific response rates in respect of the nine provinces for the first and fourth quarters of the 12-month period are given in the table below (these two quarters are selected purely for illustrative purposes). As can be seen from the table, the response rate deteriorated between the first and fourth quarters, even though a reminder was sent to all courts during June 2002. North West had the poorest response rate and Free State and Northern Cape had the best.
 

 
Again two tables depicting the lower court information relating to appeals are presented below. Table 4 shows a summary of the information relating to appeals for the 12-month period, but given per quarter. The data is also given graphically in Charts 6 and 7. From the table and the graphs, it is not possible to deduce any trend in the number of appeals entered by the lower courts during the four quarters – since the total figure for each quarter is clearly a function of the response rate shown above. In other words, no significance can be attached to the fact that 1 911 appeals were entered during the first quarter and only 1 513 were entered during the fourth quarter, since the response rate for the submission of returns from the lower courts was 65% in the first quarter and 53% in the fourth quarter.
One aspect that remains unexplained is the fact that while the reported figure of 1 513 appeals entered by the lower courts during the fourth quarter would in fact be approximately twice that amount if the response rate of 53% is taken into account, the high courts reported dealing with 1 087 cases in the fourth quarter, with another 1 089 cases pending – amounting to just over 2 000 cases in total. It would appear that nearly 1 000 appeals per quarter are "unaccounted" for in this survey.
While no specific trend in the number of appeals entered can be deduced from Table 4, what is evident from the table is that there has been a considerable increase in the cost of transcriptions. This can clearly be seen in Chart 7; the cost of transcriptions increased from R4 367 029 in the first quarter to R13 997 567 in the fourth quarter. This increased figure for the fourth quarter may be partly due to the fact that the accounts for transcriptions take some time to be submitted by the service providers to the courts, processed through the court’s accounting system and reflected as an expenditure against that specific budget item. In other words, the R13 million spent on transcriptions in the fourth quarter may not necessarily be for transcription work actually carried out in the fourth quarter.
What is significant however is the fact that a total of R26 874 333 was spent on transcriptions in the 12-month period. It should be borne in mind that although the return schedule specifically asked for information on the cost of transcriptions relating to appeals, one cannot guarantee that the courts did not simply provide the total cost of all transcriptions being done by the court. This notwithstanding, it does give the reader a sense of the enormous financial cost involved in transcribing cases that are entered on appeal. One should also bear in mind the fact that with the response rate being in the region of 55% to 65%, the above figure would in reality be closer to R40 million.
The information given in Table 5 shows the number of appeals entered by the lower courts during the period of the special return, shown per province. Gauteng entered by far the greatest number of appeals (i.e. 1 964), followed by KwaZulu-Natal (1 157) and the Western Cape (1 088).
The nearly R4 million for transcriptions reported by Mpumalanga is suspect considering that their lower courts entered only 357 appeals.
Section B of the questionnaire that was used for the return from lower courts (refer Annexure A) dealt with the outstanding applications for leave to appeal (i.e. applications that had been submitted to high courts prior to the Minister’s decision of 1 June 2001 to institute the automatic right to appeal). However, courts appear to have misunderstood this section, and the information is extremely unreliable. It is therefore not presented for analysis.
For comparison purposes, the information on appeals obtained from all magistrates’ offices during the Department’s usual annual return is presented in the table below. The information relates to the reporting period 1 July 2000 to 31 June 2001, which is the twelve-month period just prior to the period covered by the special return on appeals.

 
If the above total of 3 120 is compared to the information contained in Table 4, it would appear that the number of appeals being submitted to the high courts has virtually doubled.
INFORMATION PROVIDED BY DIRECTORS OF PUBLIC
PROSECUTIONS
The office of the Deputy National Director of Public Prosecutions requested all Directors of Public Prosecutions (DPPs) to provide statistical information on the workload in respect of appeals, and to comment on the impact of the workload on the functioning of the high courts and on the capacity of their offices.
The statistical information is summarised in Table 6, and given graphically in Chart 8. Table 6 presents a three-year comparison of the number of appeals (1) received and (2) argued. The information contained in the table in respect of the year 2002 is a projection based on the statistics provided by DPPs for the first six months of 2002.
There is a clear indication from the data that the number of appeals received increased dramatically since the year 2000, particularly in 2002. This can be clearly seen from Chart 8. In most instances there has been a doubling of the workload. This confirms the information provided in Section 2 of this report. Mmabatho appears to be the only high court not experiencing an increase in the number of appeals. Although the statistics for Bisho show an increase in 2002, the DPP indicated that the increase has not as yet created problems in the high court.
The comments made by DPPs regarding the impact of the workload on the functioning of the high courts, and on the capacity in their offices, can be summarised as follows:
Extra courts are assigned by the Deputy Judge Presidents on an ongoing basis. Courts during recess periods have also been set up at a number of high courts. These measures have not succeeded in addressing the backlog of appeals.
A large number of appeals with no merits are being enrolled; in some cases, defence counsel concedes the case has no merits, resulting in a total waste of court time.
The number of outstanding appeals from June 2001 to June 2002 has doubled.
The retrospective interpretation of the Steyn judgement has meant that prison appeals have increased drastically, with prisoners who were convicted and sentenced as far back as 1995 lodging appeals as late as in 2001.
The greatest number of appeals is in fact prison appeals.
At present, it takes between 18 and 24 months from the date of the filing of the Notice of Appeal to the hearing of the appeal; in many cases, appellants have in the mean time been released from prison or are on parole and the DPP’s offices are not aware of this. This causes heavy burdens in terms of trying to trace appellants.
The new Rule 67 is open to abuse since there is no way to screen appeals that have no merit and there are no time limits as to when an appellant can lodge an appeal.
In one DPP’s office (Pretoria) an extra clerk had to be appointed to deal with the additional administrative work relating to appeals. Furthermore, one senior advocate is fully occupied with setting down court dates and dealing with correspondence and telephonic enquiries. This in the past was regarded as an additional task of a senior advocate. It was reported that it would soon become necessary to allocate a second senior advocate to this work.
An example was given of 17 appeals heard by The Honourable Senior Judge Van der Walt in a single week, which involved 15 appellants accompanied by twice as many wardens from different parts of the province. None of the appeals were successful.
Appeals are at times postponed due to late filing of Heads of Argument and late instructions to advocates on the part of the Legal Aid Board.
A delay of between 6 and 12 months in the finalisation of the transcription of appeal records is being experienced, depending on the area where the court is situated. This also "hides" the full effect of the Steyn judgement on the number of appeals received, since those still being transcribed are still to be received.
The negative impact of the escalation in the number of appeals on the administration of justice was pertinently summarised by M J Mpshe, SC, DPP for Transvaal, as follows: "At present there is a shortage of judges and available courts. Furthermore, additional staff, both at the registrar’s office as well as this [DPP’s] office, is required to deal with the administrative work. The cost implications are also very worrying. ‘In person’ appellants have to be transported to and from prisons and have to be accompanied by correctional services employees. Records have to be typed free of charge and legal aid must be supplied. To a certain extent the ‘in person’ appellants also pose a security risk. Legislation to regulate the process should certainly be considered."
THE IMPACT OF APPEALS ON THE WORK OF THE LEGAL AID BOARD
Section 35(3) of the 1996 Constitution provides that an accused is entitled to a fair trial and that a fair trial includes the right of appeal. Section 35 (3)(g) also provides that where an accused would otherwise suffer "substantial injustice", legal representation must be provided at state expense. Section 3 of the Legal Aid Act transfers to the Legal Aid Board the obligation to provide legal representation at state expense.
4.1 PRESENT WORKLOAD
The Legal Aid Board uses two mechanisms to provide legal representation to those who qualify: legal aid is provided either through its Judicare programme, or via one of its Justice Centres. The statistics relating to legal representation provided by the Legal Aid Board through both Judicare and its Justice Centres over the past two financial years, but only in respect of appeals, are as follows:

 
The above figures provide one with the following total picture in terms of representation by the Legal Aid Board during the last two financial years, in respect of appeals:
 
 

 
4.2 FUTURE IMPLICATIONS
It is estimated that in excess of 100 000 people annually could qualify for legal aid in respect of criminal appeals. It should be borne in mind that the vast majority of criminal accused are indigent. It is anticipated that soon all sentenced prisoners imprisoned in excess of three months will realize that they have nothing to lose by applying to the Legal Aid Board to fund an appeal. The increasing burden in respect of criminal appeals will be felt gradually as the news of the right to appeal at state expense spreads. If all 100 000 prisoners were to appeal, additional funding of R171 million will be required if the average of R1 710 per instruction, as calculated for the last financial year, is applied.
The Legal Aid Board is of the view that some type of legislation to "curb" the right to appeal should be instituted as a matter of urgency if this additional expenditure in respect of appeals is to be avoided.
5 CONCLUSIONS
The limitations of the information obtained by the Business Unit: Court Services from lower and high courts notwithstanding, the following general observations and conclusions can be drawn regarding the impact of the automatic right of appeal on the administration of justice:
The number of appeals dealt with by the high courts remained more or less constant over the 12-month period of the special return on appeals (i.e. from June 2001 to May 2002).
However, twice the number of appeals was dealt with during that period than were received by the high courts during the 12-month period prior to that (i.e. 4 047 compared to 2 202).
This is supported by comparative information from the Department’s annual statistical return that showed that the number of appeals being submitted to the high courts has doubled.
The number of appeals pending in the high courts, particularly in respect of cases submitted by the regional courts, increased drastically during the last quarter of the 12-month period (i.e. during March to May 2002). This conclusion is supported by comparative information from the annual return.
The number of appeals dismissed by the high courts increased by 141% during the 12-month period of the special return.
The number of appeals upheld also increased during the 12-month period, but by 70%.
Therefore, more than twice the numbers of appeals are being dismissed than are being upheld.
The number of hours spent by judges on appeals nearly doubled from the first quarter to the fourth quarter of the 12-month period.
Pietermaritzburg and Pretoria High Courts are dealing with the greatest number of appeals.
Approximately R40 million per year is spent by the lower courts on transcriptions relating to appeals.
The impact of the increase in the number of appeals on the work of the Legal Aid Board can be summarised as follows:
Legal aid in respect of appeals, provided by the Legal Aid Board, is currently costing between R6 and R9 million per year.
The Legal Aid Board estimates that an amount of R171 million would be needed in addition to the Board’s normal budget, for the representation of all prisoners who qualify for legal aid, and who are presently entitled to appeal.
Finally, the information provided by the DPPs indicated the following:
The number of appeals received by their offices has doubled between 2000 and 2002.
Despite enormous efforts, the measures that have been put in place by Judge Presidents and DPPs to deal with the increase in appeals have in most cases not had the desired effect of keeping the number of outstanding cases under control.
Most appeals, particularly prison appeals, have no merits (i.e. are not upheld).
6 RECOMMENDATIONS
A number of the Judge Presidents of the High Courts have expressed the view that the Steyn judgement has led to an unprecedented increase in the number of appeals being submitted to the high courts. Unfortunately, the increase in the number of "hopeless" appeals delays the hearing of those with merit. The Honourable Judge D J P Flemming, Deputy Judge President of the Witwatersrand Local Division, is of the view that the extra courts that have been established to deal with the enormous increase in the number of appeals enrolled is not a practical or permanent solution to the problem. He believes that a sifting process needs to be put in place to examine appeals before they are enrolled in order to eliminate appeals without merit.
The Honourable Judge B M Ngoepe, Judge President of the Transvaal Provincial Division, has similar views. He has stated "that there is no doubt that a sifting mechanism, in the form of a leave system, is needed".
The Honourable Judge Ngoepe suggests the following procedure:
One judge should be able to deal with the application for leave to appeal, in chambers;
A judge should be able to consider the matter on the basis of the notice of appeal and the magistrate’s judgement, provided that he/she has the discretion to call for the record or part of the record of the proceedings;
A judge should be able to call for the magistrate’s comments;
No representations in the form of argument should be allowed (otherwise this might just as well be the hearing of the appeal);
Should representation be allowed, it should only be in writing and only by the applicant, and
There would obviously be other concomitant procedural details, such as time frames.
The opinion has been expressed, however, that this approach would not withstand the constitutionality test.
In conclusion, there is sufficient evidence from the statistical and other information contained in this report to conclude that there has been a substantial increase in the number of appeals being submitted to the high courts, which has led to an increase in the number of cases pending – this despite the enormous number of extra hours spent by judges on preparing for, and hearing, appeals. It has also been shown that twice as many appeals are being dismissed as are being upheld. This suggests that unless some measures are instituted to sift or screen appeals, the high courts would not be in a position to deal with the increasing backlog of appeals.