DEPARTMENT: JUSTICE AND CONSTITUTIONAL DEVELOPMENT
BUSINESS UNIT: COURT SERVICES
CHIEF DIRECTORATE: COURT MANAGEMENT

STATISTICAL EVIDENCE ON THE IMPACT OF APPEALS ON THE ADMINISTRATION OF JUSTICE:

Dr Lorraine Glanz, Director: Court Information

Ms Lydia Mbonde, Senior Statistician

Mr Norman Mphaphule, Statistician

Following the Constitutional Court ruling that declared certain sections of the Criminal Procedure Act 51 of 1977 unconstitutional, the Minister for Justice and Constitutional Development decided that the automatic right to appeal must once again take effect from 1 June 2001. He requested the Department of Justice and Constitutional Development to monitor the impact of the right of appeal on the administration of justice.

The Department instituted a special survey of the lower and high courts to gather information on appeals on a quarterly basis. This report reflects the findings of the survey of the lower courts for five quarters namely, from 1 June 2001 to 31 August 2002, and of the high courts for six quarters namely, from 1 June 2001 to 30 November 2002. The main findings of the survey are as follows:

• The overall response rate from the lower courts was 76%, indicating that information obtained from the lower courts is somewhat of an underestimate of the true picture.
• Nearly 10 000 appeals were entered by lower courts in the five quarters of the survey, with the figure fluctuating around 2 000 per quarter. The number of appeals being entered by lower courts does not appear to be increasing.
• Eighty-four percent of appeals emanate from the regional courts.
• It was concluded that the figures relating to the cost of transcriptions are not reliable. The lower courts spent R24 million on transcriptions during the five quarters.
• Lower courts in Gauteng enter 30% of all appeals.
• Following extensive follow-ups, the response rate from the high courts was extremely good, being 100%.
• The high courts dealt with 6 609 appeals during the six quarters. Viewed against the background of the lower court information, it was concluded that a backlog is clearly developing, since the lower courts are entering 35% more appeals than the high courts are able to deal with.
• The number of appeals being dealt with each quarter by the high courts has stabilized, suggesting that a saturation point in terms of capacity has been reached.
• The information on the number of appeals pending showed that the number increased quite considerably between the third and fourth quarters, which is the period following the December recess, and then stabilized around 900 per quarter thereafter.
• It was found that while the number of appeals withdrawn has increased steadily, the number dismissed by the high courts has escalated drastically: 188 appeals were dismissed in the first quarter, increasing to 689 dismissed in the sixth quarter. It was concluded that in view of the fact that the number of appeals dealt with has more or less stabilized, the proportion of "worthless" appeals amongst them, leading to dismissals, is increasing.
• In terms of the number of appeals upheld or partly upheld, this figure has increased, but also fluctuates from quarter to quarter. The rate of increase, however, is not as great as the rate of increase in the number of appeals dismissed: while the number upheld or partly upheld increased by 101% over the six quarters, the number of appeals dismissed increased by an enormous 266%.
• It was concluded that the information on the number of hours spent by judges on appeals, as supplied by registrars, is not reliable and is inconclusive.
• Looking at the workload of individual high courts, the survey showed that Pietermaritzburg, Pretoria and Johannesburg high courts deal with 64% of all appeals.
• The survey indicated that the information supplied by individual high courts on the number of appeals pending might not be accurate or reliable. Some registrars of high courts indicate that they do not record this particular statistic, or do not have access to it. It was concluded that the number of appeals pending is in all likelihood greater than the number indicated in this survey. Bloemfontein high court appears to have the most severe problem of all courts in terms of an increasing number of pending appeals.

In conclusion, there is sufficient evidence to indicate that the current situation that allows for an automatic right of appeal is having a substantial impact on the workload of the high courts. The courts appear to have reached their maximum capacity for dealing with these matters, and the mere fact that lower courts are entering appeals at a higher rate than high courts are able to deal with them means that a backlog is inevitable. The information presented in this report has in fact shown this to be the case.

EXECUTIVE SUMMARY ii

1 INTRODUCTION 1

0 INFORMATION FROM THE LOWER COURTS 3

3. INFORMATION FROM THE HIGH COURTS 9

4 CONCLUSION 20

TABLE 1: RESPONSE RATE OF LOWER COURTS 3

TABLE 2: SUMMARY OF CRIMINAL APPEALS PER QUARTER:

LOWER COURTS 7

TABLE 3: SUMMARY OF CRIMINAL APPEALS PER PROVINCE:

LOWER COURTS 8

TABLE 4: SUMMARY OF CRIMINAL APPEALS PER QUARTER:

HIGH COURTS 16

TABLE 5: SUMMARY OF CRIMINAL APPEALS PER HIGH COURT 18

TABLE 6: NUMBER OF APPEALS PENDING AT THE BLOEMFONTEIN

HIGH COURT 15

CHART 1: NUMBER OF APPEALS ENTERED (LOWER COURTS) 4

CHART 2: COMPARISON OF DISTRICT AND REGIONAL COURTS:

NUMBER OF APPEALS ENTERED 5

CHART 3: NUMBER OF APPEALS ENTERED BY PROVINCE 6

CHART 4: NUMBER OF APPEALS DEALT WITH (HIGH COURTS) 10

CHART 5: NUMBER OF APPEALS PENDING AS AT THE END OF

EACH QUARTER (HIGH COURTS) 11

CHART 6: NUMBER OF APPEALS WITHDRAWN (HIGH COURTS) 11

CHART 7: NUMBER OF APPEALS DISMISSED (HIGH COURTS) 12

CHART 8: NUMBER OF APPEALS UPHELD OR PARTLY UPHELD

(HIGH COURTS) 13

CHART 9: NUMBER OF HOURS SPENT BY JUDGES ON APPEALS 13

CHART 10: NUMBER OF APPEALS DEALT WITH PER HIGH COURT 15

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.

The Business Unit: Court Services carried out a special survey of the lower and high courts for the period 1 June 2001 to 31 May 2002 during which information on the number of appeals submitted by the lower courts and received by the high courts was determined. The findings of the survey were presented in a report made available during August 2002. The report also contained information on appeals extracted from the Department’s normal Annual Return, as well as information supplied by the Legal Aid Board. Information submitted by Directors of Public Prosecutions to the office of the Deputy National Director of Public Prosecutions was also included in the report.

In the meantime, because of the escalating numbers of appeals being received by the high courts, and the increasing backlog of cases in this regard, the Department drafted the Criminal Procedure Amendment Bill, which would amend Section 309 of the Criminal Procedure Act, thereby limiting an accused’s automatic right of appeal.

Following the presentation of the first report on the impact of appeals, the Justice Portfolio Committee of the National Assembly requested the Business Unit: Court Services to continue the special survey of lower and high courts in order to continue monitoring the impact of appeals on the workload of the high courts. This would assist parliament in dealing with the draft legislation that is presently being considered.

This report is an update of the first report on the impact of appeals. It presents information from the lower courts covering five quarters namely, 1 June 2001 to 31 August 2002, and from the high courts covering six quarters namely, 1 June 2001 to 30 November 2002. It was not possible to include six quarters’ information from the lower courts, as the response rate in respect of the sixth quarter at the time of writing was extremely poor. Extensive follow-up work still needs to be carried out to improve the response rate from the lower courts.

During the special survey of the lower and high courts, the lower courts were requested to provide information on –

• The number of appeals entered, with and without legal representation and
• The cost of the transcription of records relating to appeals

The survey response rate in respect of all five quarters was initially extremely poor. Extensive follow-up work in the form of written and personal reminders produced the following response rate from the lower courts, for the period 1 June 2001 to 31 August 2002 (i.e. for five quarters):

The overall response rate for all five quarters was 76%. The response rate for the most recent quarter was the highest (85%), as a result of telephone contact with every court with an outstanding return. A number of provinces (Eastern Cape, Northern Cape, North West and Western Cape) had a response rate for the most recent quarter of close to 100%. KwaZulu-Natal had an extremely poor response rate for the first four quarters of the reporting period.

The significance of the overall response rate of 76% is that when considering the information below, one should bare in mind that since 24% of the courts did not respond, the figures could potentially have increased by approximately one quarter.

Table 2 gives an indication of the number of criminal appeals entered by the lower courts, and the cost of transcriptions for the five quarters from 1 June 2001 to 31 August 2002. The number of appeals entered is also given graphically in Chart 1 below.

From Table 2 it is evident that close to 10 000 appeals were entered by the lower courts during the five quarters under discussion. Chart 1 presents the quarterly trend in this regard, and from the chart one can observe that the number of appeals entered fluctuated around 2 000 per quarter. Considering the 76% response rate, this figure is more likely to be 2 500. Furthermore, the numbers do not appear to be increasing.

Table 2 also shows that the overwhelming majority (in fact, 84%) of appeals emanate from the regional courts. This is understandable in the light of the more serious nature of the crimes that are tried at regional courts, compared to district courts. This trend is clear from Chart 2 below.

Turning to the matter of the cost of transcriptions, it must be mentioned that the figures presented to not appear to be reliable, since they fluctuate enormously between the five quarters. It would appear that it is not easy for administrative officials at the courts who complete the survey questionnaires to obtain accurate figures in this regard. Furthermore, accounts for transcriptions take a number of months to be settled, and to be reflected against the court’s expenditure. According to the survey information, a total of R24 million was spent on transcriptions during the five quarters of the survey. R22,5 of this was for transcriptions in respect of regional court cases.

Table 3 gives the same information as shown in Table 2, but sorted per province. This information is also given in Chart 3. The lower courts in Gauteng enter by far the greatest number of appeals (in fact, 30% of the total), followed by KwaZulu-Natal (15%) and the Western Cape (13%).

During the special survey of lower and high courts, 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

After an initial poor response, and following extensive and persistent follow-up work with the Registrars of the high courts, a 100% response rate was achieved.

Two tables depicting the high court information relating to appeals are presented in this section: Table 4 gives a summary of the appeals information for six quarters (being an 18-month period), but given separately for the six quarters. A selection of the information contained in this table is given graphically in Charts 4 to 9. Table 5 is also a summary of the information for the six quarters, but given separately for the various high courts.

Table 4 reflects that a total of 6 609 appeals were dealt with during the six quarters. This should be viewed against the fact that in Table 2 it was found that in only five quarters, the lower courts entered close on 10 000 appeals. This already gives one an indication of the backlog in the number appeals that is clearly developing in the high courts.

Turning to the charts, clear trends are evident: In Chart 4, one can note that the number of appeals dealt with has stabilized, with the exception of the third quarter, which included the recess period, when fewer appeals were dealt with. This stabilization suggests that high courts have a certain capacity for dealing with these matters, and that this capacity is currently being fully utilization. This could be likened to a "saturation point". This saturation point or maximum capacity is in the region of 1300 cases per quarter.

Chart 5 shows the number of appeals pending. An important point to make is that the information used for the chart is the number of appeals pending as at the last month of each quarter, since it is not logical to use the total number of appeals pending during each quarter; cases pending is not an accumulative measure – it is measured at a specific point in time.

The reader will note from Chart 5 that the number of appeals pending increased quite considerably between the third and fourth quarters, which is the period following the December recess, and then stabilized around 900 per quarter.

In terms of the number of appeals withdrawn, Chart 6 shows that following an initial decline between the first and third quarters, the number of appeals withdrawn increased quite substantially between the fourth and the sixth quarters.

Of considerable significance is the number of appeals dismissed by the high courts. This can be seen in Chart 7. The number continued to escalate each quarter, starting out at 188 in the first quarter, and increasing to 689 in the sixth quarter. This should be seen together with the fact that the number of appeals dealt with has stabilized, which suggests that while approximately the same numbers are being dealt with, the proportion of "worthless" appeals amongst these is increasing.

Chart 8 shows the number of appeals upheld or partly upheld. This figure has been increasing, but also fluctuating at the same time. The number of appeals upheld or partly upheld increased by 101% from the first quarter to the sixth quarter. However the number of appeals dismissed, as discussed in the previous paragraph (refer Chart 7), increased by an enormous 266%.

The number of hours spent by judges on appeals is shown in Chart 9. The Directorate: Court Information has been informed by members of the judiciary that these figures, which are supplied by Registrars of the high courts, are probably not accurate and should only be considered as a general trend. Registrars are not always able to obtain accurate and complete information in this regard. The figures indicate that the number of hours spend by judges tends to fluctuate. It is doubtful whether any significance can be attached to this trend.

Turning to Table 5, which gives the reader an indication of the workload of individual high courts in respect of appeals, one can see that Pietermaritzburg, Pretoria and Johannesburg high courts deal with the greatest number of appeals. These courts deal with 24%, 23% and 18% respectively of the total number of appeals. The high court breakdown can also be seen in Chart 10.

The column in Table 5 that reflects the number of appeals pending per high court should be interpreted with caution. Firstly, as already indicated, only the figures supplied for the last month of the most recent quarter are included in this column, since it is not logical to use the total number of cases pending for all six quarters. Secondly, it is the conclusion of the Directorate: Court Information that the information is not entirely reliable. Follow-ups to courts that submitted a nil return in this column were made (such as Bisho, Umtata, and Pietermaritzburg) in order to verify the information. The registrars in question confirmed that no cases are outstanding. In respect of Pietermaritzburg, the registrar informs that she does not record (keep) the information. It is unfortunate that these figures in particular are not included in the analysis, since Pietermaritzburg deals with the highest number of appeals of all high courts. The implication of this is that the total number of appeals outstanding for all high courts as a whole is in all likelihood much greater than is reflected in this table and in Chart 5.

Another case in point is the Bloemfontein high court. They submitted a return reflecting a disproportionately highs number of pending appeals (i.e. 405). This figure was confirmed with the registrar. If one looks at the information for the Bloemfontein high court on its own, given in Table 6 below, one can see the number of appeals pending has been continuously escalating over the six quarters, suggesting a severe backlog at this court in particular.

Note 1: The information in respect of the number of appeals pending only relates to the last month of each quarter.

This report has presented information obtained from a special survey of the lower and high courts that sought to determine the impact of the automatic right of appeal on the administration of justice. The survey began on 1 June 2001, and is submitted by lower and high courts on a quarterly basis.

The present report reflects the findings of the survey of the lower courts for five quarters namely, from 1 June 2001 to 31 August 2002, and of the high courts for six quarters namely, from 1 June 2001 to 30 November 2002. The main findings of the survey are as follows:

• The overall response rate from the lower courts was 76%, indicating that information obtained from the lower courts is somewhat of an underestimate of the true picture.
• Nearly 10 000 appeals were entered by lower courts in the five quarters of the survey, with the figure fluctuating around 2 000 per quarter. The number of appeals being entered by lower courts does not appear to be increasing.
• Eighty-four percent of appeals emanate from the regional courts.
• It was concluded that the figures relating to the cost of transcriptions are not reliable. The lower courts spent R24 million on transcriptions during the five quarters.
• Lower courts in Gauteng enter 30% of all appeals.
• Following extensive follow-ups, the response rate from the high courts was extremely good, being 100%.
• The high courts dealt with 6 609 appeals during the six quarters. Viewed against the background of the lower court information, it was concluded that a backlog is clearly developing, since the lower courts are entering 35% more appeals than the high courts are able to deal with.
• The number of appeals being dealt with each quarter by the high courts has stabilized, suggesting that a saturation point in terms of capacity has been reached.
• The information on the number of appeals pending showed that the number increased quite considerably between the third and fourth quarters, which is the period following the December recess, and then stabilized around 900 per quarter thereafter.
• It was found that while the number of appeals withdrawn has increased steadily, the number dismissed by the high courts has escalated drastically: 188 appeals were dismissed in the first quarter, increasing to 689 dismissed in the sixth quarter. It was concluded that in view of the fact that the number of appeals dealt with has more or less stabilized, the proportion of "worthless" appeals amongst them, leading to dismissals, is increasing.
• In terms of the number of appeals upheld or partly upheld, this figure has increased, but also fluctuates from quarter to quarter. The rate of increase, however, is not as great as the rate of increase in the number of appeals dismissed: while the number upheld or partly upheld increased by 101% over the six quarters, the number of appeals dismissed increased by an enormous 266%.
• It was concluded that the information on the number of hours spent by judges on appeals, as supplied by registrars, is not reliable and is inconclusive.
• Looking at the workload of individual high courts, the survey showed that Pietermaritzburg, Pretoria and Johannesburg high courts deal with 64% of all appeals.
• The survey indicated that the information supplied by individual high courts on the number of appeals pending might not be accurate or reliable. Some registrars of high courts indicate that they do not record this particular statistic, or do not have access to it. It was concluded that the number of appeals pending is in all likelihood greater than the number indicated in this survey. Bloemfontein high court appears to have the most severe problem of all courts in terms of an increasing number of pending appeals.

In conclusion, there is sufficient evidence to indicate that the current situation that allows for an automatic right of appeal is having a substantial impact on the workload of the high courts. The courts appear to have reached their maximum capacity for dealing with these matters, and the mere fact that lower courts are entering appeals at a higher rate than high courts are able to deal with them means that a backlog is inevitable. The information presented in this report has in fact shown this to be the case.