Dr Lorraine Glanz, Director: Court Information

Ms Lydia Mbonde, Senior Statistician

Mr Norman Mphaphule, Statistician

Over the past few years, various legislative "arrangements" have been in place in terms of the procedures relating to appeals in respect of decisions by the lower courts in criminal cases. There are in fact four distinct periods that can be identified in this regard namely,

1. The period prior to the Ntuli ruling (during which a prisoner who wished to prosecute in person – i.e. without legal representation – any review of, or appeal against, a decision of a magistrate’s court, first had to obtain a certificate from a judge of the High Court stating that there are reasonable grounds for the review or the appeal; all other persons had an automatic right of appeal to the High Courts);
2. The period during which the Ntuli ruling was in place (during which an automatic right of appeal was in effect);
3. The period during which a filtering mechanism was in place (during which leave to appeal and petition procedures applied in respect of decisions of the lower courts); and
4. The period following the Steyn ruling (during which an automatic right of appeal was again in effect).

In terms of the periods described above, it should be noted that whereas the periods may be clearly identifiable chronologically, it must be understood that there is a definite follow-through of cases from one period to the next namely, appeal cases which reach the High Courts because of a particular dispensation during one period, will in all likelihood only be heard during the next period.

This report presents information on appeals relating to the above periods. The information was obtained from the Department’s Annual Return and from the special survey of the High Courts. Information for a ten-year period in respect of the lower courts was obtained, and an eight-year period in relation to the High Courts.

The main findings of the report are as follows:

• The information on appeals obtained from the lower courts indicated that there was a steady increase in the number of appeals entered during the period prior to Ntuli (i.e. prior to 1997). Furthermore, contrary to what one would anticipate, the number of appeals declined steadily during the Ntuli period (i.e. from 1997 to 1999), when an automatic right of appeal was in place.
• However, as expected, the number of appeals entered by the lower courts declined further during the period when the filtering mechanism was in place (i.e. from 1999 to 2001). Finally, during the Steyn period (i.e. from June 2001), the number of appeals entered increased dramatically (in fact by 151%).
• In terms of the information obtained from the High Courts, the analysis indicated that a logical trend exists in respect of the number of appeals received by the High Courts; this trend matches the expected pattern for the four periods described above.
• During the Ntuli period (i.e. from 1997 to 1999), when one would anticipate an increase in the number of appeals received by the High Courts as a result of an automatic right of appeal being in place, an increase was in fact observed.
• During the period when a filtering mechanism was in place (i.e. from 1999 to 2001), when one would anticipate a decline in the number of appeals received by the High Courts, such a decline was in fact observed.
• Once the Steyn period was in place (i.e. from June 2001 to date), which saw a return of the automatic right of appeal, a substantial increase in the number of appeals received by the High Courts was evident (i.e. an increase of 30%).
• The information from the special survey of the High Courts shows that the number of appeals being dealt with (as opposed to being received) by the High Courts has reached a plateau at around 5 000 per year. High Courts appear to have reached a "saturation" point in terms of their capacity to deal with appeals.
• In accordance with the increasing number of appeals being received, the information relating to the High Courts also shows a steadily increasing number of appeals pending as at the end of each reporting year. The pending cases were substantially reduced during the Steyn period clearly as a result of special measures put in place in a number of High Courts to deal with the backlog of appeal cases. Such special measures are not sustainable over the longer term.
• Regarding the number of appeals dismissed, there was a substantial increase in the numbers dismissed during the Ntuli period (i.e. an increase of 58%), suggesting a larger proportion of "unmeritorious" appeals during this period compared to other periods.
• Finally, there was a definite increase in the number of appeals upheld or partly upheld during the Steyn period (i.e. an increase of 62%), as a result of the greater number of appeals being dealt with. This increase in numbers upheld is also due to the fact that during this current Steyn period, the High Courts are hearing appeals for which leave to appeal had already been granted during the previous period (in other words, the follow-through effect described above has had an impact on the numbers).
• The analysis presented in the report included a comparison of the proportion of appeals dismissed and the proportion upheld, during the eight-year period. The analysis showed that there was an increase in the proportion dismissed during the period in which a filtering mechanism was in place. Furthermore, that was a decrease in the proportion upheld during the Ntuli period, and a substantial increase in the proportion upheld during the Steyn period (as referred to above).

In conclusion it can be said that while the numbers of appeals being entered by the lower courts increased dramatically following the Steyn ruling, the existing High Courts have reached a plateau in terms of the numbers they are able to deal with. This has been shown by the stabilisation in the number of cases dealt with and the increasing numbers pending. The number of cases pending indicates the backlog of cases.

It should be born in mind that the backlog of cases in the High Courts in general is notorious, and the same complement of judges is expected to deal with all types of cases. This would undoubtedly have an impact on the disposition of appeal matters.

Furthermore, the information for the four periods under review indicates that the different rulings did have an impact on the number of appeals received by the High Courts, with an increase evident during the Ntuli period, and a further increase recorded during the Steyn period.

EXECUTIVE SUMMARY ii

1 INTRODUCTION 1

2. INFORMATION FROM THE LOWER COURTS 2
3. INFORMATION FROM THE HIGH COURTS 5
4. CONCLUSION 18

TABLE 1: NUMBER OF APPEALS ENTERED AND RESPONSE RATE:

LOWER COURTS 3

TABLE 2: RESPONSE RATE: HIGH COURTS 6

TABLE 4: EIGHT-YEAR COMPARISON OF PROPORTIONS OF APPEALS

DISMISSED AND UPHELD: HIGH COURTS 8

TABLE 3: INFORMATION ON COURT WORK RELATING TO

APPEALS: HIGH COURTS 10

FIGURE 1: TEN-YEAR TREND IN NUMBER OF APPEALS ENTERED:

LOWER COURTS 4

FIGURE 8: EIGHT-YEAR TREND IN PROPORTION OF APPEALS

DISMISSED AND UPHELD: HIGH COURTS 9

FIGURE 2: EIGHT-YEAR TREND IN NUMBER OF APPEALS

RECEIVED: HIGH COURTS 12

FIGURE 3: QUARTERLY TREND FOR THE PERIOD JUNE 2001 TO

NOVEMBER 2002 IN NUMBER OFAPPEALS DEALT WITH:

HIGH COURTS 13

FIGURE 4: EIGHT-YEAR TREND IN NUMBER OF APPEALS PENDING:

HIGH COURTS 14

FIGURE 5: EIGHT-YEAR TREND IN NUMBER OF APPEALS

WITHDRAWN: HIGH COURTS 15

FIGURE 6: EIGHT-YEAR TREND IN NUMBER OF APPEALS

DISMISSED: HIGH COURTS 16

FIGURE 7: EIGHT-YEAR TREND IN NUMBER OF APPEALS UPHELD

OR PARTLY UPHELD: HIGH COURTS 17

The Minister requested the Department of Justice and Constitutional Development to monitor the impact of the automatic right of appeal on the administration of justice. This request followed the Constitutional Court ruling in State v Steyn 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.

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 Parliamentary Portfolio Committee for Justice and Constitutional Development subsequently requested the Department to continue with the special survey on appeals.

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.

In order for the Parliamentary Portfolio Committee to consider all the available statistical evidence on the impact of appeals on the administration of justice during the various periods when different "dispensations" relating to appeals were in place, the Business Unit: Court Services collected historical information relating to appeals from both the lower and High Courts that covers the following periods: The first period relates to the period prior to the State v Ntuli ruling, during which a "mixed" arrangement in respect of appeals was in place. During this period, prisoners who intended to prosecute their appeal in person (i.e. without legal representation) were required to obtain a certificate from a judge of the High Court indicating that their appeal had merit, which amounted to a limitation of the right to appeal. All other persons had an automatic right of appeal. During the second period, which followed the ruling in State v Ntuli namely, from 30 April 1997 to 28 May 1999 (the so-called Ntuli period), all accused had an automatic right of appeal. This period was followed by the implementation of legislation that introduced a "filtering mechanism" that limited the right of appeal. This arrangement was in place until 30 May 2001, when the ruling in State v Steyn came into effect, which once again meant that an automatic right of appeal was in place.

Historical information from the Department’s Annual Return, and the more recent information from the special survey of lower and High Courts, in respect of the periods described above are presented below.

The Department’s Annual Return from the lower courts provides information on the number of appeals entered or submitted to the High Courts throughout the year covered by the specific return. Up until recently, the Department’s Annual Return covered the 12-month period 1 July of any particular year to 30 June of the following year. Information on appeals for the years 1992/93 to 2001/02 is given in Table 1 below. It should be pointed out that the information in respect of the period 2001/02 comes from the special survey of lower courts described in Section 1 above. The information is comparable to the Annual Return information, since precisely the same information is solicited namely, the number of appeals entered.

The response rate information that is available indicates that the response rate was generally quite good, except for the year 2000/01 for which it was 71%.

The information contained in Table 1 is shown graphically in the figure below. The three dashed lines in the graph indicate the various periods during which different arrangements or dispensations were in place in terms of appeals. The first period from 1992/93 until 1996/97 covers a period during which there was a "mixed" arrangement in terms of the right of appeal: Whereas prisoners wishing to prosecute their own appeal were required to apply for a certificate (they thus had a limited right of appeal), all other accused had an automatic right of appeal. The graph shows that there was a steady increase in the number of appeals entered during this period (an increase of 22%).

The second period from 1996/97 to 1998/99 covers the so-called "Ntuli period" during which an automatic right of appeal was in place. Contrary to what one would expect, the graph shows that the number of appeals entered declined steadily from a high point of 5 680 in 1996/97 to 4 159 in 1998/99 – a decrease of 27%.

The third period depicted on the graph represents the period during which the filter mechanism was in place, which meant that accused were required to apply for leave to appeal. This period stretches from 28 May 1999 until the implementation of the Steyn judgement on 30 May 2001. The trend line in the graph indicates a further decrease in the number of appeals entered, from 4 159 in 1998/99 to a low point of 3 120 in 2000/01 (a decrease of 25%). This pattern is expected in terms of the limitation of the right to appeal that was in place during this period.

The final period covered in the graph is the period from June 2001 that shows the impact of the Steyn judgement, which again meant that an automatic right of appeal was in place. The number of appeals entered shot up from 3 120 to 7 828, an increase of 151%.

Except for the unexpected trend during the Ntuli period, the impact of the various arrangements in terms of the appeals system is clearly evident from Figure 1.

Registrars of High Courts also complete the Department’s Annual Return. This information is somewhat more detailed than that gathered from the lower courts. It covers the number of appeals dealt with, pending, withdrawn, dismissed, upheld or partly upheld and remitted to lower courts, and the time spent by judges on preparation and in court (although the time-related information does not appear to be reliable).

The response rate in respect of the Annual Return form the High Courts are shown in the table below. It was not possible to provide information for a full ten-year period, as was the case with the lower courts, since the information in respect of 1992/93 and 1993/94 could not be traced within the Department. The response rate on the whole was good, being above 80% for all periods. Note that no response rate information is available for the 1996/97 reporting period.

The statistical information on the court work relating to appeals for the eight-year period 1994/95 to 2001/02 is given in Table 3. The information contained in the table is presented graphically in a series of figures that follow Table 3.

From Figure 2 one can see that a logical trend exists in terms of the number of appeals received by the High Courts: during the "Ntuli period", when one would anticipate an increase in the number of appeals received since an automatic right of appeal was in place, such an increase did occur, from 2 819 appeals in 1996/97 to 3 516 appeals in 1998/99 (an increase of 25%).

The graph in Figure 2 further shows that during the period when the filtering mechanism was in place, a decrease in the number of appeals received is evident, which was followed immediately by a slight increase to the start of the "Steyn period". Once the Steyn judgement was in place, there was a clear increase in the number of appeals received, from 3 107 in 2000/01 to 4 045 in 2001/02 (an increase of 30%).

It can be concluded, therefore, that the trend relating to the number of appeals received by the High Courts follows an expected pattern in terms of the different periods during which various arrangements relating to appeals were in place.

The current increasing trend relating to the number of appeals being dealt with (as opposed to the number being received) by the High Courts is shown in Figure 3. This figure is based on the information from the special survey of the High Courts and covers the 18-month period from 1 June 2001 to 30 November 2002. Other than the dip in the third quarter, which was due to the December/January recess period, the trend line in the graph shows that approximately 1 200 appeals per quarter are dealt with, which amounts to nearly 5 000 per year. The response rate for this special survey was 100%, indicating that the information is complete. The graph also shows that a plateau appears to have been reached, in the sense that the High Courts have a certain maximum capacity to deal with appeals, and that capacity appears to have been reached.

Figures 4 to 7 give information relating to appeals pending, withdrawn, dismissed and upheld or partly upheld. Figure 4 shows a steadily increasing number of appeals pending, as at the end of each reporting period, with the greatest increase being during the so-called Ntuli period. Quite a dramatic decline in the number pending can be seen at the end of the 2001/02 reporting period. This may be due to the special measures put in place in a number of High Courts to deal with the backlog relating to appeals.

With reference to Figure 6, which shows the eight-year trend in the number of appeals dismissed, a clear trend is evident during the Ntuli period, when the automatic right of appeal was in place. At that stage the number of appeals dismissed increased from 904 to 1 427, an increase of 58%. This suggests that there was a large proportion of "unmeritorious" appeals reaching the High Courts during the Ntuli period. The number of appeals dismissed by the High Courts then declined from the high point of 1 427 in 1998/99 to a constant of around 1 200 per year during the remainder of the review period.

The graph shown in Figure 7 relates to the trend in appeals upheld or partly upheld. The graph shows that the number of appeals upheld also increased during the Ntuli period, then declined during the period when the filtering mechanism was in place, and then increased dramatically during the Steyn period (i.e. from 474 to 770, being an increase of 62%).

It may be of interest to compare the proportion of appeals dismissed and the proportion upheld or partly upheld during the eight-year period under review. This can be seen in the table below. The information is also given graphically in Figure 8 below. A comparison of this nature allows one to consider whether appeals may have been more worthy or less worthy during the different periods.

Figure 8 shows that there was a clear increase in the proportion of appeals dismissed toward the end of the Ntuli period, and during the period when a filtering mechanism was in place. The proportion dismissed then started to decrease just before the Steyn period, and continued to decrease during the Steyn period.

The proportion upheld or partly upheld decreased somewhat during the Ntuli period, increased toward the end of the Ntuli period and then increased again during the Steyn period.

This report has presented information on appeals relating to the four distinct periods that can be identified during the past few years. The information was obtained from the Department’s Annual Return and from the special survey of the High Courts.

While the numbers of appeals being entered by the lower courts increased dramatically following the Steyn ruling, the existing High Courts have reached a plateau in terms of the numbers they are able to deal with. This has been shown by the stabilisation in the number of cases dealt with and the increasing numbers pending. The number of cases pending indicates the backlog of cases.

Furthermore, the information for the four periods under review indicates that the different rulings did have an impact on the number of appeals received by the High Courts, with an increase evident during the Ntuli period, and a further increase recorded during the Steyn period.