"(2) (a) The application must be heard by the magistrate whose decision or order is the subject of the prospective appeal: Provided that—

(b) Notice must be given to the Director of Public Prosecutions concerned and the accused of the date fixed for the hearing of the application.".

CPA 9E: (Judge President, High Court: Grahamstown)

Replace the words "the application" at end of section 309B(2)(a)(ii) with "an application heard by such other magistrate" so as to make it clear that the subparagraph applies to an application heard by another magistrate as the one whose order or decision is the subject of the proposed appeal.

CPA 9K: (Chief Magistrate: Durban)

Since the Constitutional Court remarked that the risk of an error leading to an injustice is substantially greater in the magistrates' courts than in the High Courts and since no distinction was drawn between regional and districts courts, the provisions of the second proviso in subparagraph (ii) (and section 309C(6)(b)) are not supported.

CPA 12: (National Director of Public Prosecutions)

(i) One may in principle differentiate between judgments in the district and regional courts "in that 'the risk of an error leading to an injustice is substantially greater in the' district courts than in the regional courts,". Directives issued by the NDPP are aimed at prosecuting the most serious offences in the regional court and the less serious offences in the district court. However, for practical reasons and various other considerations, it is not always possible to adhere to these directives and it happens frequently that accused who are supposed to appear in the district court are tried in the regional court and vice versa. Such a differentiation may discriminate against accused persons who have been convicted in the regional court. The proviso in subparagraph (ii) should be deleted.

(ii) With regard to paragraph (b) it has been pointed out that it is not necessary to give notice to the Director of Public Prosecutions personally. The requirement will lead to additional administrative work in the office of the DPP such as opening files and informing the Senior Public Prosecutor. The following is proposed:

"(3) Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused desires to appeal: Provided that if the accused applies verbally for such leave immediately after the passing of the decision or order, he or she must state such grounds and they must be taken down in writing and form part of the record.".

CPA 18: (Judge President, High Court: Durban)

For purposes of accuracy, change the word "verbally" in the proviso to "orally".

"(5) Any evidence received in pursuance of an application for leave to appeal under subsection (1), must for the purposes of an appeal be deemed to be evidence taken or admitted at the trial.".

CPA 9E: (Judge President, High Court: Grahamstown)

It is recommended that subsection (5) should be amended to provide for the views of the presiding officer, who hears further evidence, regarding the acceptability of the evidence or credibility of witnesses.

"(3) When receiving notice of a petition as contemplated in subsection (2), the clerk of the court must without delay submit to the registrar of the court of appeal copies of—

(c) the magistrate's reasons for refusal of the application.".

With regard to the requirement contained in paragraph (b) it is pointed out that where a petition is directed only against the sentence the complete case record may become less necessary in order to consider the relevant petition. It is recommended that such distinction should be provided for.

CPA 9F: (Regional Court President: Pretoria)

(i) The petition procedure is still open to abuse. The majority of applications for leave to appeal relate to sentences that are "older than one or two years", are made by prisoners who become tired of prison and who are then advised to appeal. Paragraph (b) should be amended to provide that in those cases where accused persons are out of time in bringing their applications the submission of copies of the judgments and reasons for sentence only will be sufficient. (Subsection (5)(a) should accordingly be amended to clarify that judges may request the full record.)

(ii) Clerks sometimes interpret "judgment" to mean "reasons for conviction" which excludes the "reasons for sentence". Subsection (3)(b) should be amended to clarify the relevant requirement.

CPA 9H: (Regional Court President: Johannesburg)

The record of proceedings should in all cases be placed before the judges considering the petition. The Constitutional Court pointed out that the advantage of an automatic right of appeal is that the court of appeal is furnished with the entire case record.

(i) It is doubted whether the section 309C procedure will provide a filtering mechanism. The High Courts will still be flooded with "spurious" petitions. The reason for this is that should leave be refused the accused may petition the Judge President concerned. Subsection (3)(b) obliges the clerk of the court to prepare a case record, the preparation of which is at state expense. It is pointed out that an accused person will "take advantage of this free petition to his JP, regardless of whether he has a good case or not".

(ii) The opinion is expressed that the only manner in which to control this potential abuse is to stipulate that the petitioner must provide the transcribed record. A provision of this nature will be controversial. Such a requirement will make it difficult for an indigent petitioner to exercise his or her right of appeal. However, in S v Twala 2000(1) SA 879, paragraph [21], the court rejected this argument relating to indigent petitioners in respect of High Court trials. It is recommended that paragraph (b) should be amended to provide for the reimbursement of a petitioner if he or she is successful in the relevant application.

CPA 18: (Judge President, High Court: Durban)

Strongly opposes the proviso in subsection (3)(b) for the following reasons—

The retention of the proviso will have a minimal effect on savings and will cause an unnecessarily delay in the adjudication of petitions because judges will "as a matter of invariable practice" request records of proceedings under subsection (5)(a). It should also be noted that the Constitutional Court did not draw any distinction between district and regional courts. Statements of the Court in paragraphs 12, 18 and 19 to 22 apply to Magistrate's Courts in general.

"(4) (a) A petition contemplated in this section must be considered in chambers by two judges designated by the Judge President.

(b) If the judges referred to in paragraph (a) differ in opinion, the petition must also be considered by the Judge President or by any other judge designated by the Judge President.".

The question is raised, based on the number of expected petitions, whether a petition should not be disposed of by a single judge (similar to reviews). However, a petition to the Supreme Court of Appeal is considered by two judges and a second judge at High Court level "would be an additional insurance;".

CPA 18: (Judge President, High Court: Durban)

The principle that the application should be referred to a third judge if the two judges considering the petition cannot agree whether leave should be granted or not, is not supported. It should be sufficient if one judge is of the view that leave to appeal should be granted. "The consideration of the petition should not be elevated to a full-scale enquiry into the merits of the appeal itself.".

"(5) The judges considering the petition may−

CPA 9C: (Acting President: Supreme Court of Appeal)

The purpose of section 309C(5)(d) is questioned in view of the provisions of subsection (5)(b) in terms of which the judges who consider the petition may order that the application be argued before them. The question is raised why the judges would want to refer it to the court of appeal.

CPA 9E: (Judge President, High Court: Grahamstown)

Subsection (5)(a) to (d) must be read disjunctively. The word "and" at end of paragraph (c) should be replaced with the word "or".

CPA 9F: (Regional Court President: Pretoria)

Subsection (5)(c)(i) should be amended to make it clear that where a petition for condonation is accompanied by an application for leave to appeal, the judges may immediately consider the merits of the application for leave to appeal if condonation is granted.

CPA 9H: (Regional Court President: Johannesburg)

The Constitutional Court emphasised the value that oral argument may have in an appeal. The right to address the judges should not be limited to the discretion of the judges concerned. It is recommended that an "absolute right to oral argument" should be provided for.

The majority of the commentators supported the Bill.

CPA 9B (Judge President, High Court: Bloemfontein)

Supports the Bill. The most cost effective approach will be to have the filtering mechanism at lower court level.

CPA 9D (Judge President, High Court: Umtata)

Supports the Bill. Provisions of the Bill provide a framework that is conducive to fairness when applications for leave are considered on petition to the High Court.

CPA 9G (Acting Regional Court President: Port Elizabeth)

Does not support the Bill and expressed the view that the proposed discretionary power of a magistrate to refuse an application for leave to appeal is still a limitation on the constitutional right of appeal.

Does not support the Bill and is of the view that the automatic right of appeal should be retained.

Does not support proposed amendments. The procedure is still highly restrictive. The Constitutional guarantee of fairness is qualified and becomes subject to the subjective views of the presiding officer.

Does not support proposed amendments.

Submission of the record of proceedings will not address the concern of the Constitutional Court, namely, the inability of accused persons to properly formulate an application for leave to appeal. There is no "sound basis" to draw a distinction between represented and unrepresented accused persons because "the quality of representation in the Magistrate's Courts generally has often proved to be substandard". It is doubted whether proposed amendments will reduce number of unmeritorious appeals and is considered not to be in the interests of the administration of justice.

The Constitutional Court pointed out that—

* the procedure contained in sections 309B and 309C is in conflict with section 35(3)(o) of the Constitution because it does not provide for a full record of proceedings to be placed before the High Court when the petition is considered;

* it is questioned whether a "meaningful reappraisal and the making of an informed decision by a higher court" can take place if the appeal is not argued orally before the high court.

The Judge President pointed out that it is not regarded as unconstitutional for an accused to conduct his or her own defence throughout a trial. It is difficult to understand why the procedure should be regarded as unconstitutional if the accused is then required to draft the grounds of appeal or a petition for leave to appeal. It is a matter of practice in the Judge President’s division that judges who grant petitions for leave to appeal will state the "grounds upon which they consider that such leave is appropriate, regardless of whether those grounds are set out in the notice of appeal and/or the petition.".

It is not appropriate to place too much emphasis on the drafting or content of the notice of appeal or the petition in order to determine the constitutionality of the appeal procedure.

The Steyn judgment suggests that the procedure may not comply with the Constitution because the decision as to whether leave to appeal should be granted may be taken in the absence of oral argument.

It is pointed out that the decision as to whether leave to appeal should be granted should not be too easily equated to a decision of the appeal on the merits. The appeal itself is based on a "very lenient test of the merits". Leave to appeal, on the other hand, is often granted on the basis that the question raised is "arguable".

The National Director of Public Prosecutions is of the view that " the Portfolio Committee should consider a procedure in terms of which the High Court is involved, but which a swift procedure. With the limited time available and without having time to consider all the consequential amendments, the following provision is proposed:"