REPUBLIC OF SOUTH AFRICA

WORKING DOCUMENT

(07/04/2003)

CRIMINAL PROCEDURE AMENDMENT BILL

 

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(As introduced in the National Assembly as a section 75 Bill; explanatory summary of Bill published in the Government Gazette No. 23848 of 18 September 2002) (The English text is the official text of the Bill)

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B57 - 2002]

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Hd110303

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

___________ Words underlined with a solid line indicate insertions in existing enactments.

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B I L L

 

To amend the Criminal Procedure Act, 1977, so as to further regulate appeals against decisions of lower courts; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:−

Amendment of section 309 of Act 51 of 1977, as amended by section 17 of Act 105 of 1982, section 8 of Act 107 of 1990, section 51 of Act 129 of 1993, section 13 of Act 75 of 1995, section 2 of Act 33 of 1997, section 2 of Act 76 of 1997 and section 38 of Act 105 of 1997

1. Section 309 of the Criminal Procedure Act, 1977 (hereinafter referred to as the principal Act), is amended in subsection (1) by the substitution for paragraph (a) of the following paragraph:

"(a) Any person convicted of any offence by any lower court (including a person discharged after conviction) may[, subject to section 309B,] apply for leave to appeal against such conviction and against any resultant sentence or order [to the provincial or local division having jurisdiction] contemplated in section 309B or 309C.".

Substitution of sections 309B and 309C of Act 51 of 1977

2. The following sections are substituted for sections 309B and 309C of the principal Act, respectively:

"Application for leave to appeal

309B (1) An accused who wishes to appeal against any decision, including a conviction or resultant sentence, or order of a lower court must, within 14 days or within such extended period as may be allowed on application and on good cause shown, apply to that court for leave to appeal against the decision or order.

Option 1

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

(i) if that magistrate is unavailable, the application may be heard, on receipt from the clerk of the court of a copy of the record of the proceedings before the trial magistrate, by any other magistrate of the court concerned, to whom it is assigned for hearing; and

(ii) where the accused was tried in a regional court and was legally represented at the trial, a copy of the judgment, which includes the reasons for conviction and sentence shall suffice for the purpose of the an application heard by such other magistrate of the court concerned: Provided further that the magistrate concerned may request a copy of the record of the proceedings before the trial magistrate.

(b) Notice must be given to the Director of Public Prosecutions concerned, or to a person designated thereto by him or her, and the accused of the date fixed for the hearing of the application.

Option 2

(2) (a) The application must be heard by the magistrate whose decision or order is the subject of the prospective appeal: Provided that if that magistrate is unavailable, the application may be heard, on receipt from the clerk of the court of a copy of the record of the proceedings before the trial magistrate, by any other magistrate of the court concerned, to whom it is assigned for hearing.

(b) Notice must be given to the Director of Public Prosecutions concerned, or to a person designated thereto by him or her, and the accused of the date fixed for the hearing of the application.

(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 orally 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.

(4) When in any application for leave to appeal under subsection (1) it is shown by affidavit that—

(a) further evidence which would presumably be accepted as true, is available;

(b) if accepted the evidence could reasonably lead to a different decision or order; and

(c) save in exceptional cases, there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial,

the court hearing the application may receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by the prosecutor and evidence called by the court.

(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 and the court which receives such evidence as contemplated in subsection (4) must record its views with regard to the evidence, including the cogency and the acceptability of the evidence, or the credibility of any witness.

(6) (a) If an application for leave to appeal under subsection (1) is granted, the clerk of the court must, in accordance with the rules of the court, transmit copies of the record and of all relevant documents to the registrar of the court of appeal.

(b) If an application for leave to appeal under subsection (1) is refused, the magistrate must immediately after refusing such application record his or her reasons for such refusal.

Petition procedure

309C. (1) If an application for leave to appeal under section 309B(1) or for an extension of the period referred to in that subsection or for the extension of the period within which an appeal must be noted in terms of section 309(2) (hereinafter referred to as an application for condonation), or an application to call further evidence as contemplated in section 309B(4), is refused, the accused may, within 21 days of such refusal or within such extended period as may on good cause be allowed, by petition addressed to the Judge President of the High Court having jurisdiction, submit an application for leave to appeal or for condonation or for leave to call further evidence, or all such applications, as the case may be.

(2) An accused who submits a petition as contemplated in subsection (1) must at the same time give notice thereof to the clerk of the magistrate's court where the application was refused.

Option 1

(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─

    1. the application concerned;
    2. the record of the proceedings in the magistrate’s court; and
    3. the magistrate’s reasons for refusal of the application.

Option 2

(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─

(a) the application concerned;

(b) the judgment, which includes the reasons for conviction and sentence, shall, subject to subsection (5)(a), suffice for purposes of the petition; and

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

Option 3

(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—

(a) the application concerned;

(b) the record of the proceedings in the magistrate's court: Provided that─

(i) where the accused was tried in a regional court and was legally represented at the trial;

(ii) if the application is against the sentence only; or

(iii) in the case of an application for condonation,

a copy of the judgment, which includes the reasons for conviction and sentence, shall, subject to subsection (5)(a), suffice for the purposes of the petition; and

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

(4) (a) A petition contemplated in this section must be considered in chambers by two judges a judge 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.

(5) The judges judge considering the petition may−

(a) call for any further information, including a copy of the record of proceedings before the trial magistrate if such copy was not submitted in terms of subsection (3)(b), from the magistrate who heard the application for condonation or the application for leave to appeal or the application for leave to call for further evidence, or from the magistrate who presided at the trial to which any such application relates;

(b) order that the application or applications in question or any of them be argued before them him or her at a time and place appointed by them him or her;

(c) whether they he or she have has acted under paragraph (a) or (b) or not−

(i) in the case of an application for condonation, grant or refuse the application and, if the application is granted, direct that an application for leave to appeal must be made, within the period fixed by them him or her, to the court referred to in section 309B(1) or, if they deem he or she deems it expedient, that an application for leave to appeal must be submitted under subsection (1) within the period fixed by them him or her as if it had been refused by the court referred to in section 309B(1);

(ii) in the case of an application for condonation which is accompanied by an application for leave to appeal, grant or refuse the application for condonation: Provided that if the application for condonation is granted he or she may immediately decide upon the application for leave to appeal;

(iii) in the case of an application for leave to appeal or an application for leave to call for further evidence, grant or refuse the application or, if they are he or she is of the opinion that the application for leave to call for further evidence should have been granted, they he or she may, before deciding upon the application for leave to appeal, or, in the case where the court referred to in section 309B(1) has granted the application for leave to appeal but has refused leave to call for further evidence, set aside the refusal of the said court to grant leave to call for further evidence and remit the matter in order that further evidence may be received in accordance with the provisions of section 309B(4); and or

[(d) refer the matter to the court of appeal for consideration, whether upon argument or otherwise, and that court may thereupon deal with the matter in any manner referred to in paragraph (c).]

(6) Notice must be given to the Director of Public Prosecutions concerned[, or to a person designated thereto by him or her,] and the accused of the date fixed for the hearing of an application under this section, and of any place appointed under subsection (5) for any hearing.".

Amendment of section 316 of Act 51 of 1977 as amended by section 21 of Act 105 of 1982, section 15 of Act 26 of 1987 and section 12 of Act 62 of 2000

3. Section 316 of the principal Act is amended by substitution for subsection (4) of the following subsection:

"(4) Any evidence received in pursuance of an application under subsection (1) for leave to appeal, shall for the purposes of an appeal be deemed to be evidence taken or admitted at the trial and the court which receives such evidence as contemplated in subsection (3) must record its views with regard to the evidence, including the cogency and the acceptability of the evidence, or the credibility of any witness.".

Transitional arrangements

4. The provisions of this Act shall apply in respect of any person who is convicted of any offence by any lower court on or after the date of implementation of this Act.

 

Short title and commencement

5. This Act is called the Criminal Procedure Amendment Act, 2002 2003, and comes into operation on 1 September 2003 or any such earlier a date as determined by the President by proclamation in the Gazette.