REPUBLIC OF SOUTH AFRICA

WORKING DOCUMENT

(26 May 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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Hd050503

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 the procedures relating to 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] as contemplated in section 309B or 309C.".

Section 309(2) (for reference purposes)

(2) An appeal under this section shall be noted and prosecuted within the period and in the manner prescribed by the rules of court: Provided that the magistrate against whose decision or order the appeal is to be noted, or if he or she is unavailable any other magistrate of the court concerned, may on application and on good cause shown, extend such period.

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 or order, including a conviction or resultant sentence, 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

(i) if [that] the trial 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 hearing the application may, if he or she deems it necessary in order to decide the application, request the full record of the proceedings before the trial magistrate.

(b) Notice of the date fixed for the hearing of the application 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) An application for leave to appeal in terms of subsection (1) must be heard by the magistrate whose decision or order is the subject of the prospective appeal (hereinafter referred to as the trial magistrate): Provided that if the trial magistrate is not available, 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 of the date fixed for the hearing of the application must be given to the Director of Public Prosecutions concerned, or to a person designated thereto by him or her, and the accused.

Option 3:

(b) If the application is to be heard by a magistrate, other than the trial magistrate—

(i) of a district court, the clerk of the court must submit a copy of the record of the proceedings before the trial magistrate to the magistrate hearing the application; or

(ii) of a regional court, the clerk of the court must submit a copy of the judgment of the trial magistrate, including the reasons for the conviction or sentence in respect of which the application is made, to the magistrate hearing the application: Provided that the magistrate hearing the application may, if he or she deems it necessary in order to decide the application, request the full record of the proceedings before the trial magistrate.

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

(3) (a) Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused desires to appeal.

(b) [Provided that if] 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] which must be recorded 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—

(i) may receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by the prosecutor and evidence called by the court; and

(ii) must record its findings or views with regard to that evidence, including the cogency and the sufficiency of the evidence, and the credibility of any witness.

(5) Any evidence received [in pursuance of an application for leave to appeal under subsection (1), must] under subsection (4) shall for the purposes of an appeal be deemed to be evidence taken or admitted at the trial in question.

(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.]

(1) For the purposes of this section—

(a) a petition may consist of any application—

(i) for the extension of the period referred to in section 309B(1), 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 for leave to appeal);

(ii) for the extension of the period within which a petition must be made in terms of subsection (2)(b) (hereinafter referred to as an application for condonation for leave to petition);

(iii) for leave to call further evidence as contemplated in section 309B(4) (hereinafter referred to as an application for further evidence); or

(iv) for leave to appeal in terms of section 309B(1) (hereinafter referred to as an application for leave to appeal); and

(b) one or more of such applications should, as far as is possible, be contained in the same petition.

(2) (a) If any application—

(i) for condonation for leave to appeal;

(ii) for further evidence; or

(iii) for leave to appeal,

is refused, the accused may by petition apply to the Judge President of the High Court having jurisdiction to grant any one or more of the applications in question.

(b) Any petition referred to in paragraph (a) must be made within 21 days after the application in question was refused, or within such extended period as the Judge President may on good cause allow.

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

Option 1

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

the application [concerned] that was refused;

the record of the proceedings in the magistrate’s court in respect of which the application was made; and

the magistrate’s reasons for refusal of the application.

Option 2

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

(a) the application [concerned] that was refused;

(b) the judgment, which includes the reasons for conviction and sentence, which shall, subject to subsection (6)(a), suffice for purposes of the petition; and

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

Option 3

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

(a) the application [concerned] that was refused;

(b) the record of the proceedings in the magistrate's court in respect of which the application was made: Provided that─

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

(ii) if the prospective appeal 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 (6)(a), suffice for the purposes of the petition; and

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

(5) (a) A petition contemplated in this section must be considered in chambers by [two judges] a judge designated by the Judge President: Provided that the Judge President may, in exceptional circumstances, at any stage designate two judges to consider such petition.

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

(c) For the purposes of paragraph (b) any decision of the majority of the judges considering the petition, shall be deemed to be the decision of all three.

(6) The judge or judges, as the case may be, 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 (4)(b), from the magistrate who heard the application for condonation for leave to appeal 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) in exceptional circumstances, order that the application or applications in question or any of them be argued before him, her or them at a time and place appointed by him, her or them.

[(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; (and??)

(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).]

(7) The judge or judges, as the case may be, may, whether he, she or they have acted under subsection (6)(a) or (b) or not—

(a) in the case of an application for condonation for leave to petition or an application for condonation for leave to appeal or both such applications, grant or refuse the application or applications, and if the application or applications are granted—

(i) direct that an application for leave to appeal must be made, within the period fixed by him, her or them, to the court referred to in section 309B(1); or

(ii) if he, she or they deem it expedient, direct that an application for leave to appeal must be submitted under subsection (2) within the period fixed by him, her or them as if it had been refused by the court referred to in section 309B(1);

in the case of an application for leave to call for further evidence¾

grant or refuse the application; or

(ii) if he, she or they are of the opinion that the court referred to in section 309B(1) should have granted the application for further evidence or, in the case where it has granted the application for leave to appeal but has refused leave to call for further evidence, he, she or they may, before deciding upon ~~the~~ any application for leave to appeal, 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); or

(c) in the case of an application for leave to appeal, grant [or refuse] the application, if he, she or they are of the opinion that the application for leave to appeal should have been granted.

(8) The judge or judges, as the case may be, must, in the case of one or more of the applications in subsection (7)(a) to (c) being made in one petition, as far as is possible, immediately and simultaneously dispose thereof.

(9) Notice of the date fixed for the hearing of an application under this section, and of any place appointed under subsection (6) for any hearing 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 (6) for any hearing].".

Substitution 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. The following section is substituted for section 316 of the principal Act:

Applications for condonation, for leave to appeal and for leave to lead further evidence

316. [(1) An accused convicted of any offence before a superior court may, within a period of fourteen days of the passing of any sentence as a result of such conviction or within such extended period as may on application (in this section referred to as an application for condonation) on good cause allowed, apply¾

(a) …

(b) if the conviction was by any other court, to the judge who presided at the trial or if he is not available or, if in the case of a conviction before a circuit court the said court is not sitting, to any other judge of the provincial or local division of which the aforesaid judge was a member when he so presided,

for leave to appeal against his conviction or against any sentence or order following thereon (in this section referred to as an application for leave to appeal), and an accused convicted of any offence before any court on a plea of guilty may, within the same period, apply for leave to appeal against any sentence or any order following thereon.]

(1) (a) An accused convicted of any offence before a superior court may, within a period of 14 days of the passing of any sentence as a result of such conviction or within such extended period as may on application (in this section referred to as an application for condonation) on good cause be allowed, apply to that court for leave to appeal against his or her conviction or against any sentence or order following thereon (in this section referred to as an application for leave to appeal).

(b) An accused convicted of any offence before any court on a plea of guilty may, within the same period contemplated in paragraph (a), apply for leave to appeal against any sentence or any order following thereon.

(2) (a) An application for leave to appeal in terms of subsection (1) must be heard by the judge whose decision or order is the subject of the prospective appeal (hereinafter referred to as the trial judge): Provided that—

(i) if the trial judge is unavailable; or

(ii) if in the case of a conviction before a circuit court the said court is not in sitting,

the application may be heard, on receipt form the registrar of the court of the record of the proceedings before the trial judge, by any other judge of the High 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.

(1A) (a) No appeal shall lie against the judgment or order of a full court given on appeal to it in terms of section 315(3), except with the special leave of the [Appellate Division] Supreme Court of Appeal on application made to it by the accused or, where a full court has for the purposes of such judgment or order given a decision in favour of the accused on a question of law, on application on the grounds of such decision made to that division by the [attorney-general] Director of Public Prosecutions or other prosecutor against whom the decision was given.

(b) An application to the [Appellate Division] Supreme Court of Appeal under paragraph (a) shall be submitted by petition addressed to the [Chief Justice] Judge President of the Supreme Court of Appeal within 21 days, or such extended period as may on application by petition so addressed on good cause be allowed, after the judgment or order against which appeal is to be made was given.

(c) The accused or [attorney-general] Director of Public Prosecutions or other prosecutor shall, when submitting in accordance with paragraph (b) the application for special leave to appeal, at the same time give written notice that this has been done to the registrar of the court against whose decision he wishes to appeal, and thereupon such registrar shall forward a certified copy of the record prepared in terms of subsection (5) for the purposes of such judgment or order, and of the reasons for such judgment or order, to the registrar of the [Appellate Division] Supreme Court Appeal.

(d) The provisions of subsections (2), (7), (8) and (9) shall apply mutatis mutandis with reference to any application and petition contemplated in paragraph (b) of this subsection.

(e) Upon an appeal under this subsection the provisions of section 322 shall apply mutatis mutandis with reference to the powers of the [Appellate Division] Supreme Court of Appeal.

(2) (a) Every application for leave to appeal shall set forth clearly and specifically the grounds upon which the accused desires to appeal.

(b) [Provided that if] If the accused applies [verbally] orally for such leave immediately after the passing of the sentence, he [shall] or she must state such grounds [and they shall be taken down in writing], which must be recorded and form part of the record.

(3) When in any application under subsection (1) for leave to appeal it is shown by affidavit¾

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

(b) that if accepted the evidence could reasonably lead to a different verdict or sentence; and

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

the court hearing the application¾

(i) may receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by the prosecutor and evidence called by the court, and

(ii) must record its findings or views with regard to that evidence, including the cogency and the sufficiency of the evidence, and the credibility of any witness.

(4) Any evidence received [in pursuance of an application under subsection (1) for leave to appeal,] under subsection (3) shall for the purposes of an appeal be deemed to be evidence taken or admitted at the trial in question.

(5) (a) If an application under subsection (1) for leave to appeal is granted and the appeal is not under section 315(3) to be heard by the full court of the [provincial or local division] High Court from which the appeal is made, the registrar of the court granting such application shall cause notice to be given accordingly to the registrar of the court of appeal without delay, and shall cause to be transmitted to the said registrar a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the [attorney-general] Director of Public Prosecutions, copies (one of which shall be certified) may be transmitted of such parts of the record as may be agreed upon by the [attorney-general] Director of Public Prosecutions and the accused to be sufficient, in which event the court of appeal may nevertheless call for the production of the whole record.

(b) If an application under subsection (1) for leave to appeal is granted and the appeal is under section 315(3) to be heard by the full court of the [provincial or local division] High Court from which the appeal is made, the registrar shall without delay prepare a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the [attorney-general] Director of Public Prosecutions, copies (one of which shall be certified) may be prepared of such parts of the record as may be agreed upon by the [attorney-general] Director of Public Prosecutions and the accused to be sufficient, in which event the court of appeal may nevertheless call for the production of the whole record.

[(6) If an application under subsection (1) for condonation or leave to appeal is refused or if in any application for leave to appeal an application for leave to call further evidence is refused, the accused may, within a period of twenty-one days of such refusal, or within such extended period as may on good cause be allowed, by petition addressed to the Chief Justice submit his application for condonation or for leave to appeal or his application for leave to call further evidence, or all such applications, as the case may be, to the Appellate Division, at the same time giving written notice that this has been done to the registrar of the provincial or local division (other than a circuit court) within whose area of jurisdiction the trial took place, and of which the judge who presided at the trial was a member when he so presided, and such registrar shall forward to the Appellate Division a copy of the application or applications in question and of the reasons for refusing such application or applications.]

(6) For the purposes of subsections (7) to (14)—

(a) a petition may consist of any application—

(i) for an extension of the period referred to in subsection (1)(hereinafter referred to as an application for condonation for leave to appeal);

(ii) for the extension of the period within which a petition must be made in terms of subsection (7)(b)(hereinafter referred to as an application for condonation for leave to petition);

(iii) for leave to call further evidence (hereinafter referred to as an application for further evidence); or

(iv) for leave to appeal in terms of subsection (1)(hereinafter referred to as an application for leave to appeal); and

(b) one or more of such applications should, as far as is possible, be contained in the same petition.

(7) (a) If any application—

(i) for condonation for leave to appeal;

(ii) for further evidence; or

(iii) for leave to appeal,

is refused, the accused may by petition apply to the Judge President of the Supreme Court of Appeal to grant any one or more of the applications in question.

(b) Any petition referred to in paragraph (a) must be made within 21 days after the application in question was refused, or within such extended period as the Judge President of the Supreme Court of Appeal may on good cause allow.

(8) An accused who submits a petition as contemplated in subsection (7) must at the same time give written notice thereof to the registrar of the High Court (other than a circuit court) within whose area of jurisdiction the trial took place, and of which the judge who presided at the trial was a member when he or she so presided.

(9) When receiving notice of a petition as contemplated in subsection (8), the registrar shall forward to the Supreme Court of Appeal copies of the—

(a) application or applications that were refused; and

(b) the reasons for refusing such application or applications.

[(7)](10) (a) The petition [shall] contemplated in subsection (8) must be considered in chambers by two judges of the [Appellate Division] Supreme Court of Appeal designated by the [Chief Justice] Judge President of the Supreme Court of Appeal.

(b) If the judges differ in opinion, the petition shall also be considered in chambers by the [Chief Justice] Judge President of the Supreme Court of Appeal or by any other judge of the [Appellate Division to whom it has been referred] Supreme Court of Appeal designated by the [Chief Justice] Judge President concerned.

(c) For the purposes of paragraph (b) any decision of the majority of the judges considering the petition, shall be deemed to be the decision of all three.

[(8)](11) The judges considering the petition may—

(a) call for any further information, including a copy of the full record of the proceedings before the trial judge if such copy was not submitted in terms of subsection (9), from the judge who heard the application for condonation for leave to appeal or the application for leave to appeal or the application for leave to call further evidence, or from the judge who presided at the trial to which any such application relates;

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

[(c) whether they have 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 shall be made, within the period fixed by them, to the court or judge referred to in subsection (1) or, if they deem it expedient, that an application for leave to appeal shall be submitted under subsection (6) within the period fixed by them as if it had been refused by the court or judge referred to in subsection (1);

(ii) in the case of an application for leave to appeal or an application for leave to call further evidence, grant or refuse the application or, if they are of the opinion that the application for leave to call further evidence should have been granted, they may, before deciding upon the application for leave to appeal, or, in the case where the court or judge referred to in subsection (1) has granted the application for leave to appeal but has refused leave to call further evidence, set aside the refusal of the said court or judge to grant leave to call further evidence and remit the matter in order that further evidence may be received in accordance with the provisions of subsection (3); or

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

(12) The judges may, whether they have acted under subsection (11)(a) or (b) or not—

(i) direct that an application for leave to appeal must be made, within the period fixed by them, to the court or judge referred to in subsection (1); or

(ii) if they deem it expedient, direct that an application for leave to appeal must be submitted under subsection (7) within the period fixed by them as if it had been refused by the court or judge referred to in subsection (1);

(b) in the case of an application for leave to call for further evidence¾

(i) grant or refuse the application; or

(ii) if they are of the opinion that the court or judge referred to in subsection (1) should have granted the application for further evidence or, in the case where the court or judge referred to in subsection (1) has granted the application for leave to appeal but has refused leave to call for further evidence, they may, before deciding upon any application for leave to appeal, set aside the refusal of the said court or judge 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 subsection (3); or

(c) in the case of an application for leave to appeal, grant the application, if they are of the opinion that the application for leave to appeal should have been granted.

(13) The judges must, in the case of one or more of the applications in subsection (12)(a) to (c) being made in one petition, as far as is possible, immediately and simultaneously dispose thereof.

[(9)](14) [(a)] The decision of the [Appellate Division] Supreme Court of Appeal or of the judges thereof considering the petition, as the case may be, to grant or refuse any application, shall be final.

[(b) For the purposes of subsection (7) any decision of the majority of the judges considering the petition, shall be deemed to be the decision of all three.]

[(10)](15) Notice [shall] of the date fixed for the hearing of any application under this section, and of any place appointed under subsection (8) for any hearing must be given to the [attorney-general] Director of Public Prosecutions concerned and the accused [of the date fixed for the hearing of any application under this section, and of any place appointed under subsection (8) for any hearing].

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, 2003, and comes into operation on 1 November 2003 or any such earlier date as determined by the President by proclamation in the Gazette.