Recent Case: Criminal procedure
Jurisdiction | South Africa |
Published date | 27 May 2019 |
Date | 27 May 2019 |
Pages | 314-353 |
Author | Michael Cowling |
Citation | (2008) 21 SACJ 314 |
Criminal procedure
MICHAEL COWLING
University of KwaZulu-Natal
Appeal — application to admit new evidence
Rule 31 of the Rules of the Constitutional Court permits the introduction
of new documents or facts that do not form part of the trial record on
appeal provided such documents are common cause or incontrovert-
ible. This Rule has been extended in terms of Rule 31(1)(b) to include
any information that is either of an of ficial or technical, scientific or
314 SACJ . (2008) 3
(2008) 21 SACJ 314
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statistical nature that is capable of easy identification. It is clear from
the general tone of this provision that the only new evidence which
may be admitted at the appeal stage is evidence that is not likely to be
disputed in any way. On the other hand, Rule 30 confers the discretion
on an appeal court to admit new evidence, although this discretion
should be sparingly used and only in exceptional circumstances. This
admission should also be subject to a reasonable explanation for its
late introduction.
In S v Shaik 2008 (1) SACR 1 (CC) the appellant (who had been con-
victed of various counts of fraud and corruption) attempted to intro-
duce for the first time a whole series of documents relating to another
trial that was linked to the Shaik case. However, the Constitutional
Court dismissed this application on the basis that this evidence was
either irrelevant or was disputed by the State and therefore it would
not be appropriate to introduce it at this stage.
Of interest from a legal perspective in this respect is the fact that the
reason advanced on behalf of the appellant was that some of the affida-
vits and documents in question were only filed a few months prior to
the criminal appeal before the Supreme Court of Appeal and hence his
legal representative did not have sufficient time to thoroughly examine
the said papers. Although on the face of it this would seem to provide
a reasonable explanation for late filing the Court did not even consider
this aspect. Instead it merely emphasised the lack of relevance and the
disputed nature of the documents.
Appeal — application for leave to execute order pending
appeal
The International Co-operation in Criminal Matters Act 75 of 1996 was
designed in order to facilitate the obtaining of evidence and conducting
of investigations across international boundaries. The process involves
the sending of letters of request between two or more states. Ordinar-
ily this should be a simple, expeditious and speedy procedure but in
NDPP v Zuma 2008 (1) SACR 243 (D&CLD) the whole process became
bogged down in a sea of legal technicalities. This was because s 2(2)
of the Act requires the authorisation of a judicial officer and, when this
was granted in Zuma’s case the accused immediately challenged such
authorisation by taking it on appeal.
As a result, the NDPP brought an application seeking leave to execute
the order pending the appeal. The Court noted that Rule 49(11) of the
Uniform Rules of Cour t stipulate that a court has a fairly wide discre-
tion to make such an order provided there is no risk of ir reparable
harm to any of the parties as well as to the interests of justice.
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The Court emphasised that undue delay in the criminal process
should be avoided at all costs and the granting of the application
would reduce delay. On the other hand, the question of damage to
the accused’s reputation as a result of this request was not considered
by the Court to be a relevant factor. With regard to the effect that this
order would have on the subsequent appeal the Court held that this
could be cured by ordering that the documents in question should
be kept by the registrar or High Commissioner in Mauritius pending
the outcome of the appeal. This would save time if the appeal was
ultimately dismissed.
Appeal — reservation of question of law
The Criminal Procedure Act 51 of 1977 provides for three avenues by
which an accused can appeal from a conviction in the High Cour t to
the Supreme Court of Appeal (SCA). The first (and most common) is
in terms of s 316 of the Act, which allows for an appeal (in general
terms) against any conviction. It does not make any difference whether
this is an appeal against any finding of fact or question of law. The
second route is by way of an application for a special entry on the
record alleging an irregularity in the proceedings in terms of s 317.
In the third instance an accused can also utilise s 319 which pertains
to a reser vation of a point of law. These dif ferent provisions are all
interrelated which means that it is necessary to define and delimit each
one of these procedures in order to eliminate overlapping and the risk
of contradictions.
This is the type of situation that arose in S v Dawlatt 2008 (1) SACR
35 (N) where the accused had been convicted of being an accomplice
to the crime of robbery with aggravating circumstances and an ac-
cessory after the fact to murder by the High Court. Subsequent to
this conviction the accused was refused leave to appeal against the
conviction. He thereafter applied to the SCA for leave to appeal but
this application was dismissed by the latter. Some four years later while
the accused was pursuing an appeal against sentence (leave in respect
of which had been granted by the trial court) the accused applied to
the High Court for condonation and reservation of a question of law
in terms of s 319 of the Criminal Procedure Act. This question of law
pertained to the fact that the charge of robbery related to a motor
vehicle that had already been stolen and therefore the person from
whom it was allegedly stolen was not entitled to possess it.
This called into question the relationship between s 316 and s 319
(ie reservation of a question of law) since leave to appeal had been
refused in ter ms of s 316. This was in particular because, when the
accused petitioned the SCA in regard to the convictions, he argued
316 SACJ . (2008) 3
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