Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Published date: 27 May 2019
• Date: 27 May 2019
• Author: Michael Cowling
• Pages: 314-353

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

© Juta and Company (Pty) Ltd

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.

Recent Cases 315

© Juta and Company (Pty) Ltd

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

© Juta and Company (Pty) Ltd