Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Date: 03 September 2019
• Pages: 249-265
• Author: Michael Cowling
• Published date: 03 September 2019

Cases

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249

Criminal Procedure

MICHAEL COWLING

University of KwaZulu-Natal, Pietermaritzburg

Appeal

Appeal - leave to appeal - when to be granted

Section 309 of the Criminal Procedure Act 1977 stipulates that an accused

person may only appeal against a conviction and/or sentence from the High

Court to the Supreme Court of Appeal where either the former or, failing

which, the latter, requires an exercise of discretion on the part of the judge

who has to make this decision. Even when considering leave to appeal

against one's own decision, this exercise of discretion entails an objective

evaluation of prospects of success and the consequent likelihood of another

court coming to a different conclusion.

In

S

v

Kgafela

2003 (2) SACR 176 (SCA) the Supreme Court of Appeal was

confronted with a situation in which it was alleged that the High Court had

granted leave to appeal in circumstances where it should not have. The case

concerned the application of s 51(3)(a) of the Criminal Law Amendment Act

105 of 1977 which compelled a court to impose a life sentence for

premeditated murder unless substantial and compelling circumstances

indicated otherwise.

Although the High Court (Bophuthatswana Provincial Division — per

Friedman JP) decided that there were no substantial and compelling

circumstances the court nonetheless felt that this was an opportune moment

for the Supreme Court of Appeal to revisit its decisions in

S

v

Malgas

2001

SACR 469 (SCA) as later approved in

S

v

Dodo

2001 (1) SACR 594 (CC)

concerning the application of s 51(3)(a). Friedman JP felt in particular that

the Supreme Court of Appeal should give serious consideration to reversing

the order of the enquiry in determining an appropriate sentence in terms of s

51(3)(a). In the

Malgas'

case it was held that any court imposing a sentence

in terms of this provision should give due consideration to the prescribed

minimum sentence (ie the extent to which substantial and compelling

circumstances can be said to exist) before deciding what the appropriate

(2004) 17 SACJ 249

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250

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SACJ •

(2004) 17

sentence should be. Instead, Friedman JP suggested that the court should

commence with the conventional enquiry as to what is the appropriate

sentence and only thereafter proceed to the prescribed minimum sentence.

Friedman JP further recommended that the Supreme Court of Appeal

'might welcome the opportunity to revisit the decision in

Malgas

in order to

give more definition or formulation to the phrase 'substantial and compelling

circumstances' (at 177g). This latter was notwithstanding that Marais JA had

expressly said in

Malgas

that it would be 'an impossible task to attempt to

catalogue exhaustively either those circumstances or combinations of

circumstances which would rank as substantial and compelling or those

which could not' (at 480D.

Appeal — right of appeal — nature

In

S v Zondi

2003 (2) SACR 227 (WLD) the accused was convicted of the

offence of extortion in the magistrates' court. He thereafter lodged an appeal

against this conviction. However, when preparing the court record it was

discovered that the tape cassettes that recorded the proceedings of the trial

had gone missing. Attempts to locate them proved unsuccessful as were

attempts to reconstruct the record. As a result the 'record' that was submitted

to the High Court for purposes of the appeal consisted of a transcript of the

proceedings at the sentencing stage of the trial together with an affidavit of

the accused pointing out that the state witnesses were untruthful. In addition

the docket was also included which contained statements and affidavits of

various witnesses. However, what was missing was the transcript of the

actual proceedings of the trial itself.

On the face of it, it would appear that the absence of such a transcript

would render any appeal process extremely difficult. The approach of the

accused was to argue that, since the state came under a duty to provide the

record, any failure in this regard should be to his benefit and hence the

appeal should succeed on that ground alone. This was opposed by the state

where it was argued that a genuine attempt had been made to reconstruct the

record but this had failed through no fault of the state. In particular it was

stated that there had been no mala fides on the part of the latter. As a result it

was submitted that the appeal against the conviction should be dismissed.

In deciding this issue the court hearing the appeal was compelled to

examine in a fair amount of detail, the nature and inherent workings of the

appeal process within the context of the South African criminal procedure

system. In particular, reference was made to the fact that the right of appeal is

entrenched into the South African legal system in terms of s 35(3)(o) of the

Constitution.

However, it was noted that, according to the decision in

Sita v Olivier

1967

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