Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Pages: 420-431
• Citation: (2003) 16 SACJ 420
• Author: Michael Cowling
• Published date: 24 May 2019
• Date: 24 May 2019

420



SACJ •

(2003) 16

Criminal Procedure

MICHAEL COWLING

University of Natal, Pietermaritzburg

Appeal

Appeal - application for leave

The Criminal Procedure Act 1977 contains different procedures in respect of

appealing against a conviction in a lower court as opposed to that in a High

Court. Thus s 309(1)(a) confers on any person convicted in a lower court an

`automatic' right of appeal to the High Court whereas s 316 (1)(b) provides

that any accused convicted in a High Court must apply to the presiding judge

for leave to appeal. This latter requirement of leave to appeal was declared to

be constitutional in

S

v

Rens

1996 (1) SACR 105 (CC).

However, a problem that arises in this regard is where an accused is

convicted in a lower court but the case is referred to a High Court for

purposes of sentencing. This was the situation that confronted a full bench of

the Cape Provincial Division in

S

v

Gentle

2003 (1) SACR 395 (C) where the

accused, after pleading not guilty in the regional court, had been convicted of

rape in that court. The matter was thereafter referred to the High Court for

(2003) 16 SACJ 420

© Juta and Company (Pty) Ltd