Recent Case: Criminal Procedure

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 248-258
• Date: 24 May 2019
• Citation: 2001 SACJ 248
• Author: Michael Cowling

248



SACJ •

(2001) 14 •

SAS

Criminal Procedure

Michael Cowling

University of Natal, Pietermaritzburg

Appeal

Section 309B of the Criminal Procedure Act 1977 stipulates that an appeal

against conviction or sentence in the Magistrate's Court can be lodged only

after leave has been obtained. However, in instances where such leave is

refused s 309C of the same Act provides for a petition to the appropriate High

Court for leave to appeal. However, there are two provisions that call into

question the constitutionality of this procedure. The first is that once leave is

denied by the High Court there is no appeal to the Supreme Court of

Appeal —not even by way of petitioning the Chief Justice. The second is that

no provision is made for placing the court record before the High Court judge

hearing the petition. This calls into question the ability of such judge to make

an informed reassessment of the issues raised.

It was on this basis that the unconstitutionality of this procedure was

challenged in

S v Steyn

2001 (1) SACR 25 (CC). Section 35 (3)(o) of the

Constitution provides that every accused person has a right to a fair trial

which includes the right '...of appeal to, or review by, a higher court'.

Consequently, any process of appeal from lower to higher courts should not

be unduly restrictive. This is particularly relevant as the vast majority of

accused in the lower courts are not legally represented.

The court concluded that the procedure set out in ss 309B & C did not

contain adequate safeguards against miscarriages of justice not being picked

up on appeal. At the very least any court petitioned for leave to appeal

should have the benefit of a transcribed record and oral argument. In

addition, where such leave is refused by the High Court there should be

access to the Supreme Court of Appeal. However, the Constitutional Court

was not prepared to set the exact benchmarks concerning constitutionally

appropriate appeal procedures except to hold that this could fall short of an

automatic right of appeal from lower courts. All that is required is that any

procedures should not be so restrictive as to effectively deny the right of

appeal in practice.

Charge-competent verdicts

In

S v Jugazi

2000 (1) SACR 107 (C) the accused was convicted of

housebreaking as a result of his being found in possession of certain goods

(2001) 14 SACJ 248

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