DRW amendments(Aug03)

5 August 2003

  

REPUBLIC OF SOUTH AFRICA

 

AMENDMENTS

TO

CRIMINAL PROCEDURE AMENDMENT BILL

 

[B57-2002]

 

(As agreed to by the .....

(National Assembly))

  [B57A-2002]

 

AMENDMENTS

CRIMINAL PROCEDURE AMENDMENT BILL

[B 57 C 2002]

 

CLAUSE 1

1. Clause rejected.

NEW CLAUSE

1. That the following be a new clause:

Amendment of section 309 of Act 51 of 1977, as amended by section 17 of Act 105 of 1982, section 8 of Act 107 of 1990, section 51 of Act 129 of 1993, section 13 of Act 75 of 1995, section 2 of Act 33 of 1997, section 2 of Act 76 of 1997 and section 38 of Act 105 of 1997

1. Section 309 of the Criminal Procedure Act, 1977 (hereinafter referred to as the principal Act), is amended-

(a) by the substitution for paragraph (a) of subsection (1) of the following paragraph:

"(a) Any person convicted of any offence by any lower court (including a person discharged after conviction) may, subject to [section 309B] leave to appeal being granted in terms of section 309B or 309C, appeal against such conviction and against any resultant sentence or order to the [provincial or local division] High Court having jurisdiction: Provided that if that person-

(i) was, at the time of the commission of the offence, below the age of 16 years [and, at the time of the conviction for the offence, below the age of 21 years]; and

(ii) was sentenced to a term of imprisonment as contemplated in section 276 that was not wholly suspended,

he or she may note such an appeal without having to apply for leave in terms of section 309B."; and

(b) by the substitution for subsection (3A) of the following subsection:

"(3A)  An appeal under this section [may] must be disposed of by a High Court in chambers on the written argument of the parties or their legal representatives, [if the parties agree thereto and the Judge President so directs in an appropriate case] unless the Court is of the opinion that the interests of justice require that the parties submit oral argument to the Court regarding the appeal.".

 

Section 309: Appeal from lower court by person convicted (For reference purposes)

309. (1) (a) Any person convicted of any offence by any lower court (including a person discharged after conviction) may, subject to section 309B, appeal against such conviction and against any resultant sentence or order to the provincial or local division having jurisdiction.

(b) ...

(2) An appeal under this section shall be noted and be prosecuted within the period and in the manner prescribed by the rules of court: Provided that the magistrate against whose decision or order the appeal is to be noted, or if he or she is unavailable any other magistrate of the court concerned, may on application and on good cause shown, extend such period.

 

CLAUSE 2

1. Clause rejected.

NEW CLAUSE

1. That the following be a new clause:

Substitution of sections 309B and 309C of Act 51 of 1977

2. The following sections are substituted for sections 309B and 309C of the principal Act, respectively:

"Application for leave to appeal

309B (1) (a) An accused who wishes to appeal against any decision or order, including a conviction or any resultant sentence, of a lower court, must apply to that court for leave to appeal against the decision or order.

(b) An application referred to in paragraph (a) must be made-

(i) within 14 days after the date of the decision or order concerned; or

(ii) within such extended period as the court may on application and for good cause shown, allow.

(2) (a) Any application in terms of subsection (1) must be heard by the magistrate whose decision or order is the subject of the prospective appeal (hereinafter referred to as the trial magistrate) or, if the trial magistrate is not available, by any other magistrate of the court concerned, to whom it is assigned for hearing.

(b) If the application is to be heard by a magistrate, other than the trial magistrate, the clerk of the court must submit a copy of the record of the proceedings before the trial magistrate to the magistrate hearing the application: Provided that where the accused was legally represented at a trial in a regional court the clerk of the court must only submit a copy of the judgment of the trial magistrate, including the reasons for the decision or order in respect of which the appeal is sought to be noted to the magistrate hearing the application, but the magistrate hearing the application may, if he or she deems it necessary in order to decide the application, request the full record of the proceedings before the trial magistrate.

(c) Notice of the date fixed for the hearing of the application must be given to the Director of Public Prosecutions concerned, or to a person designated thereto by him or her, and the accused.

(3) (a) Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused desires to appeal.

(b) If the accused applies orally for such leave immediately after the passing of the decision or order, he or she must state such grounds, which must be recorded and form part of the record.

(4) (a) An application for leave to appeal may be accompanied by an application to adduce further evidence (hereafter referred to as an application for further evidence) relating to the decision or order in respect of which the appeal is sought to be noted.

(b) An application for further evidence must be supported by an affidavit stating that-

(i) further evidence which would presumably be accepted as true, is available;

(ii) if accepted the evidence could reasonably lead to a different decision or order; and

(iii) save in exceptional cases, there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial.

(c) The court granting an application for further evidence must-

(i) receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by the prosecutor and evidence called by the court; and

(ii) record its findings or views with regard to that evidence, including the cogency and the sufficiency of the evidence, and the demeanour and credibility of any witness.

(5) Any evidence received under subsection (4) shall for the purposes of an appeal be deemed to be evidence taken or admitted at the trial in question.

(6) If any application referred to in this section is refused, the magistrate must immediately record his or her reasons for such refusal.

Petition procedure

309C. (1) In this section-

(a) 'application for condonation' means an application referred to in the proviso to section 309(2), or referred to in section 309B(1)(b)(ii);

(b) 'application for leave to appeal' means an application referred to in section 309B(1)(a);

(c) 'application for further evidence' means an application to adduce further evidence referred to in section 309B(4)(a); and

(d) 'petition', unless the context otherwise indicates, includes an application referred to in subsection (2)(b)(ii).

(2) (a) If any application for condonation, for leave to appeal, or for further evidence is refused by a lower court, the accused may by petition apply to the Judge President of the High Court having jurisdiction to grant any one or more of the applications in question.

(b) Any petition referred to in paragraph (a) must be made-

(i) within 21 days after the application in question was refused; or

(ii) within such extended period as may on an application accompanying that petition, for good cause shown, be allowed.

(3) An accused who submits a petition in terms of subsection (2) must at the same time give notice thereof to the clerk of the lower court referred to in subsection (2)(a).

(4) When receiving the notice referred to in subsection (3), the clerk of the court must without delay submit to the registrar of the High Court concerned copies of-

(a) the application that was refused;

(b) the magistrate's reasons for refusal of the application; and

(c) the record of the proceedings in the magistrate's court in respect of which the application was refused: Provided that-

(i) if the accused was tried in a regional court and was legally represented at the trial; or

(ii) if the prospective appeal is against the sentence only; or

(iii) if the petition relates solely to an application for condonation,

a copy of the judgment, which includes the reasons for conviction and sentence, shall, subject to subsection (6)(a), suffice for the purposes of the petition.

(5) (a) A petition contemplated in this section must be considered in chambers by a judge designated by the Judge President: Provided that the Judge President may, in exceptional circumstances, at any stage designate two judges to consider such petition.

(b) If the judges referred to in the proviso to paragraph (a) differ in opinion, the petition must also be considered in chambers by the Judge President or by any other judge designated by the Judge President.

(c) For the purposes of paragraph (b) any decision of the majority of the judges considering the petition, shall be deemed to be the decision of all three judges.

(6) Judges considering a petition may-

(a) call for any further information, including a copy of the record of any proceedings that was not submitted in terms of subsection (4)(c), from the magistrate who refused the application in question; or

(b) in exceptional circumstances, order that the petition or any part thereof be argued before them at a time and place appointed by them.

(7) Judges considering a petition may, whether they have acted under subsection (6)(a) or (b) or not-

(a) in the case of an application referred to in subsection (2)(b)(ii), grant or refuse the application; and

(b) in the case of an application for condonation, grant or refuse the application, and if the application is granted-

(i) direct that an application for leave to appeal must be made, within the period fixed by them, to the court referred to in section 309B(1); or

(ii) if they deem it expedient, direct that an application for leave to appeal must be submitted under subsection (2) within the period fixed by them as if it had been refused by the court referred to in section 309B(1); and

(c) in the case of an application for leave to appeal, subject to paragraph (d), grant or refuse the application; and

(d) in the case of an application for further evidence, grant or refuse the application, and, if the application is granted the judges may, before deciding the application for leave to appeal, remit the matter to the magistrate's court concerned in order that further evidence may be received in accordance with section 309B(4).

(8) If more than one application referred to in subsection (1) are related to the same matter, they should, as far as is possible, be dealt with in the same petition.

(9) All applications contained in a petition must, as far as is possible, be disposed of speedily and simultaneously.

(10) Notice of the date fixed for any hearing of a petition under this section, and of any place appointed under subsection (6) for any hearing, must be given to the Director of Public Prosecutions concerned, or to a person designated by him or her, and the accused.".

 

NEW CLAUSES

1. That the following be new clauses:

Amendment of section 315 of Act 51 of 1977, as substituted by section 20 of Act 105 of 1982, as amended by section 10 of Act 107 of 1990 and section 39 of Act 105 of 1997

3. Section 315 of the principal Act is amended by-

(a) the substitution for subsection (1) of the following subsection:

"(1) In respect of appeals and questions of law reserved in connection with criminal cases heard by a [provincial or local division] High Court, the court of appeal shall be the [Appellate Division of the] Supreme Court of Appeal [(in this Chapter referred to as the Appellate Division)], except in so far as subsection (3) otherwise provides."; and

(b) the substitution for subsection (2) of the following subsection:

"(2) (a) If an application for leave to appeal in a criminal case heard by a single judge of a [provincial or local division] High Court (irrespective of whether he or she sat with or without assessors) is granted under section 316, the court or judge or judges granting the application shall, if it, he or she or, in the case of the judges referred to in [subsection (8)] subsections (12) and (13) of that section, they or the majority of them, is or are satisfied that the questions of law and of fact and the other considerations involved in the appeal are of such a nature that the appeal does not require the attention of the Supreme Court of Appeal, direct that the appeal be heard by a full court.

(b) Any such direction by the court or a judge of a [provincial or local division] High Court may be set aside by the [Appellate Division] Supreme Court of Appeal on application made to it by the accused or the [attorney-general] Director of Public Prosecutions or other prosecutor within 21 days, or such longer period as may on application to the [Appellate Division] Supreme Court of Appeal on good cause be allowed, after the direction was given.

(c) Any application to the [Appellate Division] Supreme Court of Appeal under paragraph (b) shall be submitted by petition addressed to the [Chief Justice] President concerned, and the provisions of section 316[(6), (7), (8) and (9)] (8), (9), (10), (11), (12), (13), (14), (15) and (16) shall apply mutatis mutandis in respect thereof.".

Substitution of section 316 of Act 51 of 1977 as amended by section 21 of Act 105 of 1982, section 15 of Act 26 of 1987 and section 12 of Act 62 of 2000

4. The following section is substituted for section 316 of the principal Act:

"Applications for condonation, leave to appeal and further evidence

316. (1) (a) An accused convicted of any offence before a High Court may apply to that court for leave to appeal against his or her conviction or against any sentence or order following thereon and an accused convicted of any offence before any such court on a plea of guilty may, within the same period, apply for leave to appeal against any sentence or any order following thereon.

(b) An application referred to in paragraph (a) must be made-

(i) within 14 days after the passing of the sentence or order following thereon; or

(ii) within such extended period as the court may on application and for good cause shown, allow.

(2) An application referred to in subsection (1) must be made to the judge whose decision or order is the subject of the prospective appeal (hereafter in this section referred to as the trial judge): Provided that if-

(i) the trial judge is unavailable; or

(ii) in the case of a conviction before a circuit court the said court is not in sitting,

the application may be made to any other judge of the High Court concerned.

(3) (a) No appeal shall lie against the judgment or order of a full court given on appeal to it in terms of section 315(3), except with the special leave of the Supreme Court of Appeal on application made to it by the accused or, where a full court has for the purposes of such judgment or order given a decision in favour of the accused on a question of law, on application on the grounds of such decision made to that court by the Director of Public Prosecutions or other prosecutor against whom the decision was given.

(b) An application to the Supreme Court of Appeal under paragraph (a) shall be submitted by petition addressed to the President of the Supreme Court of Appeal-

(i) within 21 days, or such extended period as may on application by petition so addressed on good cause be allowed, after the judgment or order against which appeal is to be made was given; or

(ii) within such extended period as may on application and for good cause shown, be allowed.

(c) The accused or Director of Public Prosecutions or other prosecutor shall, when submitting in accordance with paragraph (b) the application for special leave to appeal, at the same time give written notice that this has been done to the registrar of the court against whose decision he or she wishes to appeal, and thereupon such registrar shall forward a certified copy of the record prepared in terms of subsection (7) for the purposes of such judgment or order, and of the reasons for such judgment or order, to the registrar of the Supreme Court Appeal.

(d) The provisions of subsections (4), (11), (12), (13), (14), (15), and (16) shall apply mutatis mutandis with reference to any application and petition contemplated in paragraph (b) of this subsection.

(e) Upon an appeal under this subsection the provisions of section 322 shall apply mutatis mutandis with reference to the powers of the Supreme Court of Appeal.

(4) (a) Every application for leave to appeal shall set forth clearly and specifically the grounds upon which the accused desires to appeal.

(b) If the accused applies orally for such leave immediately after the passing of the sentence, he or she must state such grounds, which must be recorded and form part of the record.

(5) (a) An application for leave to appeal under subsection (1) may be accompanied by an application to adduce further evidence (hereafter in this section referred to as an application for further evidence) relating to the prospective appeal.

(b) An application for further evidence must be supported by an affidavit stating¾

(i) that further evidence which would presumably be accepted as true, is available;

(ii) that if accepted the evidence could reasonably lead to a different verdict or sentence; and

(iii) save in exceptional cases, that there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial.

(c) The court granting an application for further evidence must¾

(i) receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by the prosecutor and evidence called by the court, and

(ii) record its findings or views with regard to that evidence, including the cogency and the sufficiency of the evidence, and the demeanour and credibility of any witness.

(6) Any evidence received under subsection (5) shall for the purposes of an appeal be deemed to be evidence taken or admitted at the trial in question.

(7) (a) If an application under subsection (1) for leave to appeal is granted and the appeal is not under section 315(3) to be heard by the full court of the High Court from which the appeal is made, the registrar of the court granting such application shall cause notice to be given accordingly to the registrar of the Supreme Court of Appeal without delay, and shall cause to be transmitted to the said registrar a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the Director of Public Prosecutions, copies (one of which shall be certified) may be transmitted of such parts of the record as may be agreed upon by the Director of Public Prosecutions and the accused to be sufficient, in which event the Supreme Court of Appeal may nevertheless call for the production of the whole record.

(b) If an application under subsection (1) for leave to appeal is granted and the appeal is under section 315(3) to be heard by the full court of the High Court from which the appeal is made, the registrar shall without delay prepare a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the Director of Public Prosecutions, copies (one of which shall be certified) may be prepared of such parts of the record as may be agreed upon by the Director of Public Prosecutions and the accused to be sufficient, in which event the full court of the High Court concerned may nevertheless call for the production of the whole record.

(8) (a) If any application-

(i) referred to in subsection (1)(b)(ii) (hereafter in this section referred to as an application for condonation);

(ii) referred to in subsection (1)(b)(i) (hereafter in this section referred to as an application for leave to appeal); or

(iii) referred to in subsection (5)(a) to adduce further evidence (hereafter in this section referred to as an application for further evidence),

is refused by a High Court, the accused may by petition apply to the President of the Supreme Court of Appeal to grant any one or more of the applications in question.

(b) Any petition referred to in paragraph (a) must be made-

(i) within 21 days after the application in question was refused; or

(ii) within such extended period as may on an application accompanying that petition, for good cause shown, be allowed.

(9) An accused who submits a petition referred to in subsection (8)(a), must at the same time give written notice thereof to the registrar of the High Court (other than a circuit court) within whose area of jurisdiction the trial took place, and of which the judge who presided at the trial was a member when he or she so presided.

(10) When receiving notice of a petition as contemplated in subsection (9), the registrar shall forward to the registrar of the Supreme Court of Appeal copies of the-

(a) application or applications that were refused; and

(b) the reasons for refusing such application or applications.

(11) (a) A petition referred to in subsection (8), including an application referred to in subsection (8)(b)(ii), must be considered in chambers by two judges of the Supreme Court of Appeal designated by the President of the Supreme Court of Appeal.

(b) If the judges differ in opinion, the petition shall also be considered in chambers by the President of the Supreme Court of Appeal or by any other judge of the Supreme Court of Appeal to whom it has been referred by the President.

(c) For the purposes of paragraph (b) any decision of the majority of the judges considering the petition, shall be deemed to be the decision of all three judges.

(12) The judges considering a petition may-

(a) call for any further information, including a copy of the whole record of the proceedings before the trial judge, from the judge who heard the application that was refused, or from the judge who presided at the trial to which any such application relates, as the case may be; or

(b) in exceptional circumstances, order that the application or applications in question or any of them be argued before them at a time and place appointed by them.

(13) The judges considering a petition may, whether they have acted under subsection (12)(a) or (b) or not-

(a) in the case of an application referred to in subsection (8)(b)(ii), grant or refuse the application; and

(b) in the case of an application for condonation grant or refuse the application, and if the application is granted-

(i) direct that an application for leave to appeal must be made, within the period fixed by them, to the High Court referred to in subsection (8)(a); or

(ii) if they deem it expedient, direct that an application for leave to appeal must be submitted under subsection (8) within the period fixed by them as if it had been refused by the High Court referred to in subsection (8)(a); and

(c) in the case of an application for leave to appeal, subject to paragraph (d) grant or refuse the application; and

(d) in the case of an application for further evidence, grant or refuse the application, and, if the application is granted the judges may, before deciding the application for leave to appeal, remit the matter to the High Court concerned in order that further evidence may be received in accordance with subsection (5)(c); or

(e) refer the petition to the Supreme Court of Appeal for consideration, whether upon argument or otherwise, and the Supreme Court of Appeal may thereupon deal with the petition in any manner referred to in this subsection.

(14) If more than one application referred to in subsection (8) are related to the same matter, they should, as far as is possible, be dealt with in the same petition.

(15) All applications contained in a petition must, as far as is possible, be disposed of speedily and simultaneously.

(16) The decision of the Supreme Court of Appeal or of the judges thereof considering the petition, as the case may be, to grant or refuse any application, shall be final.

(17) Notice of the date fixed for the hearing of any application under this section, and of any time and place appointed under subsection (12) for any hearing, must be given to the Director of Public Prosecutions concerned and the accused.".

Amendment of section 317 of Act 51 of 1977, as amended by section 22 of Act 105 of 1982 and section 13 of Act 62 of 2000

5. Section 317 of the principal Act is amended by the substitution for subsection (5) of the following subsection:

"(5) If an application for condonation or for a special entry is refused, the accused may, within a period of twenty-one days of such refusal or within such extended period as may on good cause be allowed, by petition addressed to the [Chief Justice] President of the Supreme Court of Appeal, apply to the [Appellate Division] Supreme Court of Appeal for condonation or for a special entry to be made on the record stating in what respect the proceedings are alleged to be irregular or not according to law, as the case may be, and thereupon the provisions of subsections [(7), (8), (9) and (10)] (11), 12), (13), (14), (15), (16), and (17) of section 316 shall mutatis mutandis apply.".

Transitional arrangements

6. (a) The provisions of this Act apply in respect of any person who is convicted of any offence by any lower court on or after the date of the commencement of this Act.

(b) The provisions of this Act do not apply in respect of any appeal pending before a High Court or the Supreme Court of Appeal on the date of the commencement of this Act.

CLAUSE 3

1. On page 6, in line 40, to omit "2002", and to insert "2003".

2. On page 6, in line 41, to omit "a date determined by the President", and to insert:

"1 [November] 2003 or any earlier date as the President may determine" .

LONG TITLE

1. On page 2, in the first line, after "regulate" to insert:

the procedures relating to

2. On page 2, in the second line, to omit:

against decisions of lower courts