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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
27 May 2003
CRIMINAL PROCEDURE AMENDMENT BILL (STEYN JUDGMENT): DELIBERATIONS
Chairperson: Adv J H De Lange (ANC)
Documents handed out:
Criminal Procedure Amendment Bill (Working Draft)
The Committee reviewed the Criminal Procedure Amendment Bill with a representative from the Department of Justice. The Committee considered the information that a judicial officer hearing an application for leave to appeal, would receive. The Committee decided that the judicial officer would not require a copy of the record in every instance. The Committee also discussed the constitutionality of the appeals process and the procedure for allowing new evidence during the appeals process. The Department stated that the Bill would be ready for final comment on the 28 May.
The Committee reviewed changes made to the Criminal Procedure Amendment Bill with Mr H du Preez of the Department of Justice.
The Chairperson stated that a comma should be inserted into Section 309(1)(a) before the phrase "as contemplated".
Mr du Preez explained that rule 67 of the Magistrate Courts Act applied to this Bill in the case of magistrates. Another rule, perhaps 51, applies with the higher courts. There was some confusion between the ten days specified in rule 67 and the fourteen days specified in the Bill. Rule 67 specified that notice for leave to appeal will be given to the clerk of the court at least 10 days prior to the date fixed for the hearing of the application for leave to appeal. The Bill specifies that an accused who appeals against any decision or order, "including a conviction or resultant sentence" must do so within fourteen days. The Chairperson suggested clarifying the process with the Rules Board.
The Committee discussed three options that had been drafted relating to the information a magistrate receives when considering a leave to appeal when that magistrate is not the magistrate who conducted the original trial:
Option 1 specifies that in the district court, a magistrate would receive a copy of the entire record. Where the accused was tried in a regional court and was legally represented at the trial, the magistrate would receive a copy of the judgement. The magistrate would receive the entire record upon request.
Option 2 specifies that the magistrate would receive the entire record when considering every leave to appeal.
Option 3 is similar to the first option. It further specifies that the record will not be copied and given to the magistrate in the case of a senior magistrate hearing an application from an accused person who was legally represented during trial.
The Committee ruled out use of Option 2 because the copying of the entire record for every application would be both costly and unnecessary. The Chairperson stated that he agreed with Option 3, because, although it is similar to Option 1, it was worded more specifically. He explained that this would only apply in a small percentage of cases in which the application for leave to appeal was not made at the conclusion of the original trial and the trial magistrate was unavailable.
Adv M Masutha (ANC) asked how long it would take to compile the entire record, if requested. He stated it was important to look at the cost-benefit. The process of copying the entire record would lengthen the appeals process. He agreed that the Option 3 was preferable because it would minimise the time of the appeals process.
The Chairperson reiterated that the Committee was considering what would happen in the small exception of cases. This will only be an issue when the trial magistrate is unavailable to hear the application.
The Committee wondered if limiting the appeals would pose a constitutional problem. The Chairperson explained that the courts wanted to know what the reason is to limit the right of appeal. The Department of Justice has compiled the evidence to prove that the unlimited right to appeal was clogging the courts and that reason exists to limit that right. The evidence is available and the judiciary is in support of this Bill. The Committee simply needed to ensure proper safeguards for the accused.
The Chairperson pointed out that in Section 309B(3)(b) the word "verbally" was changed to "orally". In 309B(4) paragraph (b) had been added.
309B(4)(ii) specifies that a court hearing the application "must record its findings or views with regard to that evidence, including the cogency and the sufficiency of the evidence, and the credibility of any witness."
Adv Masutha question why these qualities were specified in respect to evidence and witnesses. He asked why admissibility was not specified.
The Chairperson answered that admissibility was included in "findings or views" and that the remainder of the sentence was further specifying the phrase "findings or views". He explained that this would require magistrates to catalogue their views.
Adv Masutha stated that he understood that on appeal, factual information could not be appealed, only law could be appealed.
The Chairperson disagreed, stating that appeals that originated from the magistrate's court are appeals on fact. The state can appeal on law, but not fact. The Law Commission is considering allowing the state to appeal on fact in certain cases.
The Chairperson explained that on appeal, the High Court could allow further evidence that was unavailable during the trial and reverse a decision based on that evidence. 309B(4)(ii) provides that the court hearing the application must record its "findings or views" with regard to the newly admitted evidence.
Section 309C Petition procedure.
The Chairperson explained that a petition had to be applied for in high court within 21 days, but that the accused may apply for an extension. A petition may consist of any or all of the following:
- an application for condonation for leave to appeal
- an application for condonation for leave to petition
- an application for further evidence
- an application for leave to appeal
The Chairperson pointed out that the applications should be contained in the same petition when possible. Furthermore, the courts decision may be petitioned to the Judge President of the High Court as a further safeguard to the rights of the accused.
The Committee then chose between the three options in 309C(4) concerning what information would be sent to the court of appeals hearing such an appeal.
The Committee decided to adopt Option 3 which specified that the court of appeals would receive the following:
a) the application that was refused.
b) the record of the proceedings in the magistrate's court, except for cases in which the accused was tried in a regional court and was legally represented at the trial, where the prospective appeal is against the sentence only, or in the case of an application for condonation.
c) the magistrate's reasons for refusal of the application
The Chairperson was confident that this application would pass constitutional muster.
Adv Masutha asked what happened in the event of new evidence. He asked if the case was sent down to the magistrate's court for another trial.
The Chairperson stated that a case can be sent down to the magistrate's court for a trial de novo but that such a scenario was unique. The allowance of further evidence after a trial was a very rare event.
Adv Masutha asked if the avenue of recourse reached a dead end after the magistrate and judge both refused the petition.
The Chairperson replied that it did, but he surmised that some sort of review proceeding may be possible.
The Committee considered 309C(5) that specified that more than one judge could consider a petition in the case of a problematic petition.
Mr du Preez pointed out that 309C(6)(a) only applied to the second and third option. The Chairperson noted that the Committee had settled on Option 3.
Ms Camerer asked if the accused presently had the automatic right to appeal.
The Chairperson answered that the accused had the right to appeal from the lower courts to the higher courts. When the first appearance of an accused was in higher court, that person had the right to apply for leave to appeal.
Ms Camerer asked if limiting the right to appeal posed a constitutional problem.
The Chairperson stated that if the judges have a problem with leave to appeal, they will also have to strike down the leave to appeal from the higher courts, as that has always been a fixture of the legal system. He stated that he was confident this Bill would be found constitutional because of the many safeguards for the rights of the accused.
The Chairperson stated that 309C(7) was important because it detailed what action a judge would take with a petition.
Adv Masutha asked if the subsection provided for applicants to be permitted to address the court if they would like to.
The Chairperson stated that they were not allowed to because of the enormous cost implications and because it is unnecessary.
The Chairperson suggested that "or" at the end of 7(b)(i) should be changed to "and".
The Chairperson commented that the Committee had completed reviewing the procedure sections of the Bill. Clause 3 (Section 316) deals with the process of appeal from the High Court to the Supreme Court. The Chairperson instructed Mr du Preez to make the same changes to Section 316 as were made to Section 309. The exceptions include not changing a section dealing with judges and placing 316(11)(d) under section 12 instead, because it refers to the appellate court. Technical changes would have to be made to other sections of the bill.
Mr du Preez stated that technical changes would be necessary in Sections 315 and 317. Section 315, for example, refers to provincial and local governments. He stated that the Bill would be ready tomorrow.
The Committee will revisit the Bill on 28 May one last time.
The meeting was adjourned.