Criminal Procedure Amendment Bill: briefing & deliberations

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
6 October 2003
CRIMINAL PROCEDURE AMENDMENT BILL: BRIEFING & DELIBERATIONS

Chairperson: Kgoshi M Mokoena (ANC) [Limpopo]

Relevant document
Criminal Procedure Amendment Bill [B57B-2002]

SUMMARY
The Department outlined the background to the Bill and the reasons for amendments, and informed Members that it introduced the leave to appeal procedure as well as a filtering mechanism which would sift out unmeritorious appeals. The Bill introduced the leave to appeal procedure in the Magistrates Courts as well, and stipulated that all children facing possible imprisonment would be entitled to the automatic right to appeal. The remainder of the Bill contains a restructuring of the provisions dealing with the appeal procedure.

During the discussion Members sought clarity on the reasons for the Minister's decision to allow the "free for all" automatic right to appeal procedure after the Ntuli judgment, whether the filtering mechanism would not unfairly prejudice the person who wanted to take his case further and whether the redrafting of Sections 315 and 316 of the Act by the Portfolio Committee was unconstitutional. The Committee was strongly of the view that the deadline for the finalisation of the Bill contained in Clause 8 had to be removed, because it placed undue pressure both on this House as well as on the President. The Portfolio Committee had over a year to process the Bill, yet the Select Committee appeared to be relegated to a "rubberstamp House" by being expected to pass the Bill hurriedly.

MINUTES
Introduction by Chairperson
The Chair reminded members that the Committee received a briefing on the Bill three weeks ago from Mr Henk du Preez and Mr Johan de Lange, Legal Drafters from the Department of Justice and Constitutional Development. However this was rather hurried because the Committee was operating under severe time constraints, and Members could not interact freely with the Department on the Bill. He stated that concerns had been raised by Members regarding the very technical nature of the amendments.

Briefing by Department
Mr de Lange provided a brief summary of the amendments and objectives of the Bill by outlining the history of the Bill. He stated that before 1994 an automatic right to appeal was granted to all persons found guilty of a crime. The only two exceptions were granted to those persons who were imprisoned at the time when they wished to appeal against their decision, as well as to person who was found guilty of a crime but who did not have legal representation at their trial. The former related to the certificate provision, and was referred to as the "prison appeals". He stated that these prisoners would have to write to the Judge President of the relevant Supreme Court, as it was known at the time, and the Judge President would have to grant the leave to appeal. The request would then be scrutinised as to whether there was a reasonable possibility of success in a higher court, and it would then be granted or refused on these grounds.

After the introduction of the new dispensation created by the Interim Constitution Act 200 of 1993, the appeal procedure was considered by the Constitutional Court in the Ntuli case. The Constitutional Court considered the constitutionality of the exception applied to appeals lodged by persons in prison, as opposed to the automatic right to appeal granted to all other persons. The Constitutional Court held that it was unconstitutional to discriminate against the imprisoned applicants in this manner, and it granted Parliament a set period of twelve months within which to introduce a filtering mechanism to process these appeals. Mr de Lange stated that the Department and Parliament failed to put this mechanism in place within that period of time, for various reasons. The result was that that provision in the Criminal Procedure Act (the Act) lapsed because the procedure was unconstitutional, and it resulted in all persons being granted an automatic right to appeal.

As a result a flood of appeals was received by the High Courts from the lower Magistrates Courts, and the overwhelming view was then that a filtering mechanism was needed to sift out the unmeritorious appeals. The view was that this filtering mechanism would have to be put in place at the very first level, which would be the Magistrates Courts.

Mr de Lange stated that subject to the Ntuli case, legislation was brought into effect which enshrined two principles: firstly, the leave to appeal procedure would be granted at the Magistrates Courts level as well, so that the person could appeal to the High Court. Secondly, if this appeal to the High Court was refused, the new legislation allowed the applicant to petition the Judge President of the relevant High Court.

Then, in the Rens and Twala judgments the Constitutional Court considered the leave to appeal process in both the Magistrates Courts and High Court, as was provided in the Act at the time. It considered the constitutionality of allowing leave to appeal from a single judge in the Magistrates Courts to the higher courts. The Constitutional Court held that the leave to appeal process, which was similar in both courts, was in order and was constitutional.

This matter then arose for adjudication again by the Constitutional Court in the Steyn case, and it was for this reason that the Bill was referred to as the "Steyn Bill". In this case the Constitutional Court disagreed with its previous judgments in the Rens and Twala cases, and held that the mere fact that the leave to appeal procedure in the High Court was constitutional did not necessarily mean that this would also be the case in the Magistrates Court. The Constitutional Court held that there was a major flaw in the leave to appeal procedure in the Magistrates Court, because the Act did not make it obligatory for the magistrate who had turned down the leave to appeal to furnish the judge in the High Court with a full record of the proceedings that transpired in the Magistrates Courts. Mr de Lange stated that the Constitutional Court thus declared those relevant provisions of the Act unconstitutional . It suspended its declaration of invalidity for a period of six months, within which Parliament would have to resolve the problem.

Mr de Lange stated that the Minister decided to settle for the "free for all" leave to appeal procedure to all persons convicted of a crime. In the Steyn judgment the Constitutional Court recognised the fact that there might be good reasons for removing the automatic right to appeal, but held that no evidence was presented to it that would justify its removal.

The leave to appeal procedure was subsequently abolished, and this resulted in the High Court being flooded with appeals from the Magistrates Courts. He stated that it would be interesting for Members to note that, during the nine year period from 1994 to 2003, approximately 70% of all appeals that have been approved by the Magistrates Courts have subsequently been dismissed by the High Court. Those appeals should in fact not have been approved in the first place. The Judge President and the judges of the High Court have themselves pushed for the introduction of the filtering mechanism, which this time would pass constitutional muster.

Parliament in the form of the Portfolio Committee considered the Steyn judgment, and decided that the principal flaw in that legislation was that it required the judge to evaluate the application for leave to appeal without having the necessary facts before him. This Bill thus reintroduced the leave to appeal procedure from the Magistrates Courts to the High Court, but it clearly specified that in all cases the full record of the proceedings in the Magistrates Courts had to be submitted to the judge in the High Court. This was however made subject to the following two exceptions: firstly, if the person did have legal representation during the trial and the case was dealt with in the Regional Court, it would be sufficient to provide a full record of the judgment to the High Court judge himself. He stated that the reason for this was to save costs in providing the entire record of all the proceedings in the Magistrates Court. A further reason was that the person in any event had sufficient finances to secure legal representation at the trial. Mr de Lange stated that the High Court judge could in any event request any information needed to decide the appeal.

The second exception introduced by the Portfolio Committee was the alteration of the law by stipulating that children who were convicted and who were facing the possibility of imprisonment would always be entitled to an automatic leave to appeal. This was reflected in the proviso contained in Clause 2(a). Mr de Lange assured Members that the chances of a child being sentenced to imprisonment without legal representation was negligible.

He stated that the remainder of the Bill essentially constituted a redrafting of the existing provisions in the Act that dealt with the appeal procedure. Those provisions were reshuffled by the Portfolio Committee so that they could read more intelligibly, and also clearly defined the various kinds of applications provided for in the Act. The current Section 316 in the Act was redrafted and Section 309 was reshuffled, with the result that the Portfolio Committee essentially restructured the provisions outlining the appeal procedure. Mr de Lange stated that it was for this reason that 80% of the Bill did not really arise from the changes proposed by the Steyn judgment. The remaining provisions in the Bill merely sought to bring the rest of the Act in line with the amendments proposed.

Discussion
Ms J Kgaoli (ANC) [Gauteng] asked the Department to explain what exactly convinced the Minister to change his mind from the "free for all" automatic right to appeal to the introduction of a filtering mechanism.

Mr de Lange replied that in the Steyn judgment the Constitutional Court indicated that there was probably merit in removing the automatic right to appeal procedure, but held that sufficient evidence was not presented to it to justify its removal. This evidence had since become available to the Department, and it would interesting for Members to note some of the statistics. Figures compiled until 31 May 2003 indicated that the High Court in Bisho had two appeals pending, which took on average about three months to finalise. The Bloemfontein High Court had 481 appeal cases pending, which took an average of thirteen months to finalise. The Cape Town High Court had 700 appeal cases pending, which took an average of twelve months to finalise. Grahamstown had 298 at an average of nine months, Kimberley had 119 at an average of fourteen months, Pretoria had approximately 1000 appeal cases pending which took an average of eighteen months to be finalised and Johannesburg had 1400 appeal cases which took upon average twenty months to finalise. He stated that it was in view of this evidence that the judges themselves had proposed the introduction of the filtering mechanism, because they had to deal with countless unmeritorious appeals.

Mr P Maloyi (ANC) [North-West] asked the Department to explain the meaning of the terms "petition", "notice", "condonation" and "leave to appeal", as well as the difference between these terms.

Mr de Lange replied that the term "leave to appeal" referred to the process in which the person would have to apply to the magistrate who has just heard his case, and request that the matter be referred to a higher court for appeal. This process had to be followed because there was not an automatic right of appeal against decisions in the Magistrates Court. The Act stipulated that the leave to appeal would have to be completed within a prescribed time period. If however the applicant failed to comply with this time period he could apply for "condonation" of the late appeal, which would allow the leave to appeal application to be considered despite the fact that the applicant had failed to abide by the time period. He stated that it would thus be possible to lodge both a condonation application as well as a leave to appeal application simultaneously.

He stated that he was not aware of any provision in the Bill which referred to a "notice". The Bill did refer to the "noting of an appeal", but this was merely legal jargon referring to a part of the appeal process and did not refer to a notice as such. These procedures were spelt out in the proposed amendments to Section 309C of the Act in Clause 3 of the Bill.

Mr L Lever (DA) [North-West] stated that he had no problems with the amendments proposed, but asked whether the Magistrates Courts were consulted as to whether its transcription unit had the necessary capacity to type up all the records that would now have to be supplied.

Mr de Lange replied that this was not a new concern. He was of the opinion that the amendments would actually result in less transcription having to be done by the staff, because the transcription would only have to be done if permission were given for the matter to be taken further. Furthermore, a transcription system was set in place to deal with the appeal procedure for the period between the Ntuli and Steyn judgments. Mr de Lange stated that he could not indicate the budgetary implications of this, but his opinion was that it would decrease.

Mr R Nyakane (UDM) [Limpopo] stated that he did not have any difficulty with the proposed amendments, but sought clarity on how exactly the judge or magistrate would decide whether to grant the appeal or not. The filtering mechanism would be problematic because it would prevent persons from exhausting all the possible legal avenues.

Mr de Lange replied that there was justification for the likelihood that cases with merit might not be granted leave to appeal. He stated that the system had to be trusted, because the Constitution guaranteed every person the right to have his case taken on appeal or review. This meant that the context of the matter would not necessarily be an appeal, but merely indicated that a higher authority would pay attention to the matter decided on by the lower court. The magistrate would not determine the outcome of the appeal himself, but would merely have to satisfy himself that there was a reasonable possibility of success in a higher court.

He stated that it was sufficiently constitutional that the appellant had recourse to a higher court. Mr de Lange stated that he believed the Bill would be tested by the Constitutional Court, but this time the Department would ensure that as much evidence in support of the removal of the automatic right to appeal would be presented to the Constitutional Court.

Mr C Ackermann (NNP) [Western Cape] questioned whether the redrafting and reshuffling of Sections 315 and 316 of the Act by the Portfolio Committee was constitutional.

Mr de Lange said that the value of the amendments being proposed to Section 315 and 316 in the Act was that the principle had been tested in the Rens and Twala cases, and the Constitutional Court held that the leave to appeal procedures to the High Court was constitutional. He stated that the Portfolio Committee did not alter the principle in Sections 315 and 316 but rather clarified those sections, and had to create a cross-reference with the other related provisions. This was the reshuffling referred to earlier. Mr de Lange stated that he did not foresee any constitutional challenge to this reshuffling.

Mr Maloyi asked whether the persons mentioned earlier by Mr de Lange referred to sentenced or unsentenced persons.

Mr de Lange replied that the Ntuli case resulted in the automatic right to appeal being granted to all persons, except to those who were imprisoned at the time of applying for leave to appeal. He stated that the Bill now stipulated that all persons would be entitled to apply for leave to appeal, whether they were imprisoned at the time or not.

Mr Maloyi sought clarity on the position, under Clause 2(a), of children who did not have legal representation at the trial in the lower court.

Mr de Lange stated that the Portfolio Committee was of the view that children under the age of 14 would always be entitled to the automatic right to appeal, which was reflected in the proposed section 309(1)(a)(i) in Clause 2. It also stipulated that children between the ages of 14 and 16, who did not have legal representation at the trial and faced the possibility of imprisonment, would have this automatic right to appeal. This was reflected in the proposed section 309(1)(a)(ii) in Clause 2. This provision required children to have legal representation so that they could be protected from any harm that could suffer from the system.

He stated that the Portfolio Committee regarded this provision as a temporary measure, because all the provisions currently contained in the Act which have an impact on children would be transferred to the Child Justice Bill. The Child Justice Bill, which was currently before Parliament.

Mr Maloyi asked if the amendments being proposed by the Bill were in line with the Superior Courts Bill.

Mr de Lange replied that he suspected this would be a cross-cutting issue.

Mr Lever asked the Department to explain why the Portfolio Committee failed to accept this Committee's proposal that the date of commencement stipulated in Clause 8 be removed. He stated that the President could in fact decide not to sign by that date, and neither House of Parliament could dictate to the President when he has to assent to a Bill.

Mr de Lange replied that Section 81 of the Constitution could be used to argue that the date stipulated in Clause 8 was a "date determined by the Act". He stated that the Portfolio Committee did not want to leave it to the executive to determine if and when the Act would come into operation. This was the approach adopted by the Portfolio Committee in the Judicial Officers Act, and it was of the view that it would rather face any problems that would be experienced in the end. A deeming provision could be created which would stipulate the date on which the legislation would come into effect.

Mr Lever disagreed with Mr de Lange that Section 81 could be used to argue in this manner, because that line or arguing would be a bit of a stretch. He sought clarity on the position should the President employ Section 79(1) of (4) and refer the matter to the Constitutional Court.

Mr Nyakane asked if the appellant would be reimbursed for the huge costs he would incur in pursuing the appeal, when the leave to appeal was ultimately refused.

Mr Maloyi stated that the date currently contained in Clause 8 placed undue pressure on the NCOP to pass this Bill. The National Assembly had deliberated on this Bill for over a year, whereas this Committee was now being required to process the Bill in three weeks. He stated that he agreed that the decision must be left to the President to decide, and a date must not be stipulated in the Bill.

Ms Kgaoli stated that the Portfolio Committee had imposed the date in Clause 8, but this was a separate and independent House which also had to apply its mind to the matter and decide whether it agreed with their amendments or not. She stated that the date could not be included in the Bill, because this would essentially be instructing this House to "hurry up". The Portfolio Committee deliberated on this Bill for a long period of time, and stated that the NCOP was not simply a "rubberstamp House". The date of commencement must be decided by the President.

The Chair stated that the Portfolio Committee had an opportunity since 2000 to finalise its processing of this Bill, yet it expected this Committee to finalise the Bill in three weeks. This House had to put its foot down, and it was thus the view of this Committee that the date stipulated in Clause 8 be deleted from the Bill.

The Chair read the Motion of Desirability, to which Members agreed. He stated that the Department would now take Members through a clause-by-clause reading of the Bill.

Clause 1
Mr de Lange stated that this clause entrenched the leave to appeal procedure.

Clause 2
Mr de Lange said that this clause clarified that the right to leave to appeal would also now be possible from the Magistrates Court, and introduced the proviso spelt out earlier dealing with children who face the possibility of imprisonment. He stated that the new proposed Section 3A(a) was introduced, following the Chief Justice's statement during the Department's budget hearings in the Portfolio Committee, that a rule should be introduced which allowed the appeal to be dealt with on paper in the judge's chambers. The proposed Section 3A(b) then created an exception to this proposal, which would strictly be termed an exception to an exception, and provided that the parties could still waive their right to oral argument in court and agree that the matter be heard in chambers. It does however contain the proviso that the judge could still decide that oral arguments be heard.

Ms Kgaoli stated that Mr Nyakane's concern was important because it may very well be the case that the appellant wished to take his case on appeal, but could also choose not to have legal representation, even if they have sufficient funds to secure legal representation.

Mr Lever stated that this proposal detracts from the old saying that 'every person will have his day in court', because it now allowed the appeal to be heard on paper in chambers. The problem with this proposal was that justice must also be seen to be done, but hearing the matter in chambers would not allow this.

Mr de Lange replied to these two questions by stating that certain contexts could arise in which judges could request oral arguments, and in the Steyn judgment the Constitutional Court itself elaborated on the value of oral arguments. Yet the request for the introduction of this rule was proposed by the Chief Justice himself. He reminded Members that it must not be forgotten that the appellant had already had his day in court at the trial, and stated that the accused was not even allowed to be present in court during the appeal in the Supreme Court of Appeal.

He stated that the Chief Justice stated that 99% of the appeal cases turned on issues of fact and not law. He contended that if the person could not prove his case on paper, there would be a very small chance that he would prove it via oral argument. This was as a result of people abusing the appeal system, especially after the Ntuli judgment. Mr de Lange stated that this would not be the last word on this issue, and suggested that it would come up again for further discussion.

Ms Kgaoli stated that the views of the Chief Justice had to be respected, and must have had good reasons for his position. She stated that it was however possible for anyone to make a mistake, including judges when refusing an appeal. People appealed against their decisions because they were not satisfied with the outcome. This could not be ignored.

Mr de Lange responded that the provisions in the Bill were not really targeted at the petty offences, such as speeding violations, but were instead aimed at the much more serious crimes which involved imprisonment. It was aimed especially at those persons who purposefully undertook to grind the system to a halt with unmeritorious appeals. The Constitution itself required anyone facing the possibility of imprisonment to have legal representation. If this was done, there would be no problem here.

He stated that it was possible for anyone to make mistakes, but urged Members to put their trust in the judiciary.

Clause 3
Mr de Lange stated that this clause introduced the noting of the leave to appeal, which was merely legal jargon for a portion of the appeal process. It also spelt out the requirements, time periods and procedures to be followed in lodging the application for leave to appeal.

The proposed section 309C was really the failsafe mechanism should the magistrate deny the first leave to appeal application in the Magistrates Court. This provision allowed the person to request the Judge President of the relevant High Court to approve his application, which was turned down in the lower court. The provision also spelt out the process, time frames and requirements to be adhered to. He stated that the proposed sub section 8 was a new insertion, which allowed the matter to be dealt with as expeditiously as possible, especially where the person was in prison at the time of lodging the application.

Mr de Lange stated that the proposed section 309D simply included a consequential reference to the proposed section 309. The proposed section 309D(2) was a consequential amendment and the proposed section 309D(3) was a new insertion, which required the case of an unrepresented accused who faced the possibility of imprisonment to be immediately forwarded to the Legal Aid Board.

Clause 4
Mr de Lange informed Members that this clause contained consequential amendments so that the cross-references could be effected. The proposed section 315(1)(a) and (b) have now been inserted to reflect the Chief Justice's proposal that the appeals be dealt with on paper in chambers, and contained the exception that the matter could still be heard in court. The clause also reflects the Portfolio Committee's intention that the two processes in the Magistrates Court and High Court mirror each other.

Clause 5
Mr de Lange informed Members that the entire Section 316 in the Act was reshuffled by the Portfolio Committee, and this clause now reflected the new formulation.

Clause 6
Mr de Lange stated that this clause contained purely consequential amendments.

Clause 7
Mr de Lange stated that this clause required the State to act quickly in effecting this piece of legislation, and required the Rules Board to amend its rules to accommodate the amendments proposed by the Bill.

Mr Lever stated that he had a problem with the deadline of three months imposed in Sub clause 2(c). The Rules Board was an independent body, and it would be very difficult to get all the members of the Rule Board to convene a meeting during November, December or January. He stated that this requirement could be counterproductive.

The Chair sought clarity on what exactly the Rules Board was.

Mr de Lange replied that the Rules Board was established by the Rules Board Act and it determined the rules that govern all the courts in South Africa, except the Constitutional Court. He stated that the Committee would have to take this matter further with its colleagues, and stated that the provision implied that the Rules Board would have to meet in November, December or January to effect these amendments.

Ms Kgaoli disagreed with the time limit stipulated in Sub clause 2(c), and proposed that it be replaced with "a reasonable time".

Mr Maloyi stated that he was happy with the current formulation of Sub clause 2 because it gave the Rules Board sufficient time to comply.

Clause 8
Mr Lever stated that this was an urgent piece of legislation and its finalisation had been delayed long enough. If the date were pushed further back to the end of November or to December, it would essentially mean that Parliament would not be able to pass this Bill during this term. He proposed that the date currently reflected be retained, and the Committee could then clearly voice its disapproval by way of a resolution.

Ms Kgaoli agreed with Mr Maloyi that the date be removed, because it did place undue pressure on the President to finalise the Bill.

Mr Lever stated that he agreed with Ms Kgaoli. He stated that if the date were to be retained the President would only have one week to process the Bill. This House could not be prescribed to by the Portfolio Committee, because it has its own constitutional mandate. It was thus important that the date be changed.

The Chair agreed that the Committee would submit a "resolution of displeasure".

Mr Maloyi stated that he supported Ms Kgaoli's proposal that the clause stipulate "a date to be determined by the President".

The Chair informed Members that the Bill would be finalised at the next meeting.

The meeting was adjourned.