TOPIC TWELVE: APPEALS FROM CONVICTION/SENTENCES IN
PROVINCIAL AND LOCAL DIVISIONS OF HIGH COURT
According to s316(1)(a) of the CPA, appeals can lie against a conviction, a sentence, an
order flowing from conviction or sentence or any combination thereof. Appeals shall set
forth grounds on which appeal sought (e.g. against specific findings of fact, or decisions on
law)
S v Hlatswayo
The important principle from this case is that where after conviction and sentence an accused applies
for leave to appeal to the Appellate Division, it is essential that the provisions of ss 316 (2) and 316 (5)
of the CPA should always be observed where the record does not contain any written grounds for
appeal
When Can an Appeal be Lodged and By Whom?
Section 316(1) states that only a person who has been convicted may appeal
This is because cases should not be heard piecemeal
However, in exceptional cases there may be an appeal after conviction but before
sentence
S v Majola
M had been charged with murder and robbery with aggravating circumstances
m
er as
No evidence was led by the defence and M was convicted of the charges. No extenuating
circumstances were found
co
M was sentenced to eight years imprisonment on the robbery charge but, before he was sentenced on
eH w
the murder charge, it became apparent that M was never consulted by his advocate as to whether he
wanted to give evidence or not. The Court did not impose the death sentence but leave was given to
o.
the appellant to appeal rs e
The court held that as M had not been consulted as to whether he wanted to give evidence or not, that
an irregularity had occurred
ou urc
The case was remitted to the trial court for the hearing of evidence on behalf of M
Excluded are appeals:
o
o By other people wanting to act on behalf of convicted accused
aC s
o Third parties who may be affected, such as a person affected by forfeiture order
o By persons who have since died, unless the executor or heir would be financially
v i y re
affected thereby, in which case he/she could appeal (R v Tremearne)
o Fugitives from justice (Stopforth v Minister of Justice, Veenendaal v Minister of
Justice and S v Isaacs)
ed d
R v Tremearne
ar stu
T was the licensee of a hotel at Isipingo who was charged with, and convicted of, an offence against the
licensing laws. An appeal to the Circuit Court was intimated but before the appeal could be heard T died
The executrix of T applied to the court to authorise the determination of the appeal which the deceased had
instituted in the Circuit Court
There is no authority which supports the view that where a man has been convicted of an offence and dies
sh is
before his appeal can be heard, the appeal can be maintained by his representatives, at any rate for the
purpose of clearing his character
Th
However, there is authority for the view that where the estate of the deceased is adversely affected by the
decision his executor may appeal to protect the estate (R v Vos)
Thus the court held that unless the Stopforth v Minister
estate of a deceased of Justice
accused has been expressly affected by the terms of
Namibia
a sentence passed upon him, his executors cannot maintain an charges,
sought the extradition of the appellants on several including
appeal against murder and sentence
his conviction
The extradition proceedings were pursued to their conclusion, and the Minister of Justice granted an
order surrendering the appellants to Namibia
The appellants applied to the TRC for amnesty for their role in the attack and launched motion
proceedings seeking an order that the decision of the Minister of Justice be suspended pending the
adjudication by the Amnesty Committee of the TRC
The relief was refused in the Court a quo, and an appeal was noted
By the time the appeal was heard the second appellant had fled the country, and was a fugitive from
justice
The court held that as the second appellant was S v Isaacs
a fugitive from justice, he had no right to be heard on
Isaacs
appeal was convicted on 10 counts of fraud and 4 counts of contravening the Insolvency Act
Leave to appeal against the conviction was granted by the trial Judge and Isaacs was released on bail
Isaacs “estreated his bail” was became a fugitive from justice
The court held that under such circumstances, the court has a discretion depending upon the
circumstances of each case, to hear the appeal, or to strike it off the roll, or postpone the
hearing
In the present case, Isaacs, as a fugitive from justice and having regard to his conduct in breaching1his
bailwas
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order is to dismiss the appeal for non-prosecution
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, To Which Court?
The default position is that an appeal from a HC trial goes to the SCA, unless the
court granting leave decides that the questions of law and fact involved do not require
the attention of the SCA, in which case the appeal is directed to the Full Court of the
Provincial Division in question
If the trial court decides to refer the appeal to the Full Court, the aggrieved
party/parties may approach the SCA to redirect the appeal to the SCA
Note that the trial court should properly apply its mind as to which court should hear
the appeal
Sections 315 and 316 of the CPA
Court of appeal in respect of superior court judgments: s315
m
er as
Section 315(1) states that appeals from trials in High Court ordinarily lie to Supreme
co
Court of Appeal (SCA)
eH w
Section 315(2)(a) states that if the trial court or judge to which an application for
leave to appeal is made is of the opinion that the questions of law or fact involved in
o.
the appeal do not require the attention of the SCA, leave will be granted to appeal to
rs e
the Full Bench of High Court
ou urc
Note that it is important that the judge or court granting leave considers carefully
which court should hear the appeal
o
aC s
S v Monyane at [28]
v i y re
In terms of s315(2)(a) of the CPA, when an application for leave to appeal in a criminal case heard by a
single Judge is granted under s316, the trial Judge shall, if 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
The present appeal is a case in which the trial judge should have been so satisfied. There were no
ed d
questions of law involved; the case raised no question of principle; and there were no considerations
ar stu
which called for the attention of this court
It frequently happens that simple appeals have to be heard by this court. In order to avoid the
unnecessary clogging of the roll of this court with matter that does not require its attention, it is
important that trial judges should not overlook the provisions of s315(2)(a)
The inappropriate granting of leave to appeal to this court results in cases of greater complexity and
sh is
which are truly deserving of the attention of this court having to compete for a place on the court roll
with a case which is not
Th
Section 315(2)(b) states that if the accused or State is unhappy that the case is
referred to the Full Bench and not the SCA, the aggrieved can approach the SCA to set
aside the direction to Full Bench, and have matter referred to SCA
Section 315(3) states that an appeal to the Full Bench of relevant Provincial Division
is heard by a bench of 3 judges
Section 315(4) states that ordinarily there is no appeal as a right, as leave is
required in terms of s316
Section 315(5)(b) states that a full court means the court of a provincial division or
the Witwatersrand Local Division, sitting as a court of appeal and constituted before
three judges
Applications for condonation, for leave to appeal and for leave to lead further evidence:
s316
2
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PROVINCIAL AND LOCAL DIVISIONS OF HIGH COURT
According to s316(1)(a) of the CPA, appeals can lie against a conviction, a sentence, an
order flowing from conviction or sentence or any combination thereof. Appeals shall set
forth grounds on which appeal sought (e.g. against specific findings of fact, or decisions on
law)
S v Hlatswayo
The important principle from this case is that where after conviction and sentence an accused applies
for leave to appeal to the Appellate Division, it is essential that the provisions of ss 316 (2) and 316 (5)
of the CPA should always be observed where the record does not contain any written grounds for
appeal
When Can an Appeal be Lodged and By Whom?
Section 316(1) states that only a person who has been convicted may appeal
This is because cases should not be heard piecemeal
However, in exceptional cases there may be an appeal after conviction but before
sentence
S v Majola
M had been charged with murder and robbery with aggravating circumstances
m
er as
No evidence was led by the defence and M was convicted of the charges. No extenuating
circumstances were found
co
M was sentenced to eight years imprisonment on the robbery charge but, before he was sentenced on
eH w
the murder charge, it became apparent that M was never consulted by his advocate as to whether he
wanted to give evidence or not. The Court did not impose the death sentence but leave was given to
o.
the appellant to appeal rs e
The court held that as M had not been consulted as to whether he wanted to give evidence or not, that
an irregularity had occurred
ou urc
The case was remitted to the trial court for the hearing of evidence on behalf of M
Excluded are appeals:
o
o By other people wanting to act on behalf of convicted accused
aC s
o Third parties who may be affected, such as a person affected by forfeiture order
o By persons who have since died, unless the executor or heir would be financially
v i y re
affected thereby, in which case he/she could appeal (R v Tremearne)
o Fugitives from justice (Stopforth v Minister of Justice, Veenendaal v Minister of
Justice and S v Isaacs)
ed d
R v Tremearne
ar stu
T was the licensee of a hotel at Isipingo who was charged with, and convicted of, an offence against the
licensing laws. An appeal to the Circuit Court was intimated but before the appeal could be heard T died
The executrix of T applied to the court to authorise the determination of the appeal which the deceased had
instituted in the Circuit Court
There is no authority which supports the view that where a man has been convicted of an offence and dies
sh is
before his appeal can be heard, the appeal can be maintained by his representatives, at any rate for the
purpose of clearing his character
Th
However, there is authority for the view that where the estate of the deceased is adversely affected by the
decision his executor may appeal to protect the estate (R v Vos)
Thus the court held that unless the Stopforth v Minister
estate of a deceased of Justice
accused has been expressly affected by the terms of
Namibia
a sentence passed upon him, his executors cannot maintain an charges,
sought the extradition of the appellants on several including
appeal against murder and sentence
his conviction
The extradition proceedings were pursued to their conclusion, and the Minister of Justice granted an
order surrendering the appellants to Namibia
The appellants applied to the TRC for amnesty for their role in the attack and launched motion
proceedings seeking an order that the decision of the Minister of Justice be suspended pending the
adjudication by the Amnesty Committee of the TRC
The relief was refused in the Court a quo, and an appeal was noted
By the time the appeal was heard the second appellant had fled the country, and was a fugitive from
justice
The court held that as the second appellant was S v Isaacs
a fugitive from justice, he had no right to be heard on
Isaacs
appeal was convicted on 10 counts of fraud and 4 counts of contravening the Insolvency Act
Leave to appeal against the conviction was granted by the trial Judge and Isaacs was released on bail
Isaacs “estreated his bail” was became a fugitive from justice
The court held that under such circumstances, the court has a discretion depending upon the
circumstances of each case, to hear the appeal, or to strike it off the roll, or postpone the
hearing
In the present case, Isaacs, as a fugitive from justice and having regard to his conduct in breaching1his
bailwas
This study source is downloaded
not deserving of any special
by 100000826075669 consideration
from CourseHero.com onand that, 04:08:11
05-23-2021 in all the circumstances,
GMT -05:00 the appropriate
order is to dismiss the appeal for non-prosecution
https://www.coursehero.com/file/80214355/12-Appeals-from-Conviction-or-Sentence-in-Provincial-and-Local-Divisions-of-High-Court-1doc/
, To Which Court?
The default position is that an appeal from a HC trial goes to the SCA, unless the
court granting leave decides that the questions of law and fact involved do not require
the attention of the SCA, in which case the appeal is directed to the Full Court of the
Provincial Division in question
If the trial court decides to refer the appeal to the Full Court, the aggrieved
party/parties may approach the SCA to redirect the appeal to the SCA
Note that the trial court should properly apply its mind as to which court should hear
the appeal
Sections 315 and 316 of the CPA
Court of appeal in respect of superior court judgments: s315
m
er as
Section 315(1) states that appeals from trials in High Court ordinarily lie to Supreme
co
Court of Appeal (SCA)
eH w
Section 315(2)(a) states that if the trial court or judge to which an application for
leave to appeal is made is of the opinion that the questions of law or fact involved in
o.
the appeal do not require the attention of the SCA, leave will be granted to appeal to
rs e
the Full Bench of High Court
ou urc
Note that it is important that the judge or court granting leave considers carefully
which court should hear the appeal
o
aC s
S v Monyane at [28]
v i y re
In terms of s315(2)(a) of the CPA, when an application for leave to appeal in a criminal case heard by a
single Judge is granted under s316, the trial Judge shall, if 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
The present appeal is a case in which the trial judge should have been so satisfied. There were no
ed d
questions of law involved; the case raised no question of principle; and there were no considerations
ar stu
which called for the attention of this court
It frequently happens that simple appeals have to be heard by this court. In order to avoid the
unnecessary clogging of the roll of this court with matter that does not require its attention, it is
important that trial judges should not overlook the provisions of s315(2)(a)
The inappropriate granting of leave to appeal to this court results in cases of greater complexity and
sh is
which are truly deserving of the attention of this court having to compete for a place on the court roll
with a case which is not
Th
Section 315(2)(b) states that if the accused or State is unhappy that the case is
referred to the Full Bench and not the SCA, the aggrieved can approach the SCA to set
aside the direction to Full Bench, and have matter referred to SCA
Section 315(3) states that an appeal to the Full Bench of relevant Provincial Division
is heard by a bench of 3 judges
Section 315(4) states that ordinarily there is no appeal as a right, as leave is
required in terms of s316
Section 315(5)(b) states that a full court means the court of a provincial division or
the Witwatersrand Local Division, sitting as a court of appeal and constituted before
three judges
Applications for condonation, for leave to appeal and for leave to lead further evidence:
s316
2
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:08:11 GMT -05:00
https://www.coursehero.com/file/80214355/12-Appeals-from-Conviction-or-Sentence-in-Provincial-and-Local-Divisions-of-High-Court-1doc/
