Distinction Between Appeal and Review

Traditionally appeals are distinguished from reviews in that an appeal is concerned with the substantive correctness of the decision based on the facts on the record or on the law relevant to those facts, while a review is primarily concerned with the procedural validity of the proceedings.  In practice, at least in criminal cases, the distinction is less clear-cut.  On automatic review convictions are often set aside or altered on factual grounds, and on appeal convictions may be set aside because of procedural irregularities.

Nonetheless there are differences, the main ones being:

1. An appeal may be brought against the findings of a lower court on any point of law and/or fact, but a review may be brought only on the ground of specific procedural irregularities — absence of jurisdiction, interest in the cause, bias, malice or gross irregularity.This applies to reviews brought under the High Court Rules, not to automatic review.
2. In an appeal the parties are confined to the record, whereas in a review it is permissible to prove a ground of review (e.g. bias) through affidavit.But on automatic review the court is confined to the record.Here too the distinction between review and appeal doesn’t always hold true, because it is possible for further evidence to be heard on appeal.
3. An appeal must be brought within a fixed time.There is no time-limit for review under the common law, but cases must be sent for automatic review within one week after sentence was passed and non-automatic reviews must be brought within eight weeks after the termination of the proceedings.This latter time-limit can be extended, but the High Court will not condone the bringing of review proceedings after an unreasonable time has elapsed.
4. A court has no inherent appellate jurisdiction, whereas the and Supreme Court have inherent review powers.
5. An appeal is final and conclusive, unless a statute gives the parties a further right of appeal to another court (for example, an appeal from a magistrates court lies to the High Court, and from that court to the Supreme Court).A review, on the other hand, is not final in that a case that has been the subject of review may be reviewed again, though on different grounds.

Note, however, that on automatic review the powers of the High Court are in many respects as wide as the Court’s powers on appeal.

Appeal Courts

Generally, appeals from magistrates courts, whether against conviction or sentence, lie to the High Court;  appeals from the High Court lie to the Supreme Court.

The Supreme Court is the final court of appeal.  There is no appeal from its decisions, except on constitutional issues, and its decisions are not subject to review.

Appeals by Accused

From High Court

Appeals from criminal cases tried in the High Court lie to the Supreme Court.  In some cases, convicted persons may appeal as of right, in others only with the leave of a judge of the High Court (usually the trial judge) or, if he or she refuses to grant leave, with the leave of a judge of the Supreme Court.

Appeal as of Right

Under section 44 of the High Court Act [Chapter 7:06], a person convicted at a trial in the High Court has an appeal as of right:

• on a point of law alone;
• against conviction or sentence, if he has been sentenced to death;
• against sentence, if the sentence imposed on him was not permitted by law, e.g. if a statute allowed only a fine to be imposed, and he was sentenced to imprisonment).

Under section 70(5) of the Constitution, anyone who has been tried and convicted of a crime has the right, subject to reasonable restrictions prescribed by law, to appeal to a higher court against the conviction and sentence.

Appeal with Leave

Under section 44 of the High Court Act [Chapter 7:06], with the leave of a judge of the High Court or, if such leave is refused, with leave of a judge of the Supreme Court, a convicted person may appeal to the Supreme Court:

• against conviction on a ground involving fact or mixed fact and law.A ground of appeal alleging that there was insufficient evidence to support the conviction is regarded as a ground involving a question of fact alone;
• against sentence, or against any order of forfeiture or other order ancillary to sentence.

The requirement to get leave to appeal is undoubtedly a restriction on a person’s right to appeal conferred by section 70(5) of the Constitution, but it is probably a reasonable restriction envisaged by that section.  In the South African case of Shinga v S & Anor 2007 (4) SA 611 (CC), the Constitutional Court of that country held that requiring a person to get leave to appeal to the High Court was not inherently unconstitutional so long as the judges who grant leave see the record and have an adequate opportunity to re-appraise the case.  Two judges should see the record.  With that proviso, the court held that the requirement of leave to appeal was desirable because it allowed unmeritorious appeals to be identified and prevented, thereby preventing the waste of judicial resources.

From magistrates courts

Appeals from magistrates courts in criminal cases lie to the High Court.  There is greater scope for appealing against a judgment or order of magistrates court than there is against a judgment or order of the High Court.

An appeal lies to the High Court:

• against conviction and/or sentence and/or any order following sentence (e.g. an order of forfeiture).Note, however, that this applies to convictions and sentences imposed by magistrates courts.If a person is convicted by a magistrate and transferred to the for sentence, an appeal will lie against conviction and/or sentence as if he had been convicted and sentenced by the
• against punishment for failing to obey a subpoena issued by a magistrate;
• against punishment for failure to obey an order of a magistrate (in cases which do not fall directly within the category of contempt of court).

From other courts

Members of the Defence Forces who have been convicted by a court martial may appeal to the Court Martial Appeal Court (i.e. the Supreme Court) against conviction on any ground that involves a question of law alone or mixed questions of law and fact, or on any ground which the Appeal Court certifies as sufficient.  There is no provision for an appeal against sentence.

Members of the Police Service convicted of crimes by a board of officers may appeal against their conviction or sentence to the High Court.

Interlocutory rulings

An interlocutory order or judgment is, essentially, one where the trial court’s decision does not finally decide any issue between the parties, but rather decides the procedure by which one or more of the issues will be presented to the court for decision.  Examples are rulings on jurisdiction or on the admissibility of evidence.

An appeal from an interlocutory order or judgment given by the High Court lies to the Supreme Court, but such an appeal is permissible only if a judge of the High Court (usually the judge who gave the order or judgment) grants leave or, if he or she refuses leave, if a judge of the Supreme Court grants leave.

No similar right of appeal is allowed for interlocutory rulings of magistrates.

The courts are not inclined to entertain appeals against interlocutory judgments if it results in the piecemeal hearing of appeals, unless the appellant will suffer irreparable prejudice if the trial continues.

Bail pending appeal

A person who has been convicted and sentenced, and who wants to appeal, may be granted bail pending appeal or pending the grant of leave to appeal, or pending an application for an extension of time within which to note an appeal.

Application for bail pending appeal

Where the person was convicted and sentenced by a magistrates court, the application for bail should be made either to a magistrate or to a judge of the High Court.  Where he was convicted by the High Court, the application should be made to a judge of the High Court or the Supreme Court.  Normally the application is made to the magistrate or judge who convicted and sentenced the person, but it need not be.

Unless the Prosecutor-General consents, a magistrate cannot grant bail pending appeal to a person who has been convicted of a crime specified in the Third Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07].

The convicted person must give reasonable notice of his application for bail to the public prosecutor (where he has been convicted and sentenced by a magistrates court) or to the Prosecutor-General (where he has been convicted and sentenced by the High Court).

Principles governing bail pending appeal

The presumption of innocence no longer applies where a convicted person applies for bail pending appeal.  This is particularly so where the appeal is against sentence, not against conviction, and the usual sentence for the crime is a substantial effective prison sentence.  If there are no positive grounds for granting bail, the proper approach is that it should be refused.

The onus is on the convicted person to show why justice requires that he should be granted bail.  Whether the person can discharge that onus will depend on two main factors:

• the likelihood of his absconding, which depends amongst other things, on the length of the prison sentence which he faces;and
• the prospects of success on appeal.

These factors must be balanced:  the greater the likelihood of the person absconding, the greater his prospects of success must be, and vice versa.  In balancing the factors, the court must not ignore the person’s right to liberty.

As with bail pending trial, a Ministerial certificate may be issued preventing the grant of bail pending appeal, and a person who has been extradited to Zimbabwe must be refused bail if the Minister of Home Affairs gave an undertaking when the person was extradited that he would not be granted bail.

What has been said above relating to bail pending appeal applies equally to bail pending review.

Appeals by Prosecutor-General

The Prosecutor-General’s right of appeal in criminal cases is substantially the same for both the High Court and the magistrates courts.

Appeal on point of law or against acquittal or against discharge at end of State case

If the Prosecutor-General is dissatisfied with the judgment of a magistrates court on a point of law or because it has acquitted the accused on a view of the facts which could not reasonably be entertained, he may appeal against the judgment to the High Court, but must obtain the leave of a judge of the High Court to do so.  The accused person has the right to appear in such an appeal.

And similarly, if the Prosecutor-General is dissatisfied with the judgment of the High court (whether at a trial or on appeal) on a point of law or because it has acquitted the accused on a view of the facts which could not reasonably be entertained, he may appeal against the judgment to the Supreme Court, but must obtain the leave of a judge of the Supreme Court to do so.  The accused person has the right to appear in such an appeal.

Not every error of law entitles the Prosecutor-General to lodge an appeal:  the point of law must relate to a decision made by the trial court on a legal issue relevant to the acquittal.  And the Prosecutor-General will succeed in an appeal against an acquittal on the facts only when the inference drawn by the court from the primary facts is so inconsistent with logic and common sense that the judgment is perverse, if on a proper view of the facts the trial court could not reasonably have inferred the innocence of the accused.

The Prosecutor-General is entitled to appeal against a decision of a judge or magistrate to discharge an accused person at the end of the State case.  In the case of a decision of a magistrate, the appeal lies to the High Court and the Prosecutor-General must obtain leave from a judge of that court before he can appeal;  in the case of a decision of a High Court judge, the appeal lies to the Supreme Court with leave from a judge of the Supreme Court.  In such an appeal, the appeal court can remit the case back to the trial court for the trial to proceed.

Appeal against sentence

If the Prosecutor-General considers that a sentence imposed by a magistrate is incompetent, he may appeal to the High Court against the sentence.  If he considers it inadequate, he may appeal to the High Court — but he must obtain leave of a judge of the High Court to do so.

Similarly, if the Prosecutor-General considers that a sentence imposed by the High Court (whether at a trial or on appeal) is incompetent, he may appeal to the Supreme Court against the sentence.  If he considers it inadequate, he may appeal to the Supreme Court — but he must obtain leave of a judge of the Supreme Court to do so.

Appeal against interlocutory rulings

The Prosecutor-General’s right to appeal against interlocutory rulings is the same as that of an accused person, which has been dealt with above.

Application for Leave to Appeal

An application for leave to appeal from a decision of the High Court should be made orally to the trial judge immediately after sentence, stating the grounds of appeal.  If application is not made then, it must be made in writing within 12 days (i.e. business days) of the date of sentence, accompanied by the proposed grounds of appeal and an explanation of why application was not made earlier.  A copy of a written application must be submitted to the Prosecutor-General, and he must be given an opportunity to file written submissions.

An application for leave to appeal is normally dealt with by the trial judge, but if he is not available it may be dealt with by any other judge of the High Court.

For an application to be granted, there must be a reasonable prospect of success in the appeal.  If the prospects are reasonable, the application should be granted;  otherwise it should be refused. It is not enough to make out an “arguable” case, for there are very few cases which are not arguable in the wide sense of the word, but where there is substance in the argument, there must ipso facto be a reasonable prospect of success.  Applications for leave to appeal against sentence should be treated less rigidly than those against conviction, because assessment of sentence is a matter of discretion and there is always room for a difference of opinion.

If the judge of the High Court refuses to grant leave to appeal, an application for leave may be made to a judge of the Supreme Court within 10 days of the date of the refusal or within 15 days of the conviction, whichever is the later.

Notice of Appeal

An appeal is noted by lodging a notice of appeal with the clerk of the magistrates court (in the case of appeals from a magistrates court to the High Court) or with the Registrar of the High Court (in the case of appeals to the Supreme Court).

Time-limits for noting appeals

Appeals from magistrates courts

By Prosecutor-General:

• Appeal on a point of law — no time-limit, but it should be noted as soon as practicable.
• Appeal against sentence — within 10 days after sentence was passed..
• Appeal against acquittal — no time-limit is prescribed.

By convicted person:

• Appeal against conviction or conviction & sentence — within 10 days after sentence was passed or, where the appellant’s legal practitioner has requested the magistrate’s reasons for conviction and sentence, within five days after receiving them.If the proceedings have been sent on review, the appellant may within four days after sentence, elect to defer noting the appeal until the case has been reviewed.

Where the accused is not legally represented, the notice of appeal must be lodged within 10 days of the passing of sentence.

• Appeal against sentence only — where the appellant is legally represented, within five days after the passing of sentence.If the case has been sent on review, the appellant may elect to defer noting the appeal until it has been reviewed.

Appeals from High Court

1. By Prosecutor-General:

• Appeal on a point of law — no time-limit, but it should be noted as soon as practicable.
• Appeal against sentence — within 10 days after sentence was passed.Where leave to appeal is required, leave must be sought within the same period.
• Appeal against acquittal — no time-limit is prescribed, but it should be brought as soon as possible.

1. By convicted person:

Where leave to appeal is not required, within 10 days of the conviction or sentence against which the appeal is made.  Where leave is required, notice must be lodged within four days of the granting of leave, or within 10 days of the conviction or sentence, whichever is later.

Extension of time

If a convicted person fails to note an appeal within the requisite time-limit, he can apply for leave to appeal out of time by lodging an application with the registrar of the High Court or the Supreme Court, as the case may be, together with a draft notice of appeal and an adequate explanation of why the appeal was not noted in time and, where leave to appeal is required, with an application for leave.

When considering an application for an extension of time (or condonation, as it is often called) the court will consider:

• the length of the delay;
• the reason for the delay;
• the prospects of success of the appeal.

The greater the delay, the greater must be the prospects of success, and vice versa.

Grounds of appeal

A notice of appeal must set out “clearly and specifically” the appellant’s grounds of appeal.  It is not enough to state generally that “the conviction is wrong in law” or “the evidence does not support the conviction”.  If the appellant relies on an error of law, he should state what that error is;  if he alleges that the court made a mistake on the facts, he must say what the mistake was.  There should be no general statement such as “the trial court erred in accepting the complainant’s evidence”;  the notice must say why the court erred.  There must be a precise statement of the points on which the appellant relies.

A notice which fails to set out the grounds of appeal clearly and specifically is a nullity and cannot be amended (unless the State consents and the court is disposed to allow an amendment);  the only remedy is to apply for an extension of time within which to note a proper appeal.

Magistrate’s reasons

In an appeal from the magistrates court, the trial magistrate is required to comment on and reply to the notice of appeal — hence the need for the notice to state the grounds clearly.

Where the appellant is legally represented, the magistrate must within five days deliver to the clerk of court a written statement setting out the facts he found to be proved and the reasons for judgment and sentence and dealing with the grounds of appeal.  The extent of the reply depends on the extent to which these factors were dealt with in his original judgment.  The appellant is entitled to amend his notice of appeal in the light of the magistrate’s statement.

If the appellant is not legally represented, the magistrate may (but need not) reply to the notice of appeal.

Procedure where judgment not available

If a legal practitioner is asked to note an appeal where the appellant was not legally represented at the trial, he need not prepare a notice of appeal but can ask the clerk of court for a copy of the judgment.  Such a request must be made within 48 hours of the passing of sentence.

Payment for record

In appeals from a magistrates court, where the appellant is legally represented his practitioner must, within five days of noting the appeal, deposit with the clerk of court the estimated cost of a certified copy of the record, or give an undertaking to pay it.  Failure to comply with this requirement invalidates the appeal.  This does not apply where the appellant is the Prosecutor-General.

In appeals from a judgment of the High Court, the appellant (other than the Prosecutor-General) must, within 10 days after noting the appeal, make arrangements with the Registrar for the preparation of the record and for paying for it.

Appeals in person

There is no general right to conduct an appeal in person.  A judge of the appeal court must certify that there are reasonable grounds for the appeal, unless in the case of an appeal to the Supreme Court a judge has already granted leave to appeal.  The reason for this, apparently, is to prevent convicted prisoners clogging the courts and disrupting prison routines with frivolous appeals.

In South Africa the requirement that appellants must seek leave to conduct appeals in person has been found to be unconstitutional.

An appellant is entitled to be present at the hearing of his appeal, if he is out of custody.

Representation of appellant and renunciation of agency

Appellants are entitled to be represented by registered legal practitioners.

A legal practitioner can renounce his agency for good cause at any time before the appeal is set down for hearing or, after set-down, within three weeks after he has been notified of the date of hearing — provided that he does so not later than one month before the hearing.  If he does so later, he must apply to a judge for leave to do so and if he fails to get leave his renunciation is ineffective and he is obliged to appear at the hearing of the appeal.

Renunciation is effected by filing a notice with the Registrar and causing copies to be served on the appellant and the other parties to the appeal.

When a legal practitioner renounces agency, he should tell the appellant that appellants do not have a right of audience and that he must obtain leave of the court to appear.

Set-down

Appeals by Prosecutor-General

Appeals are set down for hearing on at least:

• seven days’ notice to both sides, where the appeal is on a point of law or against sentence and leave to appeal is not required;
• five days’ notice where the appeal is against sentence and leave to appeal is required.

The Prosecutor-General must file heads of argument within four days before the hearing.

Appeals by convicted persons

The Registrar will set these appeals down for hearing on six weeks’ notice to both sides, unless they agree to a shorter period.

Heads of argument

These are documents in which the parties set out the main points of their arguments, with a list of the authorities cited in support of each point.  Their purpose is to give the court and the opposing party an opportunity to prepare for the hearing.

Parties who are legally represented must file heads of argument within 15 days after being required to do so by the Registrar of the appeal court.

Failure by a convicted person’s practitioner to file heads of argument within the prescribed time-limit is fatal:  the appeal is regarded as having been abandoned and is deemed to have been dismissed.

Court’s powers on appeal

Concession by Prosecutor-General

Where the appellant is appealing from a magistrates court against conviction only or against conviction and sentence, the Prosecutor-General may at any time before the hearing give notice to the Registrar of the appeal court that he does not support the conviction.  Then a judge of the High Court may quash the conviction in chambers without hearing argument from the parties.

Hearing of evidence

The Supreme Court and the High Court on appeal may hear evidence from any witness, or order the production of any document or exhibit.  The court may also remit the case to the trial court for the hearing of further evidence.

The court will exercise this power sparingly, only in exceptional circumstances where a grave miscarriage of justice might otherwise result.  This is particularly so where the evidence is contentious.  Normally an appeal court will remit the matter to the lower court for evidence to be heard rather than hearing the evidence itself.

Where a party to an appeal wants the court to hear further evidence or remit the matter for further evidence, the party must inform the court of the nature of the evidence and explain why it was not led at the trial.  There must be a reasonable explanation why it was not led at the trial.  Also, the appeal court must be satisfied that the evidence would presumably be accepted as true and that if accepted there is a reasonable probability (not just possibility) that the result of the trial would have been different.

Quashing of conviction

The appeal court will allow an appeal and set aside a conviction for any of the following reasons:

• the judgment was unreasonable or unjustified having regard to the evidence;
• a wrong decision was made on a point of law;
• for any other reason, there was a (substantial) miscarriage of justice.

In an appeal on fact alone, the court will apply the following principles:

• where there has been no misdirection by the trial court, the appeal court will reverse a finding only if it is convinced (not merely doubtful) that the finding was wrong;
• the appeal court will be reluctant to upset findings based on demeanour and credibility of witnesses, since the trial court is in a better position to assess those factors;
• if the trial court misdirected itself and the misdirection seriously affected its assessment of the appellant’s credibility, the appeal court will ignore the trial court’s findings on credibility and assess the appellant’s evidence as it appears on the record;
• sometimes the appeal court is in as good a position as the trial court to draw inferences, where they are drawn from admitted facts;
• an appeal court should not try to find reasons adverse to the conclusions of the trial court.Simply because something was not mentioned in the trial court’s judgment does not mean it was not considered.

Alteration of conviction

An appeal court may alter the appellant’s conviction to a charge of which he could have been found guilty on the indictment, and may alter the sentence accordingly.  It is not proper to alter the verdict to guilty of a more serious crime where the trial court’s findings of fact, credibility etc must be overturned.

If the appeal is against sentence only, the appeal court will not interfere with the conviction, though it could exercise its review powers in respect of the conviction.

Alteration of sentence

If in an appeal against sentence the appeal court thinks a different sentence should be passed, it must quash the trial court’s sentence and pass the sentence it thinks ought to be passed, and may take into account events that took place after the trial.  The sentence may be more or less severe than the trial court’s.

An appeal court does not, however, have a general discretion to ameliorate the sentences of trial courts.  Sentence is pre-eminently a matter for the discretion of the trial court.  A sentence will be altered only if the trial court has not exercised its discretion judicially, i.e. in a proper and reasonable manner, e.g.:

• where the sentence is vitiated by an irregularity (e.g. if a magistrate imposes a sentence beyond his jurisdiction);
• where there has been a misdirection (e.g. where the trial court took into account irrelevant factors);or
• where the sentence is so severe that no reasonable court could have imposed it, i.e. where it “induces a sense of shock” or is “startlingly inappropriate” or “manifestly excessive”.

Statement of appropriate sentence

Instead of altering the sentence, an appeal court may simply declare what sentence the trial court should have imposed.  It may do this, e.g., where it thinks the sentence passed was too lenient but that it would be unjust to increase it since the appellant has already been released from prison.

Statement of appropriate verdict or quashing of acquittal

Where the Prosecutor-General has appealed on a point of law or against an acquittal, the appeal court may declare the verdict and sentence which it considers the trial court should have given, without however altering that verdict and sentence, or it may reverse the acquittal and impose whatever sentence it thinks the trial court should have imposed.

Restitution, compensation, etc.

An appeal court may deal with awards and orders of restitution or forfeiture ancillary to conviction.

Remittal for trial de novo

If there has been an irregularity in the proceedings, an appeal court may remit the case to be retried before a different judge or magistrate.  This would be appropriate where it would not be practicable to reconstitute the original trial court, or where the original judge or magistrate would be unlikely to approach the matter with an open mind.

Dismissal of appeal

If an appeal court does not consider that an appeal should be allowed on any of the grounds set out above, it must dismiss the appeal.

Even if there has been an irregularity or misdirection on the part of the trial court, an appeal will not be allowed unless the appeal court considers that a substantial miscarriage of justice has actually occurred.  So for example, if the trial court has misconstrued the evidence of a witness but, apart from that evidence, there is proof of the appellant’s guilt beyond reasonable doubt, then the appeal will be dismissed.

An appeal will also be dismissed for want of prosecution if the appellant’s heads of argument are not received within the prescribed period;  or if (in the case of an appeal from the High Court) no arrangements have been made for the preparation of the record;  or if there is no appearance or written arguments on behalf of the appellant.

Execution of Sentence Pending Appeal

The execution of:

• a sentence of a fine or imprisonment or community service imposed by a magistrates court;or
• any sentence imposed by the

is not suspended by the noting of an appeal, unless bail is granted or, in the case of community service, unless the magistrate has suspended the operation of the sentence.

But a death sentence must not be carried out until after the time within which an appeal may be noted or, if an appeal is noted, until it has been determined.

If, pending appeal, the accused is kept in custody as an unconvicted prisoner, the period spent in custody does not count as part of the sentence unless the appeal court orders otherwise.