After a person has been convicted and sentenced by a criminal court, that person can appeal to a higher court against the decision of the trial court. An appeal is a request made to the higher court to change the decision. The court to which the appeal is made is referred to as the appeal court.
Difference between appeal and review
In S v Maphosa HH-323-13 the court said that the essential difference between review and appeal procedure is that where the grievance is that the judgment or order of the magistrate is not justified by the evidence, and there is no need to go outside the record to ventilate the particular grievance, then the more appropriate procedure to follow for relief is by way of appeal. An election to appeal confines the legal practitioner to matters reflected in the record of proceedings.
Where issues are raised challenging the propriety of the proceedings of an inferior tribunal and the facts which have to be proved in order to support these issues do not appear as established on the face of the record, the proceedings should be by way of review. In this event, the applicant would, by way of affidavit, bring under review other matters which do not appear ex facie the record.
An appeal against sentence, on the ground of irregularity in the proceedings of the magistrates court, cannot be entertained unless the irregularity appears on the face of the record.
When an applicant desires leave of an appeal court to refer the matter back to the magistrate in order to lead further evidence which was not led at the trial, the correct procedure is to make an application, on notice of motion to the Prosecutor-General, in the course of prosecution of the appeal. The application will be granted only in exceptional circumstances, such as where, if the conviction is left undisturbed, there is a possibility, amounting to a probability, that a miscarriage of justice will take place. To lay a proper foundation for the exercise of the court’s discretion in such an application, the court should be acquainted with the nature of the evidence proposed to be led and the reasons for the failure to lead it at the proper time.
Appeal on merits
An appeal in a criminal case is a rehearing of the case on the merits and the appeal is usually heard on the basis of the evidence on which the decision appealed against was given. Only in very limited circumstances can new evidence be introduced in such an appeal.
Types of appeal
Person convicted and sentenced by a criminal court may appeal to a higher court. In some cases leave to appeal has to be obtained. There are three types of appeal
- an appeal against conviction alone;
- an appeal against sentence alone; and
- an appeal against both conviction and sentence.
The court to which the appeal will be made will depend upon which court tried the case.
Cases decided in Magistrates Court
Appeals against conviction, or against conviction and sentence, go to the High Court. The decisions by the High Court on appeal from the magistrates’ court can in turn be further appealed to the Supreme Court.
Cases decided in High Court
Appeals go to the Supreme Court in all cases, whether the appeal is against conviction or sentence or both. All cases in which the death penalty is imposed automatically go on appeal to the Supreme Court.
Rules governing various appeals
The rules governing appeals against decisions in criminal cases in the Magistrates Court are the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979 (published in Statutory Instrument 504 of 1979). These Rules will be referred to as SC Rules SI 504/79.
The filing of heads of argument in an appeal against sentence to be heard in the High Court is regulated by the High Court (Miscellaneous Appeals and Reviews) Rules, 1975 (RGN 450 of 1975). These Rules will be referred to as HC Rules RGN 450/75.
Appeals to the Supreme Court are governed by the Rules of the Supreme Court (SRGN 380 of 1964). These Rules will be referred to as the Supreme Court Rules.
Reference will also need to be made to certain rules in the Magistrates Courts (Criminal) Rules, 1966 (RGN 871 of 1966). These Rules will be referred to as RGN 871/66.
Throughout this section on appeals a Rule will be referred to as "R" e.g. : R 25 to refer to Rule 25 and an Order will be referred to as "O".
Appeals against decisions in magistrates court
All criminal appeals from the magistrates court are heard by the High Court. This applies whether the appeal is against conviction or conviction and sentence or sentence
There is no requirement that an accused must obtain leave to appeal from the magistrate who convicted him before he can take the case on appeal. This applies to appeals against sentence, appeals against conviction, and to appeals against both. There is a further right of appeal to the Supreme Court against the decision of the High Court on appeal from the magistrates court.
The legal practitioner can indicate at the end of the trial in the magistrates court his intention to take the decision on appeal. He can thereafter apply for bail pending appeal.
Appeals against sentence only
Appeals against sentence by persons who are legally represented are dealt with in Part 7 SI 504/79.
Such an appeal must be noted within 5 days of the passing of sentence. This is done by lodging with the clerk of the magistrates court a notice in duplicate clearly and specifically setting out the grounds of appeal and giving an address for service: R 34(1) SI 504/79. The notice must comply with the Rules otherwise it is a nullity: Sibanda 2001 (2) ZLR 514 (H)
At the time of noting the appeal, or within 5 days thereafter, a deposit must be paid to the clerk of court for the estimated cost of one certified copy of the record of the trial. In place of a cash deposit the clerk may agree to accept a written undertaking by the appellant or his lawyer that payment will be made immediately after the appeal has been determined: R 34(2) SI 504/79.
Where the case is subject to automatic review, notice can be given within 4 days of the passing of sentence, that the noting of appeal against sentence will be deferred until after the determination of the review proceedings. If this notice has been given, a decision can be made after the review has taken place as to whether to proceed with the appeal in the light of what the review judge has decided. If the decision is to proceed, the appeal must be noted against the sentence (with such alterations, if any, as have been made by the review court) within 7 days of the determination of the review proceedings: proviso to R 34(1) SI 504/79.
Magistrate's response to noting of appeal against sentence
If this is still necessary, given the judgment already filed, within 5 days of the noting of an appeal by a legally represented person, the magistrate must supply to the clerk of court a written statement setting out the facts he found to be proved and his reasons for the sentence and dealing with the grounds on which the appeal is based. The magistrate must deal with the grounds of appeal even though he gave a thorough and detailed judgment in the case. A copy of this statement must be sent immediately by the clerk of court to the appellant's legal practitioner: R 23 SI 504/79.
This statement does not have to be made if the magistrate is unavailable or is for some reason unable to comply with this requirement unless a judge of the Supreme Court directs otherwise: proviso to R 35(1) of SI 504/79.
Heads of Argument in appeal against sentence
The filing of heads of argument is governed by R 9A RGN 450/75.
Heads of argument have to be filed before an appeal is set down. The heads of argument must set out the main heads (the main points) of the argument, together with a list of authorities which will be cited in support of each head.
As soon as the Registrar of the High Court receives the record or the other papers relating to the case he must send written notification to the parties and must call upon the legal practitioner representing the appellant to file with the Registrar heads of argument within 15 days.
The appellant's heads must be filed within this 15-day period, which period excludes Saturdays, Sundays and public holidays, "or within such longer period as the judge may for good cause allow".
If the heads are not filed within the 15-day period, the appeal will be regarded as abandoned and will be deemed to have been dismissed.
Immediately after receiving the appellant's heads, the Registrar has to deliver a copy of the heads to the respondent.
Within 10 days of receiving the appellant's heads, the respondent’s legal practitioner has to file his heads with the Registrar. Immediately after the Registrar has received the respondent's heads he must deliver a copy of them to the appellant. This rule requiring filing of respondent's heads within 10 days is subject to the proviso that if the appeal is set down less than 15 days after the respondent receives the appellant's heads, the respondent must file his heads as soon as possible and, in any event, not later than 4 days before the hearing of the appeal.
Set down of appeal in High Court
In terms of R 10 RGN 450/75 the Registrar will set down the appeal. The Registrar must give at least 6 weeks' notice of the date of set-down to the parties to the appeal.
Leave to appeal out of time
In terms of R 47 SI 504/79, if a convicted person fails to note an appeal within the prescribed time limits , his right to appeal against conviction and sentence lapses. Time limits must be scrupulously adhered to: A-G v Lafleur & Anor 1998 (1) ZLR 520 (H)
However, in terms of R 48 SI 504/79, there is provision for making application to appeal out of time. Application for leave to note an appeal out of time is made to a judge of the High Court. The application must be lodged with the Registrar of the High Court. The application must be accompanied by:
- a draft notice of appeal complying with the Rules; and
- an adequate statement explaining why the appeal was not noted within the time period prescribed.
A legal practitioner's earlier ineptness is not a ground on which the court will grant condonation. Sibanda 2001 (2) ZLR 514 (H)
The Prosecutor-General must be notified of the application and may oppose it by lodging written arguments in opposition. The applicant may then lodge written arguments in reply and may request that the matter be set down for oral argument. The Supreme Court judge dealing with the matter may grant or refuse the application or order that the matter be set down for oral argument. After the oral argument, the application may then be granted or refused. When granting the application, the judge can give directions regarding the future conduct of the appeal.
Leave to appeal against sentence should not be approached on same basis as application to appeal against conviction: McGown 1995 (2) ZLR 81 (S)
Renunciation of agency
If a legal practitioner who has been engaged to argue an appeal wishes to renounce his agency, he must do so in terms of Rule 12A of the Rules of the Supreme Court, 1964 (SRGN 380 of 1964).
The agency may be renounced at any time.
In Martin 1988 (2) ZLR 1 (S) the Supreme Court said that any renunciation must be made in terms of this Rule and must be notified to the Registrar. The decision not to continue to act for a client should be made well before the appeal is due to be heard so that the client can be given the chance, if necessary, to make other arrangements. The client should not be told to "Go along and do the best you can". An unrepresented criminal appellant has no automatic right of audience except in certain High Court cases. Section 10(1) of the Supreme Court of Zimbabwe Act, 1981 directs that an unrepresented appellant obtain a certificate from a judge of the Supreme Court before he is entitled to prosecute an appeal. The appellant should be advised of this requirement at the time of renunciation of agency. Failure to so advise him is a breach of duty to the client on the part of lawyer. See also Marenga S-32-88.
In Martin the court also said it is highly undesirable, if not unethical, for a lawyer to disclose to the court that he was renouncing agency on the grounds that the client had insufficient funds to pay the lawyer. If the client has no more money, the lawyer must decide whether he will continue to act for the client or not.
Appeals against conviction or conviction and sentence
An appeal against conviction, or against both conviction and sentence, is heard by the High Court.
Appeals against conviction or conviction and sentence by persons who are legally represented are dealt with in Part5 of SI 504/79.
The appeal must be noted within 10 days of the passing of the sentence. This is done by lodging with the clerk of court a notice in duplicate, setting out clearly and specifically the grounds of appeal and giving the legal practitioner's address as the address for service: R 22(1) SI 504/79.
If the appellant wishes to appeal but a request for reasons for judgment or sentence has been made in terms of R 3(1) O 4 of the Magistrates Courts (Criminal) Rules, 1966 (RGN 871 of 1966) then the appeal must be noted within 5 days of the receipt of the judgment or statement referred to in that rule, whichever is the later. R 3(1) provides that a convicted person is entitled to make a written request to the clerk of court, within 48 hours of being sentenced, that he be supplied with a copy of the judgment or, if there was no judgment, a statement from the magistrate giving reasons for conviction and setting out any special factors which were taken into account in sentence: R 22(1) SI 504/79.
At the time of noting the appeal, or within 5 days thereafter, a deposit must be paid to the clerk of court for the estimated cost of one certified copy of the record of the trial. In place of a cash deposit the clerk may agree to accept a written undertaking by the appellant or his lawyer that payment will be made immediately after the appeal has been determined: R 22(2) SI 504/79.
Where the case is subject to automatic review, notice can be given, within 4 days of the passing of sentence, that the noting of appeal against sentence will be deferred until after the determination of the review proceedings. If this notice has been given, a decision can be made after the review has taken place as to whether to proceed with the appeal in the light of what the review judge has decided. If the decision is to proceed the appeal must be noted against conviction and sentence, with such alterations, if any, made by the review court within seven days of the determination of the review proceedings: Proviso to R 22(1) SI 504/79.
Magistrate's response to noting of appeal against conviction
Insofar as this is necessary given the judgment already filed, within 5 days of the noting of an appeal by a legally represented person the magistrate must supply to the clerk of court a written statement setting out the facts he found to be proved and his reasons for judgment and sentence and dealing with the grounds on which the appeal is based. This statement must be sent immediately by the clerk of court to the appellant's legal practitioner: R 23(1) SI 504/79.
This statement does not have to be made if the magistrate is unavailable or is for some reason unable to comply with this requirement unless a Supreme Court judge directs otherwise: Proviso to R 23(1) SI 504/79.
Appeal where accused pleaded guilty
An appeal against conviction where there has been a plea of guilty will only be entertained where from the words used by the accused in pleading to the charge it is demonstrated that the accused was raising some defence which could legitimately be raised to the charge. In the present case, the appeal was entertained because the accused in the words used when pleading was raising the defence of claim of right: Mudzingwa 1999 (2) ZLR 225 (H)
There is no right of appeal against an interlocutory decision in the magistrates court before the proceedings have terminated. Thus it is only after the proceedings have terminated that an appeal can be brought in which the appellant raises the issue of the correctness of the interlocutory ruling. This would include a decision by a magistrate turning down an application for him or her to recuse himself or herself. Masedza v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (H). However, the High Court may, in exceptional circumstances, be prepared to review such a decision before the proceedings in the magistrates court have terminated.
Appeals against decisions of High Court
These appeals are dealt with in the Rules of the Supreme Court.
The following appeals against decisions of the High Court are heard by the Supreme Court:
- Appeals against conviction and sentence or conviction or sentence in cases first tried in the High Court;
- Further appeals against decisions of the High Court on appeal against sentences imposed in the magistrates courts, where the appellants are dissatisfied with the appeal decisions in the High Court.
- Appeals against decisions of the High Court in regard to applications made to the High Court to review the proceedings in the magistrates court on the grounds of irregularities. There is, however, no right of appeal against decisions taken by High Court judges on automatic review of the proceedings.
Leave to appeal
In some instances the leave (permission) of the High Court to appeal is required before the case can be taken on appeal to the Supreme Court: s 44 High Court Act, 1981. Where the High Court refuses to grant leave to appeal, the appellant is entitled to apply to a Supreme Court judge for leave to appeal.
Leave to appeal not required
Leave to appeal is not required if:
- the appeal is against conviction on any ground of appeal which involves a question of law alone (Where the appeal was brought on the ground of law alone but it turns out on appeal that the appeal involves a question of mixed fact and law, the Supreme Court can grant leave to the appellant to proceed without the appellant first having to obtain leave from the High Court);
- the High Court imposed the death sentence and the appeal is against conviction or sentence or both;
- where the sentence for the offence is fixed by law and the appeal is on the ground that the sentence passed was not the sentence fixed by law in respect of the offence of which the appellant was convicted.
Leave to appeal required
Leave to appeal must be obtained if:
- the appeal is against conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact. (It involves a question of fact if the ground of appeal is that there was no evidence or insufficient evidence to justify a conviction);
- the appeal is against sentence (or a forfeiture order) where the sentence was not that of death and it was not fixed by law.
Applications to High Court for leave to appeal
Such applications are governed by O 34 of High Court Rules, 1971.
R 262 Where leave to appeal is necessary, the application for leave to appeal must be made orally immediately after sentence has been passed. The applicant's grounds for the application must be stated and these will be recorded. The presiding judge can grant or refuse the application as he thinks fit.
R 263 Where an application was not made immediately after sentence was passed, in special circumstances, an application may be filed with the Registrar of the High Court within 12 days of the date of the sentence. This application must state the reason why application was not made immediately after sentence was passed and the grounds on which it is contended that leave to appeal should be granted.
R 264 A copy of this application must be served on the Prosecutor-General immediately after the application has been filed with the Registrar. The Prosecutor-General may file with the Registrar written submissions on the application within 2 days of the date of service on him.
R 265 The application in terms of R 263 is then placed before the presiding judge in chambers, who can grant or refuse the application as he thinks fit. The judge in his discretion can require oral argument on particular points raised.
R 266 If an application for leave to appeal is not made within the 12 day period, an application can still be made for condonation of late filing of this application. Such an application must be filed with the Registrar and served forthwith on the Prosecutor-General and must be accompanied by an application for leave to appeal. Within 3 days of service upon the Prosecutor-General, he may file with the Registrar submissions on the condonation application and the application for leave to appeal. The applications will then be placed before a judge in chambers who can grant or refuse the applications.
R 267 An application for condonation may not be made more than 28 days after the passing of sentence unless the judge orders otherwise.
R 268 Where the presiding judge is not available to deal with any of these applications, they may be dealt with by another judge.
An application for leave to appeal must normally be made immediately after the passing of sentence.
Application within 12 days
Must be made within 12 days of sentence, stating the reason why it was not made immediately.
Application between 12 and 28 days
Must be accompanied by application for condonation of the late filing of application.
Application after 28 days
Only if judge prepared to order that application may still be made.
Withdrawal of concession by Prosecutor-General’s representative that leave to appeal should be granted
In the case of Masuku HB-114-04 when the applicant was convicted, the Attorney-General’s representative (who had not himself prosecuted the case) conceded that leave to appeal should be granted. At the application for bail, the Attorney-General’s representative (who had not appeared previously) sought to withdraw the concession. The court held that the Attorney General occupies a pivotal role in the criminal justice system. His opinion in applications before the court commands respect because of his experience and the responsibility of his office. A concession made by him must be an informed one; it cannot be withdrawn willy-nilly in criminal proceedings. If he seeks to withdraw a concession, this must be properly done, giving the accused an opportunity to make submissions, as the withdrawal of a concession will, in most cases, result in prejudice to the other side. There was no submission that the Attorney-General’s previous representative was aware of the withdrawal that he made on behalf of the State. Even if he were aware, he would be required, as an officer of the court, to file an affidavit in support of the withdrawal accepting blame for erroneous concession.
Application to Supreme Court for leave to appeal
The procedure for applying for leave to appeal, where a High Court judge has originally refused such leave, is set out in Rule 19 of the Supreme Court Rules. The application must be on the prescribed form and accompanied by the grounds of appeal on its prescribed form. The application may be accompanied by written argument in support of the application. The application and two copies of it are lodged with the registrar of the Supreme Court and one copy is delivered to the Registrar of the High Court.
The Registrar of the Supreme Court will ask for a copy of the High Court judgment, the reasons of the judge for refusing leave to appeal and a copy of the indictment and any other relevant documents. These papers are sent to the Attorney-General. The Supreme Court judge may decide to grant leave to appeal without having a hearing or he may hold such a hearing first. A representative of the Attorney-General's office may appear at such hearing.
Criterion for deciding whether to grant leave to appeal
In Mutasa 1988 (2) ZLR 4 (S) it was stated that the test to be applied when considering an application for leave to appeal in terms of Rule 19(8) of the Supreme Court Rules is not whether the applicant has an arguable case but whether he has a reasonable prospect of success on appeal. If he has not, then leave to appeal should be refused.
Noting of appeal in Supreme Court
The legal practitioner must compile the notice of appeal and the grounds for appeal.
Documents to be delivered: Notice of appeal and grounds of appeal.
To whom to be delivered: Notice plus two copies to Registrar of High Court and one copy to registrar of Supreme Court.
Periods within which documents to be delivered:
(a) Where leave to appeal is not necessary the documents must be delivered within fourteen days of the date of conviction or sentence against which the appeal is being made.
(b) Where leave to appeal has been granted by the High Court, within four days of the granting of leave to appeal or within fourteen days of conviction or sentence, whichever is later.
Where a Supreme Court judge grants leave to appeal no notice of appeal is required.
Grounds of appeal
The grounds of appeal must be set out in the notice of appeal and the grounds must be in separate numbered paragraphs. Grounds of appeal against conviction must be separated from grounds of appeal against sentence.
In Venter & Anor S-20-88 it was pointed out that where leave to appeal is granted at the end of a trial at which X is represented pro deo, the pro deo counsel has a duty to draft a proper notice of appeal containing proper grounds of appeal.
R 22(1) SI 504/79 requires that the notice of appeal sets out clearly and specifically the grounds of appeal. The grounds must be precisely specified and particularised and must not be couched in vague and generalised terms.
In Nguruve S-191-88 the Supreme Court indicated that the court expects legal practitioners to take the utmost care in the preparation of a notice of appeal, for if the notice offends against R 22(1) it will be struck out as invalid and the appeal will be discharged from the Roll.
In Ncube 1990 (2) ZLR 303 (S) and Jack 1990 (2) ZLR 166 (S) the Supreme Court stated that, if the notice is vague and general, it is a nullity and cannot be amended by putting in a more detailed notice later; it is as if no notice at all had been given. The magistrate is perfectly within his rights to refuse to give his reasons for judgment on receipt of such a vague notice.
It was further pointed out that if the notice of appeal is a nullity and the time within which to appeal has elapsed, the right of appeal has also elapsed.
With appeals against conviction, it is not enough to provide vague and generalised grounds of appeal. Such vague and general grounds as "the conviction is against the weight of evidence" or "the evidence does not support the conviction" or "the conviction is wrong in law" or "the magistrate erred in accepting the complainant's evidence" are completely inadequate and do not constitute compliance with Rule 22(1): Emerson & Ors 1957 R & N 743 (H) at 748 D-E; Ncube 1990 (2) ZLR 303 (S).
In regard to a notice of appeal against sentence, however, it is sufficient to say that "the sentence is excessive in the circumstances": Jack 1990 (2) ZLR 166 (S).
Where the appeal against conviction is based on fact, a general allegation that the conviction is against the weight of the evidence is inadequate compliance with the rules, for even in the simplest of cases, it is possible for the appellant to characterise his grounds of appeal further, at least to the extent of saying whether his attack on conviction is based on the quality of the prosecution evidence or on its quantum or on both: Emerson & Ors 1957 R & N 743 (SR); Viringanayi 1969 RLR 509 (A); Hungwet 1956 R & N 60 (SR); Foce 1958 R & N 65 (SR); Du Toit 1958 R & N 177 (SR).
In Hunda S-122-89 the Supreme Court was particularly scathing about the grounds of appeal. It seems the person who drafted them did not even know under what section of the Road Traffic Act his client had been convicted as he had left blank the section number in the notice of appeal. His grounds of appeal were vague and embarrassing in the extreme. It was not even stated precisely of what offence the appellant had been convicted. The notice read as follows:
1. The Court a quo erred in a matter of fact in accepting the evidence of the State witnesses which seemed improbable in all the circumstances of the case.
2. The Court a quo erred in holding that the State had proved its case beyond reasonable doubt.
3. The learned magistrate failed to conduct the trial in a satisfactory manner.
In Jack 1990 (2) ZLR 166 (S) it was stated that if it is not possible for a legal practitioner to lodge a proper notice of appeal without a transcript of the proceedings, he can apply for a transcript in terms of R 3 O 4 RGN 871/66, thereby postponing the date by which the notice must be lodged.
In Banzi & Anor S-36-91 the Supreme Court stated that it was a flagrant breach of the Rules to note an appeal averring that the grounds "will be furnished after perusal of the court record". There is no provision for the grounds to be filed later. A notice of appeal which did not set out any grounds was fatally defective and the appeal was struck off the Roll.
In Madhana S-122-84 it was found that the grounds for appeal against conviction were so badly and ambiguously drawn that it was impossible to know what the grounds of appeal were and it was impossible for the trial magistrate to furnish a reply to the notice
See also Manzinde 1989 (1) ZLR 148 (S).
There have been occasions on which Supreme Court has exercised powers of review to assist a would-be appellant where the appeal has merit (this has usually been in cases which have not already been reviewed by the High Court and certified to be in accordance with substantial justice.)
In an an appeal against a conviction which involved multiple counts, the grounds of appeal applicable to each count must be clearly indicated.
In Nguruve S-191-88 the Supreme Court pointed out that in order to comply with R 22(1) it was necessary to set out clearly and specifically, under the heading of each count, the various grounds of appeal relied upon. Where the grounds of appeal are of a general nature and relate to more than one count, they should be enumerated under the caption "In respect of all counts" or where relate only to certain of the counts the caption should indicate to which counts the grounds relate e.g. "In respect of counts 2, 5 and 7".
Misdirection by trial court
In Chinandama S-158-90 the Supreme Court emphasised that the particulars of any misdirection alleged as a ground of appeal must appear in the notice, and some indication must be given as to the nature of the misdirection alleged and whether it is one of law or fact. If some omission is complained of, the notice must state what it is alleged was omitted.
The court said that (as was said in Emmerson & Ors 1957 R & N 743 SR)) even in a simple case of pure fact there are always two possible broad issues. Firstly, there is the possible issue that the magistrate was wrong in accepting the State evidence at all. The second issue is that even if he was right in accepting the evidence, the evidence relied on was not sufficient to prove the offence beyond a reasonable doubt. An appellant must particularise to the extent of indicating whether his appeal is based on one or other of these grounds or both.
In Chinandama the court found that the following ground was unduly vague: that the trial magistrate "should have thoroughly investigated instead of merely dismissing the appellant's explanation on why the complainant could fabricate and falsely implicate the appellant".
It must, however, be borne in mind that proof of a misdirection on the part of the trial court will not automatically result in the appeal succeeding. In Ruzario 1990 (1) ZLR 359 (S) it was found that the trial court has misdirected itself by relying on inadmissible evidence. The Supreme Court said that in terms of s 11(2) of the Supreme Court Act, 1981 the court had to determine whether "a substantial miscarriage of justice has in fact resulted" from the misdirection. The approach which the court has to adopt is to consider the evidence on the record and the credibility findings, if any, unaffected by the misdirection, and decide whether, if no reliance is placed on the evidence which the trial court wrongly relied on, there is proof of guilt beyond a reasonable doubt. If it does so consider then there is no resultant miscarriage of justice. The onus is on the State to satisfy the appeal court that no substantial miscarriage of justice had resulted.
Unavailability of record
In Gahamadzwe S-17-92 the Supreme Court pointed out that it was impermissible for appellant's legal practitioner to note an appeal and set out grounds for appeal without first having had sight of the judgment or the record. It is only on the basis of the record that proper grounds of appeal can be composed. The noting of an appeal without seeing the record should not be done as a way of noting of the appeal within the prescribed period. Instead the procedures set out in R 3(1) O 4 RGN 871/66 should be followed. This allows for the expeditious method of obtaining of the record by the convicted person making a request within 48 hours of his sentence for a copy of the record.
In Jack 1990 (2) ZLR 166 (S) it was stated that if it is not possible for a legal practitioner to lodge a proper notice of appeal without a transcript of the proceedings he can apply for a transcript in terms of R 3 O 4 RGN 871/66 thereby postponing the date by which the notice must be lodged.
In Mapati & Ors S-13-91 the applicants were unrepresented at their trial. They instructed a lawyer to appeal one working day before the last day for noting an appeal. It was found that the record had been lost. When the record was found 10 days later, it was found to contain no written judgment. The magistrate was immediately asked to write a judgment. When the judgment was still not forthcoming 2 weeks later, counsel filed a notice of appeal setting out broad grounds and applying to the magistrates court for condonation.
The Supreme Court noted that the application for leave to note appeal out of time should have been made to a judge of Supreme Court, filing a notice of application, together with a supporting affidavit from the legal practitioner and an intended notice of appeal. The irregularity in applying to the magistrates court was condoned and merits of application considered.
The Supreme Court said that it was impossible for adequate grounds to be formulated before the record was available, but thereafter it was slightly negligent of the legal practitioner to await written judgment, instead of immediately filing broad grounds based on record, knowing that judgment would take at least another week. In the circumstances the late noting of the appeal could therefore only be allowed if there was some prospect of success.
The unavailability of the record was held in the case of Dale S-26-90 not to be a valid excuse for failure to comply with the requirement that the notice must set out precisely the grounds of appeal. In this case, appellant's legal practitioners instituted an appeal against a decision of a court martial. The notice set out no grounds of appeal. Leave to appeal out of time was subsequently granted but nothing was done about filing the grounds of appeal. The reason given for this default was unavailability of the record of the court martial proceedings. This was not a valid excuse, the Supreme Court said, as before preparing and filing the notice of appeal, legal counsel must first request a copy of written judgment.
As relates the effect of an incomplete record see Manera 1989 (3) ZLR 92 (S)
Amendment of notice of appeal
The Supreme Court has disapproved of the practice by some legal practitioners of making applications to amend their notices of appeal on the very day the appeal is to be heard and doing so without affording the magistrate, the respondent and the Supreme Court an opportunity of having sight of the documentation outlining the basis of the application: Kadzombe S-165-90. In this case the Supreme Court refused the application to incorporate new grounds in the notice of appeal, having found in any event that there was no merit in the new grounds.
Where the appellant institutes the appeal himself but he subsequently obtains legal representation, the legal practitioner may, not later than seven days before the hearing of appeal, file a notice amending, altering or supplementing the grounds of appeal.
Late noting of appeal and leave to appeal out of time
In terms of R 47 SI 504/79, if a convicted person fails to note an appeal within the time limits prescribed, his right to appeal against conviction and sentence lapses.
However, in terms of R 48 SI 504/79, there is provision for making application to appeal out of time. Such an application is made to a judge of the Supreme Court. The application must be lodged with the Registrar of the Supreme Court and accompanied by:
- a draft notice of appeal complying with the Rules; and
- an adequate statement explaining why the appeal was not noted within the time period prescribed.
The Prosecutor-General must be notified of the application and may oppose it by lodging written arguments in opposition. The applicant may then lodge written arguments in reply and may request that the matter be set down for oral argument. The Supreme Court judge dealing with the matter may grant or refuse the application or order that the matter be set down for oral argument. After the oral argument the application may then be granted or refused. When granting the application, the judge can give directions regarding the future conduct of the appeal.
In Nemukuyu S-146-87 the Supreme Court declined to condone the late noting of the appeal and to grant leave to appeal out of time. The notice of appeal was filed in the registry of the magistrates court outside the 14 day limit prescribed by the R 22 SI 504/79 for instituting such appeals. The explanation advanced for the late noting of the appeal was that although the applicant's legal practitioner was in court to note judgment handed down by the court, it was, at times, difficult to hear the magistrate; that the judgment was reasonably lengthy and in view of the issues involved it was considered prudent to examine the written judgment before formulating the grounds of appeal. The legal practitioner who represented X at his trial was the same person who noted judgment. He advised the magistrate of the applicant's intention to appeal and even applied for bail pending appeal. The Supreme Court observed that he must have had a fair idea of what dissatisfied him in the judgment to propel him to announce the intention to appeal and to ask for bail. This excuse was therefore weak and unsatisfactory.
In Tangirai & Ors S-183-90 the first appellant had lodged his notice of appeal after the expiry of the 14 day period prescribed by R 22(1) SI 504/79. There was no application for condonation of the late noting of the appeal. Three months later he had filed an application for leave to appeal out of time in terms of R 48(1) SI 504/79 but did nothing further in regard to the application and the matter appeared to have been ignored by all parties concerned.
Taking into account the fact that no explanation had been tendered for the delay in instituting the appeal, and the appellant's lack of prospects of success, the Supreme Court struck the appeal off the Roll.
In an application for leave to appeal out of time, the documents must be accompanied by an affidavit setting out why the applicant did not institute his appeal or apply for leave to appeal within the time periods prescribed.
The Prosecutor-General may submit affidavit in reply to that filed by applicant and, if he does, the applicant must be given opportunity to reply thereto: R 20 of Supreme Court Rules.
If the record goes missing whilst the trial is still taking place (i.e. before all the evidence has been heard and the magistrate has arrived at his verdict), then the defence lawyer is entitled to have the case proceed from the point at which it left off. Thus with part-heard cases, the clerk of court under the direction and supervision of the presiding judicial officer, must reconstruct the record from the best secondary evidence. Affidavits should be taken from witnesses and those present.
Where the accused had pleaded guilty the case can then proceed on the basis of the restored record, provided there is no prejudice to the accused. However, if the accused has pleaded not guilty the witnesses who have previously given evidence must be recalled in order to ascertain whether they agree that the version of their testimony in the reconstructed record is correct. The defence lawyer and the State should be permitted to cross-examine the witnesses relating to the correctness of the reconstructed record: Sibanda HH-80-91.
If the trial has been completed, the trial judicial officer is functus officio (has finished dealing with the matter) and the clerk of court must by affidavit state that the record has been lost and proceed to reconstruct the record by obtaining affidavits from the magistrate, witnesses and others present as to the contents of the record. Both parties must be given an opportunity to peruse the reconstructed record and to give their versions. Thereafter the record will be sent for review or appeal: Sibanda HH-80-91.
Rectification of record
In Davy 1988 (1) ZLR 386 (S) it was pointed out that when considering an appeal, the appeal court must have regard to what appears on the record. If the appellant is not satisfied with the accuracy of the record of the trial in a magistrates court, he should apply in writing to that court, in terms of R 6 O 111 of the Magistrates Court (Civil) Rules, 1966, for the errors to be corrected. If, through no fault of his own, he is unable to obtain rectification pursuant to that procedure — and those Rules make no provision for a magistrate to grant an extension of time — he must apply to the High Court expeditiously on notice of motion for rectification, serving the notice, together with an affidavit which sets out the omitted matters he seeks to have incorporated in the record, upon the presiding magistrate and upon the Prosecutor-General. They must be given ample opportunity to answer the allegations. If the application is granted by the High Court, the Supreme Court will be in a position to hear the appeal on the record as amended.
The Supreme Court will not itself entertain applications for the rectification of a record; the fact that it did so in the case of Jenkins S-94-85, where the State did not dispute the inadequacy of the record, should not be taken as a precedent.
Heads of argument for appeal to Supreme Court
The filing of heads of argument in the Supreme Court is governed by R 24 as read with R 22 the Supreme Court Rules. (See also R 6C SI 504/79 as regards appeals against decisions in the magistrates courts and R 10A RGN 449/75 in respect of appeals against decisions in the High Court.)
Heads of argument have to be filed before an appeal is set down. The heads of argument must set out the main Heads (the main points) of the argument together with a list of authorities which will be cited in support of each Head.
After the Registrar of the High Court has received the record of the case, he must send it to the Registrar of the Supreme Court and the Registrar of the High Court must notify the legal practitioner of the appellant that he has sent the record to the Registrar of the Supreme Court and he must call upon the legal practitioner to file heads of argument within 15 days of such notification.
The appellant's heads must be filed on a registrar within this 15 day period, which period excludes Saturdays, Sundays and public holidays, "or within such longer period as the judge may for good cause allow". Immediately thereafter he must deliver a copy of these heads to the Prosecutor-General.
Late filing of heads of argument may lead to the striking of the case off the roll. It was pointed out in Maphosa S-12-91 that in criminal appeals to the Supreme Court, where heads are filed late, without apology or application for condonation, the Supreme Court will be justified in declining to read the papers and striking the appeal from the roll.
In Nyereyemhuka S-21-89 the Supreme Court warned legal practitioners that they may find that their clients' appeals will be dismissed for want of prosecution if they file heads of argument out of time.
In Masuku S-91-89 appellant's counsel had filed his heads only a day prior to the set down date. His excuse for doing so was that the matter had been taken over from another firm. The appeal court indicated that this was not a satisfactory and sufficient reason for condoning the late filing and, had the State counsel not made a concession in favour of the appellant's appeal, the court would not have entertained the appeal.
In the April, 1992 Law Society Newsletter Gubbay CJ indicated that a formal notice of motion is not required for the purpose of applying to a judge for an extension of time within which to file heads of argument. However, the application for extension must be made by way of affidavit. A mere letter setting out the facts and requesting an extension will not be accepted as sufficient. The papers will then be considered by the judge and he will decide the matter accordingly. There will be no need for any documentation from the respondent in respect of such applications.
Within 10 days of receiving the appellant's heads, the Prosecutor-General has to file his heads with the Registrar. Immediately after the Registrar has received respondent's heads he must deliver a copy of these to the appellant. This rule is subject to the proviso that if the appeal is set down less than 15 days after the respondent receives the appellant's heads, the respondent must file his heads as soon as possible and, in any event, not later than 4 days before the hearing of the appeal.
Set down of appeal in Supreme Court
In terms of R 24 of the Supreme Court Rules, after receiving the notification that the record of the case has been sent to the Registrar of the Supreme Court, the appellant's legal practitioner must apply to a registrar in writing for a date of hearing, and must provide the registrar of the Supreme Court with an estimate of time it is envisaged the hearing will take.
After this application has been received, the Registrar of the Supreme Court must set down the appeal for hearing on a day elected by him. He must immediately notify the appellant's legal practitioner and the Prosecutor-General. The Registrar must select a date for the hearing which is such that the parties to the appeal are have not less than 7 days' notice of the hearing.
Abandonment and dismissal of appeal
In terms of R 25 of the Supreme Court Rules, if no arrangements have been made for the preparation of the record or no application has been made for a date of hearing within 6 weeks of receiving notification that the record has been sent to the Supreme Court, the appeal shall be regarded as abandoned and shall be deemed to have been dismissed.
An application can, however, be made for reinstatement of the appeal and an extension of time.
Non-compliance with the Rules
The Supreme Court has sometimes relied upon its review powers to assist a would-be appellant where his appeal had merit, despite the fact that due to non-compliance with the Rules of Court the case is not properly before the appeal court but see Zvinyenge & Ors 1987 (2) ZLR 42 (S).
Renunciation of agency to prosecute appeal
In terms of R 12A of the Supreme Court Rules, a legal practitioner engaged to act for the appellant may not renounce his agency less than three weeks before the hearing of the appeal. In Makawa S-179-91 appellant's legal practitioners had purported to renounce their agency 11 days before the day of hearing, in violation of R 12A of the Supreme Court Rules. Renunciation at that time without leave of the court or a judge was ineffective and the legal practitioners were notified by the Registrar of their obligation to appear on behalf of their client at the hearing. They briefed counsel to appear, at very short notice, and he produced heads of argument on the morning of the hearing, but did not file papers explaining the attempted breach of R 12A and applying for condonation of the late filing. Despite the merits of the appeal the Supreme Court dismissed the appeal because of breach of the Rules.
The court, however, then postponed the matter to enable the State to reconsider and, when the State withdrew its support for the conviction at the subsequent date, exercised its review powers and set aside the conviction and sentence.
If the client is unable to raise the required funds for the appeal the legal practitioner must decide well before the appeal is heard whether or not he will continue to act for the client. If he decides not to continue, he must renounce his agency in terms of R 10(3) of the Rules of the Supreme Court, and must advise the client that unrepresented appellants have to obtain a certificate from a Judge of the Supreme Court before being entitled to prosecute an appeal in person. Failure to advise the client of this is a breach of the legal practitioner's duty to his client: Martin 1988 (2) ZLR 1 (S).
Appeal against sentence
The High Court and the Supreme Court are empowered, in cases involving appeals against the sentence imposed by the trial court, to quash the sentence and impose such other sentence as may be warranted, whether more or less severe misdirection on the part of the trial court. See s 38(4)(a) of the High Court Act, 1981 and s 11(4)(a) of the Supreme Court Act, 1981.
However, it has often been stressed that the discretion to impose sentence lies with the trial court. In an appeal against sentence the appeal court may only interfere with the sentence imposed by the trial court on limited grounds. These are: if the sentence imposed was manifestly excessive or if there was a misdirection on the part of the trial court.
In numerous other cases which have been reported including Nhumwa S-40-88, it was pointed out that it was not for appeal court to interfere with the discretion of the sentencing court merely on the ground that the appeal court might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is severer than one which the appeal court would have imposed sitting as the court of first instance, the appeal court will not interfere with discretion of sentencing court. The appeal court aims not so much at uniformity of sentence but uniformity of approach.
In Jackson S-7-88 the court reiterated that sentencing involves essentially a value judgment and unless the sentence imposed by trial is glaringly inappropriate or is vitiated by some irregularity or misdirection on part of court, the appeal court will not substitute its discretion for that of the trial court.
In Chirisa 1989 (2) ZLR 102 (S) it was decided that failure by a magistrate to provide reasons for his sentence in terms of O 5 R 2(1)(a)(ii) RGN 871/66 amounts to a misdirection, because it effectively prevents the appeal court from determining whether he misdirected himself or not.
See also 1989 Vol 1 No 6 Legal Forum 29.
It must be carefully noted that in a case involving an appeal against sentence the appeal court may, if it considers that this is warranted, substitute a sentence which is more severe than that imposed by the trial court.
However, in Honamombe S-90-88 it was stated that it has never been doubted that an appeal court cannot impose a sentence which, at the time of the appellant's conviction, would not have been a competent sentence for the trial court to impose. That long-standing principle is not affected by s 38(4)(a) of the High Court Act, 1981; for although on an appeal against sentence the High Court may quash the sentence passed at the trial and impose one more or less severe, the sentence substituted must be one "warranted in law", and must conform with the jurisdictional restriction of the trial court.
In an appeal against sentence only, the High Court may, in appropriate circumstances, exercise its powers of review and set aside a conviction: Jonas HB-32-88.
In an appeal against sentence the appeal court is not bound by sentence which has previously been confirmed on automatic review: Malunga 1990 (1) ZLR 124 (H)
Financial dealing with client
In Martin 1988 (2) ZLR 1 (S) it was pointed out that if a legal practitioner is not put in funds after having been engaged to represent a client in a criminal appeal before the Supreme Court, it is highly undesirable, if not unethical, for him to disclose this fact to the court. Instead, he must decide well before the appeal is heard whether or not he will continue to act for the client. If he decides not to continue, he must renounce his agency in terms of R 10(3) of the Supreme Court Rules, and must advise the client that unrepresented appellants have to obtain a certificate from a Judge of the Supreme Court before being entitled to prosecute an appeal in person. Failure to advise the client of this is a breach of the legal practitioner's duty to his client.
In Manzinde 1989 (1) ZLR 148 (S) it was stated that in an application for the postponement of the hearing of an appeal, the applicant's legal practitioner must ensure that his client's affidavit supporting the application gives a candid and comprehensible explanation of the need for postponement. He should not file an affidavit in which his client blames another legal practitioner for failing to proceed expeditiously with the appeal unless he has first checked with the other practitioner to confirm the truth of the allegation.
New evidence emerging after trial has ended
Usually an appeal is decided on the record and no further evidence may be led.
However, the Supreme Court has power (in terms of s 15(b) and (c) of the Supreme Court Act) and the High Court has powers (in terms of s 41(b) and (c) of the High Court Act) to call evidence when hearing appeals where this is necessary or expedient in the interests of justice. Such right is exercised only in exceptional circumstances and only if grave miscarriage of justice would result if not exercised: Jim & Anor 1947 (4) SA 118 (SR); Rademeyer 1948 (2) PH H158 (SR).
In Craven S-87-91 the appellant, who had been convicted of drunken driving, had challenged the reliability of the blood alcohol analysis. On appeal, his counsel sought to rely on inaccuracies in the doctor's affidavit which had not been put in evidence to establish that the analyst was careless in carrying out the analysis. The appeal court declined to take cognizance of these new facts as they were not on record and had not been placed before the appeal court by consent nor had any application been made for it to be admitted as part of the record.
Additionally, in exceptional circumstances, the Supreme Court may set aside the conviction and order the remittal of the case to trial court for hearing of further evidence under s 17(d) of the Supreme Court Act.
A proper foundation must be laid in an application by appellant's legal counsel for remittal to the trial court for hearing of further evidence. The Supreme Court must be appraised of the nature of the evidence proposed to be led and of the reasons for the failure to lead that evidence during the trial: Ngombe 1964 RLR 231 (A). There must be something outside the record to show that the original failure to lead evidence was due to the cause asserted by the defence: Smit 1958(4) SA 283 (SR). Generally, the appellant's counsel should be able to advance a reasonable explanation as to why the evidence was not led at the original trial. The court should also be satisfied that the evidence is available at the time of appeal and that that evidence is likely to be incontrovertible and decisive: Bira 1971 (1) RLR 263 (A); Adams 1952 (1) PH H14 (SR).
The case of Zvakurumbira S-7-90 involved an appeal against a conviction for rape. Defence counsel produced a letter purporting to have been written by the complainant in which she confessed that her testimony before the trial court was false. Counsel applied for an order setting aside the conviction and sentence and remitting the case to the trial court for the purpose of subjecting the complainant to further cross-examination. The appeal court refused to make this order. It pointed out that the correct procedure was for the defence lawyer to proceed by way of notice of motion, addressed to the Attorney-General, supported by an affidavit confirming the contents of the letter. However, it emerged that the complainant denied writing the letter and an application for postponement to allow a handwriting expert to determine whether the letter was written by the complainant was refused.
One circumstance in which the Supreme Court will remit the case is where the State failed to reveal to the defence that a State witness' testimony was materially different from the statement he made to the police: Tapera 1964 RLR 197 (A).
In Kuiper 2000 (1) ZLR 113 (S) the appellant was convicted of common assault. He appealed against conviction. A few days before the appeal was heard he filed an application in the Supreme Court for an order setting aside the conviction and sentence, and remitting the matter to the trial court so that the appellant could lead further evidence. The further evidence which he sought to have introduced consisted of a video recording which he said would corroborate his version of what happened. It was held that the requirements which the applicant must satisfy are well established. There must be a satisfactory explanation of why the evidence was not led at the trial; there must be a prima facie likelihood that the evidence is true; and the evidence must be materially relevant to the outcome of the trial. Where the appeal court is satisfied that those grounds exist, it may either remit the matter or hear the evidence itself and decide the matter on the basis of the new evidence. These requirements
had been satisfied in the present case. There was a satisfactory explanation for not leading this evidence at the trial. The police had taken the video recorder after the incident and the prosecutor had told the appellant that the video tape had been wiped clean. It was only after the video recorder was returned to the appellant after the completion of the trial, that the appellant discovered that it had not been wiped clean. There was a prima facie likelihood that this evidence was true and the evidence was materially relevant to the outcome of the trial. The court should itself view the new evidence. On the basis of this evidence the conviction and sentence should be set aside.
New evidence emerging after defence has closed its case
A situation may sometimes arise where the defence may wish to lead further evidence after it has already closed the defence case. Immediately after the defence has closed its case, the court may have adjourned the case to a later date, at which stage it was intended that final addresses would be heard and judgment would then be handed down or reserved. If, during the period that the case was adjourned, new defence evidence becomes available, the defence would have to apply to the court when the case is resumed for permission to re-open the case and call this further defence evidence. In the interests of justice, the court would be expected to grant this application. However, defence counsel would also be expected to give a satisfactory explanation as to why it was not possible to lead this evidence before he closed his case.
It is also possible that new evidence could come to light after the trial court has found X guilty, but before the court has imposed sentence. After the court has pronounced its verdict, it may adjourn the case to a later date, at which stage the matter of sentence would be dealt with. If the new evidence has come to light after the trial court has already pronounced its verdict, it would then be necessary to take the matter on appeal and apply for the remittal of the case to the trial court for the hearing of further evidence.
Timetable for action in appeal cases
Appeals from magistrates court to High Court
Appeals from magistrates court to Supreme Court
Appeals from High Court to Supreme Court
Noting of appeal
Leave to appeal
Required in some cases. Where required must normally be made immediately after sentence to presiding judge. But may also be made afterwards to presiding judge and, if refused, can apply to Supreme Court judge.
Leave to appeal out of time
Application under R 48 SI 504/79
Application under R 48 SI 504/79
Application under R 48 SI 504/79
Applying for record
Filing of Heads of Argument
Within 15 days of notice
Within 15 days of notice
Within 15 days of notice
Renunciation of agency.
Magistrates court case
Appeal to High Court against conviction or conviction and sentence or sentence
Further appeal against High Court decision on appeal from magistrates court to Supreme Court
High Court case
Appeal to Supreme Court against conviction, sentence or conviction and sentence
With leave where required from High Court or Supreme Court judge
Without leave where leave not required
No appeal against decision by High Court when matter on automatic review
But right of appeal to Supreme Court where case taken to High Court on review because of procedural irregularities in magistrates court.