| (a) |
Subject to section 84 of the Child Justice Act, 2008, any accused convicted of any offence by a High Court may apply to that court for leave to appeal against such conviction or against any resultant sentence or order. |
[Section 316(1)(a) substituted by section 99(1) of Act No. 75 of 2008]
| (b) |
An application referred to in paragraph (a) must be made— |
| (i) |
within 14 days after the passing of the sentence or order following on the conviction; or |
| (ii) |
within such extended period as the court may on application and for good cause shown, allow. |
| (c) |
[Section 316(1)(c) deleted by section 99(1) of Act No. 75 of 2008] |
| (a) |
An application referred to in subsection (1) must be made to the judge whose conviction, sentence or order is the subject of the prospective appeal (hereafter in this section referred to as the trial judge): Provided that if— |
| (i) |
the trial judge is not available; or |
| (ii) |
in the case of a conviction before a circuit court the said court is not in sitting, |
the application may be made to any other judge of the High Court concerned.
| (b) |
If the application is to be heard by a judge, other than the trial judge, the registrar of the court must submit a copy of the judgment of the trial judge, including the reasons for the conviction, sentence or order in respect of which the appeal is sought to be noted to the judge hearing the application. |
| (c) |
The judge referred to in paragraph (b) may, if he or she deems it necessary in order to decide the application, request the full record of the proceedings before the trial judge. |
| (a) |
No appeal shall lie against the judgment or order of a full court given on appeal to it in terms of section 315(3), except with the special leave of the Supreme Court of Appeal on application made to it by the accused or, where a full court has for the purposes of such judgment or order given a decision in favour of the accused on a question of law, on application on the grounds of such decision made to that court by the Director of Public Prosecutions or other prosecutor against whom the decision was given. |
| (b) |
An application to the Supreme Court of Appeal under paragraph (a) shall be submitted by petition addressed to the President of the Supreme Court of Appeal— |
| (i) |
within 21 days after the judgment or order against which appeal is to be made was given; or |
| (ii) |
within such extended period as may on application and for good cause shown, be allowed. |
| (c) |
The accused or Director of Public Prosecutions or other prosecutor shall, when submitting in accordance with paragraph (b) the application for special leave to appeal, at the same time give written notice that this has been done to the registrar of the court against whose decision he or she wishes to appeal, and thereupon such registrar shall forward a certified copy of the record prepared in terms of subsection (7) for the purposes of such judgment or order, and of the reasons for such judgment or order, to the registrar of the Supreme Court of Appeal. |
| (d) |
The provisions of subsections (4), (10), (11), (12), (13), (14) and (15) shall apply mutatis mutandis with reference to any application and petition contemplated in paragraph (b) of this subsection. |
| (e) |
Upon an appeal under this subsection the provisions of section 322 shall apply mutatis mutandis with reference to the powers of the Supreme Court of Appeal. |
| (a) |
Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused desires to appeal. |
| (b) |
If the accused applies orally for such leave immediately after the passing of the sentence or order, he or she must state such grounds, which must be recorded and form part of the record. |
| (a) |
An application for leave to appeal under subsection (1) may be accompanied by an application to adduce further evidence (hereafter in this section referred to as an application for further evidence) relating to the prospective appeal. |
| (b) |
An application for further evidence must be supported by an affidavit stating that— |
| (i) |
further evidence which would presumably be accepted as true, is available; |
| (ii) |
if accepted the evidence could reasonably lead to a different verdict or sentence; and |
| (iii) |
there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial. |
| (c) |
The court granting an application for further evidence must— |
| (i) |
receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by the prosecutor and evidence called by the court; and |
| (ii) |
record its findings or views with regard to that evidence, including the cogency and the sufficiency of the evidence, and the demeanour and credibility of any witness. |
| (6) |
Any evidence received under subsection (5) shall for the purposes of an appeal be deemed to be evidence taken or admitted at the trial in question. |
| (a) |
If an application under subsection (1) for leave to appeal is granted and the appeal is not under section 315(3) to be heard by the full court of the High Court from which the appeal is made, the registrar of the court granting such application shall cause notice to be given accordingly to the registrar of the Supreme Court of Appeal without delay, and shall cause to be transmitted to the said registrar a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the Director of Public Prosecutions, copies (one of which must be certified) may be transmitted of such parts of the record as may be agreed upon by the Director of Public Prosecutions and the accused to be sufficient, in which event the judges of the Supreme Court of Appeal may nevertheless call for the production of the whole record. |
| (b) |
If an application under subsection (1) for leave to appeal is granted and the appeal is under section 315(3) to be heard by the full court of the High Court from which the appeal is made, the registrar shall without delay prepare a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the Director of Public Prosecutions, copies (one of which must be certified) may be prepared of such parts of the record as may be agreed upon by the Director of Public Prosecutions and the accused to be sufficient, in which event the judges of the full court of the High Court concerned may nevertheless call for the production of the whole record. |
| (i) |
referred to in subsection (1)(b)(ii) (hereafter in this section referred to as an application for condonation); |
| (ii) |
referred to in subsection (1)(b)(i) (hereafter in this section referred to as an application for leave to appeal); or |
| (iii) |
referred to in subsection (5)(a) to adduce further evidence (hereafter in this section referred to as an application for further evidence), |
is refused by a High Court, the accused may by petition apply to the President of the Supreme Court of Appeal to grant any one or more of the applications in question.
| (b) |
Any petition referred to in paragraph (a) must be made— |
| (i) |
within 21 days after the application in question was refused; or |
| (ii) |
within such extended period as may on an application accompanying that petition, for good cause shown, be allowed. |
| (a) |
If more than one application referred to in subsection (8)(a) relate to the same matter, they should, as far as is possible, be dealt with in the same petition. |
| (b) |
An accused who submits a petition referred to in subsection (8)(a), must at the same time give written notice thereof to the registrar of the High Court (other than a circuit court) within whose area of jurisdiction the trial took place, and of which the judge who presided at the trial was a member when he or she so presided. |
| (10) |
When receiving notice of a petition as contemplated in subsection (9), the registrar shall forward to the registrar of the Supreme Court of Appeal copies of the— |
| (a) |
application or applications that were refused; |
| (b) |
the reasons for refusing the application or applications; and |
| (c) |
the record of the proceedings in the High Court in respect of which the application was refused, if— |
| (i) |
the accused was not legally represented at the trial; or |
| (ii) |
the accused is not legally represented for the purposes of the petition; or |
| (iii) |
the prospective appeal is not against sentence only; or |
| (iv) |
the judges considering the petition, in the interest of justice, request the record or only a portion of the record. |
[Section 316(10)(c) substituted by section 1(a) of Act No. 8 of 2013]
[Section 316(10) substituted by section 16(a) of Act No. 66 of 2008]
| (a) |
A petition referred to in subsection (8), including an application referred to in subsection (8)(b)(ii), must be considered in chambers by two judges of the Supreme Court of Appeal designated by the President of the Supreme Court of Appeal. |
| (b) |
If the judges differ in opinion, the petition shall also be considered in chambers by the President of the Supreme Court of Appeal or by any other judge of the Supreme Court of Appeal to whom it has been referred by the President. |
| (c) |
For the purposes of paragraph (b) any decision of the majority of the judges considering the petition, shall be deemed to be the decision of all three judges. |
| (12) |
The judges considering a petition may— |
| (a) |
call for any further information from the judge who refused the application in question, or from the judge who presided at the trial to which the application relates, as the case may be; |
| (b) |
in exceptional circumstances, order that the application or applications in question or any of them be argued before them at a time and place determined by them; or |
| (c) |
call for a copy of the record or portion of the record of the proceedings if it was not submitted in terms of subsection (10)(c). |
[Section 316(12)(c) inserted by section 1(b) of Act No. 8 of 2013]
[Section 316(12) substituted by section 16(b) of Act No. 66 of 2008]
| (13) |
The judges considering a petition may, whether they have acted under subsection (12)(a) or (b) or not— |
| (a) |
in the case of an application referred to in subsection (8)(b)(ii), grant or refuse the application; and |
| (b) |
in the case of an application for condonation grant or refuse the application, and if the application is granted— |
| (i) |
direct that an application for leave to appeal must be made, within the period fixed by them, to the High Court referred to in subsection (8)(a); or |
| (ii) |
if they deem it expedient, direct that an application for leave to appeal must be submitted under subsection (8) within the period fixed by them as if it had been refused by the High Court referred to in subsection (8)(a); and |
| (c) |
in the case of an application for leave to appeal, subject to paragraph (d), grant or refuse the application; and |
| (d) |
in the case of an application for further evidence, grant or refuse the application, and, if the application is granted the judges may, before deciding the application for leave to appeal, remit the matter to the High Court concerned in order that further evidence may be received in accordance with subsection (5)(c); or |
| (e) |
in exceptional circumstances refer the petition to the Supreme Court of Appeal for consideration, whether upon argument or otherwise, and the Supreme Court of Appeal may thereupon deal with the petition in any manner referred to in this subsection. |
| (14) |
All applications contained in a petition must be disposed of— |
| (a) |
as far as is possible, simultaneously; and |
| (b) |
as a matter of urgency, where the accused was sentenced to any form of imprisonment that was not wholly suspended. |
| (15) |
Notice of the date fixed for the hearing of any application under this section, and of any time and place determined under subsection (12) for any hearing, must be given to the Director of Public Prosecutions concerned and the accused. |
[Section 316 substituted by section 5 of Act No. 42 of 2003]
Stamp Duties Act, 1968 (Act 77 of 1968)
