Magistrates' Courts Act, 1944 (Act No. 32 of 1944)RegulationsRules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa67. Criminal appeals |
| (1) |
| (a) | An appellant, other than a person who applies orally for leave to appeal immediately after the passing of the sentence or order as contemplated in section 309B(3)(b) of the Criminal Procedure Act, 1977 who wishes to apply for leave to appeal in terms of section 309B(1) of that Act, shall do so in writing to the registrar or clerk of the court and shall also send a copy of the application to the director of public prosecutions concerned, or, in a case in which the prosecution was not at the public instance, to the prosecutor concerned. |
| (b) | An appellant who wishes to apply for condonation as contemplated in section 309B(1)(b)(ii) of the Criminal Procedure Act, 1977, or an appellant who wishes to apply for leave to adduce further evidence as contemplated in section 309B(5)(a) of that Act, shall do so in writing to the registrar or clerk of the court and shall also send a copy of the application to the director of public prosecutions concerned, or, in a case in which the prosecution was not at the public instance, to the prosecutor concerned. |
| (2) |
| (a) | Where an application for leave to appeal is made in writing, notice in terms of section 309B(2)(d) of the Criminal Procedure Act, 1977, shall be given by the registrar or clerk of the court at least 10 days before the date fixed for the hearing of the application for leave to appeal, unless the appellant or his or her legal representative and the director of public prosecutions or a person designated by him or her or in a case in which the prosecution was not at the public instance, the other prosecutor concerned have agreed to a shorter period, and shall correspond substantially to Form 57 of Annexure 1. |
| (b) | The notice referred to in paragraph (a) shall— |
| (i) | be handed to the appellant or his or her legal representative and the director of public prosecutions or a person designated by him or her or other prosecutor concerned and proof of receipt of such notice shall be indicated on a copy of the notice, which shall be kept by the registrar or clerk of the court; or |
| (ii) | be sent by registered post. |
| (3) |
| (a) | A legal representative appearing on behalf of an appellant, shall simultaneously with the lodging of the application for leave to appeal lodge a power of attorney authorising him or her to act on behalf of the appellant, or if a legal representative is employed after an application for leave to appeal has been lodged, after such appointment. |
| (b) | An appellant shall state in the application for leave to appeal referred to in subrule (1) a postal address where any notice may be served on him or her by registered post if he or she is not represented by a legal representative or if he or she ceases to be represented by a legal representative. |
| (4) | If the appellant is unable, owing to illiteracy or physical defect, to write out an application for leave to appeal or notice of appeal, the clerk of the court shall, upon his or her request, do so. |
| (5) | Upon an application for leave to appeal being granted the registrar or clerk of the court shall prepare a copy of the record of the case, including a transcript thereof if it was recorded in accordance with the provisions of rule 66(1), and place such copy before the judicial officer who shall within 15 days thereafter furnish to the registrar or clerk of the court a statement in writing showing— |
| (a) | the facts he or she found to be proved; |
| (b) | his or her reasons for any finding of fact specified in the appellant’s statement of grounds of appeal; and |
| (c) | his or her reasons for any ruling on any question of law or as to the admission or rejection of evidence so specified as appealed against. |
| (5A) |
| (a) | A person contemplated in the first proviso of section 309(1)(a) of the Criminal Procedure Act, 1977, who wishes to appeal against his or her conviction or sentence or order, shall do so in writing to the registrar or clerk of the court and shall also send a copy of such notice of appeal to the director of public prosecutions concerned or in a case in which the prosecution was not at the public instance, to the prosecutor concerned. |
| (b) | The notice of appeal contemplated in paragraph (a) shall set forth clearly and specifically the grounds upon which such person wishes to appeal. |
| (c) | The provisions of subrules (3) to (8) and (14) and (15) shall apply further with any changes required by the context. |
| (6) | The registrar or clerk of the court shall upon receipt of the judicial officer’s statement contemplated in subrule (5) forthwith inform the appellant that the statement has been furnished. |
| (7) | Within 15 days after the appellant has been informed in terms of subrule (6), he or she may by notice to the registrar or clerk of the court amend his or her statement of grounds of appeal and the judicial officer may, in his or her discretion, within 10 days thereafter furnish to the registrar or clerk of the court a further or amended statement of his or her findings of fact and reasons for judgment. |
| (8) | When an appeal is noted in a case in which the prosecution was not at the public instance any amended statement provided for in subrule (7) shall be served by the appellant also upon the prosecutor. |
| (9) | A director of public prosecutions or other prosecutor desiring to appeal under section 310 of the Criminal Procedure Act, 1977, against the dismissal of a summons or charge shall, within 20 days after such dismissal, deliver a notice of appeal. |
| (10) | Upon an appeal being noted as provided in subrule (9) the registrar or clerk of the court shall prepare a copy of the record of the case, including a transcript thereof if it was recorded in accordance with the provisions of rule 66(1), and then place the record before the judicial officer who shall within 15 days thereafter furnish to the registrar or clerk of the court a statement in writing of his or her reasons for dismissing the summons or charge. |
| (11) | A director of public prosecutions or other prosecutor who contemplates an appeal under section 310 of the Criminal Procedure Act, 1977, shall, within 20 days after the conclusion of the criminal proceedings, in writing request the judicial officer to state a case. |
| (12) |
| (a) | Upon receipt of the request referred to in subrule (11), the registrar or clerk of the court shall prepare a copy of the record of the case, including a transcript thereof if it was recorded in accordance with the provisions of rule 66(1), and then place the record before the judicial officer who shall within 15 days thereafter furnish a stated case to the registrar or clerk of the court who shall transmit a copy thereof to the director of public prosecutions or other prosecutor, as the case may be. |
| (b) | The stated case contemplated in paragraph (a) shall be divided into paragraphs numbered consecutively and shall be arranged in the following order: |
| (i) | The judicial officer’s findings of fact in so far as they are material to the questions of law on which decision in favour of the appellant was given; |
| (ii) | questions of law; and |
| (iii) | the judicial officer’s decision on such questions and his or her reasons therefor. |
| (13) | The director of public prosecutions or other prosecutor may, within 15 days after the receipt by him or her of the stated case, deliver notice of appeal against the decision on questions of law. |
| (14) | Every notice of appeal, statement of grounds of appeal, judicial officer’s statement and stated case filed of record with or furnished to the registrar or clerk of the court under this rule shall become part of the record. |
| (15) |
| (a) | The registrar or clerk of the court shall within 10 days after receipt by him or her of the statement referred to in subrule (7) or (10) or of the notice of appeal delivered in terms of subrule (13), as the case may be, transmit to the registrar of the court of appeal the record of the criminal proceedings or the stated case, together with three copies thereof. |
| (b) | When the prosecution is at the public instance he or she shall also transmit one such copy to the director of public prosecutions: Provided that if the appellant has not amended his or her statement of grounds of appeal as provided in subrule (7), the registrar or clerk of the court shall so transmit the record without delay after the period allowed for an amendment of the statement of grounds of appeal has lapsed. |