Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:“(2) A person convicted on a criminal trial held by the High Court —(a) May appeal to the Supreme Court against his conviction on any ground of appeal which ...
Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:
“(2) A person convicted on a criminal trial held by the High Court —
(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;
(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:
Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;
(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”...,.
The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.
Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.
In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”...,.
In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:
“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.
It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.
It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”...,.
Applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.
