Criminal Procedure Amendment Act

22 December 2003 No. 25862 THE PRESIDENCY No. 1842 22 December 2003 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 42 of 2003: Criminal Procedure Amendment Act, 2003. AIDS HELPLINE: 0800-123-22 Prevention is the cure 2 No. 25862 GOVERNMENT GAZETTE, 22 DECEMBER 2003 Act No. 42,2003 CRIMLNAL PROCEDURE AMENDMENT ACT, 2003 GENFRATL EXPLANATORY NOTE: ] Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid existing enactments. line indicate insertions in (English text signed by the President.) (Assented to 17 December 2003.) ACT To amend the Criminal Procedure Act, 1977, so as to introduce leave to appeal and petition procedures in respect of decisions of lower courts; to provide that certain appeals against decisions by the lower courts and the High Courts relating to children may be noted without having to apply for leave to appeal; to provide that certain appeals must be considered on the written argument of the parties; and to provide for matters connected therewith. B E IT ENACTED by the Parliament of the Republic follows:- of South Africa, as Amendment of section 302 of Act 51 of 1977, as amended by section 11 of Act 105 of 1982, section 22 of Act 59 of 1983, section 8 of Act 109 of 1984, section 13 of Act 26 of 1987, section 15 of Act 5 of 1991 and section 2 of Act 33 of 1997 5

1. Section 302 of the Criminal Procedure Act, 1977 (hereinafter referred to as the principal Act), is amended by the substitution for paragraph (b) of subsection (1) of the following paragraph: “(h) The provisions of paragraph ( a ) shall- ii) in respect of an accused who be suspended in respect of anaccused referred to in the first proviso to section 10 309( 1 )(a) who has duly noted an appeal in terms of section 309(2) against a conviction or sentence and has not abandoned the appeal; be suspended conviction or seniencej duiy noted an appeai in terms of section 3G9(2j against a conviction or sentence, after being granted leave to appeal in terms 15 of section 309B or 309C, and has not abandoned the appeal; and [shall] cease to apply [with reference to such] in respect of an accused when judgment in the appeal is given.”. has [appealed against a (iij __ (iii) -_ Amendment of section 309 of Act 51 of 1977, as amended by section 17 of Act 105 of 1982, section 8 of Act 107 of 1990, section 51 of Act 129 of 1993, section 13 of Act 20 75 of 1995, section 2 of Act 33 of 1997, section 2 of Act 76 of 1997 and section 38 of Act 105 of 1997

2. Section 309 of the principal Act is amended- ( a ) by the substitution for paragraph (a) of subsection (1 j of the following paragraph: 25 “(u) Any person convicted of any offence by any lower court (including a person discharged after conviction) may, subject to [section 4 i%o. 25862 GAZETTE, GOVERNMENT 22 DECEMBER 2003 Act No. 42,2003 CRIMINAL PROCEDURE AMENDMENT ACT, 2003 309B] !eave to cppea! being granted in terms of section 3O9R or TtnPC. appeal against such conviction and against any resultant sentence or order to the [provincial or local division] High Court having jurisdic- tion: Provided that if that person was, at the time of the commission of the offence- years: (i) below the age of 14 (ii) at least 14 years of age but below the age of 16 years and was not assisted by a legal representative at the time of conviction in a regional court; and or Ti (iii) was sentenced to any form of imprisonment as contemplated in 10 section 276( 1) that was not wholly suspended, he or she may note such an appeal without having to apply for leave in of section terms of section 309B: Provided further that the provisions 302( l)(b) shall apply in respect of a person who duly notes an appeal against a conviction, sentence or order 3i2( l)(u).’.; and as Contemplated in section 15 ( h ) by the substitution for subsection (3A) of the following subsection: “(3A) ( a ) An appeal under this section must bedisposed of by a High Court in chambers on the written argument of the parties or their legal representatives, unless the Court justice require that the parties or their legal representatives submit oral argument to the Court regarding the appeal. is of the opinion that the interests of 20 (h) [An appeal under this section may] If the Court is of the opinion thatoral argument must be submitted regarding the appeal as contem- plated in paragraph (a), the appeal may nevertheless be disposed of by [a 25 High Court] that Court in chambers on the written argument of the parties or their legal representatives, if the parties [.agree thereto] or their legal representatives so request and the Judge President so agrees and directs in an appropriate case.”. Substitution of sections 309B, 309C and 309D of Act 51 of 1977 30

3. The following sections are substituted for sections 309B. 309C and 309D of the principal Act, respectively: “Application for leave to appeal 309B. ( 7 ) ( a ) Any accused, other than a person contemplated in the first to note an appeal against any proviso to section 309(l)(a), who wishes conviction or against any resultant sentence or order of a lower court, must apply to that court for leave to appeal against that conviction, sentence or order. 35 ( b ) An application referred to in paragraph ( a ) must be made- (i) within 14 days after the passing of the sentence or order 40 following on the conviction; or (ii) within such extended period as for good cause shown, allow. the court may on application and (2) ( a ) Any application in terms of subsection (1) must be heard by the magistrate whose conviction, sentence is the sub,ject of the prospective appeal (hereinafter referred to as the trial magistrate) or, if the trial magistrate concerned, to whom it is assigned for hearing. is not available, by any other magistrate of the court or order (b) If the application is to be heard by a magistrate, other than the trial magistrate, the clerk of the court must submit a copy of the record of the proceedings before the trial magistrate the application: Provided that where the accused was legally represented at a trial in a refional court the clerk of the court must. subject to paragraph ( c ) , oniy submit a copy of the judgment of the trial magistrate, including title to the magistrate hearing 45 50 6 No. 15862 GAZETTE, GOVERNMENT

22 DECEMBER 2003 .4ct No. 42.2003 CRIhlINAL PROCEDURE AMENDMENT ACT, 2003 reasons for the conviction, sentence or order in respect of which the a.ppeal is sought to be noted to the magistrate hearing the application. I ( c ) The magistrate referred to in the proviso to 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 ma,‘ mistrate. (d) Notice of the date fixed for the hearing of the application must be given to the Director of Public Prosecutions concerned, or to a person designated thereto by him or her, and the accused. (3) ( a ) Every application for leave to appeal must sei: forth clearly and 5 specifically the grounds upon which the accused desires to appeal. 10 ( 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. (4) ( a ) If an application for leave to appeal under subsection (1) is in accordance with the rules of the granted, the clerk of the court must, court, transmit copies of the record and of all relevant documents to the registrar of the High Court concerned: Provided that instead of the whole record, with the consent 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 High Court concerned may nevertheless call for the production of the whole record. of the accused and the Director ( b ) If any application referred to in this section is refused, the magistrate must immediately record his or her reasons for such refusal. (5) ( a ) An application for leave to appeal may be accompanied by application to adduce application for further evidence) relating order in respect of which the appeal is sought to be noted. further evidence (hereafter referred to the conviction, sentence an to as an or (bj 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 decision or order; and 15 20 25 30 (i) (iii) there for the failure is a reasonably acceptable explanation produce the evidence before the close of the trial. ( c ) The court granting an application for further evidence must- receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by the prosecutor and evidence called by the court; and 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. to 35 40 (ii) record (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 q1xstion. 45 Petition procedure 309C. (1) In this section- ( a ) ‘application for condonation’ means an application referred to in the proviso to section 309(2), or referred to in section 309B( l)(b)(ii); ( b ) ‘application for leave to appeal’ means an application referred to in 50 (c) section 309B(l)(a); ‘application for further evidence’ means further evidence referred to in section 309B(5)(a); and an application to adduce (d) ‘petition’, unless the context otherwise indicates, includes an applica- tion referred to in subsection (2)(b)(ii). (2) ( a ) If any application- (i) (ii) for condonation; for further evidence; or 55 8 No 25862 GOVERNMENT GAZETTE, 22 DECEMBER 2003 Act No. 42.2003 CRIMINAL PROCEDURE AMENDMENT ACT, 2003 (iii) for leave to appeal, is refused by a lower court, the accused may by petition apply to the Judge President of the High Court having jurisdiction 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 accompa- nying that petition, for good cause shown, be allowed. (3) f a ) If more than one application referred to in subsection (1) 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 in terms of subsection (2) must at the s a v e time give notice thereof to the clerk of the lower court referred to in subsection (2)fa). ~~ ~ -- 5 10 15 (4) When receiving the notice referred to in subsection (3), the clerk of to the registrar of the High Court the court must without delay submit concerned copies of- ( a ) the application that was refused; (bj the magistrate’s reasons for refusal of the application; and (c) the record of the proceedings in the magistrate’s court in which the application was refused: Provided that- respect of 20 Ci) if the accused was tried in a regional court and was legally represented at the trial; or (ii) if the accused and thereto; or the Director of Public Prosecutions agree (iii) if the prospective appeal is against the sentence only; or (iv) if the petition relates solely to an application for condonation, a copy of the judgment, which includes the reasons for conviction and sentence, shall, subject to subsection (6)(a), suffice for the purposes of the petition. (5) ( a ) A petition contemplated in this section must be considered in chambers by a judge designated by the Judge President: Provided that the Judge President may, in exceptional circumstances, at any stage designate two judges to consider such petition. (b) If the judges referred to in the proviso to paragraph (a) differ in in chambers by the Judge opinion, the petition must also be considered President or by any other judge designated by the Judge 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. (6) Judges considering a petition may- 25 30 15 ( a ) call for any further information, including a copy of the record of any proceedings that was not submitted in terms tc subsection (4)(c), from the magistrate who refused the application in question, or from the magistrate who presided at the trial to which any such application relates, as the case may be; or of the proviso ( b ) in exceptional circumstances, order that the petition or any part thereof be argued before them at a time and place determined by them. (7) Judges considering a petition may, whether they have acted under 45 subsection (6)ia) or (6) or not- ( a ) in the case of an application referred to in subsection (2)(bj(ii), grant 50 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 to in section the period fixed by them, to the court referred 309B( 1); or 55 I O No. 25862 GAZETTE, GOVERNMENT 22 DECEMBER 2003 Act No. 42,2003 CRIMINAL PROCEDURE AMENDMENT ACT. 2003 (ii) if they deem it expedient, direct that an application for leave to appeal must be submitted under subsection (2) within the period fixed by them as if it had been refused by the court referred to in section 309B( 1); and ( e ) in the case of an application for leave to appeal, subject to paragraph 5 id). grant or refuse the application; and id) 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 magistrate's court concerned in order that further evidence may be received in accordance with section 309B(5). (S) 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. (9) Notice of the date fixed for any hearing of a petition under this section, and of any place determined under subsection (6) for any hearing, must be given to the Director of Public Prosecutions concerned, or to a person designated by him or her, and the accused. 10 15 Explanation of certain rights to unrepresented and certain other accused 20 25 30 35 309D. (1) (a) An accused contemplated in the first proviso to section 309( 1 >(a) or who is unrepresented at the time he or she is convicted and sentenced, must be informed by the presiding officer of his or her rights in respect of appeal and legal representation and of the correct procedures to give effect to these rights. (b) An accused whose sentence is subject to review in the ordinary course in terms of section 302( 1 )(a). must be informed by the presiding officer that the provisions pertaining to such review- (i) (ii) shall be suspended if he or she appeals against that conviction or sentence; and shall cease to apply once judgment given. in the appeal has been ( 2 ) An accused [who is unrepresented and whose] contemplated in subsection (l)(a) in respect of whom an application in terms of the proviso to - section 309(2) or 309B is refused, must be informed by the presiding officer of his or her rights in respect of the proceedings contemplated in section 309C and legal representation involved to give effect to these rights. and of the correct procedures (3) If an unrepresented accused has been convicted and sentenced- (a) to any form of imprisonment that was not wholly suspended; or (b) to any form of punishment which in view of the presiding officer may lead to substantial injustice for the accused, and he or she indicates to the presiding officer his or her intention to apply for leave to appeal in terms of section 309B(l)(a) or for leave to petition in terms of section 309C(2)(a), the presiding officer must refer the accused to the Legal Aid Board referred to in section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969), for the purpose of allowing him or her an opportunity to request legal representation in his or her applica- tion.". to assist such accused ~ I 50 12 No. 25862 GOVERNMENT GAZETTE. 22 DECEMBER 2003 Act No. 42,2003 CIUMINAL PROCEDURE AMENDMENT ACT. 2003

4. Section 315 of the principal Act is amended by- (a) the substitution for subsection (1) of the following subsection: “(1) (a) In respect of appeals and questions of law reserved in connection with criminal cases heard by a [provincial or local division] High Court, the court of appeal shall be the [Appellate Division of the] Supreme Court of Appeal [(in this Chapter referred to as the Appellate Division)], except in so far as [subsection] subsecrions ( 2 ) and (3) otherwise provides. (b) Any appeal or question of law referred to in parapraph ( a ) must be disposed of in chambers on the written argument of the parties or their legal representatives. unless the Judge President or the President of the Supreme Court of Appeal, as the case may be, is of the opinion that the interests of justice require that the parties or their legal representatives submit oral argument regarding the appeal or question of law. (c) If the Court is of the opinion that oral argument must be submitted regarding the appeal as contemplated in paragraph (b), the appeal may nevertheless be disposed of in chambers on the written argument of the parties or their legal representatives, representatives so request and the Judge President or the President of the Supreme Court of Appeal, as the case may be, so agrees and directs in an appropriate case.”; if the parties or their !egd ( b ) the substitution for subsection (2) of the following subsection: “(2) ( a ) If an application for leave to appeal in a criminal case heard single judge of a [provincial or local division] High Court by a (irrespective of whether he or she sat with or without assessors) is granted under section 316, the court or judge or judges granting the application shall, if it, he or she or, in the case of the judges referred to in [subsection (S)] subsections (12) and (13) of that section, they or the majority of them, is or are satisfied that the questions of law and of fact and the other considerations involved in the appeal are of such a nature that the appeal does not require the attention of the Supreme Court of Appeal, direct that the appeal be heard by a full court. (b) Any such direction by the court or a judge of a [provincial or local 5 10 15 20 25 30 35 division] High Court may be set aside by the [Appellate Division] Supreme Court of Appeal on application made to it by the accused or the [attorney-general] Director of Public Prosecutions or other prosecutor within 21 days, or such longer period as may on application to the [Appellate Division] Supreme Court of Appeal on good cause shown, be allowed, after the direction was given. ( c ) Any application to the [Appellate Division] Supreme Court of Appeal under paragraph (b) shall be submitted by petition addressed to the [Chief Jnstlce] President =f the Supreme C ~ u r t =f .4ppez!, and the provisions of section 316[(6), (7), (8) and (9)] ( S ) , (9), (10). (11). (12), (13), 114) and (15) shall apply mutatis mutundis in respect thereof.”; and ( c ) the substitution for paragraph (a) of subsection (5) of the following paragraph: (a) ‘court of appeal’ means, in relation to an appeal which in terms of court, the full court subsection (3) is heard or is to be heard by a full concerned and, in relation to any other appeal, the [Appellate Division] Supreme Court of Appeal.”. 40 45 50 Substitution of section 316 of Act 51 of 1977, as amended by section 21 of Act 105 of 1982, section 15 of Act 26 of 1987 and section 12 of Act 62 of 2000

5. The following section is substituted for section 316 of the principal Act: 55 14 No. 15862 GOVERNMENT GAZETTE, 22 DECEMBER 2003 Act No. 42,2003 CRIMINAL PROCEDURE AMENDMENT ACT, 2003 “Applications for condnnation, !eave to appeal and further evidence 316. (1) ( a ) Any accused, other than an accused contemplated in paragraph (c), 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. ( 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) If an accused was convicted of any offence by a High Court and that accused was, at the time of the commission of the offence- (i) below the age of 14 years; or (ii) at least 14 years of age but below the age of 16 years and was not assisted by a legal representative at the time of conviction; and (iii) was sentenced to any form of imprisonment as contemplated in section 276( 1) that was not wholly suspended, he or she may note such an appeal without having to apply for leave in terms of paragraph (a). ( 2 ) ( 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- 5 10 15 20 the trial judge is not available; or (i) (ii) in the case of a conviction before a circuit court the said court is 25 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 appeal is sought to be noted to the judge of which the application. hearing the (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. (3) ( 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. .30 :3 5 40 (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- 45 (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 50 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. 5’ 5 16 No. 25862 22 GOVERNMENT GAZETTE, DECEMBER 2003 Act No. 42,2003 ClUMINAL PROCEDURE AMENDMENT ACT, 2003 (d)The pmvisi32s 3fszbsecticzs (41, (IC), (I!), (121, (131, (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. (4) ( 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 5 passing of the sentence or order, he or she must state such grounds, which must be recorded and form part of the record. 10 ( 5 ) ( 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) (ii) further evidence which would presumably be accepted as true, is available; if accepted the evidence could reasonably lead verdict or sentence; and (iii) there is a reasonzbly acceptable explanatim for the failure to a different 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 the trial in evidence taken or admitted at an appeal be deemed to be question. (1) for leave to (7) ( a ) If an application under subsection 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 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 jndges of the St?preme Cnurt nf Appeal may nevefieless cd! fc: the production of the whole record. certified copy of the record, said registrar a (b) If an application under subsection (1) for leave to appeal is granted and the appeal is under section 3 15(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 by the Director of Public Prosecutions and the as may be agreed upon 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. (8) ( a ) If any application- (i) referred to in subsection (l)(b)(ii) (hereafter in this section referred LO as an application for condonation); 15 20 2s 30 35 40 4.5 50 55 'i 0 18 No. :!5862 GAZETTE, GOVERNMENT 22 DECEMBER 2003 Act No. 42,2003 CRIMINAL PROCEDURE AMENDMENT ACT, 2003 (ii) referred to in subsection (l)(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 to as an application for (hereafter in this section referred further evidence), may by petition apply to the is refused by a High Court, the accused 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 in question was refused; or (ii) within such extended period as may on an application accompan- 21 days after the application ying that petition, for good cause shown, be allowed. (9) (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 @)(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 to the registrar of the Supreme Court of (9), the registrar shall forward Appeal copies of the- (a) application or applications that were refused; (b) the reasons for refusing such application or applications; and (e) the record of the proceedings in the High Court in respect of which the if the accused was legally represented at the trial; or if the accused and the prosecuting authority agree thereto; or application was refused: Provided that- (i) (ii) (iii) if the prospective appeal is against the sentence only; or (iv) if the petition relates solely to an application for condonation, a copy of the judgment, which includes the reasons for conviction and sentence, shall, subject to subsection (12)(a), suffice for the purposes of the petition. (1 1) (a) A petition referred to in subsection (S), 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 (bj 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, including a copy of the record of the of the proviso to proceedings that was not submitted in terms subsection (lO)(c), from the judge who refused the application in question, or from the judge who presided at the trial to which any such application relates, as the case may be; or 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. (b) (13) The judges considering a petition may, whether they have acted under subsection (12)(a) or (6) or not- ( a ) in the case of an application referred to in subsection (X)(b)(ii), grant or refuse the application; and 20 No. 25862 GAZETTE, GOVERNMENT 22 DECEMBER 2003 Act No. 42, 2003 CRIMINAL PROCEDURE AMENDMENT ACT, 2003 ( b ) in the case of an application for condonation grant or refuse the application, and if the application is granted- (i) direct fixed by them, to the High Court referred that an application for leave to appeal must be made, within to in the period subsection @)(a); or 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 (S)(a); and (ii, 5 (c) in the case of an application for leave to appeal, subject to paragraph 10 (dl, 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 to the High Court concerned in order that further evidence may be received in accordance with subsection (5)(c); or for leave to appeal, remit the matter ( 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 ,4ppeal 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 (bj 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.". 15 20 25 Amendment of section 317 of Act 51 of 1977, as amended by section 22 of Act 105 of 1982 and section 13 of Act 62 of 2000 30

6. Section 317 of the principal Act is amended by- (ai the substitution for subsection ( I ) of the following subsection: "( 1) If an accused [thinks] is of the view that any of the proceedings in connection with or during his or her trial before a [superior court] High Court are irregular or not according to law, he or she may, either during his orher trial or within a period of [fourteen] 14 days after his or - her conviction or within such extended period as mayupon application (in this section referred to as an application for condonation) on good cause be allowed, apply for a special entry to be made on the record (in in this section referred what respect the proceedings are alleged to be irregular or not according to law, and such a special entry shall, upon such application for a special to whom the entry, be made unless the court application for a special entry that the application is not made bonnjide or that it is frivolous or absurd or that the granting of the application would be an abuse of the process of the court."; and to which or the judge is made is of the opinion to as an application for a special entry) stating ( b ) the substitution for subsection (5) of the following subsection: "(5) If an application for condonation or for a special entry is refused, the accused may, within a period of [twenty-one] 21 days of such refusal or within such extended period as may on good cause shown, be allowed, by petition addressed to the [Chief Justice] President of the Supreme Court of Appeal, apply to the [Appellate Division] Supreme Court of Appeal for condonation or for a special entry to be made on the record stating in what respect the proceedings are alleged to be irregular or not according to law, as the case may be. and thereupon the provisions of subsections [(7), (8). (9) and (IO)] i l l ) , 12), (13). (14) and (15) of section 3 16 shall mutaris m ~ ~ t a n d i s apply.". 35 $0 15 50 j5 22 2003 No. 25862 DECEMBER 22 GAZE’ITE. GOVERNMENT Act No. 42,, 2003 CRIMINAL PROCEDURE AMENDMENT ACT, 2003 Transitional arrangements 7. (1) ‘The provisions of this Act do not apply in respect of any appeal pending before a High Court or the Supreme Court of Appeal on the date of the commencement of this Act. (2) ( a ) Notwithstanding any amendments to the Criminal Procedure Act, 1977 (Act 5 No. 51 of 1977), effected by this Act, the rules applicable to the Supreme Court of of appeals, as existing on Appeal, the High Courts and the magistrates’ courts in respect the date of the commencement of this Act, shall, subject to any subsequent amendments thereto, continue to apply in respect of such appeals: Provided that any reference therein contained to a provision of the Criminal Procedure Act, 1977, that has been amended by 10 this Act, must be construed as a reference to the corresponding provision of that Act as amended. (b) The Rules Board for Courts of Law must revise and, when necessary, amend all rules in respect of appeals applicable to the Supreme Court of Appeal, the High Courts and the magistrates’ courts in accordance with the provisions of this Act. 15 ( c ) Any draft rules contemplated in paragraph (b) must, within three months after the date of the commencement of this Act, be submitted to Parliament. (d) Any amended rules must be approved by Parliament and thereafter be published in the Gazette. Short title and commencement 20

8. This Act is called the Criminal Procedure Amendment Act, 2003, and comes into may determine by operation on 1 January 2004 or any earlier date as the President proclamation in the Gazette.