All about Appeal and Reviews to High Court, Process and Examples

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- Featured article by LAWYERS-ONLINE.CO.ZA - March 2019

The law may seem like a rigid system that cannot bend, and in many cases it is, but the law is also a malleable and ever-evolving entity that allows for reviews and appeals against the decisions of a court. This means that if you are not happy with the decision of a court, there are legal means to challenge this decision.

Let’s use the example of a decision made by a lower court, such as a magistrate’s court. You as the defendant know that you are innocent, but have been found guilty. It is your right to approach a higher court to ask to have the decision appealed or to have the decision reviewed. Now there is a difference between a review and an appeal.

Appeals

If you decide to appeal the decision made by the magistrate’s court, you have to appeal it at a higher court such as the High Court. When you appeal, you are asking that the courts judge the matter again and change the decision made by the lower court – and it does not guarantee that the decision won’t be the same as the lower court. However, it is a chance to have another set of impartial ears and eyes hear the case and make a decision based on the facts.

However, you can’t just approach the higher court on your own. In order for an appeals process to start, the defendant and their legal representation must obtain leave from the court to do so under the provisions in the Criminal Procedure Amendment Act 42 of 2003. There are exceptions, however, and leave to appeal is not required for:

• An accused sentenced to imprisonment under the age of 14
• Or an accused sentenced to imprisonment above the age of 14 but under 16 who did not have legal representation

Review

With a review, you do not ask a higher court to judge the matter. Instead, the same court is asked through an application to consider the legality of the decision. Therefore the decision may be changed based on the wrong procedure being followed, and irrational judgment or an illegal decision being made. It must be noted however that a review does fall under statutory rights, and it is entirely up to the court to decide if they want to review the case or not.

There is also a process known as automatic review and it is entirely unique to South Africa. Here certain decisions made by a magistrate’s court are automatically reviewed in order to protect a defendant that did not benefit from legal representation during their trial. According to section 203 of the Criminal Procedure Act, the following may be up for automatic review:

• Where a person has been sentenced to more than three months of imprisonment by a magistrate with less than 7 years of experience
• Where a person has been sentenced to more than 6 months of imprisonment by a magistrate with more than 7 years of experience
• And lastly fines exceeding an amount determined by The Minister in relation to the experience of the magistrate

Special reviews apply in cases where a decision does not fall under the circumstances discussed above, as do reviews in terms of section 24 of the Supreme Court Act.

In both appeals and reviews, it is clear that the court has the power to change the decision of a lower court or to substitute a guilty conviction for another crime that applies more fairly. They may also set aside an order, or may even impose a new sentence. These processes exist to protect the interests of justice, and should not be abused to drag out a trial.

If you have recently been found guilty in a lower court and need legal representation to appeal an unjust decision, contact us and we will put you in touch with an attorney that understands the courts and appeals process.