A critical evaluation of the prohibition on the South African prosecuting authority to appeal against decisions on questions of fact

Abstract

Following the common law tradition in respect of criminal procedure, South African legislation does not allow the National Prosecuting Authority of South Africa (hereafter referred to as “the State”) to appeal on a question of fact decided in favour of an accused person. This is the case even in the event of a material factual error. The State increasingly makes use of its limited statutorily conferred right to lodge appeals in criminal cases. As a result, the distinction between questions of fact and questions of law has received considerable attention by the superior courts of South Africa in the last decade. One of the many cases wherein considerable time was spent on dealing with the distinction between a question of fact and a question of law, was the widely reported appeal by the State against the conviction of the athlete Oscar Pistorius on a charge of culpable homicide. This contribution summarises the manner in which the South African judiciary has dealt with the juridical distinction between a question of fact and a question of law. It further examines the arguments advanced for limiting the powers of the State to appeal, as well as arguments in favour of extending the State broader appeal rights. Some of the author’s conclusions are that the right to a fair trial also extends to the State representing the community and as such the right to full appeals by the State ought to be allowed. A criminal appeal is not a trial de novo but merely a continuation of the lis between the State and the accused person. As such the State should also have the right to a fair trial until the last court has spoken the last word on the matter. Furthermore, it is pointed out that the historical reasons for denying the State a full right of appeal is not necessarily valid any longer. The South African legislature should make work of ensuring that the recommendations made nearly twenty years ago by the South African Law Commission (now, the South African Law Reform Commission) that the State be granted broader appeal rights.