Thank you, Rosie. But, hm, link doesn't work for me.
Here's a cut and paste of the gist.
While criminal law experts around the globe are already betting on the chances of a successful appeal, two men – who between them have chalked up more than six decades in the prosecuting business – believe a 1982 decision by the then Appellate Division (AD), which later became the SCA, may be an insurmountable obstacle.
The reported case, which seems to have escaped the notice of so many, deals with the state’s right to appeal on a point of law against an acquittal.
The state’s right to appeal is limited to start with, said Eastern Cape deputy director of public prosecutions Advocate Malherbe Marais, SC.
“The state can only appeal on a point of law as opposed to the right of an accused person who can appeal on a point of law or on the facts.”
But the SCA case, S v Seekoei, limits the state’s right of appeal even further.
A former Eastern Cape Director of Public Prosecutions Advocate Les Roberts, SC, said in that case, the SCA – in interpreting the relevant section of the Criminal Procedure Act (CPA) – found the state could only appeal a decision where there had been a “complete” acquittal. It ruled that if there was a competent verdict on a lesser charge, then the state may not appeal.
In S v Seekoei, the accused had been found guilty of housebreaking with intent to steal, rather than the more serious crime of housebreaking with intention to rob, with which they had been charged.
Roberts explained the CPA’s “hierarchy” of crimes. At the top is murder, followed by lesser crimes such as culpable homicide, assault with the intention of causing grievous bodily harm, common assault and pointing a firearm.
Ironically, even if Pistorius had been convicted of pointing a firearm rather than the crime of murder – with which he was charged – the state would not be in position to appeal says Roberts.
Roberts prosecuted for some 32 years, serving as deputy DPP in KwaZulu-Natal and later as DPP in the Eastern Cape. On his retirement, he lectured criminal procedure in the Rhodes University law faculty for some nine years.
Marais, who has served in the National Prosecuting Authority for 37 years, agreed.
“The SCA has ruled that the right of the state to appeal on a question of law is only in the event of what it termed an algehele or total acquittal. In my understanding, Pistorius was not totally acquitted on a charge of murder. He was convicted of culpable homicide, which is a competent verdict to murder. So in terms of [S v Seekoei] it seems unlikely that the state can appeal.”
Marais said there were moves afoot to put the state on a more equal footing with an accused when it came to appealing, which might then enable the state to appeal on the basis of both factual and legal findings by a judge.
But any future amendments to the CPA will not change anything in the Pistorius case. The NPA has indicated it will only announce its intentions regarding an appeal after Pistorius has been sentenced.