This document makes for very interesting reading but is rather long. I have no background in law of any sort but I am living in hopes I have interpreted the last two subsections as giving hope that the prosecution may still be able to appeal (Section 17). The earlier points were of general interest.
http://www.justice.gov.za/salrc/reports/r_prj73_appeal_2000dec.pdf
Appeals by the prosecution Page 31
Prosecutors right of appeal Page 32
The common law has however been modified by statute in varying degrees, both in the
UK and the Commonwealth generally, and there are now five possible basic sets of
situations in relation to trial on indictment
(a) no right of appeal by the prosecutor;
(b) a right of appeal or "reference" on a point of law, but with no affect on the
outcome of the trial giving rise to it;
(c) a right of appeal against leniency of sentence;
(d) a substantive right of appeal on a point of law against acquittal;
(e) a substantive right of appeal on law, mixed law and fact, and fact alone, against
acquittal.
These categories are not of course all mutually exclusive and there are in some
jurisdictions combinations of the rights under (b) and (c), or under (c) and (d) or (e).
Moreover, appeals may be brought sometimes only with leave of the trial court or the
appeal court (or either), sometimes without the need to obtain leave, or sometimes under a combination of restricted and unrestricted rights depending on the nature of the appeal.
The basic common law situation under (a) needs no further elaboration but each of the
other categories merits further examination.
Page 50
4.24 He points out that an accused's right to appeal against his conviction/sentence or any adverse decision is an internationally accepted (human) right. Fairness dictates that the State should be afforded a similar right. The granting of this right to the State should primarily be rooted in (a) fairness and (b) the interests of society. In the present criminal justice system the odds are heavily stacked against the State. The increase of sophisticated criminals, the lack of experienced prosecutors and judicial officers are some of the elements which have affected the efficient administration of justice. Further, a current perception is that the rights of an accused are treated preferentially to those of society in general. This has resulted in the perception that the system protects criminals and neglects the victims. There can be little, if any, doubt that affording the State a right to appeal on facts would go a very long way to restore credibility and
respect in the justice system.
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Page 78
5.27 For the reasons set out in paragraph 5.21 the Commission is unable to support the
proposition of Mr Mennun that the right of the state to appeal against sentences, bail or on questions of law cannot be used to support an extension of the states right to appeal to include questions of fact. The Commission concedes that the right to appeal on questions of fact should be limited to those cases where a miscarriage of justice occurred on the evidence before the court. The intention is not to give the state a second bite of the cherry. The state cannot rectify its own errors on appeal.
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Page 105
17. Section 322 of the Principal Act is hereby amended by-
(a) allow the appeal [if it thinks that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law
or that on any ground there was a failure of justice];
(b) the substitution for subsection (2) of the following subsection:
(2) Upon any [an] appeal [under section 316 or 316B] against any sentence, the court of appeal may confirm the sentence or may delete or amend the sentence and impose such punishment as ought to have been imposed at the trial.
