Powers of court on appeal
The powers of the court on appeal are the same as on automatic review:[350]
• to confirm, alter or quash the conviction, and (where appropriate) to substitute the conviction on an alternative charge;
• to confirm, reduce, alter or set aside the sentence or other order;
• to set aside or correct the proceedings;
• to give such judgment, or impose such sentence, or give such order, as the magistrate ought to have given, etc.;[351]
• to remit the case to the magistrate with instructions to deal with any matter as the High Court may think fit;
• to make any order suspending the execution of the sentence, or releasing the accused on bail, that seems appropriate.
In addition to powers of automatic review, the court of appeal may also increase the sentence.[352] For an example of the approach of the appeal courts to an increase of sentence, see S v Salzwedel
Where the state or a court of appeal considers an increase in sentence, the practice is for notice to be given to the appellant
In general, for the approach of appeal court to
• conviction, see R v Dhlumayo;[355] and
• sentence, see S v Anderson,[356] S v Giannoulis,[357] Malgas and S v Jiminez.[358] If there was no material misdirection by the trial court, the court of appeal will only interfere with the sentence if there is a striking disparity between what the trial court imposed and what the appeal court would have imposed. If there was a material misdirection, the appeal court is "at large" and imposes the sentence it deems fit. The same test applies, whether the original sentence is claimed to have been too severe or too lenient.
Where a conviction or a sentence is set aside on appeal or review, because section 112 or 113 have not been applied or have not been properly applied, the appeal court must remit to the lower court for proper compliance with section 112 or 113.[359]
Where conviction and sentence are set aside on appeal on grounds of technical irregularity, the accused may be retried.
