Statutory instrument 504 of 1979

SUPREME COURT MAGISTRATES COURTS   CRIMINAL APPEALS RULES 1979

SIs 504/1079, 27/1983. 171/1991, 12/1992, 98/1992.

ARRANGEMENT OF RULES

PRELIMINARY Rule

3A.   Reckoning of time.

PART I

GENERAL

4. Appeals generally.
5. Departure from rules.
6. Amendment of notice of appeal.

6A.   Renunciation of agency by legal practitioner.

6B.   Special orders as to costs.

6C.   Heads of argument.

PART II

APPEAL BYATTORNEY-GENERALUPON POINTOF LAW

7. Noting of appeal.
8. Response by magistrate to notice of appeal.
9. Preparation of record.
10. Setting down of appeal.

PART III

APPEAL BYATTORNEY-GENERAL AGAINSTSENTENCEWHERE LEAVE TOAPPEAL NOTREQUIRED

11. Noting of appeal.
12. Response by magistrate to notice of appeal.
13. Preparation of record.
14. Setting down of appeal.

PART IV

APPEAL BYATTORNEY-GENERAL AGAINSTSENTENCEWHERE LEAVE TOAPPEAL IS REQUIRED

15. Application for leave to appeal.
16. Response by magistrate to application for leave to appeal.
17. Consideration of application by judge of the Supreme Court.
18. [Repealed]
19. Preparation of record.
20. Setting down of appeal.

PART V

APPEALAGAINSTCONVICTION OR CONVICTION ANDSENTENCE BY CONVICTEDPERSON WHO ISLEGALLYREPRESENTED

21. Application of this Part.
22. Noting of appeal.
23. Response by magistrate to notice of appeal.
24. Preparation of record.
25. Setting down of appeal and heads of argument.

PART VI

APPEALAGAINST CONVICTION OR CONVICTION AND SENTENCE BYCONVICTED PERSON IN PERSON

26. Application of this Part.
27. Noting of appeal.
28. Response by magistrate to notice of appeal.
29. Consideration of application for certificate by judge of the Supreme Court.
30. Response of magistrate to granting of certificate.
31. Preparation of record.
32. Setting down of appeal.

PART VII

APPEALAGAINST SENTENCE BY CONVICTED PERSON WHO IS LEGALLY REPRESENTED

33. Application of this Part.
34. Noting of appeal.
35. Response by magistrate to notice of appeal.
36. Preparation of record.
37. Setting down of appeal and heads of argument.

PART VIII

APPEALAGAINSTSENTENCE BY CONVICTEDPERSON IN PERSON

38. Application of this Part.
39. Noting of appeal.
40. Response by magistrate to notice of appeal.
41. Consideration of application for certificate by judge of the High Court.
42. Response of magistrate to granting of certificate.
43. Preparation of record.
44. Setting down of appeal.

PART IX

PROCEDUREWHERE CERTIFICATE TO PROSECUTEAPPEAL INPERSON ISREFUSED 45. Effect of refusal of certificate.

PART X

PROCEDUREWHERE REPRESENTED APPELLANTAPPLIES FORCERTIFICATE TO PROSECUTEAPPEAL INPERSON 46. Application for certificate to prosecute appeal in person.

PART XI

LAPSING OF RIGHT OFAPPEAL AND APPLICATION TO APPEALOUT OF TIME

47. Lapsing of right of appeal.
48. Application to appeal out of time.

SCHEDULE

Forms

IT is hereby notified that the President has, in terms of subsection (7) of section 57 of the High Court Act [Chapter 7:06], approved the following rules of court which have been made by the Chief Justice and the Judge President:—

PRELIMINARY

1. Title

These rules may be cited as the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979.

[Rule amended by s.i 27 of 1983]

2. Interpretation

• In these rules—

“Chapter 7:10” means the Magistrates Court Act [Chapter 7:10];

“court” means a magistrates court;

“Registrar” means the Registrar of the Supreme Court.

• ….

[Subrule repealed by s.i 12 of 19921

3. Application

These rules shall apply in respect of any appeal relating to the decision of a court in any criminal matter in which sentence is passed on or after the 1st August, 1979.

3A. Reckoning of time.

Where anything is required by these rules to be done within a particular number of days or hours, a Saturday, Sunday or public holiday shall not be reckoned as part of that period.

[Rule inserted by s.i 12 of 1992]

PART I

GENERAL

4. Appeals generally

The prosecution and finalization of all appeals in terms of these rules, especially any appeal, other than an appeal by the Attorney-General in terms of paragraph (a) of section 61 of Chapter 7:10, relating to a case in which the convicted person has received an unsuspended prison sentence, shall be treated by all persons concerned as a matter of urgency.

5. Departure from rules

A judge of the Supreme Court or the High Court, or the Supreme Court of the High Court, may direct a departure from these rules in any way where this is required in the interests of justice, and, additionally or alternatively, may give such directions on matters of practice or procedure as may appear to him to be just and expedient.

6. Amendment of notice of appeal

(1) The Attorney-General or an appellant as defined in Part V, VI, VII or VIII may amend his notice of appeal by lodging a notice in duplicate with the Registrar setting out clearly and specifically the amendment to the grounds of appeal—

• in the case of an appeal against conviction or conviction and sentence, as soon as possible and in any event not later than twenty days after the noting of the appeal;

[Paragraph amended by s.i 12 of 1992]

• in the case of an appeal against sentence only, as soon as possible and in any event not later than ten days after the noting of the appeal.

[Paragraph amended by s.i 12 of 1992]

• A copy of a notice of appeal lodged in terms of subrule (1) shall, at the same time as the lodging of such notice, be served on the other party to the appeal.
• An amendment to a notice of appeal in terms of subrule (1) shall not delay the preparation and lodging with the Registrar of the record of the case to which the appeal relates.

6A. Renunciation of agency by legal practitioner

• In this rule—

“appellant” means an appellant as defined in Part V, VI, VII or VIII.

• Subject to this rule, an appellant’s legal practitioner may for good cause renounce his agency at any time before the appeal has been set down for hearing or, after it has been set down, not later than three weeks after he has been notified of the date of hearing of the appeal in terms of rule 25, 32, 37 or 44, as the case may be:

Provided that, where he has agreed to less than six weeks’ notice of the date of hearing, he may not renounce his agency in terms of this subrule later than one month before the date of hearing.

• Where an appellant’s legal practitioner wishes to renounce his agency in terms of subrule (2), he shall without delay file a notice with the Registrar substantially in form SCMC 1 and, as soon as possible thereafter, serve copies of the notice upon the appellant and upon every other party to the appeal, and shall lodge proof of such service with the Registrar in accordance with rule 11 of the Rules of the Supreme Court, 1964, published in Rhodesia Government Notice 380 of 1964.
• A renunciation of agency in terms of subrule (2) shall be effective from the date on which the notice referred to in subrule (3) is filed with the Registrar.
• Where an appellant’s legal practitioner wishes to renounce his agency after the period prescribed in subrule (2), he shall apply to the court or a judge for leave to do so and the court or judge, s the case may be, may grant leave if it or he, as the case may be, considers that the circumstances of the case justify such a course.
• If an appellant’s legal practitioner purports to renounce his agency otherwise than in terms of subrule (2) or

(3) or without leave granted in terms of subrule (5), as the case may be, the renunciation shall be ineffective, and— (a) any process served upon him in relation to the appeal shall be considered good service; and (b) he shall appear on behalf of the appellant at the hearing of the appeal.

[Subrule inserted by s.i 171 of 1991]

6B. Special orders as to costs

(1) If the court considers that the conduct of a party to an appeal or application under these rules has been such as to warrant such a course, the court may make anyone or more of the following orders—

• depriving a successful party of all or part of his costs in the appeal or application and additionally, or alternatively, in the trial court;
• ordering a successful party to pay all or part of the costs of the other party in the appeal or application and additionally, or alternatively, in the trial court;
• ordering a party to pay costs on a legal practitioner and client scale or an any other appropriate scale.

(2) If the court considers that the conduct of a legal practitioner representing a party to an appeal or application under these rules has been such as to warrant such a course, the court may make any one or more of the following orders—

• ordering him personally to pay all or part of the costs of the appeal or application and additionally, or alternatively, in the trial court;
• ordering him to refund to his client all or any of the fees his client may have paid him in respect of the appeal and additionally, or alternatively, in the trial court;
• ordering him not to charge his client any fee in respect of all or part of the work done by him in respect of the appeal or application and additionally, or alternatively, the proceedings in the trial court;