Just something I'd like to clear up as there seemed to be some confusion around this. The process of reaching a judgment in a trial court in SA is as follows:
Trial court:
1. Have trial where all evidence and witnesses are presented
2. Determine which evidence and witness is reliable and record on official record
3. Build set of facts from the accepted official evidence and witnesses
4. Apply the law to the established set of facts, this means apply correct tests and ask correct questions to the set of facts
5. Arrive at conclusions based on tests and questions applied to the accepted facts
6. Give verdict
7. Give sentence after hearing aggravation and mitigation arguments
Now if the defense feels that the trial was unfair, that the judgment was incorrect, or for example that the prosecution jeopardised the trial etc etc then the defense can do the following:
Appeal court if defence appeals:
1. Apply for leave to appeal to trial court
2. If leave to appeal is granted, then go to appeal court
3. Defence is allowed to introduce new evidence, and have original established facts (point 1 to 3 in trial court list above) re-looked at
4. If appeal is won, all legal costs would be carried by the state
5. If appeal not won, all defence legal costs to be carried by defence
Now if the prosecution (or 'the State' as we call it) feels that the judgment was incorrect, they can appeal but only on grounds of law not being applied correctly. They cannot appeal the established facts (points 1 to 3 in trial court list above). The can appeal point 4 in the trial court list though.
Appeal court if prosecution appeals:
1. Apply for leave to appeal to trial court
2. If leave to appeal is granted, then go to appeal court
3. Prosecution is NOT allowed to introduce any NEW evidence nor revise existing set of facts. This is to avoid 'double jeopardy' among other things
4. Defence is allowed to contest the appeal of the prosecution but at own cost
5. However, should the prosecutions appeal be unsuccessful they would usually have to cover the legal costs of the defence
In light of the above, I think
@Zarlak and
@adexkola might rethink their stance on this. In my opinion there is nothing 'unfair' about this process nor 'unjust'