By Marvin De Vos

The generally accepted legal position in the Republic of South Africa is that in any criminal court matter where an accused person is charged, adjudicated, convicted, and sentenced in a court of law and feels aggrieved, he or she can review (ss 302, 304 and 304A of the Criminal Procedure Act 51 of 1977) or appeal (ss 309, 309A and 309B of the Criminal Procedure Act) the matter to a Higher Court (s 173 of the Constitution). The predicament arises where evidence becomes available post-conviction. This status quo ‘as a fundamental principle of criminal justice nationally and internationally, serious disagreement and uncertainty under South African law as to its exact contents and application has led to a variation in the normative value afforded to it’ (WP de Villiers Problematic aspects of the right to bail under South African law: A comparison with Canadian law and proposals for reform (LLD thesis, University of Pretoria, 2000) (https://repository.up.ac.za, accessed 31-1-2025)). While there is some clarity as to the pre-trial and trial application process under South African law, it lacks the same in respect of s 327 applications post-trial convictions. This article will explore the application thereof in the context of s 327 of the Criminal Procedure Act.

The criminal procedure route

Section 327 of the Criminal Procedure Act provides:

‘(1) If any person convicted of any offence in any court has in respect of the conviction exhausted all the recognised legal procedures pertaining to appeal or review, or if such procedures are no longer available to him or her, and such person or his or her legal representative addresses the Minister by way of petition, supported by relevant affidavit, stating that further evidence has since become available which materially affects his or her conviction, the Minister may, if he or she considers that such further evidence, if true, might reasonably affect the conviction, direct that the petition and the relevant affidavits be referred to the court in which the conviction occurred.’

The provision finds application where a person who feels aggrieved after review or appeal applies to seek relief where evidence has become known of his or her actual innocence. It has been established through the interpretation of s 327(1) that this is not a form of appeal. The court held in the matter of Liesching and Others v S and Another 2017 (4) BCLR 454 (CC) that ‘“the procedure in section 327 … is not an appeal” and that the section is “geared at preventing an injustice”. The court added: “Section 327(1) applies after the appeal processes are spent and permanently closed. The section 327 procedure is also not a substitute for an appeal. It is a process beyond the appeal stage that is meant to be the final net to avoid a grave injustice”’ (JD Mujuzi ‘Compensation for wrongful conviction in South Africa’ (2023) 44 Obiter 50). ‘The Minister [instead of the aggrieved party] can only invoke section 327 when the case has merit’ (Mujuzi (op cit)). Pending the proceedings the court does not have ‘the power to release on bail a person whose application is being considered under section 327’ (Mujuzi (op cit)). ‘However, a court may stay the issue of the warrant of arrest in execution of a sentence it imposed if it is considering the application to reopen the sentenced person’s case in terms of section 327’ (Mujuzi (op cit).

The legal impediments

There are various shortcomings as it relates to the application of s 327. This section is silent when it relates to compensation and the institution of civil actions against the government. First, the President is only empowered under the section to ‘grant the person in question a free pardon’ (Mujuzi (op cit)). ‘Secondly, a person who has been pardoned is also barred from instituting a civil suit against the government for compensation for the wrongful conviction. This can be inferred from section 327(7)(b). This means that even if the court’s advice to the President is based on the fact that the new evidence shows that the person in question did not commit the offence, such a person is barred from instituting a civil claim against the government. Whether or not section 327 can pass constitutional scrutiny for ousting the jurisdiction of any court to scrutinise the decision made by the President or the Minister is highly doubtful. This is because it has the effect of putting the President or the Minister above the law. Section 327(7) also violates the right of access to courts under section 34 of the Constitution’ (Mujuzi (op cit)).

Legal recommendations and conclusion

I echo the sentiments of many legal writers and commentators that propose a reform or overview of the current status quo and assessing the current post-conviction procedures under s 327 of the Act. An investigation should be lodged into the efficacy of the current system and how it should be improved in line with substantive national and international standards relating to post-convictions. International jurisdictions should be consulted as a comparative analysis in this regard. The current system should be developed to bring about an independent mechanism that treats innocent victims in the criminal justice system with dignity, away from the current political process that is envisaged by the provision.

Under the current system, the party had to petition the Minister. The Minister would then refer the matter to court if it has merit. The court would hear the matter and make a factual finding on actual innocence. A formal hearing would be conducted in this regard, where evidence would be led, and parties be deposed. After its finding, the court would then refer the matter to the President to decide whether to pardon or not. This process is flawed in that it does not allow for any recourse against the decision of the Minister and/or the President. Their decision is final and is not subject to review or appeal.

The suggestion is that the process should be administered and remain in the realm of the Judiciary. The requirement that the party should petition the Minister in the prescribed form, should be amended to read ‘that the party should petition the “judiciary” – Judicial Head of the seat of the High Court and/or Supreme Court of Appeal – in the prescribed form’. The head of that Division should then direct that the matter be heard in the initial court in the normal course. The court would then send its factual finding to the Head of the Division, who would, in turn, disseminate the matter to the Chief Justice for certification of ‘actual innocence’. This process would provide for a mechanism where the applicant could after he has exhausted all his remedies such as review or appeal, still provide access to the court. The effect of this process is that the political role players will thus be excluded, specifically the Minister and/or the President, and prevent any perceived or actual political interference in this regard.

Marvin De Vos LLB (UWC) is a magistrate at the Hermanus Magistrate’s Court.

This article was first published in De Rebus in 2025 (March) DR 11.