THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 996/2021
In the matter between:
RAYMOND DANIEL DE VILLIERS Appellant
and
THE STATE Respondent
Neutral Citation: Raymond Daniel de Villiers v The State (996/2021) [2023]
ZASCA 83 (31 May 2023)
Coram: ZONDI, MOLEMELA and MOTHLE JJA and
NHLANGULELA and SIWENDU AJJA
Heard: 6 March 2023
Delivered: 31 May 2023
Summary: Criminal Law and Procedure – compensation order –
whether a court of appeal could impose an order of compensation in terms of
s 300 of the Criminal Procedure Act 51 of 1977 – whether in consideration of
an appeal a court may widen the limited grounds of leave to appeal.
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
2
ORDER
On appeal from : Free State Division of the High Court, Bloemfontein
(Nekosie AJ with Mbhele and Daniso JJ concurring, sittin g as a full court of
appeal):
1. The appeal succeeds.
2. The order of the Full Court of the Free State Division of the High Court
dated 8 February 2021 on appeal against sentence, is set as ide and
substituted by the following:
‘(a) The sentence imposed by the R egional Court, Bloemfontein on the
appellant on 29 November 2011 is set aside and the matter is remitted
to the Regional Court, Bloemfontein for sentencing afresh.
(b) The further evidence presented by the appellant and the State and
admitted by the Full C ourt, shall serve before the regional court in
consideration of the sentence.’
JUDGMENT
Mothle JA (Zondi JA and Nhlangulela and Siwendu AJJA concurring):
[1] This is an appeal against the order by the full court of the Free State
Division of the High Court, Bloemfontein, (the full court), dated 8 February 2021.
The full court , in considering an appeal against a sentence imposed by the
regional court, Bloemfontein (regional court), dismissed the appeal which confirmed
the custodial sentence , and ordered the appellant to pay to the complainant
an amount of R900 000 (nine hundred thousand rand) within 30 days of the
order (the compensation order) . The full court purported to grant the
compensation order in terms of s 300 of the Criminal Procedure Act 51 of
1977 (CPA). The crisp issue that falls to be determined in this appeal is
3
whether the full court acted correctly in granting the compensation order.
[2] The factual background is briefly that the appellant, Mr Raymond Daniel
de Villiers (the appellant) , an accountant on 25 May 2005, received an
amount of R950 000 from a long-standing client, the complainant, Mrs Wiese,
to invest on her behalf. Mrs Wiese is a widow to Mr PJ Wiese, a farmer who
had recently passed on, and the R950 000 in issue were proceeds from the
deceased’s estate. The appellant failed to invest the money as instructed and,
instead used it for his speculative business ventures. He failed to pay the
amount to Mrs Wiese on demand and the latter laid a charge of theft against
him.
[3] The appellant was arraigned before the regional court on a charge of
fraud, and in the alternative, theft of R950 000. On 11 August 2011 the
appellant pleaded guilty to the alternative charge of theft in terms of s 112 of
the CPA and was convicted accordingly. The following evidence on sentence,
and material to the determination of this appeal, appears from the trial record
of proceedings in the regional court. First, prior to the commencement of the
trial, the appellant, through his legal representatives, proposed to enter into a
plea and sentence agreement (plea bargaining) with the prosecution, in terms
of s 105A of the CPA. The prosecution rejected the proposal and it fell
through. Second, testifying during sentencing proceedings following the
appellant’s convicti on, Mrs Wiese expressed a desire to be paid back the
amount that had been stolen from her.
[4] On 29 November 2011, the regional court imposed a sentence of
seven years’ imprisonment, of which three years were suspended for three
years on condition that the appellant is not convicted of theft, fraud, attempted
theft or fraud or any offence whereby dishonesty is an element of the crime,
committed during the period of suspension. The appellant launched an
application for leave to appeal both the conviction and sentence, which
application was refused by the regional court. On 11 January 2012, he turned
to the high court on petition for leave to appeal. On 14 September 2012, the
appellant’s petition for leave to appeal against his convi ction and sentence
4
was also refused by the high court , before Daffue J and Snellenburg AJ. The
high court further refused his application for extension of bail pending further
appeal proceedings. The appellant was incarcerated for a short period.
[5] The appellant then ap proached this C ourt on petition, simultaneously
launching a review application regarding his conviction. On 7 January 2013
the petition served before Nugent JA and Mhlantla JA, who granted the
appellant leave to appeal, only against sentence, to the full court . With the
appeal to the full court held in abeyance, the review application was heard
and dismissed by this Court on 24 March 2016 and thereafter by the
Constitutional Court on 16 August 2016. Four years later , on
9 November 2020, the full court heard the appeal against the sentence. The
appellant requested the full court to consider a change in his personal
circumstances and delivered an application to present further evidence, which
the full court granted.
1
[6] The further evidence, brought nine years after his conviction and sentence in the
regional court, presented the following changed circumstances, as recorded in
para 14 of the full court judgment:
‘14.1 The appellant is now 60 years old.
14.2 He presently resides at 4[…] K[…] K[…] Road, Bayswater, Bloemfontein
which is situated above his work premises at Sebenza Accountants (Pty)
Limited where he is an accountant in association with the said Sebenza
Accountants.
14.3 He has not been charged with and/or convicted of any further offences
since his conviction in 2011.
14.4 He is economically active, and a law-abiding citizen post his sentence.
1 See Rail Commute rs Action Group and Others v Transnet Ltd T/A Metrorail and Others
2005 (2) SA 359 (CC) para 41- 43.
5
14.5 Through his practise he supports approximately 23 households and
presently serves approximately 800 clients.
14.6 The appellant declares himself a devoted Christian who deci ded to use
and apply his professional skills to uplift and make a positive contribution to
society by providing professional advice to young aspiring and upcoming
entrepreneurs free of charge for a period ranging between 6 and 18 months,
feeding schemes in under privileged communities and advise to elderly
persons on how to invest their savings.
14.7 He has saved R1 000 000.00 which is held in trust that can be paid in
restitution to the plaintiff [the complainant].’
[7] The State did not oppose the appellant’s application to adduce further
evidence on appeal. It also presented evidence in the form of an affidavit,
deposed to by a Senior State Advocate , attached to the Specialised
Commercial Crime Unit, Bloemfontein, [in] which it asked the full court to
consider in dealing with the appellant’s request to present further evidence. In
the affidavit, the State , dealing with the history of the litigation in this matter,
concluded in paras 25 – 27 thus:
‘Although it is true that personal circumstances of an accused person may
change over a period of time the manner in which the appellant’s exercised
his rights led to this delay. His conduct in this post sentence course of action
cannot [not] be ignored. His dishonest attempt in this application to convince
you of his remorse and regret is not evident from his conduct post sentence.
Logic then dictates that my concession in the trial court that there were
compelling and substantial circumstances justifying an imposition of a lesser
sentence than the minimum sentence cannot be applicable [be] any more
because of the actions and factors emanating post sentence as described
above.
Since the sword of Iustitia (Lady Justice) is a double-edged sword that cuts
both ways and the appellant is asking in effect this Court to consider sentence
afresh this court might well allow further evidence as prayed for by the
6
appellant and in addition also admit the contents of this statement along the
same lines as prayed for by the appellant and call upon the Appellant to give
reasons why the sentence imposed should not be increased.’
[8] On 8 February 2021, Nekosie AJ, with Mbhele and Daniso J J
concurring, delivered the full court judgment, wherein the appeal was
dismissed, and the custodial sentence imposed by the regional court
confirmed. Both orders appear ed in paras 1 and 2 of the full court order
respectively. The full court further added paras 3 and 4 to its order, which
read thus:
‘3. In terms of section 300(1) of the Criminal Procedure Act 51 of 1977 the
appellant is ordered to pay to Amanda Wiese, the complainant in this matter,
the amount of R900 000.00 (nine hundred thousand rand) within thirty (30)
days of this order.
4. The order in 3 above shall have the effect of a civil judgment as provided
for in section 300(3) (b). The registrar is directed to bring this judgment to the
attention of the registrar, Regional Court, Bloemfontein.’
[9] The appellant, aggrieved by the judgment and order of the full court ,
once again approached this Court on petition, seeking special leave to appeal
against the order of the full c ourt. This Court, per Wallis JA and Carelse AJA
on 6 May 2021, granted the appellant special leave to appeal to this Court,
limiting the leave to appeal to paras 3 and 4 of the order of the full court. It is
thus with the special leave of this Court that the appeal against paras 3 and 4
of the order is before us . I t urn to deal with the question whether the
compensation order in terms of s 300 of the CPA was appropriately made.
[10] Ordinarily when a person who has s uffered an injury or loss, desires to
be compensated for such injury or loss , that person would institute civil
proceedings in a civil court for relief. When that injury or loss arises out of the
commission of a crime, and criminal prosecution ensues, that person may, on
application to the criminal court conducting the trial, be awarded
7
compensation for the damage or loss. That would occur after the conviction of
the person responsible for such loss or dam age. The award for compensation
could be made either in terms of s 297 of the CPA, where such award is made
as a condition of a suspended sentence or in terms of s 300 of the CPA ,
where the amount would be payable.
[11] In Stow v Regional Magistrate, Port Elizabeth,2 the appeal court
compared and contrasted ss 297 and 300 of the CPA, which both provide for
compensation to be awarded by the criminal court , albeit under different
circumstances. The appeal court wrote:
‘I do not agree that the different consequences flowing from compensation as
a condition of suspension and compensation in terms of s 300 result in
discrimination. Compensation as a condition of suspension is an integral part
of the sentence which has its purpose as described in Tshondeni supra. It is a
flexible condition which can be adapted to a person's means and the length of
time it will ta ke to make full restitution . Its im position is subject to the
safeguards mentioned above. Section 300 on the other hand is a convenient
means of recovering a debt without having to institute a civil action. The order
will be made for the full amount determined as compensation for the damage
or loss and would be executable for the full amount. Section 300 can only be
utilised if the victim or the state , applies for such an order. The victim can
renounce the order, which impacts on the effectiveness of the order, whereas
compensation as a condition of suspension remains the prerogative of the
court and will ser ve a more meaningful purpose in the sentencing process.
Section 300 is therefore only available in restricted circumstances and lacks
the flexibility which can be used in shaping a suitable sentence. If it was the
only means of ordering compensation, a valuable sentencing option would be
lost.'
[12] Section 300(1) of the CPA provides:
2 Stow v Regional Magistrate, Port Elizabeth [2017] ZAECGHC 12; [2017] (2) SACR 96; 2017
(2) SACR 96 (ECG) para 64.
8
‘(1) Where a person is convicted by a superior court, a regional court or a
magistrate’s court of an offence which has caused damage to or loss of
property (including money) belonging to some other person, the court in
question may, upon the application of the injured person or of the prosecutor
acting on the instruction of the injured person, forthwith award the injured
person compensation for such damage or loss: Provided that –
(a) a reg ional court or magistrate court shall not make such award if the
compensation applied for exceeds the amount determined by the Minister
from time to time by notice in the Gazette in respect of the respective courts.’
[13] First, on a proper construction of s 300(1) of the CPA, only the court
that convicted a person, referred to as ‘ the court in question’ may award
compensation under the provisions of s 300 of the CPA. In this case it is the
regional court. The request made by couns el for the appellant that the full
court should not refer the matter back to the trial court, for the purpose of
imposing a compensation order in terms of s 300 of the Act, was bad in law
and the full court erred in acceding to it. The full court, as a court of appeal, is
not the court that convicted the appellant and thus it lacked the authority or
jurisdiction to award a compensation under s 300 of the CPA.
[14] Second, and related to the first issue in the preceding paragraph, in
terms of s 300 of the CPA, the compensation order is triggered ‘ upon the
application of the injured person or of the prosecutor acting on the instruction
of the injured person. ’ The full court did not have an application in terms of
s 300 of the CPA made to it either by Mrs Wiese or by the prosecutor on her
instruction. The application for compensation award is an essential pre-
requisite to trigger a consideration of compensation in terms of s 300 of the
CPA. The full court , therefore, erred in considering and awarding
compensation in terms of s 300 of the CPA, without an application before it.
[15] Third, it was only after hearing argument and the proceedings had
been adjourned, that the full court informed the legal representatives of the
appellant and the State, that it was considering a possible increase of the
9
sentence. It invited the parties to submit supplementary heads of argument. In
extending that invitation to the parties, the full court did not gi ve notice that it
was considering invoking s 300 of the CPA. The appellant submitted the
heads of argument without specifically dealing with submissions on s 300 of
the CPA .3 The appellant was thus prejudiced in that he was not granted a
proper notice and hearing before the full court invoked the compensation
order in terms of s 300 of the CPA. Section 300 of the CPA, envisages an
inquiry to be held to determine whether it is possible to make the award. All
parties before the court must be provided an opportunity to participate in the
proceedings.
[16] Based on the findings by this Court in the precedi ng three paragraphs,
it suffice s to conclude that the full court erred in awarding compensation in
paras 3 and 4 of its order. Counsel for the State conceded, only on the narrow
basis that the full court erred in regard to awarding a compensation in terms of
s 300 of the CPA . This concession was correctly made. Therefore, the full
court’s award of compensation in terms of s 300 of the CPA as stated in
paras 3 and 4 of its judgment, cannot stand, and it falls to be set aside.
[17] The further evidence by the appellant and the State, admitted by the
full court , was not available to the regional court during the sentence
proceedings. The setting aside of paras 3 and 4 of the full court order, leaves
that evidence still intact and available for consideration. The only court
competent to consider that evidence and impose an appropriate sentence
would, in this instance, be the trial cour t. Consequently, this Court is at large
to remit the matter t o the regional court to determine the sentence afresh. In
S v Sion4 (Sion) the high court wrote:
’Where the complainant had merely expressed, in the course of his evidence,
a desire to be compensated, the Court on review remitted the case to the
3 S v Van Rensburg 1974 (2) SA 243 (T) at 244H -245A; S v Baadjies 1977 (3) SA 61 (E) at
63A-B.
4 S v Sion 1975 (2) SA 184 (NKA).
10
magistrate to enable the complainant to make a proper application for
compensation should he so desire; alternatively, to enable the magistrate to
impose a compensatory fine.’5
[18] Therefore, in remitting the matter back to the trial court for the purpose
of considering the issue of sentence afresh , it will be necessary for the trial
court to re-consider not only the evidence that was presented before it at the
time when it passed the original sentence, but should include the further
evidence as well . Inexorably, a reason for the widening of the terms of this
appeal beyond those that were contemplated in paras 3 and 4 of the full court
order, has emerged . In a situation that is similar to the present one, it was
stated appositely by this court in R v Mpompotshe and Another, 6as follows:
‘In any event it would always be open to this Court, if not prevented by the
legal requirements as to finality discussed in R v Sibande, 1948 (3) SA 1
(AD), and R v Maharaj (Appellate Division 8 th September 1958), to condone
the delay and grant leave to appeal on wider grounds than those allowed by
the trial Judge. This appeal was therefore dealt with on the basis that leave to
appeal had been granted generally.’
[19] The principle stated above w as followed in S v Safatsa and Others7
(Safatsa) thus:
‘This Court will not necessarily consider itself bound by the grounds upon
which leave has been granted.’ What has emerged as a difference in
approach is that in Safatsa, this Court went on to state as follows : ‘…A
formal petition for leave to appeal on wider grounds is not an indispensable
prerequisite, since the matter is before the Court whose members would be
conversant with the record, but the remarks I have quoted show that the
Court will certainly decline to hear argument on an additional ground of
appeal if there is no reasonable prospect of success in respect of it …’
This
5 Ibid at 185.
6 R v Mpompotshe and Another 1958 (4) SA 471 (A) at 473E.
7 S v Safatsa and Others 1988 (1) SA 868 (A) at 877A-G.
11
approach should be contrasted wit h that in Douglas v Douglas 8
(Douglas) where this Court again, after accepting the principle that it
will not necessarily consider itself bound by the terms of the order
granting leave to appeal, held: ‘Although leave to appeal on a ground
refused by the court which granted leave to appeal to this C ourt should,
generally speaking, be requested by way of petition, which would normally be
considered by the court hearing the appeal, the required leave can also be
sought by way of application when the appeal is heard. In such a case
condonation for the delay in asking such leave should also be requested.’
(Own emphasis.)
[20] In Douglas, this Court was dealing with the instance where additional
grounds of appeal were raised and leave requested to have them considered.
In such instance, it is necessary for an application to be made by the party
seeking to rely on such new grounds, to have the limit on the grounds of
appeal widened. In the present appeal, this Court is seized with different set
of circumstances. The full court had accepted ‘further evidence’ submitted in
mitigation and also in aggravation of sentence from the appellant and the
State respectively, a considerable time after the appellant had been
sentenced by the regional court. At the time this appeal was before this Court,
approximately ten years had elapsed since the appellant was sentenced. As
is apparent, the full court had no jurisdiction to make a compensatory award in
terms of s 300 of the CPA, notwithstanding the receipt of the further evidence.
Similarly, this Court has no such jurisdiction. The jurisdiction lies with the trial
court, which in this instance is the regional court.
[21] I have had the pleasure of reading the judgment of my sister, Molemela
JA (the concurring judgment) . I however respectfully disagree with the
conclusion in para 29 that, by not awarding compensation to the complainant,
the regional court exercised its discretion unreasonably. If it is indeed so, that
would constitute a misdirection, justifying intervention by the appeal court.
8 Douglas v Douglas [1995] ZASCA 147; [1996] 2 All SA 1 (A).
12
However, it is a fact that there was no ground of appeal or argument placed
before this Court , suggesting that the regional court unreasonably exercised
its discretion on sentence. I t is trite that in criminal trials, the primary purpose
of det ermining sentence is to impose an appropriate punishment to the
convicted person. Where the trial court in its discretion deems it appropriate to
impose a custodial sentence, as it happened in this case, the question of
compensation recede s, as it would be unrealistic to expect a person in
custody to pay compensation as contemplated in s 297 of the CPA. T he
regional court was under no legal obligation to suspend the whole custodial
sentence in order to award compensation. Such a decision would occur where
the regional court in the exercise of its discretion, deems it so. I n S v Sadler 9
this Court held that the appeal court should not erode the exercise of a
sentencing discretion by the trial court, simply because it does not accord with
what the appeal court would have imposed. It is not sufficient that the appeal
court’s own choice of sentence would have been appropriate. T herefore the
remittal of this matter to the regional court nee d not be burdened by any view
as to how this Court prefer s to have the regional court exercise its discretion
in imposing a sentence.
[22] The net effect of the finding by this Court, is that the entire order of the
full court should be set aside, and the further evidence submitted by the
appellant and the State as admitted by the full court, be remitted to the
regional court for the determination of sentence afresh.
[23] In the result, I make the following order:
1. The appeal succeeds.
2. The order of the Full Court of the Free State Division of the
High Court dated 8 February 2021 on appeal against sentence, is set
aside and substituted by the following:
9 S v Sadler 2000 (1) SACR 331 (SCA).
13
‘(a) The sentence imposed by the Regional Court, Bloemfontein
on the appellant on 29 November 2011 is set aside and the
matter is remitted to the Regional Court, Bloemfontein for
sentencing afresh.
(b) The fur ther evidence presented by the appellant and the
State and admitted by the full court , shall serve before the
regional court in consideration of the sentence.’
SP MOTHLE
JUDGE OF APPEAL
Molemela JA
[24] I have had the pleasure of reading the judgment of my brother, Mot hle
JA (the first judgment) and agree with the outcome proposed therein .
However, I follow a different reasoning in coming to the same outcome.
[25] As the facts and authorities have correctly been canvassed i n the first
judgment, there is no need for me to cover the same ground in this section of
the judgment. The record of the proceedings in the regional court reveals that
after the appellant’s conviction, there was a discussion on the issue of t he
appellant offering to pay an amount of money to ameliorate the complainant’s
loss. The appellant indicated that he would be in a position to pay an amount
of R209 302.65 to the complainant the next day , and offered to pay the
balance in instalments.
[26] It is evident from the record that the complainant is a lay person and
had made it clear, in response to questions from the defence counsel, that
she was prepared to accept the appellant’s offer of paying the lump sum
indicated above, plus payment of t he balance in instalments. From her
responses to the prosecutor’s questions, it was clear that the complainant was
14
even willing to accept an award of a lesser amount as compensation, given
her dire financial situation. A lthough the complainant had uncovered the theft
committed by the appellant in 2008, she had, at the time of the
commencement of the trial, not instituted a civil action for the recovery of that
money. In response to the trial court’s questions regarding why she laid
criminal charges as oppos ed to instituting a civil claim, if all she was
interested in was to get her money back, she stated that she had not pursued
a civil claim because she did not have enough money to do so. Notably, the
trial court, in the course of sentencing the appellant, remarked that ‘the
complainant . . . testified in this court that she would want nothing more than
to have her money back’.
[27] On the conspectus of the record, I am satisfied that the complainant
repeatedly indicated her eagerness t o receive a compensation award
envisaged in s 300 of the CPA. From my point of view, the fact that the offer
for the payment of the compensation was in the form of a down- payment of a
lump sum , followed by payment of the balance in instalments and the
complainant had accepted it on that basis did not detract from it being an offer
for the payment of compensation within the contemplation of s 300 of the
CPA.
10 I therefore accept that there was a proper application before the trial
court within the contemplation of s 300 of the CPA. However, the appellant’s
counsel had made it clear that the appellant would not be able to pay off the
outstanding balance in instalments if he was incarcerated. Notwithstanding
this, I am of the view that the circumstances were such that some measure of
restorative justice would have been achieved by a compensation aw ard
envisaged in s 297(1 )(a)(i)(aa) of the CPA as the complainant’s financial loss
was as a direct result of the offence committed by the appellant. Thus, even if
the regional court had held the view that the appellant was not in a position to
pay the full amount of the loss (R950 000) , and that it was therefore not an
appropriate case in which to award compensation within the contemplation of
10 In S v Williams [2016] ZAFSHC 20 para 3 –the court, on review, held that payment of
compensation envisaged in s 300 of the CPA in monthly instalments is permissible.
15
s 300 of the CPA, nothing precluded it from ordering compensation in terms of
s 297(1)(a)(i)(aa) of the CPA. In my opinion, the concerns of victims of crime
need to be recognised in the sentencing process.
[28] In Director of Public Prosecutions, N orth Gauteng v Thabethe, 11 in the
context of a sentence imposed in respect of a rape charge, this Court
observed that a victim’s voice deserves to be heard , given that the victim
‘bears the real brunt of the offence committed against him. ’12 Although this
Court cautioned that a victim’s views are not decisive, it pointed out that it was
only fair that the victim be hea rd regarding how the crime had affected him or
her. In my opinion, the fact that an economic offence in respect of which a
substantial amount of money was stolen from a complainant who had not only
indicated to the court that she had no way of r ecouping her loss , but had
specifically requested a compensation award, rendered this case an
appropriate one for the granting of a compensation award.
[29] Even on an acceptance that the appellant was not, at the time of his
conviction, able to pay the full amount representing the complainant’s loss but
only a part thereof, the fact remains that the judgment of the regional court
does not indicate why it did not, in circumstances where it was clear that there
was no other avenue open to the complainant to recoup her substantial
financial loss from the appellant, at least consider ordering the appellant to
pay the complainant the amount he had available as a condition for
suspending part of the sentence as envisaged in s 297(1)(a)(i)(aa) of the
CPA, as this was one of the options proposed by the prosecutor. Despite an
indication that only an amount of R209 302.65 would be available to be
transferred to the complainant’s bank account the very next day, the trial court
suspended part of the appellant’s sentence without awarding the complainant
any compensation. This leads me to conclude that insufficient regard was
paid to the substantial loss that the complainant had suffered as a result of the
11 Director of Public Prosecutions v Thabethe [2011] ZASCA 186; 2011 (2) SACR 567 (SCA).
12 Ibid para 21
16
offence committed by the appellant , and to the complainant’s dire financial
position. While I accept that it was within the discretion of the regional court to
determine an appropriate sentence, I am of the respectful view that its
judgment does not demonstrate that it followed a victim-centred approac h13
which the circumstances of this case and interests of justice required. In
failing to do so, it exercised its discretion unreasonably .14 It is for that reason
that I conclude that the full court correctly found that the sentence imposed by
the regional court had to be tampered with.
[30] Despite the aforesaid conclusion, I am of the view that once it is
accepted that the appellant was not, at the time of the trial , in a financial
position to repay the full amount to the complainant, it was not open to the full
court to make an award of compensation in terms of s 300 of the CPA , on
appeal. The full court, being a court of appeal, simply lacked the power to do
so. This is because on a proper construction o f s 300(1) of the CPA, only the
regional court, as the court that convicted the appellant, could have awarded
compensation that would have the effect of a civil judgment as stipulated in
that provision. Both parties are of the view that the full court erred in issuing
the compensation order set out in paragraphs 3 and 4 of its order. For the
reasons I have set out above, I agree with their submission.
[31] Since the appeal before us was limited to whether the full court could
award compensation on appeal , the appellant urged this Court to confine its
interference on appeal to the setting aside of paragraphs 3 and 4 of its order.
This submission fails to take into consideration that further evidence was
admitted on appeal by the full court, and its ruling in relation to the admission
of further evidence has not been attacked on appeal. In this regard, it must be
13 Compare S v Matyityi 2011 (1) SACR 40 (SCA) paras 16- 17. However, in this matter , the
rights of victims to participate during sentencing were emphasised in circumstances where
there was an absence of any information about the victims of rape and murder. It was in that
context that this Court urged for an increased involvement of victims in the sentencing
process.
14 See S v Pillay 1977(4) SA 531 (A) at 538A-B.
17
borne in mind that the admission of further evidence on appeal was at the
instance of the appellant, with no opposition from the State.
[32] The full court rightly granted the order for the admission of further
evidence, given the delays caused by the application for leave to appeal and
the application for review, respectively, resulting in a period of some nine
years elapsing before the hearing of the appeal. Thus, there were exceptional
circumstances that warranted the admission of this evidence.
15 It is for this
reason that I am of the view that , to only grant an order setting aside
paragraphs 3 and 4 of the full court’s order would serve to perpetuate the
injustice occasioned by the trial court’s failure to pay due regard to the
complainant’s express wish to be awarded compensation. That being the
case, I, too, am of the view that the se limited grounds of app eal ought to be
widened,
16 so that sentence can be considered afresh.
[33] As explained earlier, this matter has been pending before the courts for
approximately a decade. Under different circumstances, it would have been
desirable for this Court to bring this matter to a close without remitting it back
to the regional court .17 This, it could do by replacing the full court’s order with
an order setting aside the regional court’s sentence. Cognisant of the flexibility
granted by s 297 of the CPA, it could, in replacing the sentence imposed by
the regional court , suspend part of the sentence on condition that the
appellant pays compensation to the complainant within the contemplation of
s 297(1)(a)(i)(aa). That said, a noteworthy consideration in this matter is that,
save for submissions pertaining to the setting aside of the compensation
award, both counsel made no submissions to us regarding any other aspect
of sentencing . This is probably because they did not anticipat e that the
grounds of appeal could be widened. Under the se circumstances, the only
appropriate order that can best serve the interests of justice is to remit the
matter to the regional court for a fresh consideration of all aspects relevant to
15S v Rapholo 2022 (1) SACR 447 (SCA).
16 See S v Safatsa and Others, note 8 above.
17 S v M [2007] ZACC 18; 2008 (3) SA 232 (CC; 2007 (12) BCLR 1312 para 50.
18
sentencing, including additional evidence to the effect that the appellant is
now able to pay the full amount of the complainan t’s loss as compensation
within the contemplation of s 300 of the CPA. For all the reasons set out in the
preceding paragraphs, I agree with the order proposed in the first judgment.
MB MOLEMELA
JUDGE OF APPEAL
APPEARANCES:
For appellant: D.F Dorfling SC
Instructed by: Du Plessis & Associates
C/o Martins Attorneys, Bloemfontein
For respondent: J.B. K Swanepoel
Instructed by: Office of the Director Public Prosecution
Bloemfontein