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[2015] ZASCA 197
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Director of Public Prosecutions, Western Cape v Kock (20841/2014) [2015] ZASCA 197; 2016 (1) SACR 539 (SCA) (1 December 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No:
20841/2014
In the matter
between:
DIRECTOR OF PUBLIC
PROSECUTIONS, WESTERN CAPE
APPELLANT
and
BRANHAM DALE
KOCK
RESPONDENT
Neutral
citation:
Director
of Public Prosecutions, Western Cape v Kock
(20841/2014)
[2015] ZASCA 197
(1 December 2015)
Coram:
Navsa, Lewis, Pillay, Mbha and Zondi
JJA
Heard:
20 November 2015
Delivered:
1 December 2015
Summary
:
Criminal Procedure Act 51 of 1977 (CPA) – section 316B of the
CPA grants the State the right to appeal against a sentence
imposed
by a superior court sitting as a court of first instance to the
Supreme Court of Appeal – no provision in the CPA
enabling the
State to appeal against a sentence imposed by a superior court
sitting as a court of appeal against sentence imposed
by a regional
court – no such right provided for in s 16(1)(
b
)
read with s 17(1)(
a
)(i)
and (ii) of the
Superior Courts Act 10 of 2013
– this court has
no jurisdiction – appeal struck from the roll.
ORDER
On appeal from:
Western Cape Division of the High
Court, Cape Town (Gamble,
Allie and
Griesel JJ sitting as court of appeal):
The
appeal is struck from the roll.
JUDGMENT
Mbha JA (Navsa,
Lewis, Pillay and Zondi JJA concurring):
[1] This appeal
concerns the question whether the appellant (the State) has the right
to appeal to this court against an order of
a division overturning
and substituting a sentence imposed by a regional court. Simply put,
the question to be addressed is whether
the State has the right to
appeal against a sentence imposed by the High Court, sitting as court
of appeal.
[2] The background is
as follows. On 23 April 2013 the respondent, Mr Branham Dale Kock
(Kock), pleaded guilty in the Regional Court,
Bellville to 27 counts
of fraud related to failure to render personal income tax returns and
the non-payment of value-added tax
by a closed corporation, Bran-U
Construction CC (Bran-U), of which he was the sole member. He also
pleaded guilty to one count
of failure to keep proper financial
records. The fraud was committed over a period of three years.
[3] The regional
magistrate took the various charges relating to fraud together for
purposes of sentence. Kock was then sentenced
to five years’
imprisonment, wholly suspended for a period of five years on
condition that he was not convicted of fraud
or theft during that
period. He was also ordered to repay the amount of R777 063 owed
to the South African Revenue Service
(SARS) in instalments. Bran-U
was sentenced to a fine of R200 000, wholly suspended in respect
of the fraud charges, and to
a fine of R5 000 or 12 months’
imprisonment in respect of the failure to keep proper records.
[4] In imposing
sentence the regional magistrate committed several irregularities. In
particular she omitted to impose sentence
in respect of certain
charges to which the respondent had pleaded guilty and of which he
was convicted. Consequently, the sentence
was set aside on review by
the Western Cape Division of the High Court, which referred the
matter back to the regional magistrate
for reconsideration. Upon
reconsideration of the sentence on 2 December 2013
,
the regional magistrate corrected the
irregularities but still sentenced Kock to what the State considered
to be a lenient sentence,
namely, five years’ imprisonment,
wholly suspended for a period of five years on certain conditions and
that the respondent
had to repay SARS the amount of R777 062.97
less the amount already paid of R51 468.
[5] The State
appealed against this sentence in terms of s 310A of the Criminal
Procedure Act 51 of 1977 (the CPA), which it was
entitled to do.
[1]
The Western Cape Division of the High Court (Gamble J, with Allie
and Griesel JJ concurring) upheld the appeal in its entirety,
set aside the sentence imposed by the regional magistrate and
sentenced the respondent to a term of four years’ imprisonment,
all of which was suspended, on condition that he not be convicted of
an offence committed during the period of suspension and of
which
dishonesty is an element, and further on condition that he complied
fully with an order providing for correctional supervision
in terms
of s 276(1)
(h)
of the CPA. Kock was also ordered to repay the sum of R777 063
together with interest to SARS. An additional fine of R5 000
or
six months imprisonment was imposed in respect of the charge of
failing to keep proper records.
[6] The State,
aggrieved by what it considered to be a very lenient sentence, sought
special leave to appeal to this court, purportedly
in terms of s
16(1)
(b)
read with s 17(1)
(a)
(i)
and (ii) of the Superior Court Act 10 of 2013 (the Act). The State
also pointed to the fact that the court a quo, in substituting
the
sentence, had failed to take into consideration three counts to which
Kock had pleaded guilty. In essence, though, the State’s
principal complaint was that it sought an increase in sentence
because it considered the sentence to be startlingly lenient, when
compared to a sentence imposed by the North Gauteng High Court,
Pretoria, in the matter of
Francois
Johan Joubert v State
unreported case
no. A410/11 delivered 3 February 2012, in which a sentence of seven
years’ imprisonment, of which four years
were suspended, was
imposed. That related to a matter in which SARS had suffered a loss
of R425 843.33 as a result of 20 instances
of fraud perpetrated
by the appellant. This court granted special leave to appeal which
formed the basis on which the matter served
before us.
[7] At the
commencement of the hearing of the appeal in this court, a point
in
limine
was raised on behalf of Kock,
namely, that the appeal before us is procedurally flawed as ss 16 and
17 of the Act do not find application
in respect of appeals by the
State against a sentence imposed by a division sitting as a court of
appeal. It was accordingly contended
that this court had no
jurisdiction to entertain the appeal. As that question might prove
dispositive it is necessary to deal with
it first.
[8] In considering
that issue, it is necessary to have regard to the history and policy
that has restricted the State’s right
to appeal. That was given
extensive consideration by this court in
Director
of Public Prosecutions v Olivier
2006
(1) SACR 380
(SCA). There this court referred with approval to the
useful discussion of the right to appeal in South African criminal
procedure
in the South African Law Reform Commission’s
Third
Interim Report on Simplification of Criminal Procedure (The right of
the Director of Public Prosecutions to appeal on questions
of fact)
(November 2000) and had regard to the
position in comparable foreign jurisdictions.
[2]
The court observed the following:
‘
[I]t
appears that by and large, common law legal systems are loath to
grant rights to the State to appeal convictions on the basis
of
factual errors
,
and that the right of the State to appeal against sentence is
limited.
In some instances, only one right of appeal against sentence is
permitted. The motivation appears to be that on one occasion, at
least, a higher court should scrutinise a sentence for error. The
provisions of our CPA are to this effect. . . .’
[3]
(My
emphasis.)
[9] The limitation of the
right of the State to appeal against both conviction and sentence is
underpinned by constitutional and
policy considerations. In the first
place, granting the State the unlimited right to appeal against
sentence through several tiers
of appeal might well be
unconstitutional. In
Olivier
reference was made to the
decision in
Cox v Hakes
1890 15 (AC) 506, decided more than a
century ago, where Lord Halsbury (at 522) said the following:
‘
It
is the right of personal freedom in this country which is in debate;
and I for one would be very slow to believe, except it was
done by
express legislation, that the policy of centuries has been suddenly
reversed and that the right of personal freedom is
no longer to be
determined summarily and finally, but is to be subject to the delay
and uncertainty of ordinary legislation, so
that the final
determination upon that question may be arrived at by the last Court
of Appeal.’
In
Olivier
,
this court recognised that what is set out in that dictum was the
very foundation upon which the restriction of the State’s
right
to appeal is founded.
[4]
[10] In
Olivier
,
reference was made to the Canadian case,
Cullen v R
[1949] SCR
658
, where, in a dissenting judgment, the following was said (para
23):
‘
At
the foundation of criminal law lies the cardinal principle that no
man shall be placed in jeopardy twice for the same matter
and the
reasons underlying that principle are grounded in deep social
instincts. It is the supreme invasion of the rights of an
individual
to subject him by the physical powers of the community to a test
which may mean the loss of his liberty or his life;
and there is a
basic repugnance against the repeated exercise of that power on the
same facts unless for strong reasons of public
policy.’
See
also the judgment of the Constitutional Court in
S
v Nabolisa
2013 (2) SACR 221
(CC) para
81 where
Olivier
was considered with approval and the following was said:
‘
The
point that appeals are regulated by statute is underscored in yet
another judgment of the Supreme Court of Appeal in
Director
of Public Prosecutions v Olivier.
In
that case the state, invoking s 316B, sought to appeal against a
lenient sentence imposed by the high court on appeal against
a
judgment of the magistrates’ court. The Supreme Court of Appeal
held that the state's right to appeal against sentence
is to be found
in the Criminal Procedure Act. Since that Act did not, reasoned the
court, cater for an appeal against sentence
imposed by the high court
on appeal, the Supreme Court of Appeal had no jurisdiction to
entertain the appeal. This was so,
held the court, because s
316B gives a right of appeal to the state which is limited to cases
where the trial took place in the
high court.’
[11] The position in
South Africa is that prior to the introduction of ss 310A and 316B
into the CPA,
[5]
the State had no right to appeal against sentence. These sections
afforded the Director of Public Prosecutions (previously known
as the
Attorney-General) the right to appeal against sentences imposed by
lower and superior courts. The provisions read as follows
in relevant
part:
‘
310A
Appeal by attorney-general against sentence of lower court
(1)
The attorney-general may appeal against a sentence imposed upon an
accused in a criminal case in a lower court, to the provincial
or
local division having jurisdiction, provided that an application for
leave to appeal has been granted by a judge in chambers’.
‘
316B
Appeal by attorney-general against sentence of superior court
(1)
Subject to subsection (2), the attorney-general may appeal to the
[Supreme Court of Appeal] against a sentence imposed upon
an accused
in a criminal case in a superior court’.
[12] Section 316B(1)
thus provided for appeals by the State to this court against
sentences imposed by a superior court sitting
as a court of first
instance and not as a court of appeal. There is no specific provision
in the CPA empowering the State to appeal
against an order by a
division of the High Court substituting a sentence imposed by a
magistrates’ court.
[6]
The State will, of course, have the right when the accused has
appealed against his conviction or sentence, to apply to the Court
of
appeal to increase the sentence.
[7]
[13] These provisions of
the CPA had to be considered alongside ss 20(1) and 21(1) of the
Supreme Court Act 59 of 1959 which previously
regulated the procedure
of appeals from the High Court to this court. Section 20(1) provided
that:
‘
An
appeal from a judgment or order of the court of a provincial or local
division in any civil proceedings or against
any
judgment or order
of such a court given on appeal shall be heard by the appellate
division or a full court as the case may be’.
Section 21(1) of that Act
stated that:
‘
In
addition to any jurisdiction conferred upon it by Act or any other
law the [Supreme Court of Appeal] shall, subject to the provisions
of
this section and any other law, have jurisdiction to hear and
determine an appeal from any decision of the Court of a provisional
or local division’
.
These sections
clearly predated the introduction of ss 310A and 316B of the CPA.
[14] The appeal procedure
is now regulated by s 16(1)
(b)
of the Act which provides that:
‘
Any
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having been
granted by
the Supreme Court of Appeal’.
This
general provision has to be read in conjunction with s 1 of the Act
which specifically defines ‘appeal’ for purposes
of the
Act as excluding ‘
an appeal in a
matter regulated in terms of the
Criminal Procedure Act
,
or in terms of any other criminal procedural law’. (My
emphasis.)
[15]
Sections 17(1)
(a)
(i)
and (ii) read as follows:
‘
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration;’
[16] The State relied
on this court’s decision in
S v
Van Wyk & another
2015 (1) SACR 584
(SCA), in support of the proposition that the sections of the Act
referred to in the preceding two paragraphs might rightly be
employed
by the State in an appeal against sentence beyond the parameters set
by ss 310A and 316B. It should be borne in mind,
however, in
Van
Wyk
, this court was dealing with the
right of a convicted person and not the right to appeal by the State.
Furthermore, it emphasised
in para 18 that s 1 of the Act provided
that an appeal in Chapter 5 (which contains the two sections set out
above), does not include
an appeal ‘in a matter
regulated
in terms of the [CPA]
, or in terms of
any other criminal procedural law.’
[17]
Van
Wyk
also dealt with the more
restrictive requirement that an applicant must comply with, when
seeking leave to appeal a decision of
a division refusing a petition
in terms of s 309C of the CPA. In addition to the ordinary
requirement of reasonable prospects of
success, there must now be
special circumstances which merit a further appeal to this court.
[8]
[18] What
Van
Wyk
determined was the manner in which
leave to appeal had to be sought from a division of the High Court
sitting as courts of appeal
which included a decision by a division
refusing an application for leave to appeal. The provisions of s 16
read with
s 17 of the Act do not provide a substantive
basis for the right to appeal. It determines, in general terms, to
which court such
an application for leave to appeal has to be
directed. That matter is not regulated by the CPA, hence those
provisions find application.
The State’s right of appeal is
specifically regulated by the CPA, therefor the provisions of s
16(1)(
b
)
do not find application.
[19] This accords with the
canon of interpretation ‘
generalia specialibus derogant
’
(general rules or provisions do not derogate from special or
specific). This principle was explained as follows in
R v Gwantshu
1931 EDL 29
at 31:
‘
When
the Legislature has given attention to a separate subject and made
provision for it the presumption is that a subsequent general
enactment is not intended to interfere with the special provision,
unless it manifests that intention very clearly. Each enactment
must
be construed in that respect according to its own subject-matter and
its own terms.’
Having regard to the
constitutional and policy imperatives dealt with earlier in this
judgment, the question of a further right
of appeal by the State in
respect of sentence would have to be specifically dealt with in
legislation that is clear and precise.
As stated above, legislation
to that effect might well be challengeable.
[20] In light of what
is set out above, it is in my view clear that in the present case the
State has no further right to appeal
to this court.
[9]
It follows that this court has no jurisdiction to hear this appeal
which must be struck from the roll.
[21] It is necessary
to record that the court a quo appears to have given too little
emphasis to the aggravating circumstances of
the case, which were
rightly highlighted by the regional magistrate. The fraud in this
case was perpetrated over a lengthy period.
It was well planned and
actuated by factors other than need and involved a large amount of
money. The regional magistrate correctly
found that the fraud to SARS
specifically prejudiced the larger South African community whose
welfare the fiscus is by law obliged
to protect. In addition, the
high court appears to have unduly over-emphasized the personal
circumstances of the respondent against
the seriousness of the
offence. This court is therefore not unsympathetic towards the
appellant’s challenges in this case.
[22] Even more
worrisome is the trend by courts to impose lenient sentences in cases
of so-called ‘white collar’ crimes,
despite repeated
warnings by this court that in suitable cases terms of imprisonment
ought to be imposed, even in cases of first
offenders. Thus in
S
v Brown
2015 (1) SACR 211 (SCA)
[10]
involving such white collar crime, this court cautioned that even
though the court below was correct in its conclusion that the
minimum
sentence did not find application in that case, that it ought to have
considered, given the objective gravity of the offences,
whether a
custodial sentence was nonetheless called for. In
Brown
this court warned that courts should guard against creating the
impression that there are two streams of justice, one for the rich
and one for the poor. The court in
Olivier
expressed similar concerns.
[11]
These are issues that courts should give serious consideration to
lest the administration of justice falls into disrepute.
[23] For the reason
aforesaid the appeal is struck from the roll.
______________
BH Mbha
Judge of
Appeal
APPEARANCES:
For
Appellant:
B Hendry-Sidaki
Instructed
by:
The Director of Public Prosecutions, Cape Town
The State Attorney, Bloemfontein
For
Respondents:
A V Dawson attorney for respondent
Instructed
by:
A V Dawson & Co, Bellville
Webbers, Bloemfontein
[1]
Section 310A is entitled ‘
Appeal
by attorney-general against sentence of lower court
’.
The relevant part of s 310A reads as follows:
‘
The
attorney-general may appeal against a sentence imposed upon an
accused in a criminal case in a lower court, to the provincial
or
local division having jurisdiction . . . .’
[2]
DPP v Olivier
2006 (1) SACR 380
(SCA) paras 20-22.
[3]
DPP v Olivier
(above) para 21.
[4]
In para 22.
[5]
These sections were introduced through the
promulgation in
GG
18519, 19 December 1997 of the Criminal Law Amendment Act 107 of
1990 (which came into effect on 27 July 1990).
[6]
Etienne du Toit
et
al
Du
Toit: Commentary on the
Criminal Procedure Act
(Revision
Service 54, 2015), Supplementary vol at 31-25.
[7]
DPP v Olivier
(above) para 15-20.
[8]
In paras 20 and 21.
[9]
See also commentary of
s 316B
in E Du Toit
et
al Du Toit
Commentary
on the Criminal Procedure Act
,
(Revision Service 53) at 31-24B.
[10]
Paragraph 118.
[11]
DPP v Olivier
(above) para 25.