Brief Summary

Criminal Procedure — Right to fair trial — Increase of sentence on appeal — Court's failure to provide prior notice of intention to increase sentence — Appellant's fair trial rights infringed — Appeal upheld and matter remitted for reconsideration of sentence. Appellant, convicted of 20 counts of fraud, initially received a suspended sentence. On appeal, the High Court increased the sentence without prior notice to the appellant, who had only sought to appeal his conviction. The Supreme Court of Appeal found that the lack of notice constituted a fatal irregularity, prejudicing the appellant's right to a fair trial.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal in the Supreme Court of Appeal concerning the procedural fairness of an increased sentence imposed by a High Court sitting as a court of appeal. The proceedings did not revisit the merits of conviction in the Supreme Court of Appeal; they focused on whether the appellant’s fair trial rights were infringed when the High Court increased his sentence on appeal without giving him prior notice that it was considering doing so.

The parties were Mr Francois Johan Joubert (the appellant), an accountant convicted on multiple counts of fraud, and the State (the respondent). The appeal lay against an order of the Gauteng Provincial Division of the High Court, Pretoria (Zondo J and Goodey AJ), which had dismissed an appeal against conviction but had increased the sentence originally imposed by the Regional Court.

Procedurally, the matter originated in the Nelspruit Regional Court, where the appellant was convicted on 20 counts of fraud involving false VAT claims to the South African Revenue Service and sentenced to seven years’ imprisonment wholly suspended on conditions for five years. He petitioned successfully for leave to appeal to the High Court. Although leave had been sought against conviction only, leave was (as the Supreme Court of Appeal described it) erroneously granted against both conviction and sentence. The High Court then increased the sentence to seven years’ imprisonment, of which four years were conditionally suspended for five years.

The general subject-matter of the dispute before the Supreme Court of Appeal was whether it was fatally irregular and unfair for an appellate court to worsen an appellant’s position by increasing sentence on appeal without prior notice by that court of its intention to consider an increase, as later articulated in the Constitutional Court’s decision in S v Bogaards.

2. Material Facts

The appellant was convicted in the Regional Court on 20 counts of fraud arising from false VAT claims submitted to the South African Revenue Service. The Regional Court imposed a sentence of seven years’ imprisonment, wholly suspended on specified conditions for five years. These background facts framed the subsequent appeal steps and the question of whether the High Court was entitled to increase sentence in the manner it did.

In the leave-to-appeal process, a material (and effectively undisputed) procedural feature was that the appellant initially sought leave to appeal against conviction only, but the petition process resulted in leave being granted against both conviction and sentence. The Supreme Court of Appeal treated this as an error, and this feature became important because it created an opportunity for sentence to be revisited on appeal despite the appellant not having sought that relief.

After leave was granted, the State delivered notice of an intention to seek an increase in sentence on appeal, together with grounds. The appellant opposed this and filed an affidavit, one ground being that the State had not complied with the relevant statutory procedure under the Criminal Procedure Act 51 of 1977. The Supreme Court of Appeal accepted (and the State conceded in argument before it) that the State’s procedure in seeking an increased sentence was fatally irregular, because the State had not obtained leave to cross-appeal as required.

A central factual basis for the Supreme Court of Appeal’s conclusion on unfairness was the exchange on record at the outset of the High Court appeal hearing. The transcript reflected that appellant’s counsel pointed out the peculiarity that the appellant had not appealed sentence; the Bench raised the risk of an increased sentence; counsel confirmed the appellant was not present; and counsel indicated that she had advised him that the State sought an increase, but she had not advised him that the court itself might consider increasing sentence mero motu, because she had no prior indication that it would do so. The Supreme Court of Appeal treated this exchange as demonstrating that counsel was taken by surprise and that there had been no prior notice from the court of its intention to consider increasing sentence.

The High Court nonetheless engaged with sentence and increased it. The Supreme Court of Appeal treated as material that, in the absence of proper prior notice from the appellate court that it was contemplating an increase, the appellant was deprived of a meaningful opportunity to respond in the manner contemplated by later Constitutional Court authority, including the ability to consider withdrawing the appeal.

3. Legal Issues

The central legal question was whether the appellant’s constitutional right to a fair trial was infringed by the High Court’s failure to give prior notice that it was considering increasing sentence on appeal, before doing so. This question concerned the application of constitutional fair-trial principles and procedural criminal law to the appellate process, and in particular whether the absence of such notice constituted an irregularity producing a failure of justice.

A further legal question was whether any procedural shortcomings were cured because the State had delivered a notice seeking an increased sentence. This required the court to consider the legal effect of the State’s notice in circumstances where the State had not complied with the statutory requirements for appealing against sentence.

The enquiry also involved a context-specific assessment of prejudice: whether, on the facts, the irregularity materially prejudiced the appellant so as to render the appeal proceedings unfair, recognising that not every irregularity necessarily amounts to a failure of justice.

4. Court’s Reasoning

The Supreme Court of Appeal treated S v Bogaards as decisive on the governing principle: an accused person’s fair trial right includes the right to receive prior notice when an appellate court intends to consider increasing sentence, and the absence of such notice is an irregularity that may render the appeal unfair. Although the High Court hearing and judgment preceded Bogaards, the Supreme Court of Appeal applied Bogaards as controlling authority to the present case.

On the State’s first contention (that its notice to seek an increase cured the lack of court notice), the Supreme Court of Appeal rejected the argument. It relied on S v Nabolisa, which requires the State to obtain leave to cross-appeal if it wishes to appeal against sentence in response to an accused’s appeal against conviction and/or sentence. The State conceded that, in terms of Nabolisa, its notice was fatally irregular, and the Supreme Court of Appeal noted that the High Court had also recognised the incorrect procedure. Against that backdrop, the Supreme Court of Appeal held that it was untenable to suggest that one fatal irregularity could cure another irregularity, with the result that the State’s notice did not remedy the absence of proper prior notice from the appellate court.

On the State’s second contention (that there was no prejudice because the appellant had an opportunity to address sentence in affidavit and argument), the Supreme Court of Appeal accepted the general proposition that not every irregularity amounts to a failure of justice, and that an accused must show material prejudice. It referenced Key v Attorney-General, Cape Provincial Division and another for the proposition that fairness is determined on the facts of each case and is context-specific, a position also confirmed in Bogaards.

Applying those principles to the facts, the Supreme Court of Appeal found material prejudice for two principal reasons. First, it held that the appellant’s preparation and opposition were directed at the procedural defects in the State’s notice and the absence of compliance with section 310A(1) of the Criminal Procedure Act 51 of 1977, and that there was “plainly” no reason for the appellant to have prepared for the possibility that the High Court itself would increase sentence mero motu, because no prior notice of such an intention had been given as required. The transcript exchange was used to illustrate the element of surprise and the lack of prior foreshadowing from the Bench.

Second, and more compellingly in the court’s analysis, the Supreme Court of Appeal relied on the established practice that if an appellate court gives notice that it is considering increasing sentence, an appellant may seek leave to withdraw the appeal, a practice recognised in S v Kirsten. The Supreme Court of Appeal regarded this as part of the balancing mechanism: it preserves the court’s ability to correct an inappropriate sentence while protecting an appellant from having their position worsened without a meaningful procedural choice. Because the appellant was not given proper prior notice that the High Court was contemplating an increase, he was not afforded the opportunity to consider withdrawal, and this constituted material prejudice.

The Supreme Court of Appeal concluded that there had been a substantial miscarriage of justice, warranting that the increased sentence imposed by the High Court be set aside. On remittal, the Supreme Court of Appeal distinguished Bogaards (where remittal was to the trial court after a substituted conviction) and held that, in this matter, remittal should be to the High Court as the appellate court, because the conviction had been confirmed and only the increased sentence remained in issue. It emphasised that the proper procedure should be followed in accordance with the guidelines in Bogaards, and it expressly refrained from expressing views on the appropriateness of any increased sentence so as not to fetter the High Court’s discretion.

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeal. It set aside the sentence imposed by the High Court on appeal (the increased sentence) and remitted the matter to the Gauteng Provincial Division of the High Court, Pretoria, for reconsideration of the appeal against sentence only, to be conducted in accordance with the guidelines laid down by the Constitutional Court in S v Bogaards (specifically paragraph 79).

The order, as recorded, did not include a separate costs order.

Cases Cited

S v Bogaards [2012] JOL 29483 (CC); [2012] ZACC 23; 2012 (12) BCLR 1261 (CC); 2013 (1) SACR 1 (CC).

S v Nabolisa [2013] JOL 30457 (CC); [2013] ZACC 17; 2013 (2) SACR 221 (CC); 2013 (8) BCLR 964 (CC).

Key v Attorney-General, Cape Provincial Division and another [1996] ZACC 25; 1996 (4) SA 187 (CC); 1996 (6) BCLR 788 (CC).

S v Kirsten 1988 (1) SA 415 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 310A(1).

Rules of Court Cited

No specific rule of court was cited by number in the judgment. The judgment noted, as a matter of practice, that counsel’s addresses are normally excluded from the record in terms of the rules of the Supreme Court of Appeal, but it did not identify a particular rule.

Held

The Supreme Court of Appeal held that it was procedurally unfair and an irregularity amounting to a substantial miscarriage of justice for the High Court, sitting as a court of appeal, to increase the appellant’s sentence without giving him prior notice that it intended to consider an increase. The State’s attempt to seek an increased sentence did not cure the defect because it was itself procedurally irregular due to the absence of leave to cross-appeal. The increased sentence imposed by the High Court was set aside and the matter was remitted to that court for reconsideration of the appeal against sentence only, in accordance with the Constitutional Court’s guidelines in S v Bogaards.

LEGAL PRINCIPLES

An accused person’s right to a fair trial encompasses a right to receive prior notice that an appellate court is considering increasing sentence, whether the possibility of increase arises through a State cross-appeal or mero motu consideration by the court. Absent such notice, the process may be unfair and may constitute an irregularity resulting in a failure of justice.

Where the State seeks an increase of sentence on appeal, it must comply with the procedural requirements for doing so, including obtaining leave to cross-appeal in accordance with applicable constitutional and statutory requirements. A procedurally defective attempt by the State to pursue an increased sentence cannot be relied upon to cure separate procedural unfairness arising from the appellate court’s own failure to provide notice.

The assessment of whether an irregularity constitutes a failure of justice is context-specific and depends on whether the accused has shown material prejudice. Material prejudice may arise not only from inadequate preparation time, but also from being deprived of the informed choice to respond meaningfully, including the opportunity (with leave) to consider withdrawing an appeal when notified that an increased sentence is being contemplated.

The requirement of prior notice in this setting reflects the foundational procedural fairness principle of audi alteram partem, ensuring that an appellant is not placed in a worse position through the appeal process without being given a meaningful opportunity to make pointed submissions and to make informed procedural choices.

Joubert v S (642/2016) [2017] ZASCA 3; 2017 (1) SACR 497 (SCA) (3 March 2017)