THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 42/05
In the matter between:
THE DIRECTOR OF PUBLIC PROSECUTIONS Appellant
and
CAROLANE ELLEN OLIVIER Respondent
_______________________________________________________
Coram: Navsa, Conradie et Mlambo JJA
Date of hearing: 20 May 2005
Date of delivery: 30 November 2005
Summary: Appeal b y the Dire ctor of Public Prosecutions against too lenient a
sentence imposed on a ppeal b y a high court (subs tituting an appare ntly appropriate
sentence by a regional magistra te) ─ s 310A(1 ) and s 31 6B(1) of the Criminal Procedure
Act 51 of 1977 considered alongside provisions of s 20(1) read with s 21(1) of the Supreme
Court Act 59 of 1959 ─ concluded, regrettably that this Court does not have jurisdiction.
_______________________________________________________
JUDGMENT
_______________________________________________________
2
NAVSA JA:
[1] ‘To err is human; thus protection against error is necessary.’ 1 In this
appeal the question arises whether a judicial error can be corrected.
An affirmative answer is one’s instinctive response. As the discussion
later in this judgment will show the answer in the circumstances of
this case is different.
[2] This matter has had an unfort unate and protracted journey on
its way to a hearing before this Court.
[3] During the period December 1998 to March 2000 the
respondent, Carolane Ellen Olivier, stole amounts of money totalling
R454 521-00, which monies were entrusted to her as an estate agent
operating under the auspices of Remax Realty 100.
[4] On 9 October 2000, after pleading guilty in terms of s 112(2) of
the Criminal Procedure Act 51 of 1977 (the CPA), the respondent
was convicted of theft in t he regional court in Pretoria on
13 December 2000 and sentenced to six years’ imprisonment.
1 Bassiouni (1993 280) 3 Duke journal of Comparative and International Law 235 286.
3
[5] The respondent appealed the se ntence to the Pretoria High
Court. On 14 March 2003 that court (Bosielo and Mojapelo JJ) set
aside the sentence imposed by the regional court and substituted it
with a sentence of six years’ im prisonment, wholly suspended for a
period of five years on the following conditions:
‘(a) [That] appellant is not convicted of t heft or fraud, or any offence involving
dishonesty for which she is sentenced to imprisonment without the
option of a fine, committed during the period of suspension.
(b) Further, that the appellant compensa tes the complainant fully in the
amount of R454 521,00, t ogether with interest at the current and
applicable interest rate.
(c) The payment referred to in para (6) [the payment of R454 521-00 supra]
shall occur in terms of the agreem ent reached between the appellant and
the Estate Agent Board ( sic), which is in existence at the present moment.’
In addition, that court imposed a fine of R200 000-00, to be paid
within six months of the date of its order.
[6] On 3 April 2003 the appellant, the Director of Public
Prosecutions (the DPP), filed a notice of application for leave to
appeal. The DPP contended, inter alia, that the sentence was far too
4
lenient and shockingly inappropriat e. According to the notice of
appeal the court below failed to properly consider that the respondent
had stolen trust money over a period of eighteen months and that the
theft was motivated by greed rat her than need. T he DPP contended
that the court below failed to appreci ate the seriousness of the white
collar offence in question. In his notice of appeal the DPP pointed out
that the terms of the repayment order were unclear and that the fine
imposed was not coupled with imprisonment as an alternative.
[7] On 11 December 2003 the cour t below, in considering the
prosecution authority’s application for leave to appeal, recognised
that its compensation order was unclear, especially since there
appeared to be a contradi ction (concerning the payment of interest)
between the order and the terms of the agreement alluded to. The
court below was also of the view that it might have erred in not
coupling the fine to a period of im prisonment as an alternative. In the
result it granted leave to appeal against the sentence it imposed in
substitution of the sentence by the regional court.
[8] Problems were encountered with the tr anscription of the record.
5
However, there also ap pears to have been a degree of laxity on the
part of the prosecution authority. On 23 June 2004 the record was
certified as being true and correct. Between 21 June and 5 July 2004
Mr Jan Ferreira, a deputy director of public prosecutions, who
handled the prosecution of the appea l failed to give the matter urgent
attention. He had to undergo an operation and was engaged in
another appeal in the Pretoria Hi gh Court. From 6 July 2004 Ferreira
made a number of attempts to get the registrar of the court below to
despatch the record to this court. Finally, on 19 August 2004 a senior
administrative official in the prosec uting authority’s office managed to
file the record in this court. The record was then lost in the office of
the registrar of this court. On 28 October 2004 the prosecution
authority was informed of this fact. Attempts to prepare a new
transcript were hampered by a disput e between two divisions within
the prosecution authority. During Fe bruary 2005 the registrar of this
court informed the prosecution author ity that the delay in prosecuting
the appeal had caused it to lapse. An applic ation for reinstatement of
the appeal and an application fo r condonation were required. This
necessitated the filing of detailed affidavits setting out the events
outlined above.
6
[9] An ‘application for condonation’ in an unacceptable form
accompanied by an inadequate affidavit attested to by an
administrative clerk in the office of the prosecuting authority was
served and filed in anticipation of the filing of th e affidavits referred to
in the preceding paragraph.
[10] On 10 February 2005 a proper app lication for reinstatement of
the appeal and condonatio n with an affidavit by Ferreira explaining
the background and the sequence of events ref erred to earlier was
served and filed.
[11] The application was strenuously contested before us and at the
outset it was agreed that we would hear the parties on the procedural
aspects and on the merits, which it was accepted ought to be
considered in deciding whether or no t to reinstate the matter and to
grant condonation.
[12] Subsequent to the hearing of this appeal the parties were
requested in writing to consider, inter alia, s 316B of the CPA and
ss 20 and 21 of the Supreme Court Act 59 of 1959 and to make
7
submissions on the question of whet her this Court has jurisdiction to
entertain the appeal. T he essential question is whether the DPP has
a statutory right to app eal the sentence in q uestion from the high
court, itself sitting as a court of appeal. We received written
submissions from the parties.
[13] The Criminal Law Amendment Act, 107 of 1990 introduced
ss 310A and 316B, which granted the DPP the right to appeal against
sentences imposed by lo wer and superior courts. 2 Before that no
such right existed.
[14] Section 310A(1) deals with an appeal by the DPP against a
sentence imposed by a lower court:
‘The attorney-general may appeal against a sentence im posed upon an accused
in a criminal case in a lower court, to the provincial or lo cal division having
jurisdiction, provided that an application for leave to appeal has been granted by
a judge in chambers.’
[15] Section 316B(1) of the C PA deals with appeals against
2 The change was prompted by what was considered to be outrageously lenient sentences
imposed by a circuit court in a case concerning interracial violence and there were calls for the
impeachment of the judge concerned. This enabl ed the legislature to overcome objections to
extending the State’s right of appeal in this manner – See the SA Law Reform Commission report
infra at page 12.
8
sentence by the DPP to this Court:
‘Subject to subsection (2), the attorney-general 3 may appeal to the Appellate
Division against a sentence imposed upon an accused in a criminal case in a
superior court.’
This subsection provides for appeal s to this Court from a sentence
imposed by a superior court. This does not mean a superior court
sitting as a court of appeal. It clearly means a superior court sitting as
a court of first instance.
[16] Sections 310 and 311 of th e CPA, respectively, provide a
limited right of appeal by the DPP from a lower court to the high court
and from the high court sitting as a court of appeal to this Court on
questions of law.
[17] Section 319 enables a prosecut or to apply for the reservation of
a legal question arising from a trial in a superior court for
consideration by this Court.
[18] There is no provision of the CPA which provides for an appeal
by the DPP against an order by a high court substituting, as in this
case, a sentence imposed by a magistrates’ court.
3 The attorney-general has been supplanted by the DPP.
9
[19] Of course the DPP has the right when an accused has
appealed against his conviction and/or sentence to apply to the court
of appeal to increase the sentence.4
[20] There is a useful discussion on the history 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).
[21] From the study of comparable jurisdictions contained in the
report referred to in the preceding p aragraph it 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.
5 In some
instances 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 prov isions of our
4 S v Kellerman 1997 (1) SACR 1 (A) at 3c-e.
5 At page 18 of the Law Reform Commission’s report the following appears under the heading
THE COMMON LAW POSITION:
‘The reasons for the traditionally restricted rights of the prosecutor to appeal lie in the common
law with its repugnance to the idea that a man should be put in a situation analogous to double
jeopardy (though, as will be seen below, it has be en held that appeals by prosecutors do not in
fact constitute double jeopardy).’
10
CPA are to this effect. The problem in this appeal is that it is
contended that the sc rutinising court committ ed the error and the
question is whether the scrutinising court can be scrutinised.
[22] In Cox v Hakes 1890 (AC) 15, the Hous e of Lords and Privy
Council dealt with the power of courts to review or control the
proceedings of a tribunal that had discharged a person from custody
under a writ of habeas corpus . Lord Herschell (at pp 527-528)
described the position before the En glish Judicature Act came into
operation. It was always open to an applicant for a writ of habeas
corpus, if defeated in one court, to renew his application to another.
No court was bound by the view taken by any other. A person
detained in custody might thus pr oceed from court to court until he
obtained his liberty. A nd if he succeeded in convincing any of the
tribunals competent to issue the writ he was entitled to be discharged,
his right to his liberty could not afterwards be called in question. The
19th section of the Judicature Act provided (not unlike s 20(1) read
with s 21(1) of our Supreme Court Act 51 of 1959, to which I shall
11
refer in due course):
‘The said Court of Appea l shall have jurisdiction and power to hear and
determine appeals from any judgment or order, save as hereinafter mentioned, of
Her Majesty’s High Court of Justice.’
(Emphasis added).
That provision was restrictively int erpreted so as not to interfere with
established principle. At page 522 Lord Halsbury stated 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 reve rsed and that the right of personal
freedom is no longer to be determined summar ily and finally, but is to be subject
to the delay and uncertainty of ordinary lit igation, so that the final determination
upon that question may be arrived at by the last Court of Appeal.’
This is the underlying principle upon which the restriction of the
State’s right to appeal is founded.6
6 The Canadian case, Cullen v R [1949] SCR 658, dealt with t he right of appeal against an
acquittal on a question of law. In a dissenting judgment, Rand J stated the following (at 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.’
12
[23] Section 20(1) of the Supreme Court Act 59 of 1959 provides:
‘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 divi sion or a full court as the case may
be.’
Section 21(1) of the same Act states:
‘In addition to any jurisdiction conferred upon it by this Act or any other law the
appellate division shall, subj ect 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 provincial or local division.’
(Emphasis added).
It has been suggested that these provisions are in wide enough terms
to enable this Court to hear the present appeal.
[24] Sections 20(1) and 21(1) of the Supreme Court Act predate the
introduction of ss 310A and 316B. T he latter sections granted rights
of appeal to the DPP which it did not previously have. It is established
here, and in other comparabl e jurisdictions, that the State’s right to
appeal against sentences and acquittals is limited and that statutes
dealing with the State’s right of appeal and dealing with appeals in
general should be construed agains t the background, and in the
context, of the fundamental princi ples referred to earlier in this
13
judgment. Sections 20(1) and 21(1) c annot be interpreted to offend
against established principles. If the words ‘any judgment or order’
and ‘any decision’ were to be interpreted widely, it would mean that
the State would have the right to appeal an acquittal on factual
grounds, which it is accepted in our la w is not permissible. See in this
regard S v Basson 2005 (1) SA 171 (CC) para 43.
[25] In my view, in the absence of an empowering provision in the
CPA, or in any other statute, which specifically grants this Court
jurisdiction and which is consistent with the Constitution, this Court
does not have jurisdiction to enterta in the appeal. This is regrettable
in that the State’s complaints a bout the leniency of the sentence
appear to be justified. The misappropri ation of trust monies in the
amount of R454 521-00 to sustain a luxurious lifestyle is a serious
offence, which on the face of it , was properly appreciated by the
Magistrate who imposed a commens urate sentence. The respondent
has the means to pay the fine and to replace the misappropriated
monies. One is left with a sens e of deep unease that she has
escaped appropriate punishment. However, having regard to the
conclusions reached earlier, the appropriate order, regrettably, is
refusing the application for condo nation and striking the appeal from
14
the roll. In respect of the failure to provide for imprisonment in the
event of the fine not being pai d s 287(2) of the CPA may be
employed. Furthermore, in respect of the payment of compensation it
has not been suggested that it will present a practical problem.
[26] The application for condonation is refused and the appeal is
struck from the roll.
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
CONRADIE JA
MLAMBO JA