CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 145/22
In the matter between:
NATASHA LIEBENBERG Applicant
and
THE STATE Respondent
Neutral citation: Liebenberg v The State [2023] ZACC 33
Coram: Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ,
Potterill AJ, Rogers J, Theron J and Van Zyl AJ
Judgment: Potterill AJ
Heard on: 18 May 2023
Decided on: 10 October 2023
Summary: Admissions in terms of section 220 of the Criminal Procedure Act
57 of 1977 — admissibility of evidence in disciplinary hearing ––
lack of jurisdiction
ORDER
POTTERILL AJ
2
On appeal from the High Court of South Africa, Northern Cape Division, Kimberley:
1. Leave to appeal is refused.
JUDGMENT
POTTERILL AJ ( Zondo CJ, Kollapen J, Madlanga J; Majiedt J, Makgoka AJ,
Rogers J, Theron J and Van Zyl AJ concurring):
Introduction
[1] This is an application for leave to appeal against the judgment and sentence of
the High Court of South Africa, Northern Cape Division, Kimberley (High Court). The
matter was on appeal from the Northern Cape Regional Court , Kimberley, where the
applicant, Ms Natasha Liebenberg, was convicted of 86 counts of fraud, 84 counts of
forgery, 84 counts of uttering and 10 counts of fraud. The applicant was sentenced to
six years’ imprisonment. On appeal , the High Court acquitted the applicant on the
charges of forgery and uttering and reduced the sentence from six years’ imprisonment
to four years’ imprisonment. The applicant app lied for special leave to appeal to the
Supreme Court of Appeal, which refused her application . The President of the
Supreme Court of Appeal dismissed her application for reconsideration.
[2] The question s before this Court are: (a) whether evidence arising during the
course of the applicant’s employer’s disciplinary processes was admissible at the
applicant’s criminal trial; and, (b) if not, whether the applicant’s right to a fair trial was
infringed.
Background
[3] The applicant was employed by Amalgamated Banks of South Africa Limited
(ABSA) as an estate administrator. When administering an estate, the applicant had to
POTTERILL AJ
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follow the procedur es, rules and policies of ABSA. ABSA’s policies and procedures
pertaining to the payment of monies out of deceased estates conform with
section 11(1)(b) of the Administration of Estates Act, 1 in that no monies may be paid
out prior to the finalisation of the liquidation and distribution account except in two
special circumstances: funeral costs and the subsistence of family members.
[4] ABSA held investigative consultations that led to the applicant being charged
for negligently failing to follow the procedur es, rules and policies of ABSA .
The applicant was sanctioned with written war nings on 27 January 2010 and
30 March 2010. The applicant undertook, in future, to discuss any payments out of
estates with the estates office and obtain written consent from the office before making
payments. The applicant was then investigated for further transgressions. Ms Russell,
an ABSA Forensic Investigator, interviewed the applicant on 4 October 2011 and again
on 7 November 2011. These interviews were recorded and the applicant deposed to
written statements during these two interviews . Transcripts of the recordings were
subsequently prepared.
[5] The applicant was suspended pursuant to the disciplinary hearing and later
dismissed. The applicant was subsequently charg ed criminally with 269 counts in
respect of the matters uncovered by ABSA. There were 86 counts of fraud, alternatively
theft, totalling R645 231.87; 86 counts of forgery and 86 counts of uttering, arising from
the same conduct as that alleged in the first 86 counts; and 11 further counts of theft.
Litigation history
Regional Court
[6] The applicant pleaded not guilty on all counts and proffered no plea explanation.
She had legal representation throughout. The prosecutor called as a witness Mr du Toit,
the branch manager of the estate division of ABSA in Bloemfontein. Mr du Toit
testified with regard to investigative consultations that were recorded in writing prior to
1 66 of 1965.
POTTERILL AJ
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the disciplinary charges being brought against the applicant . He also read int o the
record a letter written by Ms Janse van Rensburg, who was described as an
ABSA official, explaining the nature of the misconduct. The applicant allegedly
transgressed the ABSA policy by facilitating cash payments out of estates to receivers
of the m oney who did not qualify under any of the exceptions. This resulted in a
monetary loss for ABSA due to shortfalls in the estate accounts.
[7] The state proceeded to call Ms Russell and her evidence dealt with five of the
fraud charges. She also made reference to investigative interviews she had with the
applicant. The applicant’s attorney objected to these statements being handed in as
exhibits at the trial, arguing that they were not obtained voluntar ily and that his client
was coerced into making the statements.
[8] A trial-within-a-trial was held to establish whether the statements were made
voluntarily. The statements had a section where the applicant could indicate whether
she had been treated fairly. T he applicant indicated that she had been treated fairly
during the course of the interview and that she had not been promised anything, coerced
or threatened in any way. The audio recording of the interview of 4 October 2011 was
played in the Regional C ourt and Ms Russell was questioned and cros s-examined
thereon. Ms Russell testified that, because it was an informal gathering of information
only, a staff member or union member was permitted to be present when the statement
was made. ABSA’s policy, however, was that no legal representati ve may be present
at these investigatory sessions. She explained how the cash withdrawals out of the
estate accounts took place. I need not deal with this evidence in any detail, because it
was not disputed that the cash withdrawals did occur as alleged in the charge sheet and
as testified to by Ms Russell.
[9] The applicant also testified during the trial-within-a-trial and stated that if she
had had an attorney present, she would not have said the things she did. Furthermore,
the applicant alleged that Ms Russell had treated her badly by asking where she got the
money that was in her purse, and she spoke to her harshly. She testified that not
POTTERILL AJ
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everything Ms Russell said to her was recorded. She thought she was being called to
the office to sign her susp ension forms, not to be interviewed. The applicant testified
that she had signed the statement to get the entire debacle behind her and to get out of
the office as soon as possible. She stated that at that stage she had been suffering from
depression and had even wanted to commit suicide. The applicant stated that she had
not been forced to sign the statement, but that she had been affected by her medication.
[10] The Regional Court found that the statements were made volun tarily and that
this was confirmed by the applicant during the admissibility trial . The Regional Court
held that h er reasons as to why she had signed the statements were inconsistent.
Although it was not initially raised as an independent ground during the trial-within-a-
trial, the Regional Court entertained the argument regarding the applicant not being
legally represented. It held that it was clear from the recordings that the applicant had
been treated fairly and that none of her rights had been infringed. The Regional Court
admitted the two statements into evidence.
[11] The state then continued with the evidence in the main trial and Ms Russell
testified regarding the cash withdrawals relating to counts 5 to 86. She testified that the
cash withdrawal slips were forged in that they were signed by the applicant as though
it was a beneficiary or executor who had signed them. The forged withdrawal slips
were then used to effect payment from ABSA’s estate accounts, as a result of which it
suffered a loss.
[12] Ms Russell next testified with regards to counts 259-269, which were not cash
withdrawals but related to cheques drawn against the estate accounts. These cheques
were drawn by the applicant as though they were payments to beneficiaries or executors,
or payments made on behalf of beneficiaries to third parties, or payments made from
one estate to another. The cheques were, however, not deposited into the accounts of
beneficiaries and where the payments were made to third parties the executor s did not
know of such payments. The applicant had no authority to draw these cheques.
POTTERILL AJ
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[13] The applicant’s legal representative focused his cross-examination on the fact
that Ms Russell was not a handwriting expert. The state had given notice that a
handwriting expert was still to be called. Ms Russell conceded that she had no direct
proof that the applicant benefitted from the cash and cheque withdrawals and payments
as testified to by her. On resumption of the trial the applicant made a number of formal
admissions in terms of section 220.2
[14] The relevant parts of her section 220 statement read as follows:
“2. I make the admissions freely and voluntarily without any influence.
3. I admit to all the charges as put to me in the charge sheet.
4. The admissions I make are shortly as follows:
4.1 I worked at ABSA Branch, 80 Bultfontein Road. My position was a
fiduciary consultant since 1992. I have been working with estates and
administration thereof. In the performance of my duties I had access
to various estates funds under the control of ABSA bank at my branch.
4.2 I admit that during the dates mentioned in column 2 of Schedule A to
the charge sheet I had unlawfully and falsely with the intention to
defraud ABSA bank and its employees completed cash withdrawal
slips and withdrew money from the bank accounts of the account
holders as mentioned in all the exhibits handed up in court as well as
it is mentioned in column 4 of Schedule A to the charge sheet.
4.3 The charges I admit to is charges 1 to 86 in this regard.
5. In relation to count 87 to 172 I admit further that withdrawal slips were
completed in the manner that reflected as if they were completed by the
beneficiaries as mentioned in column 4 of Schedule B and the refore I admit
forging their signatures.
2 It reads:
“An accused or his or her legal adviser or the prosecutor may in criminal proceedings
admit any fact placed in issue at such proceedings and any such admission shall be
sufficient proof of such fact.”
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6. I have withdrawn all the amounts as stated in in column 7 of Schedule B which
was not due to me. However, I have not used the amounts for my own benefit
but had given it to the executors of the different estates.
7. Pertaining to counts 173-258 I admit I am guilty of the crime of uttering as read
with the provisions of section 51(2) of Act 105 of 1997. I admit that I had
presented withdrawal slips to the tellers of the bank to withdraw money from
the various estate accounts as mentioned in column 3 and 4 of Schedule C to
the charge sheet.
8. Insofar as counts 259 to 269 are concerned, I admit that I completed the cheques
for necessary payees to benefit from these cheques. I personally did not benefit
from the pay-outs of these cheques.
9. My actions were wrongful and unlawful and I show remorse now as I had not
followed the proper procedure. I had not benefitted at all but I paid the money
to the executors of the deceased’s estate although they deny it.
10. I admit guilt to defrauding ABSA by forging the signatures of the beneficiaries
of the deceased’s estate.
11. The epiphany I had during the trial itself made me realise that my actions were
wrongful and unlawful and had caused ABSA a loss.
12. After my investigation conducted by ABSA, all the affected estate beneficiaries
were paid their money by ABSA.”
[15] The state proceeded to call Mr Nanzana to confirm the hearsay evidence that was
provisionally a dmitted in terms of section 3 (1)(b) of the Law of Ev idence
Amendment Act,3 when Ms Russell testified on the investigations into cheques and
specifically on count 259, a cheque drawn in the amount of R2153.63 for the benefit of
Mr Nanzana. He testified that as a beneficiary of his brother’s estate he never received
a cheque in the amount of R2153.63. He also confirmed that he often signed blank cash
withdrawal slips at the instance of and upon presentation by the applicant. These
withdrawals were not for his benefit.
3 45 of 1988.
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8
[16] In light of the admissions made by the applicant, the only question that remained
to be answered was what had happened to the money that the beneficiaries and the
executors failed to receive. Although the applicant denied that she benefitted from the
money, she admitted that ABSA suffered a loss and that her pension money was utilised
to recuperate some of the shortfall. The Court found that the only inference was that
the applicant had enriched herself with the mo ney. It concluded that the state had
proved all the elements of all the offences, except count 261, and the applicant was
found guilty as charged.
[17] The applicant was sentenced to six years ’ imprisonment. An application for a
confiscation order in terms of section 18 of the Prevention of Organised Crime Act4 was
brought before the Regional Magistrate. A confiscation order for the amount of
R2 309 386.52 was made. The amount of R347 455.29 was recovered by means of the
applicant’s pension interest. ABSA recovered the amount of R1 761 931.23 from an
insurance payment, the balance of R200 000 was to be paid by the applicant.
High Court
[18] The applicant appealed both her conviction and sentence to the High Court. The
ground of appeal was that there had been a duplication of charges was upheld, with the
High Court finding that the charges of fraud and those of forgery and uttering amounted
to a duplication of charges.
[19] The High Court rejected the applicant’s submission that the Regional Court had
erred in finding that the state had proved all the elements in respect of the fraud charges
(counts 1 to 86). It found that the applicant’s section 220 admissions had put the
contested facts beyond issue and the applicant had admitted committing the offences of
fraud.
4 121 of 1989.
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[20] The High Court further found that the record did not reflect any bias by the
Regional Magistrate in being privy to the content of the two written warnings, and that
the evidence relating to the disciplinary hearings w as admitted without any objection
from the applicant’s legal representative . The High Court held that the
Regional Magistrate only made a cursory re mark about this evidence, but did not rely
thereon to arrive at a finding of guilt. That finding was made on the stre ngth of the
formal admissions made by the applicant.
[21] The High Court found no evidence in the record of the trial-within-a-trial before
the Regional Court or the transcribed record of the disciplinary interview that the
applicant had been coerced or that her statements were unfairly obtained. The applicant
had in both statements confirmed that the statements were made freely and voluntarily
without being unduly influenced while in her sound and sober senses. She confirmed
that she was warned that anything she said may be reduced to writing and may be used
as evidence against her and that she was not obliged to answer incriminating questions.
The submission that the applicant was treated unfairly, or that the trial was unfair or her
constitutional rights infringed, was rejected.
[22] With regard to sentence, the High Court rejected the submission that the sentence
was shockingly inappropriate and that correctional supervision would have been
appropriate in the light of the confiscation order that had been granted, the applicant
having lost her pension, the trial having run for four years and the applicant not having
personally benefitted from the money . The High Court did , however, reduce the
sentence due to it holding that there had been a duplication of the charges and
convictions.
POTTERILL AJ
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Submissions before this Court
Applicant’s submissions
Jurisdiction and leave to appeal
[23] The applicant submit s that the matter raises constitutional issues or issues
connected with decisions on constitutional matters. The se issues are that the state
adduced inadmissible evidence of the applicant’s prior conduct and the disciplinary
hearings depicting the applicant’s bad character and criminal tendencies. Further, that
the evidence of the statement made during the disciplinary process was
unconstitutionally obtained, because the applicant was compelled to make a statement
and her right to silence was not explained to her. The applicant argues that the
proceedings were thus fundamentally unfair and irregular and that it would be in the
interests of justice to grant leave to appeal.
Merits
[24] The applicant ’s main focus is the evidence pertaining to the disciplinary
hearings, labelling it as legally irrelevant and highly prejudicial due to it portraying her
as a person of bad character and criminal tendencies . The submission is that this
evidence was inadmissible ; its admission led to a failure of justice and the
Regional Magistrate’s knowledge of the disciplinary hearings and sanctions create d a
perception that he may have been biased.
[25] It was argued by the applicant that the admission of the statement and recording
of the investigation led to an infringement of her constitutional rights. The High Court
should have taken into account tha t at that time , the applicant was depressed and on
medication, that she cried throughout the interview and that she was suicidal. She was
denied the right to have legal representation during the interview and was in fact
unaware that the investigation was to take place as she was under the impression that
she was only going to receive her suspension letter. The warning in the statement that
she could be prosecuted if she wilfully told an untruth was in itself coercion. The
High Court erred in not treating this statement as evidence obtained unconstitutionally
POTTERILL AJ
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and akin to an infringement of her pre-trial rights ,5 leaving her unprotected against
self-incrimination.
[26] It was submitted that as far as the criminal trial was concerned, the proceedings
were fundamentally unfair because the Regional Magistrate was impatient and showed
bias by remarking that after all the evidence led by the state , there were no facts in
dispute, creating the impression that the applicant wanted to unnecessarily delay the
proceedings. The further argument was that the evidence about the disciplinary record
must have influenced the Magistrate for him to have made such a remark. As in
Le Grange,6 the High Court should have found that the comments made during
judgment showed that the Regional Magistrate had prejudged the matter , thereby
rendering the trial unfair.
[27] The applicant persisted with the argument that the High Court should have found
that the Regional Magistrate erred in finding the applicant guilty of theft because she
denied that she personally benefitted from the cash and cheque transactions.
[28] On sentence , the applicant submit s that a non -custodial sentence is the most
appropriate in view of the eight to nine months that the a pplicant was incarcerated
awaiting trial . In the 12 years that ha ve lapsed since the matter commenced the
applicant did not commit further offences. It was argued by the applicant that this
lengthy delay caused her severe prejudice and mental anguish.
Respondent’s submissions.
Jurisdiction and leave to appeal
[29] The respondent submitted that although the averred fair trial infringement is a
constitutional issue, there are no prospects of success and that the application for leave
to appeal should be dismissed.
5 See S v Botha 1995 (2) SACR 605 (W); (11) BCLR 1489 at 610.
6 S v Le Grange [2008] ZASCA 102; 2009 (1) SACR 125 (SCA) at paras 21-3 and 29.
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Merits
[30] Pertaining to the evidence of the investigations prior to the disciplinary hearings
and the disciplinary sanctions , the state argued that the evidence was merely tendered
to prove that the applicant had acted with the intention to commit the offences.
[31] The state argued that the statements made by the applicant were made freely and
voluntarily. Additionally, it argued that the High Court correctly held that the evidence
led in the trial -within-the-trial proved that the applicant was not coerced in to making
these statements. In respect of the written statements , the state contended that the
applicant was informed that she had the right not to incriminate herself. The state
emphasised that the applicant was convicted on the strength of the section 220
admissions she had made.
[32] The state argued that, although there was no direct evidence that the applicant
did benefit from the theft and fraud, the circumstantial evidence before the
Regional Court was such that the only inference to be drawn therefrom was that she did
in fact benefit. The state thus argued that the applicant was correctly convicted on the
charges of theft and fraud.
[33] In respect of sentence, the state submitted that there was no misdirection and the
High Court was correct to confirm a custodial sentence because an important
aggravating circumstance was that the applicant stole from her employer, ABSA, where
she was in a position of trust.
Jurisdiction and leave to appeal
[34] The first issue to be decided is whether this matter engages this Court’s
jurisdiction. If the initial hurdle of jurisdiction is not overcome the matter cannot be
entertained by this Court. If the jurisdictional threshold has been met , this Court
proceeds to assess whether it is in the interests of justice to grant leave to appeal.
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[35] The Constitution provides that this Court’s jurisdiction is engaged in
constitutional matters and matters that raise an arguable point of law of general public
importance that ought to be decided by this Court. By contrast, this Court has refused
to entertain appeals that seek to challenge only factual findings or incorrect application
of the law by the lower courts.7
[36] In this matter the issue raised as engaging this Court’s jurisdiction is the
admission of evidence pertaining to the investigations prior to the disciplinary hearings.
The applicant’s argument is that this evidence was unconstitutionally obtained because
the applicant was compelled to give a statement and her right to silence was infringed.
She contends that this rendered the trial unfair. The unfairness was compounded, so it
is submitted, because this inadmissible evidence must have influenced the
Regional Magistrate to perceive the applicant as having a bad character and criminal
tendencies.
[37] Section 35(5) of the Constitution provides as follows:
“Evidence obtained in a manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence would render the trial unfair or otherwise be
detrimental to the administration of justice.”
[38] In Key, this Court set out the general approach as to what constitutes a fair trial:
“In any democratic criminal justice system there is a tension between, on the one hand,
the public interest in bringing criminals to book and, on the other, the equally great
public interest in ensuring that justice is manifestly done to all, even those suspected of
conduct which would put them beyond the pale. To be sure, a prominent feature of
that tension is the universal and unceasing endeavour by international human rights
bodies, enlightened legislatures and courts to prevent or curtail excessive zeal by State
agencies in the prevention, investigation or prosecution of crime. But none of that
means sympathy for crime and its perpetrators. Nor does it mean a predilection for
7 Mankayi v Anglogold Ashanti Ltd [2011] ZACC 3; 2011 (3) SA 237 (CC); 2011 (5) BCLR 453 (CC) at para 12.
POTTERILL AJ
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technical niceties and ingenious legal stratagems. What the Constitution dem ands is
that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin ,
fairness is an issue which has to be decided upon the facts of each case, and the trial
Judge is the person best placed to take that decision. At times fairness might require
that evidence unconstitutionally obtained be excluded. But there will also be times
when fairness will require that evidence, albeit obtained unconstitutionally,
nevertheless be admitted.”8
[39] As a starting point, evidence obtained unconstitutionally can only render a tr ial
unfair if a trial court relied on that evidence in convicting the accused. If the evidence
played no role in convicting an accused, that evidence could not render the trial unfair
or be detrimental to the administration of justice. Counsel for the applicant conceded
during oral argument that in the Regional Court’s reasons regarding conviction there is
no indication that the Magistrate placed any reliance on the evidence pertaining to th e
disciplinary hearings. In finding the applicant guilty, the Regional Court relied on the
section 220 admissions and the totality of the evidence that was led on each of the
counts of theft and fraud, excluding the evidence pertaining to the disciplinary hearings.
What was conten ded to be inadmissible evidence did not have any bearing on the
applicant’s conviction s. There is no mention of that evidence in the
Regional Magistrate’s reasons for convicting the applicant. This is unsurprising, as the
applicant effectively pleaded guilty by admitting all the elements of the offences in
question. There was, therefore, no need for the Regional Magistrate to have had regard
to any of the evidence that preceded the applicant’s formal admissions.
[40] In Van der Walt,9 this Court held that in deciding whether an alleged violation
of fair trial rights engages the Court’s jurisdiction, the Court assesses the extent of the
alleged violation. Further, that a procedural irregularity will raise a constitutional
matter only if it is sufficiently serious to undermine basic notions of trial fairness. In
this matter there is no such violation that raises a constitutional matter and this Court
consequently does not have jurisdiction.
8 Key v Attorney-General, Cape Provincial Division [1996] ZACC 25; 1996 (4) SA 187 (CC); 1996 (6) BCLR
788 (CC) at para 13.
9 Van der Walt v S [2020] ZACC 19; 2020 (2) SACR 371 (CC); 2020 (11) BCLR 1337 (CC) at para 15.
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[41] The argument that the Regional Magistrate must have been influenced by this
impugned evidence is pure speculation. There is not a single fact or finding in the record
of the proceedings to sustain this argument. The applicant relie s on the remark made
by the Regional Magistrate, during argument prior to conviction , that after all the
evidence led by the prosecution “nothing was in dispute”, the applicant wants to
“frustrate the system”. The argument, as advanced by the applicant, is that the evidence
about the disciplinary hearings m ust have influenced the Regional Magistrate for him
to have made this remark. The applicant also argue s that, as in Le Grange ,10 the
High Court in this matter should have found that the comment made by the
Regional Magistrate showed that he prejudged the matter, thus rendering the trial unfair.
On no reasonable construction can that remark be linked to the evidence pertaining to
the disciplinary hearing. There is simply no room to accept the contention that, despite
the absence of any refe rence to the impugned evidence in the Regional Magistrate’s
reasons for conviction, it nonetheless influenced the Court in coming to its finding. It
is not possible to come to a conclusion of this nature on the judgment and the record. If
one were to accept that what the applicant contends is inadmissible evidence was not
relied upon by the Regional Court in its conviction of the applicant, it follows that there
is no basis for establishing this Court’s jurisdiction.
[42] Counsel for th e applicant in this Court persisted with the argument that the
High Court incorrectly found the applicant guilty on the section 220 admissions because
the applicant never admitted that she personally benefi tted from the theft and fraud.
First, a factual challenge does not clothe this Court with jurisdiction. Second, in view
of counsel’s concession that all the elements for theft and fraud were admitted by the
applicant in the formal admissions, this argument is fallacious. It was also conceded by
counsel for the applicant that personal benefit is not an element that needs to be proved
for the offence s of fraud and theft. No further comment is required, perhaps only to
highlight the following:
10 S v Le Grange above n 5.
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“For so long as a formal admission stands, it cannot be contradicted by an accused ,
whether by way of evidence or in argument. To hold otherwise would defeat the
purpose of [section 220], eliminate the distinction between a formal admission in terms
of that section and an informal admission which may be qualif ied or explained away,
and thereby lead to confusion in criminal trials. As Viljoen JA said in S v Mjoli, in a
concurring judgment:
‘By reason of the fact that an admission formally made by or on behalf
of the accused is “sufficient evidence ”, the effect is that such fact
virtually becomes conclusive proof against him because the accused
himself or his legal representative on his behalf has made the
admission and any effort by him or on his behalf to adduce evidence
countervailing such fact would be incons istent with his having made
the admission.’”11
[43] Additionally, in S v Groenewald the effect of formal admissions is explained as
follows:
“An admission is an acknowledgment of a fact. When proved or made formally during
judicial proceedings, it dispenses with the need for proof in regard to that fact .
Wigmore on Evidence calls it ‘a method of escaping from the necessity of offering any
evidence at all’: a ‘waiver relieving the opposing party from the need of any evidence.’
Section 220 of the Ac t accordingly makes it possible for a contested fact to be put
beyond issue, since once made the admission constitutes ‘sufficient proof’ of it.”12
[44] From the record of the proceedings, the High Court could not find any evidence
of bias on the part of the Regional Magistrate that could have resulted in the applicant’s
decision to mak e the formal admissions. That finding is unassailable. Expressing
frustration at the many postponements sought and commenting that accused persons
would always experience a criminal court as stressful , did not show actual bias or
reasonable perception of bias . The two comments were in any event made two years
before the admissions were made. The submission that this Court must find the
11 Van der Westhuizen v S [2011] ZASCA 36; 2011 (2) SACR 26 (SCA) at para 34.
12 S v Groenewald [2005] ZASCA 71; 2005 (2) SACR 597 (SCA) at para 33.
POTTERILL AJ
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existence of bias is based on an assessment of factual findings that does not attract this
Court’s jurisdiction.
[45] Since there is no constitutional issue, this Court need not assess the merits of the
case. Similarly, there is no arguable point of law of general public importance raised
that carries any prospects of success. In the result, leave to appeal must be refused.
[46] In arguing that the sentence should be set aside and substituted with a
non-custodial sentence, the only factors raised by the applicant are: (a) the awaiting trial
period of between eight to nine months; and (b) at the time of argument the offences
had been committed 12 years previously. Absent any constitutional issue, the question
of sentence will generally not be a constitutional matter. In Van der Walt , this Court
confirmed that for this Court to assume jurisdiction on sentence , an irregularity must
have led to a failure of justice.13 There is nothing to suggest that the sentencing was so
unfair as to amount to a “failure of justice”.14 Therefore, this Court’s jurisdiction is not
engaged on this aspect either.
[47] In the result, the following order is made:
1. Leave to appeal is refused.
13 Van der Walt v S above n 9 at para 18.
14 See Bogaards v S [2012] ZACC 23; 2013(1) SACR 1 (CC); 2012 (12) BCLR 1261 (CC) at para 42.
For the Applicant: Christiaan F van Heerden instructed by
Mathewson & Mathewson Incorporated
For the Respondent: I M Mphela and B Mdlalose instructed by
Director of Public Prosecutions,
Kimberly