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[2013] ZACC 17
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Nabolisa v S (CCT 105/12) [2013] ZACC 17; 2013 (2) SACR 221 (CC); 2013 (8) BCLR 964 (CC) (12 June 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 105/12
[2013] ZACC 17
In the matter between:
FRANK NABOLISA
.......................................................................................
Applicant
and
THE STATE
.................................................................................................
Respondent
Heard on : 7 March 2013
Decided on : 12 June 2013
JUDGMENT
SKWEYIYA J (Moseneke DCJ and Van der Westhuizen J concurring):
Introduction
[1] This
matter concerns an application for leave to appeal against a decision
of the Supreme Court of Appeal in which the applicant,
Mr Frank
Nabolisa, had his conviction upheld and his sentence increased from
12 to 20 years’ imprisonment.
1
Before this Court for determination is the question whether the State
is required to cross-appeal in circumstances where the accused
initiates an appeal, or whether notice in the State’s Heads of
Argument that it seeks an increase suffices.
Factual background and prior proceedings
[2] At
some stage prior to or during 2008, Ms Sheryl Cwele and Mr Nabolisa
entered into an unlawful criminal enterprise to import
cocaine into
South Africa. They sought to do so by recruiting two “couriers”,
Ms Tessa Beetge and Ms Charmaine
Moss, to travel overseas and to
bring cocaine back into South Africa. Ms Moss declined and
withdrew from the relationship.
Ms Beetge was flown to Columbia and,
on her way home to South Africa, was arrested at an airport in
Sao Paulo, Brazil with
just over 10 kilograms of cocaine in her
possession. Ms Beetge had worked closely with Mr Nabolisa
in this enterprise.
[3] Mr
Nabolisa was charged, along with Ms Cwele, with contravening section
5(b) of the Drugs and Drug Trafficking Act
2
(Drugs Act) for dealing in a dangerous dependence-producing
substance. In the alternative, they were charged with contravening
section 18(2)(a) of the Riotous Assemblies Act
3
for conspiracy to deal in drugs.
4
Mr Nabolisa pleaded not guilty.
[4] The
indictment made reference to the provisions of section 51(2) of the
Criminal Law Amendment Act
5
and Part II of Schedule 2 to that Act (minimum sentencing
legislation). Those provisions, read together, provide that for a
conviction
under section 5(b) of the Drugs Act, a minimum sentence of
15 years’ imprisonment must be imposed on a first time
offender.
6
The maximum sentence for contravention of section 5(b) of the Drugs
Act is set by section 17(e) of the Drugs Act, providing for
imprisonment “for a period not exceeding 25 years”.
[5] Mr
Nabolisa and Ms Cwele were convicted on 5 May 2011 in the
KwaZulu-Natal High Court, Pietermaritzburg (High Court) of dealing
in
drugs under section 5(b) of the Drugs Act. In sentencing, the
High Court recognised that the starting point was the 15 years
prescribed by the minimum sentencing legislation but it found that
there were compelling circumstances warranting a three year
reduction
in the prescribed minimum sentence.
[6] The
High Court granted Mr Nabolisa leave to appeal to the Supreme Court
of Appeal in respect of both his conviction and sentence.
Ms Cwele
appealed in respect of her conviction only. The State did not apply
for leave to cross-appeal against the sentence. However,
it indicated
twice, in its Heads of Argument and subsequently in its supplementary
Heads of Argument, that the sentences should
be increased.
[7] The
State, in its Heads of Argument filed on 26 March 2012, stated that
“it [would] be submitted that the sentence should
have been a
term of 15 years’ imprisonment each”, arguing that there
was insufficient basis for deviating from the
prescribed minimum. The
State also submitted supplementary Heads of Argument, on 12 June
2012, where it argued that “a sentence
in the region of 20
years’ imprisonment should rather have been imposed.”
This followed the State becoming aware of
the decision in
Keyser v
S
,
7
which had been delivered on 25 May 2012, in which a sentence of 20
years was upheld. For the sake of convenience the presentation
of
these arguments will be referred to as the first and second notices
8
respectively.
[8] The
Supreme Court of Appeal heard the matter on 16 August 2012, almost
five months after the first notice had been given and
over two months
after the second notice had been given. During proceedings in the
Supreme Court of Appeal, counsel for Mr Nabolisa
presented
argument on the topic of conviction and sentence. It was argued by
Mr Nabolisa’s counsel that the sentence
imposed by the
High Court was just and that no misdirection was committed by the
High Court.
[9] On 1
October 2012, the Supreme Court of Appeal dismissed the appeals
against the conviction and set aside and replaced Mr Nabolisa
and Ms
Cwele’s sentences. The Court held that the provisions of the
minimum sentencing legislation applied. It relied on
the authority of
Keyser
and considered various factors including the
seriousness of the crime and the fact that in most cases the
“courier”
is caught while the handler remains safe in the
background. The Court concluded that a sentence of 20 years would
have been the
appropriate sentence for the High Court to impose.
Given that the disparity between that sentence and the sentence of 12
years’
imprisonment imposed by the High Court was so
marked, it held that the High Court’s sentence could properly
be described
as “disturbingly inappropriate”. The Supreme
Court of Appeal set aside the High Court sentence and replaced it
with
a sentence of 20 years’ imprisonment in respect of both
Mr Nabolisa and Ms Cwele, antedated to 6 May 2011 in
respect
of Mr Nabolisa.
[10] Mr
Nabolisa applied for leave to appeal to this Court against the
conviction confirmed by the Supreme Court of Appeal and the
new
sentence it imposed. On 19 November 2012, this Court dismissed
his application for leave to appeal against conviction.
In this Court
the matter is confined to the application for leave to appeal against
sentence. It is important to note that Ms Cwele
is not a party to the
proceedings before this Court. She has not appealed against the
Supreme Court of Appeal’s judgment
and for that reason the
propriety of the procedure in the Supreme Court of Appeal with
respect to her is not of relevance in reaching
a decision in this
matter.
In this Court
Applicant’s submissions
[11] Mr Nabolisa contends that the State was required to have
cross-appealed against sentence if it sought to have his sentence
increased on appeal, and it failed to do so. He submits that properly
interpreted, section 316B of the Criminal Procedure Act
9
creates a peremptory statutory requirement of cross-appeal by the
State. Section 316B provides:
“
Appeal
by attorney-general against sentence of superior court
(1) Subject to subsection (2),
the attorney-general may appeal to the Appellate
Division against a sentence
imposed upon an accused in a criminal case in a superior court.
(2) The provisions of section
316 in respect of an application or appeal referred to in that
section by an accused, shall apply
mutatis mutandis
with
reference to a case in which the attorney-general appeals in terms of
subsection (1) of this section.
(3) Upon an appeal in terms of
subsection (1) or an application referred to in subsection (2),
brought by the attorney-general,
the court may order that the State
pay the accused concerned the whole or any part of the costs to which
the accused may have been
put in opposing the appeal or application,
taxed according to the scale in civil cases of that court.”
[12]
Mr Nabolisa describes the practice that existed prior to 1990
(before the introduction of section 316B of the Criminal
Procedure
Act) as one where the State “was able merely to request a Court
of Appeal in its Heads of Argument or by notice
to increase the
sentence” where the convicted and sentenced person has
appealed. However, he argues that the introduction
of section 316B of
the Criminal Procedure Act abolished that practice. To allow this
“old practice” to continue would
render section 316B
superfluous and would be absurd because it would allow the State to
request an increase in sentence in instances
where leave to appeal
may have been refused.
[13] Mr
Nabolisa submits that his sentence was not increased
mero motu
by the Supreme Court of Appeal, but in the light of the State’s
notice in its Heads of Argument. If, however, the Supreme
Court of
Appeal had in fact increased his sentence
mero motu
, he
argues, the Court failed to comply with its duty to notify him that
it was considering increasing his sentence as it was required
to do
following the decision of this Court in
Bogaards
.
10
[14] It is
submitted that by increasing his sentence in the circumstances, the
Supreme Court of Appeal infringed on Mr Nabolisa’s
constitutional right to a fair appeal process under section 35(3)(o)
of the Constitution. In so doing, it occasioned a miscarriage
of
justice. He also alleged infringements of his rights under sections
34 and 9 of the Constitution but he did not pursue these
arguments.
Respondent’s submissions
[15] The
State offers a contrary interpretation of section 316B. It argues
that section 316B merely filled a lacuna that had
existed in the
law. Prior to the enactment of section 316B, the State was
unable to appeal to rectify a sentence that was
overly lenient when
the accused had elected not to appeal. Section 316B, it is argued,
filled this lacuna by adding to the law
a mechanism for the State to
appeal at its own initiative. It was not intended to remove the “old
practice”. There
was, as a result, no need for the State to
seek leave to cross-appeal when Mr Nabolisa appealed to the
Supreme Court of Appeal.
The determination of a
possible new sentence was already a live issue before the Court.
[16] The
State submits that it twice gave notice of its intention to seek an
increase in sentence in its first and supplementary
Heads of
Argument. Where it has given such notice, there is no need for the
court of appeal to give additional notice to the appellant.
Additional notice from the court would, in any event, be undesirable
because it would appear that the court was in agreement with
the
State’s request to increase sentence. It further argues that it
is immaterial whether the court or the State notifies
the appellant.
In substance, it is argued, the proceedings in the Supreme Court of
Appeal were scrupulously fair.
[17] The
State further seeks to distinguish this case from
Bogaards
on
the facts. In
Bogaards
there had been no indication from the
State that an increase was sought and, further,
Bogaards
turned on the consequence of the court of appeal considering a
sentence afresh when imposing a different conviction. The present
matter cannot be likened to the “forensic ambush” in
Bogaards
because Mr Nabolisa was adequately notified and
had ample time to prepare his case.
Issues
[18] The substantive issues before this Court can be set out as
follows:
(i) Does
section 316B of the Criminal Procedure Act require the State formally
to cross-appeal in order to seek an increase in sentence
in
circumstances where the accused has appealed?
(ii) If so, does the State’s failure to cross-appeal in itself
render the appeal unfair?
(iii) Was the appeal conducted in accordance with the dictates of a
fair hearing?
Leave to appeal
[19] Leave
to appeal should be granted when a constitutional matter or an issue
connected with a decision on a constitutional matter
is raised, and
when it is in the interests of justice to grant leave.
[20]
Sentencing is not generally a constitutional matter.
11
However, the interpretation of section 316B of the Criminal Procedure
Act implicates the constitutional right to a fair appeal.
12
This is plainly a constitutional matter.
13
[21] Do
the interests of justice favour the grant of leave to appeal? The
interpretation of section 316B of the Criminal Procedure
Act has
broad implications for the criminal appeal process. The fact that
there remains uncertainty as to its correct interpretation
makes it
both appropriate and desirable that this Court provides clarity.
Mr Nabolisa’s points are eminently arguable.
For all of
these reasons, I would grant leave to appeal.
Merits
[22]
Ordinarily an appeal court will only interfere with a sentence if—
“
there
has been an irregularity that results in a failure of justice; the
court below misdirected itself to such an extent that its
decision on
sentence is vitiated; or the sentence is so disproportionate or
shocking that no reasonable court could have imposed
it.”
14
(Footnotes
omitted.)
[23] In
this case, the starting point of this enquiry is whether an
irregularity occurred in Mr Nabolisa’s appeal. If an
irregularity indeed occurred, it will then be necessary to enquire
whether this irregularity resulted in a failure of justice. Failure
to establish this will deprive this Court of jurisdiction to
interfere in the sentence imposed by the Supreme Court of Appeal.
Irregularity
[24] An
irregularity is a wrongful or irregular deviation from the
formalities and rules of procedure aimed at ensuring a fair trial.
15
In
Jaipal v S
irregularities were described as deviations from
“what one would regularly expect in a properly conducted
criminal trial.”
16
If a cross-appeal by the State was required then the State’s
failure to do so in this instance will result in an irregularity.
Is cross-appeal required?
[25] The
wording of section 316B of the Criminal Procedure Act is not, on the
face of it, conclusive of whether a formal cross-appeal
is
mandatory.
17
Nothing explicit in the section indicates that it is peremptory.
[26] The
historical rationale for the enactment of section 316B affirms this
view. Prior to 1990, before the introduction of sections
310A and
316B through the Criminal Law Amendment Act, in terms of the common
law the State had no formal right to appeal against
sentences where
the accused had not appealed. However, a practice existed whereby the
State could motivate in oral argument for
an increase in sentence. It
also developed, as a rule of practice, that the State would give
notice of its intention to do so.
18
Section 316B was, in my view, intended to fill the lacuna in the law
by creating an
independent
right for the State to appeal,
which it previously lacked. I see no basis to conclude that its
enactment changed the “old
practice” and created a
requirement for the State to cross-appeal where the accused had
already appealed because, in those
instances, the State would be
before the court of appeal already. It seems illogical to me, absent
express wording to the contrary,
that the section should be
interpreted to require the State, in such an instance, to launch a
separate “cross-appeal”
in order to present argument on a
matter already before the court. This view is strengthened by the
presumption that legislation
does not alter the common law, absent an
explicit statement to the contrary.
19
This reading of section 316B is supported by the Supreme Court of
Appeal decision in
Kellerman v S
.
20
[27]
Further, this reading of section 316B must, in my view, be correct in
the light of the extensive power of courts of appeal
with respect to
sentencing. Section 22 of the Supreme Court Act,
21
read together with section 322 of the Criminal Procedure Act,
provides that a court of appeal is empowered to confirm, amend or
set
aside a judgment or order which is the subject of the appeal and give
any judgment or make any order which the circumstances
may require.
22
The court may interfere in sentence even when it is only a reduction
in sentence that is sought and even when the appeal is against
conviction only
.
In
Kgosimore
23
the Supreme Court of Appeal held:
“
It is
trite law that sentence is a matter for the discretion of the court
burdened with the task of imposing the sentence. Various
tests have
been formulated as to when a court of appeal may interfere. These
include, whether the reasoning of the trial court
is vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense of
shock or whether
there is a striking disparity between the sentence imposed and the
sentence the court of appeal would have imposed.
All these
formulations, however, are aimed at determining the same thing;
viz
whether there was a proper and reasonable exercise of the discretion
bestowed upon the court imposing sentence. In the ultimate
analysis
this is the true inquiry. . . . Either the discretion was properly
and reasonably exercised or it was not. If it was,
a court of appeal
has no power to interfere; if it was not, it is free to do so. I can
accordingly see no juridical basis for the
stricter test suggested by
counsel; nor is there anything in section 316B of the [Criminal
Procedure Act], or for that matter
section 310A, to suggest
otherwise. . . . It follows that, in my view, whether it is the
attorney-general (now the Director of
Public Prosecutions) or an
accused who appeals against a sentence, the power of a court of
appeal to interfere is the same.”
24
[28] In
essence, therefore, the issue of sentencing is always potentially
before an appellate court in a criminal matter.
25
There would thus be no need to bring it before court by
cross-appealing. It is important not to limit, through formalities,
the
ability of the State and the accused to raise argument and
authority on sentencing in order to allow a court best to exercise
its
sentencing discretion. This is re-enforced through section 274 of
the Criminal Procedure Act.
26
[29] In
this case, the issue of sentence was explicitly raised before the
Supreme Court of Appeal by Mr Nabolisa’s own appeal
against
sentence and conviction. The State, by arguing for an increase in
sentence, was thus not raising a new issue.
[30] I
conclude that section 316B of the Criminal Procedure Act does not
create a peremptory requirement for cross-appeal and the
failure by
the State to do so does not constitute an irregularity. This cannot
be understood to permit an appeal by the State through
“the
back door” because the issue is already before the Court. The
issue of an appropriate sentence is thus not a new
matter in which
the State and the appellant have not joined issue or one which would
take any of the parties or the court by surprise.
[31] In
addition, I do not think the State’s failure to cross-appeal
deviates from what would normally be expected in a properly
conducted
criminal appeal. It appears that there is inconsistency in the
State’s manner of seeking to effect an increase
in sentence:
while it makes use of the old practice of informal notification,
27
it at times also employs cross-appeal.
28
I cannot conclude that either is more regularly expected than the
other and can therefore not conclude that in general, as an incident
of failure to adhere to “the norm”, a failure to
cross-appeal is an irregularity.
Was Mr Nabolisa adequately notified?
[32] An
irregularity may have occurred if Mr Nabolisa had not been notified
adequately of a potential increase in his sentence.
An enquiry on
this question is necessary because in
Bogaards
this Court
developed the common law to elevate from a salutary practice to a
rule that notice of a possible increase in sentence
should be
provided.
29
[33] The
majority in
Bogaards
reasoned that the notification practice
ensured substantive fairness by facilitating an informed exercise of
the right of appeal
and by ensuring that the requirements of the
audi
alteram partem
principle are observed.
30
The Court envisaged that notice may come from either the court, when
it
mero motu
considers an increase, or from the State when it
seeks an increase. I do not consider it pivotal from whom or in what
form the
notice is given, even though I accept that there are
differences in notice that comes from the State and notice that comes
from
the court.
31
To hold that the source or form of the notice, absent more, is
determinative would be to put form over substance
32
and substantive fairness is what the Constitution requires.
33
The important question is whether the notice informs the appellant of
the possibility of an increase and affords him or her a meaningful
opportunity to defend this possibility. If the answer is yes there
can be no question of an irregularity. This determination must
be
made on a case-by-case basis.
[34] Quite
distinct from the facts in
Bogaards
, where the appellant was
not made aware by any other objective factor that an increase was
being considered,
34
Mr Nabolisa was notified. He was put on terms early in the
appeal proceedings that there was legal authority to support an
increase in his sentence. It is apparent that Mr Nabolisa did
not file supplementary Heads of Argument in response to the
State’s
notice – and he gives no reason why. But Mr Nabolisa’s
counsel did argue on the issue of sentencing
before the Supreme Court
of Appeal. He argued against an increase by supporting the 12 year
sentence imposed by the High Court.
35
From these facts, and in the absence of his raising any argument as
to the substantive inadequacy of the notice, the State’s
notice
was indeed adequate. Mr Nabolisa was made aware of the jeopardy
of an increase and was able, with sufficient time and
resources, to
mount a defence against its possibility.
[35]
Because the adequacy of the notice depends on the case at hand, it is
ultimately for the court of appeal to ensure that the
appellant
understands the risk of an increase and has the opportunity to
present argument on the issue.
36
Where the State’s notice is inadequate, the court would still
be required to give additional notice so as to ensure fairness
to the
appellant.
[36] I
conclude that there has been no irregularity. This conclusion should
be dispositive of the matter. Nevertheless, I proceed
to point out
that even if there had been an irregularity, then for many of the
same reasons I am of the view that there has been
no failure of
justice justifying this Court’s interference in Mr Nabolisa’s
sentence.
Failure of justice
[37] In
order to found a failure of justice, the appellant must satisfy the
Court “that there had been actual and substantial
prejudice to
the accused.”
37
A “failure of justice” is understood in the context of
section 35(3) of the Constitution to mean an unfair trial.
38
The principle of a fair trial and appeal in section 35 “
embraces
a concept of substantive fairness”
39
and
has further been held to be flexible and informed by the
underlying values of dignity, freedom and equality.
40
[38]
Generally, only those irregularities that are so gross a departure
“from established rules of procedure that it can be
said that
the appellant was not properly tried”
41
will be considered a failure of justice
per se
, without the
need to establish a miscarriage of justice. In my view, this is not
the case in the present matter – prejudice
must be established.
[39] When
probed by the bench to identify what prejudice he had suffered by the
State’s “failure” to cross-appeal,
counsel for Mr
Nabolisa relied squarely on the alleged procedural irregularity
itself. What Mr Nabolisa does not argue is that
he was
caught
off guard, or that there were arguments that he would have raised
but which he did not. He does not claim that he was “ambushed”
or that he in any way misunderstood the possibility that his
sentence might be increased.
[40] It
was argued on Mr Nabolisa’s behalf that he should not be
penalised for presenting argument on increase of sentence
out of
caution. This illustrates the weakness in Mr Nabolisa’s
argument. It is exactly because of his being notified
of a possible
increase that he argued against it. It is a good illustration of the
fact that he was put on terms and that fairness
was achieved.
[41] I
accordingly conclude that no miscarriage of justice has been shown,
even if an irregularity had been established.
Conclusion
[42] In
the result, I would have granted leave to appeal but dismissed the
appeal because no irregularity has occurred.
JAFTA J (Mogoeng CJ, Froneman J, Khampepe J, Mhlantla AJ, Nkabinde J
and Zondo J concurring):
[43] I
have read the judgment of my Colleague Skweyiya J and I agree with
him that leave to appeal should be granted. But for
reasons that
follow, I do not agree that the appeal must be dismissed.
Factual background
[44] This
is an application for leave to appeal the sentence of 20 years’
imprisonment imposed on the applicant by the Supreme
Court of
Appeal. Mr Frank Nabolisa (applicant) was convicted of dealing in
dangerous dependence-producing drugs, namely cocaine
with a street
value of approximately R2 million. He was tried in the KwaZulu-Natal
High Court, Pietermaritzburg (High Court)
together with Ms Sheryl
Cwele, a South African national. The applicant is a Nigerian
national residing in South Africa.
[45]
Having been convicted and sentenced, the applicant and Ms Cwele
appealed to the Supreme Court of Appeal, with leave of the
trial
Court. Ms Cwele appealed against conviction only whilst the
applicant challenged the conviction and the sentence imposed.
[46] The
State did not seek leave to cross-appeal against both the sentences,
even though it desired to have the sentences increased.
The stance
it took regarding leave to appeal will be set out and dealt with
later. For now it suffices to mention that when it
filed its written
argument, the State intimated that it would ask for the increase of
sentence at the hearing of the appeal,
from 12 years’ to 15
years’ imprisonment.
[47]
Emboldened by a later confirmation of a sentence of 20 years’
imprisonment by the Supreme Court of Appeal in another
case, the
State filed supplementary heads of argument, stating that it would
argue for the sentence imposed to be increased to
20 years’
imprisonment. In short the State had intimated that it would no
longer ask for an increase to 15 years’
but to 20 years’
imprisonment. I deal with the irregularity of this process below.
[48] At
this early stage, it is necessary to point out that because Ms Cwele
did not appeal against sentence, it is not clear
on what basis the
State could simply argue that the sentence imposed on her should be
increased.
[49] The
Supreme Court of Appeal permitted the State to argue for an increase
of her sentence. It is apparent from its judgment
that the Supreme
Court of Appeal considered the issue of an increase in sentence to
have been properly placed before it, by way
of the State intimating
that it would argue for an increase in sentence. The Supreme Court
of Appeal said:
“
The
appellants were convicted as charged on count 1 and were sentenced
to 12 years’ imprisonment. With leave of the
trial court
the first appellant now appeals against her conviction, while the
second appellant appeals against both his conviction
and the
sentence imposed on him. In their original heads of argument counsel
for the State gave notice that they would argue
before this court
that the trial court should have imposed terms of imprisonment of 15
years in respect of each appellant. However,
they later filed
supplementary heads, giving notice that they would argue, at the
hearing of the appeal, that the sentences imposed
on the two
appellants be increased to 20 years’ imprisonment.”
42
[50] And
later when dealing with the question of sentence, the Court
commenced thus:
“
I
turn to the question of sentence. As I have indicated above, the
State gave notice in its original heads of argument that it
would
seek an increase of the sentence of 12 years’
imprisonment imposed by the trial court to 15 years’
imprisonment.
After this court’s judgment in
Keyser
v S
[2012] ZASCA 70
that stance changed and an increase of the sentence
to 20 years’ imprisonment was sought. In
Keyser
the appellant, a 35 year old married man, had been convicted by a
regional magistrate of dealing in 6545 grams of cocaine in
contravention of section 5(b) of the [Drugs Act] and sentenced to
imprisonment for 20 years. He had been arrested after boarding
a
flight to Cape Town at the Johannesburg International Airport (now
OR Tambo International Airport) having earlier arrived on
a flight
from Sao Paulo, Brazil. The sentence of 20 years’ imprisonment
was confirmed on appeal to the South Gauteng High
Court. On further
appeal this court, having found the appellant not to have been a
mere courier, but a willing and informed participant,
also confirmed
that sentence, although it observed that it was ‘undoubtedly a
heavy one’.”
43
(Footnotes omitted.)
[51] The
judgment in
Keyser
44
was apparently delivered on 25 May 2012 when the appeal in this
matter was already pending in the Supreme Court of Appeal. The
appeal in this case was heard by the Court on 16 August 2012 and its
judgment was delivered on 1 October 2012.
Leave to appeal
[52] It
is by now axiomatic that for an applicant to obtain leave in this
Court he or she must meet two requirements. First, the
applicant
must show that the case raises a constitutional issue or a matter
connected to a constitutional issue. If this is satisfied,
the
applicant must establish that the granting of leave will be in the
interests of justice.
[53] The
applicant in this case sought leave to appeal against the conviction
and sentence. But in an order dated 19 November
2012, this Court
refused leave against the conviction. His complaint against the
increased sentence is that the Supreme Court
of Appeal acceded to
the State’s request and increased the sentence to 20 years’
imprisonment, in circumstances where
the State had failed to comply
with section 316B of the Criminal Procedure Act (Criminal
Procedure Act).
45
This section confers on the State the right to appeal against a
sentence imposed in a criminal trial in the High Court.
[54] The
applicant contended that the procedure followed in the Supreme Court
of Appeal violated his right to a fair hearing on
appeal. To
buttress this argument, the applicant called in aid the judgment of
this Court in
S v Bogaards.
46
In that case the majority said:
“
When
accused persons exercise their constitutional right of appeal and
appeal against their conviction and/or sentence, they are
necessarily attempting to improve their legal fate. The exercise of
the right of appeal should, therefore, not be hindered by
fear of
the possibility of a more severe sentence being imposed, without
having an opportunity to give pointed submissions on
the potential
increase. Otherwise, prospective appellants may not exercise the
right at all. Therefore, an appellant’s
legal position should
not be worsened without proper notice, either in the form of a
cross-appeal, or notice from the appellate
court that it is
considering an increase in sentence or that it proposes to impose a
higher sentence than that imposed by a trial
court consequent upon
convicting the appellant of a different offence.
Where the State lodges a
cross-appeal against sentence, this alerts an accused person to the
possibility of an increase in sentence
and provides her with a
meaningful opportunity to make pointed argument in regard thereto.
In instances where a court is mero
motu considering an increase, the
constitutional right to a fair trial demands that the accused person
should have the benefit
of knowing what risk she may run into in her
quest to ease a pinching shoe by invoking the appeal process. The
accused should
be allowed to choose whether to run the risk of a
sentence increase, attempt to convince the court to reach the
opposite conclusion
by making adequate representations on why the
sentence should not be increased, or apply to the court for leave to
withdraw her
appeal.”
47
(Footnotes omitted.)
[55]
There can be no doubt that when a court imposes a sentence of
imprisonment on an accused person, regardless of whether it
is at
trial or appeal level, the liberty of that person is taken away. Our
Constitution guarantees the right to freedom and security
of the
person.
48
In particular section 12(1) of the Constitution entrenches the right
not to be deprived of freedom arbitrarily or without just
cause. The
sentencing of a person convicted of a crime implicates his or her
right to freedom. If the sentencing process itself
is unfair or
suffers from irregularity, a further constitutional right – a
fair trial or a fair appeal – is infringed.
Accordingly this
matter raises constitutional issues.
[56]
Because leave is sought against the order of the Supreme Court of
Appeal, if interference with the sentence imposed is justified,
it
can only be effected by this Court. This means that once it is
established that there are prospects of success, it must be
accepted
that the interests of justice warrant the granting of leave. The
views expressed by this Court in
Bogaards
in the statement
quoted above lend credence to the applicant’s argument that
the State should have cross-appealed. The absence
of a cross-appeal
in this case gives merit to the contention that the appeal suffered
from an irregularity that rendered the
hearing unfair. I am
satisfied that there are prospects of success and consequently that
leave should be granted.
The issues
[57] The
first issue is whether the procedure followed in the Supreme Court
of Appeal regarding the increase of sentence constitutes
an
irregularity. If it does, the other issue is whether that
irregularity vitiates the proceedings. But before I consider these
issues I must clear the decks and define the scope of the present
enquiry.
[58] In a
case like the present, the point at which it is convenient to begin
is to show what the case is not about. It is not
about the length of
imprisonment imposed by the Supreme Court of Appeal. The seriousness
of the offence of which the applicant
was convicted may well justify
the sentence of 20 years’ imprisonment. But the case also does
not concern the competency
of the Supreme Court of Appeal to
increase sentence. Unquestionably the Court has the power to do so,
in circumstances defined
in the Criminal Procedure Act.
49
Whether those circumstances were established when the Supreme Court
of Appeal increased the impugned sentence, is a matter that
I return
to below. Furthermore, the case is not about the Supreme Court of
Appeal increasing the sentence acting on its own accord.
This is on
the assumption that the Court has such a power, an issue on which I
deliberately refrain from expressing an opinion.
[59]
Instead, the case concerns the process followed by the State in
seeking and obtaining an increase in the sentence that was
imposed
by the trial Court, namely from 12 years’ imprisonment to 20
years’ imprisonment. This was achieved without
the State
applying for and obtaining leave to appeal against sentence in the
case of Ms Cwele and cross-appealing against
sentence in the
case of the applicant. This distinction is important because, as
stated earlier, Ms Cwele did not appeal against
sentence. This much
is clear from the judgment of the Supreme Court of Appeal.
State’s right of appeal
[60]
Under the common law, judgments in criminal matters were final and
no appeals were allowed either at the instance of the
accused person
or the State.
50
As observed in
Grundlingh
:
“
Criminal
appeals to this Court are more restricted than civil appeals and
from magistrates’ courts the Crown can appeal
only on
questions of law. Today the right to appeal is entirely governed by
statute.”
51
[61] I
hasten to point out that the decision of the Appellate Division (now
Supreme Court of Appeal) in
Grundlingh
predates the
Constitution. The right of appeal in criminal matters is now
entrenched in section 35 of the Constitution.
52
But it is significant to note that the Constitution merely
guarantees the right without regulating how it is to be exercised.
The exercise of the right is thus governed by statute. Notably,
section 35 guarantees the right of appeal by an accused person.
Here
we are concerned with the right exercised by the State.
[62] In
so far as appeals by the State are concerned, the Criminal Procedure
Act distinguishes between an appeal against the sentence
imposed by
a Magistrate’s Court and a High Court. Since we are engaged
with the sentence imposed by the High Court, it
is not necessary to
refer to the provisions dealing with an appeal from a Magistrate’s
Court. Suffice it to say that leave
to appeal is a requirement.
[63]
Appeals by the State against a sentence imposed in a criminal trial
in the High Court are regulated by section 316B of the
Criminal
Procedure Act. It reads:
“
(1) Subject to subsection
(2), the attorney-general may appeal to the Appellate Division
against a sentence imposed upon an accused
in a criminal case in a
superior court.
(2) The provisions of section 316 in respect of an
application or appeal referred to in that section by an accused,
shall apply
mutatis mutandis
with reference to a case in
which the attorney-general appeals in terms of subsection (1) of
this section.
(3) Upon an appeal in terms of subsection (1) or an
application referred to in subsection (2), brought by the
attorney-general,
the court may order that the State pay the accused
concerned the whole or any part of the costs to which the accused
may have
been put in opposing the appeal or application, taxed
according to the scale in civil cases of that court.”
[64] A
close examination of the text of this section shows that it imposes
on the State the same obligations placed on an accused
person by
section 316 of the Criminal Procedure Act. The most important is the
obligation to apply for leave which must be lodged
with the trial
Court within 14 days after the passing of the sentence. The terms of
this time-bar provision are peremptory. But
condonation for
non-compliance with its terms may be granted by the trial Court on
application and for good cause shown. What
this really means is that
where the State desires to appeal against sentence, it must apply
for leave within 14 days from the
date of sentence. If it needs the
period to be extended, it must formally apply for extension and show
good cause by giving a
satisfactory explanation for its failure to
meet the deadline. If the deadline passes, and there is no
application for leave
and condonation, the State loses the right to
appeal against sentence.
[65] The
record shows that the State failed to apply for leave to
cross-appeal in respect of the case against the applicant and
to
appeal against the sentence imposed on Ms Cwele. Consequently
it lost its right to appeal. Moreover, no extension was
asked for
and obtained. The State literally did nothing until it filed its
written argument and indicated for the first time
that it would
argue for an increase of the sentence.
Irregularity
[66]
Since the appellants before the Supreme Court of Appeal were not
similarly positioned, the inquiry into whether it was permissible
for the State to seek an increase of their sentences must of
necessity be separated. Although Ms Cwele did not lodge an
application
for leave to this Court, it is appropriate to refer to
her case in testing the propriety of the procedure followed by the
State
and endorsed by the Supreme Court of Appeal.
[67] The
answer in respect of Ms Cwele’s case is an easy one. The State
was not entitled to argue for an increase of her
sentence where she
did not appeal against sentence. It could only do so if it had
obtained leave under section 316. Consequently
it was not open to
the Supreme Court of Appeal to increase her sentence under these
circumstances. Differently put, the issue
of her sentence was not
competently placed before the Court for re-evaluation.
[68] The
State did not place the question of the increase of these sentences
before the Supreme Court of Appeal, in accordance
with the
peremptory provisions of section 316 of the Criminal Procedure
Act. This constitutes an irregularity.
Impact of irregularity
[69] What
remains for consideration is the issue whether the irregularity
vitiated the proceedings in the Supreme Court of Appeal.
Counsel for
the State argued that because the provision in the Criminal
Procedure Act which confers power on that Court to increase
sentence
is constitutionally valid, the enquiry must be confined to
determining whether the hearing was fair. He argued that
from time
immemorial, it has been an accepted practice of our courts that
sentence may be increased on appeal purely on the basis
of notice
given by the State or the Court of appeal, acting on its own accord.
[70] In
the circumstances of the present case the argument has no merit.
First, on the assumption that section 322(6) is constitutionally
compliant, there is no justification for assigning to it the
construction that the power to increase the sentence may be
exercised
on the mere notification in the written argument to the
effect that the State will argue for an increase. Section 322(6)
must
be read in the context of section 322 as a whole.
[71] The
plain reading of the section reveals that it confers on a Court of
appeal the power to increase sentence as an additional
power to
other powers conferred by the same section. Section 322(6) reads:
“
The powers conferred by
this section upon the court of appeal in relation to the imposition
of punishments, shall include the
power to impose a punishment more
severe than that imposed by the court below or to impose another
punishment in lieu of or in
addition to such punishment.”
[72] An
examination of section 322(6) indicates that it does not add the
power to increase sentence only but also other powers
which are
additional to those mentioned in section 322(1) and (2). There can
be no suggestion that any of the other powers in
section 322
can be exercised in circumstances like the present. If we accept, as
we must do, that the true position is that
those powers can be
exercised only when there is an appeal properly placed before an
appeal Court, what would justify singling
out the power to increase
punishment as a power which can be exercised at the instance of the
State where it had not been granted
leave?
[73] The
proposition that where an accused person appeals against conviction
only it would be improper to increase the sentence
imposed based on
the State’s request contained in argument cannot be gainsaid.
To illustrate the point that it is impermissible
under the Criminal
Procedure Act for the State to seek to increase the sentence imposed
by notification in argument an example
is necessary. Take, for
instance, a case where the accused person applies for leave to
appeal against conviction and sentence.
The trial Court grants him
or her leave in respect of conviction only. He or she would not be
allowed to prosecute an appeal
against sentence because the scope of
his or her appeal is limited to conviction. It cannot be suggested
that in such a case
the State can seek an increase of sentence by a
mere notification because the question of sentence would fall
outside the ambit
of the appeal.
[74] The
same result would follow in a case where the accused person obtains
leave against conviction and the State seeks but
is refused leave to
appeal against sentence. Counsel for the State in this case conceded
that where the State has been refused
leave to appeal against
sentence, it does not retain the right to pursue the question of the
increase of sentence, based on notification.
This will be true even
in a case where the accused person obtains leave to appeal the
sentence imposed but the State is refused
leave to cross-appeal. The
State cannot achieve through the back door what it failed to obtain
through the front door. Yet if
the right to cross-appeal was
available to it upon notification, notionally it would be entitled
to do so.
[75]
Plainly the purpose of section 322 is to set out powers of a Court
of appeal. The section does not deal with the process
followed by an
appeal on its path to the appeal Court. Instead it deals with what
should happen when an appeal is already and
properly before the
appeal Court. The process which must be followed in placing an
appeal before the Court is governed by other
provisions of the
Criminal Procedure Act. In the case of an appeal by an accused
person, it is section 316 which applies and
if the appeal is pursued
by the State, section 316B read with section 316 applies. Indeed
section 322(2) expressly refers to
these two provisions.
Accordingly, the State’s failure to obtain leave does not
constitute a breach of form only but it
also amounts to a
substantive issue relating to the competence of the
Supreme Court of Appeal to adjudicate the
question of
the increase of sentence under these circumstances.
[76]
This failure goes to the root of the proceedings in the Supreme
Court of Appeal in relation to the sentence that was imposed
by the
High Court. It is fatal to the increase imposed by that Court,
because it means the Supreme Court of Appeal simply did
not have
jurisdiction to consider the issue of an increase in sentence. As a
result it is unnecessary to determine whether the
irregularity
resulted in a failure of justice.
53
[77] The
argument that there is an established practice of allowing the State
to merely give notice that it would seek an increase
of sentence at
the hearing of an appeal is bad. It loses sight of the fact that
whatever practice there might have been in the
past, it had its
origin and derived its source from the provisions of the criminal
procedure legislation applicable at the time
of the practice. It was
not sourced from the common law. As mentioned earlier the exercise
of the right to appeal is entirely
governed by statute.
[78]
In
S v Kellerman
54
the Supreme Court of Appeal held, mistakenly in
my respectful view, that the practice allowing the State to appeal
against sentence
by mere notice continues to apply. It reasoned that
the scope of section 310A of the Criminal Procedure Act
55
is limited to cases where an appeal is initiated
by the State. If the Legislature wanted to dispense with the
practice, reasoned
the Court, it would have done so in clear terms.
56
I disagree. First, there is nothing in the text
of section 310A showing that its provisions are restricted to cases
where an appeal
is initiated by the State. Second, there was no
evidence indicating that Parliament, when enacting section 310A, was
aware of
the practice concerned. Third, Parliament was not obliged
to repeal the practice because it was not a legal rule.
[79]
In fact, later decisions of the Supreme Court of Appeal are at
variance with the view expressed in
Kellerman.
In
S v Egglestone
57
the Supreme Court of Appeal remarked that the
sentence imposed for the rapes was lenient but declined to intervene
because there
was no cross-appeal by the State against the sentence.
[80]
Furthermore, in
S v Mmboi and Another
58
the Supreme Court of Appeal observed that the
trial Court had irregularly failed to apply the provisions of
sentencing legislation
that prescribed minimum sentences. The trial
Court failed to do so despite reference to those provisions in the
indictment. Again
the Supreme Court of Appeal declined to interfere
with the sentence in the absence of a cross-appeal. It said:
“
It is
beyond question in this case that the High Court determined sentence
without any regard for the provisions of subsections
51(1)(a) and
51(2) of the minimum sentences legislation despite being statutorily
obliged to do so. But the State, despite its
declared intention
foreshadowed in the indictment that it would invoke the provisions
of the minimum sentences legislation upon
conviction, did not
cross-appeal against sentence on the grounds that the High Court
should have heeded the statutory prescripts
bearing on sentence
evidently because its attitude, manifested during the hearing of the
appeal, was that the second appellant
had, in any event, got his
just desserts. Consequently it would be wrong for this Court to now
revisit that aspect. Nonetheless
the glaring oversight of the High
Court in this regard is deprecated.”
59
[81] 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.
60
In that case the State, invoking section 316B, sought to appeal
against a lenient sentence imposed by the High Court on appeal
against a judgment of the Magistrate’s 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.
61
This was so, held the Court, because section 316B gives a right of
appeal to the State which is limited to cases where the trial
took
place in the High Court.
62
[82] On
the approach alluded to by this Court in
Bogaards
and the
Supreme Court of Appeal in
Egglestone
,
Mmboi
and
Olivier
, the Criminal Procedure Act did not empower the
Supreme Court of Appeal in the present case to adjudicate the
increase of sentence.
And since the State’s right to appeal is
sourced from that statute, and no other law empowers it to appeal in
the manner
it sought to in this case, the Supreme Court of Appeal
lacked jurisdiction to increase the sentence imposed by the trial
Court.
[83] It
follows that the appeal should succeed and the sentence imposed by
the Supreme Court of Appeal must be set aside. The
effect of this
would be to reinstate the sentence imposed by the High Court. The
blame for this outcome must be placed squarely
at the State’s
door, for failing to place the issue of the increase of sentence
properly before the Supreme Court of Appeal.
Order
[84] The
following order is made:
1. Leave
to appeal is granted.
2. The
appeal against sentence succeeds.
3. The sentence imposed on Mr Nabolisa by the
Supreme Court of Appeal is set aside.
For
the Applicant: Advocate G C Muller SC instructed by Shaun Hamilton
Attorneys.
For
the Respondent: Advocate I P Cooke instructed by the State
Attorney.
1
Cwele
and Another v S
[2012] ZASCA 155
;
2013
(1) SACR 478
(SCA);
[2012] 4 All SA 497
(SCA).
2
140
of 1992.
3
17
of 1956.
4
Two
further charges were preferred against Mr Nabolisa and Ms Cwele, but
these were not persisted with by the State after it had
closed its
case, conceding that no evidence existed for a rerun of a verdict of
guilty on the two counts. Accordingly, no further
reference will be
made to them.
5
105
of 1997.
6
This
is provided that the value of the dependence-producing substance in
question is more than R50 000, or more than R10 000
if the
offence was committed by a person, group of persons, syndicate or
any enterprise acting in the execution or furtherance
of a common
purpose or conspiracy.
7
[2012]
ZASCA 70
;
2012 (2) SACR 437
(SCA).
8
Counsel
for the applicant conceded during oral argument that these
submissions amounted to “notice”.
9
51
of 1977.
10
Bogaards
v S
[2012] ZACC 23
;
2013 (1) SACR 1
(CC);
2012 (12) BCLR 1261
(CC).
11
Id
at para 42.
12
Section
35(3)(o) of the Constitution.
13
S
v Shaik and Others
[2007] ZACC 19
;
2008 (2)
SA 208
(CC);
2007 (12) BCLR 1360
(CC) at para 83
. See also
National Director of Public Prosecutions v Elran
[2013] ZACC
2
;
2013 (1) SACR 429
(CC);
2013 (4) BCLR 379
(CC) at para 19.
14
Bogaards
above n 10 at para 41.
15
Id
at para 53.
16
Jaipal
v S
[2005] ZACC 1
;
2005 (4) SA 581
(CC);
2005 (5) BCLR 423
(CC)
at para 44.
17
See
[11] above where section 316B is reproduced in full.
18
Director
of Public Prosecutions v Olivier
[2005]
ZASCA 121
;
2006 (1) SACR 380
(SCA) at para 19;
Kellerman
v S
[1996] ZASCA
139
;
1997 (1) SACR 1
(A);
[1997] 1 All SA 127
(A);
R
v Swanepoel
1945 AD 444
at 451; and
S
v Naidoo
1987 (3) SA 834
(N).
19
See
Gordon NO v Standard Merchant Bank Ltd
1983 (3) SA 68
(A) at 94;
Bill
of Costs (Pty) Ltd and Another v The Registrar, Cape, NO and Another
1979 (3) SA 925
(A) at 942D-E;
Dhanabakium
v Subramanian and Another
1943 AD 160
at 167;
S v Khumbisa and Others
1984
(2) SA 670
(N) at 680;
Kaplan v
Incorporated Law Society, Transvaal
1981
(2) SA 762
(T) at 770; and
Rand Bank
Bpk v Regering van die Republiek van Suid-Afrika en Andere
1974 (4) SA 764
(T) at 767D.
20
Above
n 18. The
South African Law Reform Commission
(
Simplification of Criminal Procedure:
The Right of the Director of Public Prosecutions to Appeal on
Questions of Fact
, Third Interim
Report, Project 73, 2000) seems to agree with this interpretation
where it stated:
“
Despite some objections in
extending the State’s right of appeal to inadequate sentences,
the Criminal Law Amendment Act,
107 of 1990, granted the
Attorney-General the right to appeal against sentences imposed by
lower and by superior courts. . .
. The Attorney-General always had
and
the DPP still
has the right
,
when the accused has appealed against his conviction and/or
sentence, to apply to the court of appeal to increase the sentence.”
(Footnotes omitted and emphasis added.)
21
59
of 1959.
22
Toubie
v S
[2012] ZASCA 133
;
[2012] 4 All SA
290
(SCA) at para 13.
23
Kgosimor
e
v S
[1999] ZASCA 63
;
1999 (2) SACR 238
(SCA).
24
Id
at para 10.
25
This
is unique to the issue of se
nte
ncing. On
an appeal against sentence only, a court of appeal has no power to
substitute a conviction for a more serious crime
(
S
v Tladi
1989 (3) SA 444
(BGD)).
This
is not to say that the power of a court of appeal to interfere with
sentence is without any limits. For example, only in
specific
circumstances may a court of appeal interfere with the sentencing
discretion of the trial court
.
Further to
this, the court of appeal does not have the jurisdiction to increase
a sentence beyond the penal jurisdiction of the
trial court (
S v
Louw
[1990] ZASCA 43
;
1990
(3) SA 116
(A) at 126B and
S v Peter
1989 (3) SA 649
(CkA)).
26
Section
274 provides:
“
(1) A court may, before
passing sentence, receive such evidence as it thinks fit in order to
inform itself as to the proper sentence
to be passed.
(2) The accused may address the court on any evidence
received under subsection (1), as well as on the matter of the
sentence,
and thereafter the prosecution may likewise address the
court.”
The
importance of allowing both parties the right to address the court
on sentence was emphasised in
Mokela v S
[2011] ZASCA 166
;
2012 (1) SACR 431
(SCA) at para 14.
27
See
for example
Kgosimore
above
n 23.
While I have found that section 316B does not make
criminal cross-appeal mandatory, I am aware that cross-appeal does
occur in
practice. The question of whether section 316B
permits
cross-appeal is not before us. Accordingly I restrict my findings to
the limited question of whether cross-appeal is
required
where
the State seeks an increase. In my reasoning I do not find whether
it would be irregular for the State to cross-appeal where
the
accused initiates an appeal – but merely that cross-appeal
would be superfluous and unnecessary.
28
Combrink
v S
[2011] ZASCA 116
;
2012 (1) SACR 93
(SCA).
29
Bogaards
above n 10 at paras 55-8.
30
Id
at para 59.
31
For
one, the court is required to give notice only once it reaches the
prima facie
view that an increase in sentence is considered.
As a result, notice might even be given after the hearing
.
In contrast,
the State must give notice
before the hearing.
On one hand, t
he
appellant may be in a better position having been informed by the
State rather than the court because the State’
s
notice
may come at an earlier stage.
On
the other
hand, notice by the court is an indicator of the
court’s mindset. But is the appellant entitled to
this
insight? Not necessarily so. The fact that the court offers
its
prima facie
view is simply required, as a matter of
fairness, where the State has given the appellant no forewarning and
the court must step
in to ensure fairness in proceedings. The
purpose of notice is not, and never was, to give the appellant the
benefit of knowing
the mind of the court before a decision is given.
32
“
Court
notice” typically entails the court directing parties to
present argument on the topic of increase. For example, see
the
phrasing of the Court in
S
v Naidoo
1987 (3)
SA 834
(N) at 835. To contend that the State’s presentation of
argument (made before the court would even consider giving its
direction) would fail to achieve the same effect, is an overly
formalistic way of viewing the notice requirement.
33
In
Legoa v S
[2002] ZASCA 122
;
[2002] 4 All SA 373
(SCA) at para
21, Cameron JA refused to hold that the failure to refer to certain
facts in the charge sheet renders a criminal
trial unfair, if when
passing sentence the trial court applies the minimum sentencing
legislation. He said:
“
The matter is however one of
substance and not form, and I would be reluctant to lay down a
general rule that the charge must
in every case recite either the
specific form of the scheduled offence with which the accused is
charged, or the facts the State
intends to prove to establish it. A
general requirement to this effect, if applied with undue formalism,
may create intolerable
complexities in the administration of justice
and may be insufficiently heedful of the practical realities under
which charge
sheets are frequently drawn up. The accused might in
any event acquire the requisite knowledge from particulars furnished
to
the charge or, in a superior court, from the summary of
substantial facts the State is obliged to furnish. Whether the
accused’s
substantive fair trial right, including his ability
to answer the charge, has been impaired, will therefore depend on a
vigilant
examination of the relevant circumstances.”
(Footnotes omitted.)
34
Bogaards
above n 10 at
para 77.
35
In
his founding affidavit in this Court, Mr Nabolisa stated that his
counsel “argued that the sentence imposed by the Trial
Court
was just and that no misdirections were committed by the Trial
Court.”
36
There
could well be instances in which the State’s notice in this
form is inadequate. For example, had Mr Nabolisa
been
unrepresented and unable to glean from the Heads of Argument that he
would need to defend an increase in sentence, the notice
might not
have been sufficient.
37
R
v Matsego and Others
1956 (3) SA 411
(A) at 418E.
38
Shaik
above n 13. Section 35(3) of the
Constitution ensures the rights of persons accused of criminal
offences, and in relevant
part provides:
“
Every accused person has a right to a fair
trial, which includes the right—
. . .
(o)
of appeal to, or review by, a higher court.”
39
S
v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4)
BCLR 401
(CC) at para 16, interpreting the interim Constitution. See
also
S v Ntuli
[1995] ZACC 14
;
1996 (1) SA
1207
(CC);
1996 (1) BCLR 141
(CC) at para 1.
40
S
v Dzukuda and Others; S v Tshilo
[2000] ZACC 16
;
2000 (4) SA
1078
(CC);
2000 (11) BCLR 1252
(CC) at paras 9-11.
41
S
v Moodie
1961 (4) 752 (A) at 759C. See also
Bogaards
above n 10 at para 42.
42
Cwele
and Another v S
[2012] ZASCA 155
;
2013
(1) SACR 478
(SCA);
[2012] 4 All SA 497
(SCA)
(Supreme Court
of Appeal judgment) at para 2.
43
Id
at para 26.
44
Keyser
v S
[2012] ZASCA 70
;
2012 (2) SACR 437
(SCA).
45
51
of 1977.
46
[2012]
ZACC 23
;
2013 (1) SACR 1
(CC);
2012 (12) BCLR 1261
(CC).
47
Id
at paras 60-1.
48
Section
12(1) of the Constitution provides:
“
Everyone has the right to
freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or
without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either
public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman
or degrading way.”
49
Section
322 reads:
“
(1) In the case of an appeal against a
conviction or of any question of law
reserved, the court of appeal may—
(a) allow the appeal if it thinks that the judgment of
the trial court should be set aside on the ground of a wrong
decision of
any question of law or that on any ground there was a
failure of justice; or
(b) give such judgment as ought to have been given at
the trial or impose such punishment as ought to have been imposed at
the
trial; or
(c) make such other order as justice may require:
Provided that, notwithstanding that the court of appeal
is of opinion that any point raised might be decided in favour of
the
accused, no conviction or sentence shall be set aside or altered
by reason of any irregularity or defect in the record or
proceedings,
unless it appears to the court of appeal that a failure
of justice has in fact resulted from such irregularity or defect.
(2) Upon an appeal under section 316 or 316B against
any sentence, the court of appeal may confirm the sentence or may
delete
or amend the sentence and impose such punishment as ought to
have been imposed at the trial.
(3) Where a conviction and sentence
are set aside by the court of appeal on the ground that a failure of
justice has in fact resulted
from the admission against the accused
of evidence otherwise admissible but not properly placed before the
trial court by reason
of some defect in the proceedings, the court
of appeal may remit the case to the trial court with instructions to
deal with any
matter, including the hearing
of such evidence,
in such manner as the court of appeal may think fit.
(4) Where a question of law has been reserved on the
application of a prosecutor
in the case of an acquittal, and the court of appeal
has given a decision in favour of the prosecutor, the court of
appeal may
order that such of the steps referred to in section 324
be taken as the court may direct.
(5) The order or direction of the court of appeal shall
be transmitted by the registrar of that court to the registrar of
the
court before which the case was tried, and such order or
direction shall be carried into effect and shall authorize every
person
affected by it to do whatever is necessary to carry it into
effect.
(6) The powers conferred by this section upon the court
of appeal in relation to the imposition of punishments, shall
include
the power to impose a punishment more severe than that
imposed by the court below or to impose another punishment in lieu
of
or in addition to such punishment.”
50
R
v Grundlingh
1955 (2) SA 269
(A) at 272D.
51
Id
at 272G-H.
52
Section
35(3)(o) of the Constitution provides:
“
Every accused person has a
right to a fair trial, which includes the right of appeal to, or
review by, a higher court.”
53
S
v Mkhise; S v Mosia; S v Jones; S v Le Roux
1988 (2) SA 868
(A)
at 871-2;
S v Naidoo
1962 (4) SA 348
(A) at 354; and
S v
Moodie
1961 (4) SA 752
(A) at 759.
54
1997
(1) SACR 1
(A).
55
Section
310A is in all material aspects identical to section 316B but it
deals with appeals by the State against sentences imposed
by a lower
court.
56
Kellerman
n 54 above at 5e-6b.
57
2009
(1) SACR 244 (SCA).
58
[2012]
ZASCA 142.
59
Id
at para 34.
60
2006
(1) SACR 380
(SCA).
61
Id
at paras 24-5. In that case Navsa JA said:
“
Sections 20(1) and 21(1) of
the Supreme Court Act predate the introduction of subsections 310A
and 316B. The latter sections
granted rights of appeal to the
[Director of Public Prosecutions] which it did not previously have.
It is established here, and
in other comparable 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
against the background,
and in the context, of the fundamental
principles referred to earlier in this judgment. Sections 20(1) and
21(1) cannot 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 law, is not
permissible. See in this regard
S
v Basson
[2004] ZACC 13
;
2004
(1) SACR 285
(CC)
(2005 (1) SA 171
;
2004 (6) BCLR 620)
at para
[43]
.
In my view, in the absence of an empowering provision
in the [Criminal Procedure Act], 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
entertain
the appeal. This is regrettable in that the State's
complaints about the leniency of the sentence appear to be
justified. The
misappropriation of trust moneys in the amount of
R454 521 to sustain a luxurious lifestyle is a serious offence,
which, on the
face of it, was properly appreciated by the
magistrate, who imposed a commensurate sentence. The respondent has
the means to
pay the fine and to replace the misappropriated moneys.
One is left with a sense of deep unease that she has escaped
appropriate
punishment.”
62
Id
at para 15.