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[2013] ZAWCHC 165
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Director of Public Prosecutions: Western Cape v Malan (A217/2012) [2013] ZAWCHC 165; 2014 (2) SACR 146 (WCC) (29 October 2013)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case no: A217/2012
In the matter
between:
DIRECTOR
OF PUBLIC
PROSECUTIONS:
WESTERN CAPE
.....................................................
Applicant
and
FRANCISCA MALAN
.........................................................................
Respondent
JUDGMENT: 29
OCTOBER2013
Schippers J:
This is an
application for leave to appeal to the Supreme Court of Appeal
(SCA), in terms of s 311(1) of the Criminal Procedure
Act 51 of 1977
(“theCPA”), against the orders contained in paragraph
22(1) and (2) of this Court’s order dated
30 April 2013, in
terms of which it set aside the respondent’s convictions of
fraud on counts 1 to 7 and count 9, referred
to in the relevant
charge sheet.
On 17 September
2013 the respondent filed an application for leave to cross-appeal
against paragraph 22(4) of the order dated
30 April 2013, together
with an application for condonation of the late filing of the
cross-appeal.
At the hearing of
the application for leave to appeal on 11 September 2013,Mr De La
Harpe, for the respondent, submitted that
the Court could not
consider it because the notice of application for leave to appeal
had not been filed timeously and the State
had not sought
condonationfor the late filing of that application. Mr Geyser, on
behalf of the applicant, submitted that an application
for
condonation was unnecessary as the appeal was one in terms of
s 311(1) of the CPA. Since s 311(1) prescribes no time
period
within which an appeal on a question of law must be lodged, so it
was argued, such an appeal must be lodged within a reasonable
time,
which was done in this case.
Given that the
point in relation to the late filing of the application for leave to
appeal was taken for the first time at the
hearing of the
application, the applicant was granted an opportunity to consider
his position and to file an application for
condonation if so
advised, which he did on 13 September 2013.
The first issue
then, is whether an application for leave to appeal in terms of s
311(1) of the CPA must be made within a reasonable
time, or whether
it is governed by the Rules of Court.
Section 20(4)(b) of
the Supreme Court Act 59 of 1959 provides inter alia that no appeal
shall lie against any judgment or order
of a provincial division
given on appeal, except with the leave of the court against whose
judgment or order the appeal is to
be made.
1
The
purpose of leave is to limit appeals to those which have reasonable
prospects of success.
2
The cases say that
leave to appeal is required when the State wishes to appeal on a
matter of law under s 311 of the CPA.
3
However,
the time within whichthe State must bring an application for leave
to appeal under s 311(1) of the CPA is not stated
in that provision.
It appears therefore that an application for leave to appeal in
terms of s 311(1) must be made within a reasonable
time.
The question then
arises: what is a reasonable time?
It seems to me that
this question may be answered with reference to comparable
provisions in other statutes and rules regarding
the period within
which an application for leave to appeal must be brought, for two
reasons. First, what constitutes a reasonable
time must be
determined objectively, and comparable provisions and rules are a
helpful guideline as to what is a reasonable time.
Second, s 8(1) of
the Constitution provides that everyone is equal before the law and
has the right to equal protection and benefit
of the law, and thus
there should generally be parity in the treatment of applicants for
leave to appeal.
In civil appeals
under rule 49(1)(b) of the Rules of Court the period is 15
courtdays. More closely related however, are appeals
in criminal
cases. Thus, in a case where the Director of Public Prosecutions
(DPP) seeks leave to appeal to a high court against
a sentence
imposed on an accused by a lower court under s 310A of the CPA,
the period is 30 ordinary days of the date of
the passing of
sentence or within such extended period as may on application on
good cause be allowed. Under s 315 of the CPA
an application to the
SCA by an accused or the DPP to set aside a direction that an appeal
be heard by a full court, must be
made within 21 ordinary days or
such longer period as may on application to the SCA on good cause
shown be allowed. In terms
of s 316(1) of the CPA, subject to
s 84
of the
Child Justice Act 2008
, any accused convicted of any offence
by a high court must apply for leave to appeal against conviction or
sentence within 14
ordinary days of the passing of sentence or order
following on the conviction. The provisions of s 316 of the CPA
apply
mutatis mutandis
to appeals by the DPP to the SCA
against a sentence imposed on an accused in a criminal case in a
superior court under
s 316B.
Finally, s 21(2) of the Supreme Court
Act provides that the SCA may grant leave to appeal to it under s
20(4), on application
made within 21 days, or such longer period as
may on good cause be allowed.
These provisions
indicate that the periods during which an application for leave to
appeal must be lodged are within the rangeof
15 court days and 14 to
30 ordinary days of the decision appealed against. It thus appears
that the outer limit for the lodgment
of an application for leave to
appeal is 30 ordinary days, and that any time beyond thatperiod
would be unreasonable.
In this case the
order sought to be appealed was made on 30 April 2013. The notice of
application for leave to appeal was delivered
on 26 June 2013,
nearly two months later. The application was thus not lodged within
a reasonable time.
However, the
applicant has filed an application for condonation, the grounds of
whichmay be summarized as follows. There is a
procedure in terms of
which permission to prosecute all appeals by the State must be
obtained from the applicant. Much time was
taken up in following
this procedure and researching the questions of law raised in the
matter. By 31 May 2013 a provisional
notice of intention to appeal
had been filed when the final notice had been drafted but not yet
completed. The notice of appeal
together with an affidavit was
forwarded to the applicant on 7 June 2013, but due to other pressing
work commitments, he could
not deal with it before 23 June 2013.
In the
circumstances and given that the period between 31 May and 23 June
2013 when the application was filed is not lengthy,
I consider that
condonation of the late filing of the application for leave to
appeal should be granted.
I turn now to
consider whether leave to appeal should be granted.
As set out in the
notice of application for leave to appeal, the applicant does not
appeal against the factual findings of this
Court; and accepts the
facts as found and summarized in paragraphs 1 to 6 of the judgment.
Before leave to
appeal may be granted in terms of s 311(1) of the CPA, the applicant
must meet three requirements: (1) the order
sought to be appealed
against must constitute a decision in favour of the respondent on a
question of law; (2) the matter must
be one of substantial
importance to the State or to the State and the accused,
requiringthat the question of law should authoritatively
be
determined by the SCA; and (3) there must be a reasonable prospect
of success on appeal.
4
As to (1), it was
rightly submitted by Mr Geyserthatthe respondent’s acquittal
on the fraud charges involvesquestions of
law, more specifically,
that the State did not prove a misrepresentation (the conduct
element of fraud) or intent to defraud.
As regards (2), the
question of law raised by the appeal is not merely academic. The
founding affidavit states that there are
many other cases being
heard in the lower courts in the Western Cape, where the issues are
similar. The appeal is thus one of
material importance to the State
and it is important that clarity and certainty be obtained regarding
the questions of law referred
to.
What remains then
is requirement (3) – whether there is a reasonable prospect of
success on appeal.
Mr Geyser referred
us to
Metcash
,
5
for the submission
that the respondent had to register as a vendor under the
Value-Added Tax Act 89 of 1991 (“the VAT Act”),
and that
in relation to fraud, there was a legal duty on the respondent to
disclose her existence to the South African Revenue
Service (SARS).
I do not think that Mr Geyser’s extensive reference to an
outline of the main provisions of the VAT Act
in
Metcash
is
helpful. Those provisions were outlinedso as to appreciate the
effect of a constitutional challenge to certain provisions of
the
VAT Act and to evaluate the cogency of that challenge.
6
The
case has got nothing to do with the question in what circumstances
the non-disclosure of a fact amounts to criminal fraud.
Likewise, the
applicant’s reliance on
Yengeni
7
is
misplaced. It is submitted that the definition of fraud is broad;
that the persons affected by fraud can be very wide; and
that
non-disclosure in the face of a duty to speak may constitute
criminal fraud even if the failure to comply with that duty
is not
visited by a criminal sanction. In
Yengeni
the
court held that individual and other entities of Parliament were at
the relevant times within the range of the misrepresentation
by the
appellant in that case (the failure to disclose a benefit –
the supply of a Mercedes Benz motor vehicle at a discount
of 47%).
But the court made this finding in the context of the appellant’s
contention that Parliament could not be defrauded
because it is not
a juristic person.
8
The court held that
as an assembly of natural persons performing tasks of national
importance, Parliament has a vital interest
in not being misled;
that it required correct and accurate information relating to the
propriety or otherwise of its members;
and that it would be misled
if an intention to mislead was present in the mind of the
perpetrator.
9
But more
fundamentally, there was a duty on MrYengenito disclose the benefit
by virtue of the relationship between the parties
– hewas a
member of Parliament and the latter had a vital interest in the
disclosure of information relating to benefits
received by members
over and above their emoluments.
10
The applicant’s
reliance on
Shaik
11
is also misplaced.
Hecontends that in
Shaik
there
was no evidence showing that SARS, shareholders or banks were aware
of false entries in certain journals and annual financial
statements, but that these entities would have been prejudiced if
the annual financial statements had been passed on to them.
However,
the applicant misses the point. The crime of fraud was committed
upon communication of a misrepresentation to the accounting
staff of
the Nkobi group of companies. There was potential prejudice in that
the annual financial statements may have been passed
on to
shareholders, SARS and banks.
12
It appears
howeverthat there is authority for the proposition that a
representation “to the world”, may constitute
criminal
fraud. In
Madantile
13
theaccused
was charged with fraud. He went to a train station but walked past
the ticket-sales office. He proceeded straight to
the platform
security gate, manned by a security guard. At that checkpoint, only
passengers with tickets were allowed to go through
on to the
platform. He gave the security guard R20 to allow him on to the
platform as if he was the holder of a valid train ticket
and boarded
a train. On the train a ticket examiner asked to see his ticket,
which he could not produce. He was arrested and
charged with fraud.
The court held that if a deceiver intends to defraud and his
behaviour and actions are consistent with that
intention, it is
immaterial whether the false representation was manifested to a
specific person by way of an explicit or implicit
distortion of the
truth. In giving the security guard R20 and causing the security
gate to be opened, the accused represented
to the world that he had
a valid ticket, knowing that that representation was false.
The
applicanttherefore argues that the mere fact that the accused was
present on the platform and inside the train was a misrepresentation
on his part to the world that he had a ticket and could use the
train; that Transnet was not even aware of his existence or that
he
was on the platform; and that his fraudulent conduct was unilateral.
It seems to me that
in the light of the holding in
Madantile
, and the often
difficult question whether silence or non-disclosure is criminally
fraudulent, there is a reasonable prospect
of success on appeal.
The last issue to
be dealt with is the cross-appeal. The respondent contends that the
Court erred in setting aside the sentence
imposed by the trial court
on charges 8 and 11 to 18 and increasing that sentence, in
circumstances where there was no cross-appeal
by the State, as
required in terms of s 316 of the CPA. For this proposition she
relies on
Nabolisa
.
14
The respondent is
however mistaken. Unlike
Nabolisa
, this is not a case in
which the State sought an increase of the sentence. Instead, this
Court imposed a more severe sentence
in respect of counts 8 and 11
to 18 than that imposed by the trial court, pursuant to its powers
under s 22 of the Supreme Court
Act and s 322 of the CPA.
This is not new.
The practice of an appeal court giving an accused person notice
where that court
meromotu
considers increasing a sentence on
appeal is recognized at common law. A formal notice is not required
and the failure to give
it is not an irregularity.
However, in
Bogaards
,
15
the Constitutional
Court decided that the practice should be elevated to a formal
requirement in order to enable an accused person
to properly
exercise the right of appeal to a higher court under s 35(3)(o)
of the Constitution. It held that the notification
practice ensures
substantive fairness in two ways: first, by facilitating an informed
exercise of the right of appeal; and secondly,
by ensuring that the
audialterampartem
principle is
observed.
16
The true basis of
the notice practice, the court said, is the need for an appellant to
be aware of possible jeopardy, and to be
given a meaningful and
adequate opportunity to make submissions to the court on the
appropriateness of a sentence increase.
17
If a court does not
give notice of its intention
meromotu
to
increase a sentence, this will amount to an infringement of the
right of appeal, a component of the right to a fair trial.
The
infringement will constitute an irregularity and the court will then
need to consider whether the irregularity amounts to
a failure of
justice which would renderthe trial unfair.
18
To return to the
cross-appeal. As stated in paragraphs 19 and 20 of the judgment, the
legal representatives of the parties were
formally notified that the
Court was considering increasing the sentence on counts 8 and 11 to
18. They were granted an opportunity
to make written submissions and
to indicate whether they wished to address the Court regarding
sentence. Boththe State and the
respondent filed further submissions
and indicated that they did not wish to address the court orally.
The basis on which
leave to cross-appeal is sought is therefore unsustainable, and the
cross-appeal has no reasonable prospect
of success.
I would make the
following order:
Condonation of the
late filing of the application for leave to appeal is granted.
Leave to appeal to
the Supreme Court of Appeal against paragraph 22(1) and (2) of this
Court’s order dated 30 April 2013,
is granted.
The application for
leave to appeal to the Supreme Court of Appeal against paragraph
22(4) of this Court’s order dated 30
April 2013 is refused.
There is no order as to costs.
The costs of the
application for leave to appeal shall be costs in the appeal.
SCHIPPERSJ
I agree.Itis so
ordered.
NDITA J
For
the Applicant(s) : Adv. F GEYSER
Adv.
D Y BOOYSEN
Instructed
by : OFFICE OF THE DIRECTOR OF
PUBLIC
PROSECUTIONS:
WESTERN
CAPE
For
the Respondent(s) : MR M DE LA HARPE (ATTORNEYS)
Instructed
by : MILTON DE LA HARPE ATTORNEYS
201
Piazza on Church Square
39
Adderley Street
Cape
Town
Date(s)
of hearing : Wednesday, 11 SEPTEMBER 2013 &
Thursday,
24 OCTOBER 2013
Judgment
delivered : Tuesday, 29 OCTOBER 2013
1
Section
20(4) reads as follows:
“
No
appeal shall lie against a judgment or order of the court of a
provincial or local division in any civil proceedings or against
any
judgment or order of that court given on appeal to it except –
in
the case of a judgment or order given in any civil proceedings by
the full court of such a division on appeal to it in terms
of
subsection (3), with the special leave of the appellate division;
in
any other case, with the leave of the court against whose judgment
or order the appeal is to be made or, where such leave has
been
refused, with the leave of the appellate division.”
2
Cronshaw
and Another v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996 (3) SA 686
(A)
at 689B.
3
Attorney-General
Transvaal v Nokwe and Others
1962
(3) SA 803
(T) at 806D, approved in
S
v Stevens
1983 (3) SA
649
(A) at 662D-E. But see
S
v Marais
1982 (3) SA
988
(A) at 998B.
4
Nokwe
n 3 at 807D-G.
5
Metcash
Trading Ltd v Commissioner, South African Revenue Service and
Another
2001 (1) SA 1109
(CC) paras 13-20.
6
Metcash
n 5para 11
.
7
S
v Yengeni
[2005] ZAGPHC 117
;
2006 (1) SACR 405
(T)
8
Yengeni
n 7paras 36-41.
9
Yengeni
n
7 para 36.
10
Yengeni
n 7 para 37.
11
S
v Shaik and Others
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA).
12
Shaik
n
11 paras 163 and 164.
13
S
v Madantile
2011 (2) SACR 142
(FB).
14
S
v Nabolisa
2013 (2) SACR 221
(CC).
15
S
v Bogaards
2013 (1) SACR 1
(CC).
16
Bogaards
n 15 paras 45, 58 and 59.
17
Bogaards
n 15 para 64.
18
Bogaards
n 15 para 71.