JOUBERT V S (642/2016) [2017] ZASCA 3; 2017 (1) SACR 497 (SCA) (3 MARCH 2017))

/ / News, 2018, Criminal Law, Criminal Procedure


The Appellant, an accountant by profession, was convicted in the Nelspruit Regional Court on 20 counts of fraud relating to false VAT claims made to the South African Revenue Service and was subsequently sentenced to seven years’ imprisonment, wholly suspended on certain conditions for a period of five years. The Appellant petitioned the Gauteng Provincial Division of the High Court, Pretoria (the “High Court”), for leave to appeal against the conviction, however, leave to appeal was erroneously granted in respect of both the conviction and sentence.

Following the granting of leave to appeal by the High Court as aforementioned, the State provided notice to the Appellant of its intention to seek the imposition of a harsher sentence on appeal. The Appellant’s written opposition thereto contended that the State failed to follow the legal prescripts and requirements contained in the Criminal Procedure Act 51 of 1977 (the “CPA”). At no stage did the State seek leave from the High Court to appeal the sentence.

Nevertheless, the High Court dismissed the appeal against the conviction, and simultaneously increased the sentence imposed to seven years’ imprisonment, of which four years were conditionally suspended for a period of five years.

The Supreme Court of Appeal (“SCA”) had to decide whether the Appellant’s right to a fair trial had been infringed upon due to the failure of the Court a quo to give the Appellant prior notice of the its  intention to consider increasing the sentence.


In deciding whether the Appellant’s right to a fair trial had been in infringed, the SCA relied on the Constitutional Court case of S v Bogaards (“Bogaards”), wherein it was held that an accused’s right to a fair trial encompasses the right to receive prior notice of a Court’s intention to increase the accused’s sentence on appeal. Failure to give such notice constitutes an irregularity that may result in a failure of justice that renders the appeal unfair.

The SCA held that, based on the facts, the Appellant had indeed been materially prejudiced, as no formal leave to appeal the sentence had been sought by the State, as required by the provisions of Section 310A(1) of the CPA. Naturally, the Appellant and his legal counsel had no inclination to consider and prepare for the possibility of an increase of sentence, as same had not been formally requested. Effectively, the SCA found that the High Court had elected to increase the sentence on appeal of its own accord.

The State contended before the SCA that the written notice provided to the Appellant outlining its intention to seek an increase in respect of the sentence served to cure the High Court’s failure to issue such notice. However, the SCA held that such notice must emanate from the relevant appeal court itself, that the procedure adopted by the State was “fatally irregular” and, pertinently, that “one fatal irregularity [cannot be] called into aid to cure another.”

Moreover, an accused person who has been given notice by an appellate court that it intends to increase the sentence imposed by the trial court has the option of withdrawing the appeal, with the leave of the appellate court. This practice, together with the requirement of prior notice to an accused person by the appellate court balances the Appellant’s right to a fair trial and the court’s duty to ensure that the sentence is appropriate and, where necessary, to increase an in appropriate sentence. The Appellant had not been afforded the opportunity to consider such a course of action.

The appeal was upheld and the sentence imposed on appeal was set aside. The matter was remitted to the Gauteng Provincial Division of the High Court, Pretoria, for consideration of the appeal against sentence only, in accordance with the guidelines outlined by the Constitutional Court in S v Bogaards.


Failure of the court a quo to give the Appellant prior notice of its intention to consider increasing the sentence amounts to a miscarriage of justice. Prior notification thereof encapsulates the natural justice legal precept of audi alteram partem, which is a foundational component of fair procedure.

Written by Ntobeko Maphanga and supervised by Jarryd Spargo, 20 August 2018

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