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Last Updated: 3 December 2005
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
Case no: 42/05
In the matter between:
THE DIRECTOR OF PUBLIC
PROSECUTIONS Appellant
and
CAROLANE ELLEN
OLIVIER Respondent
_______________________________________________________
Coram: Navsa,
Conradie et Mlambo JJA
Date of hearing: 20 May 2005
Date of
delivery: 30 November 2005
Summary: Appeal by the
Director of Public Prosecutions against too lenient a sentence imposed on appeal
by a high court (substituting an
apparently appropriate sentence by a regional
magistrate) ─ s 310A(1) and s 316B(1) of the Criminal Procedure Act 51 of
1977
considered alongside provisions of s 20(1) read with s 21(1) of the
Supreme Court Act 59 of 1959 ─ concluded, regrettably
that this Court does
not have jurisdiction.
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA:
[1] ‘To err is human; thus protection against error is
necessary.’[1] In this appeal
the question arises whether a judicial error can be corrected. An affirmative
answer is one’s instinctive response.
As the discussion later in this
judgment will show the answer in the circumstances of this case is
different.
[2] This matter has had an unfortunate and protracted journey
on its way to a hearing before this Court.
[3] During the period December
1998 to March 2000 the respondent, Carolane Ellen Olivier, stole amounts of
money totalling R454 521-00,
which monies were entrusted to her as an estate
agent operating under the auspices of Remax Realty 100.
[4] On 9 October
2000, after pleading guilty in terms of s 112(2) of the Criminal Procedure Act
51 of 1977 (the CPA), the respondent
was convicted of theft in the regional
court in Pretoria on 13 December 2000 and sentenced to six
years’ imprisonment.
[5] The respondent appealed the sentence to
the Pretoria High Court. On 14 March 2003 that court (Bosielo and Mojapelo JJ)
set aside
the sentence imposed by the regional court and substituted it with a
sentence of six years’ imprisonment, wholly suspended
for a period of five
years on the following conditions:
‘(a) [That] appellant is not
convicted of theft or fraud, or any offence involving dishonesty for which she
is sentenced to
imprisonment without the option of a fine, committed during
the period of suspension.
(b) Further, that the appellant compensates the
complainant fully in the amount of R454 521,00, together with interest at the
current
and applicable interest rate.
(c) The payment referred to in para
(6) [the payment of R454 521-00 supra] shall occur in terms of the agreement
reached between
the appellant and the Estate Agent Board (sic), which is
in existence at the present moment.’
In addition, that court
imposed a fine of R200 000-00, to be paid within six months of the date of its
order.
[6] On 3 April 2003 the appellant, the Director of Public
Prosecutions (the DPP), filed a notice of application for leave to appeal.
The
DPP contended, inter alia, that the sentence was far too
lenient and
shockingly inappropriate. According to the notice of appeal the court below
failed to properly consider that the respondent
had stolen trust money over a
period of eighteen months and that the theft was motivated by greed rather than
need. The DPP contended
that the court below failed to appreciate the
seriousness of the white collar offence in question. In his notice of appeal the
DPP
pointed out that the terms of the repayment order were unclear and that the
fine imposed was not coupled with imprisonment as an
alternative.
[7] On
11 December 2003 the court below, in considering the prosecution
authority’s application for leave to appeal, recognised
that its
compensation order was unclear, especially since there appeared to be a
contradiction (concerning the payment of interest)
between the order and the
terms of the agreement alluded to. The court below was also of the view that it
might have erred in not
coupling the fine to a period of imprisonment as an
alternative. In the result it granted leave to appeal against the sentence it
imposed in substitution of the sentence by the regional court.
[8] Problems were encountered with the transcription of the record.
However, there also appears to have been a degree of laxity on the part of
the prosecution authority. On 23 June 2004 the record was
certified as being
true and correct. Between 21 June and 5 July 2004 Mr Jan Ferreira, a deputy
director of public prosecutions,
who handled the prosecution of the appeal
failed to give the matter urgent attention. He had to undergo an operation and
was engaged
in another appeal in the Pretoria High Court. From 6 July 2004
Ferreira made a number of attempts to get the registrar of the court
below to
despatch the record to this court. Finally, on 19 August 2004 a senior
administrative official in the prosecuting authority’s
office managed to
file the record in this court. The record was then lost in the office of the
registrar of this court. On 28 October
2004 the prosecution authority was
informed of this fact. Attempts to prepare a new transcript were hampered by a
dispute between
two divisions within the prosecution authority. During February
2005 the registrar of this court informed the prosecution authority
that the
delay in prosecuting the appeal had caused it to lapse. An application for
reinstatement of the appeal and an application
for condonation were required.
This necessitated the filing of detailed affidavits setting out the events
outlined above.
[9] An ‘application for condonation’ in an
unacceptable form accompanied by an inadequate affidavit attested to by an
administrative clerk in the office of the prosecuting authority was served and
filed in anticipation of the filing of the affidavits
referred to in the
preceding paragraph.
[10] On 10 February 2005 a proper application for
reinstatement of the appeal and condonation with an affidavit by Ferreira
explaining
the background and the sequence of events referred to earlier was
served and filed.
[11] The application was strenuously contested before
us and at the outset it was agreed that we would hear the parties on the
procedural
aspects and on the merits, which it was accepted ought to be
considered in deciding whether or not to reinstate the matter and to
grant
condonation.
[12] Subsequent to the hearing of this appeal the parties
were requested in writing to consider, inter alia, s 316B of the CPA and
ss 20 and 21 of the Supreme Court Act 59 of 1959 and to make
submissions on the question of whether this Court has jurisdiction to
entertain the appeal. The essential question is whether the
DPP has a statutory
right to appeal the sentence in question from the high court, itself sitting as
a court of appeal. We received
written submissions from the
parties.
[13] The Criminal Law Amendment Act, 107 of 1990 introduced
ss 310A and 316B, which granted the DPP the right to appeal against
sentences imposed by lower and superior
courts.[2] Before that no such right
existed.
[14] Section 310A(1) deals with an appeal by the DPP against a
sentence imposed by a lower court:
‘The attorney-general may appeal
against a sentence imposed upon an accused in a criminal case in a lower court,
to the provincial
or local division having jurisdiction, provided that an
application for leave to appeal has been granted by a judge in
chambers.’
[15] Section 316B(1) of the CPA deals with
appeals against
sentence by the DPP to this Court:
‘Subject to
subsection (2), the
attorney-general[3] may appeal to the
Appellate Division against a sentence imposed upon an accused in a criminal case
in a superior court.’
This subsection provides for appeals to this
Court from a sentence imposed by a superior court. This does not mean a superior
court
sitting as a court of appeal. It clearly means a superior court sitting as
a court of first instance.
[16] Sections 310 and 311 of the CPA,
respectively, provide a limited right of appeal by the DPP from a lower court to
the high court
and from the high court sitting as a court of appeal to this
Court on questions of law.
[17] Section 319 enables a prosecutor to
apply for the reservation of a legal question arising from a trial in a superior
court for
consideration by this Court.
[18] There is no provision of the
CPA which provides for an appeal by the DPP against an order by a high court
substituting, as in
this case, a sentence imposed by a magistrates’
court.
[19] Of course the DPP has the right when an accused has appealed
against his conviction and/or sentence to apply to the court of
appeal to
increase the
sentence.[4]
[20] There is a
useful discussion on the history of the right to appeal in South African
criminal procedure in the South African Law
Reform Commission’s THIRD
INTERIM REPORT ON SIMPLIFICATION OF CRIMINAL PROCEDURE (The right of the
Director of Public Prosecutions to appeal on questions
of fact)(November
2000).
[21] From the study of comparable jurisdictions contained in the
report referred to in the preceding paragraph it appears that by
and large,
common law legal systems are loath to grant rights to the State to appeal
convictions on the basis of factual errors and
that the
right of the State
to appeal against sentence is
limited.[5] In some instances one
right of appeal against sentence is permitted. The motivation appears to be that
on one occasion, at least,
a higher court should scrutinise a sentence for
error. The provisions of our CPA are to this effect. The problem in this appeal
is
that it is contended that the scrutinising court committed the error and the
question is whether the scrutinising court can be scrutinised.
[22] In Cox v Hakes 1890 (AC) 15, the House of Lords and Privy Council
dealt with the power of courts to review or control the proceedings of a
tribunal
that had discharged a person from custody under a writ of habeas
corpus. Lord Herschell (at pp 527-528) described the position before the
English Judicature Act came into operation. It was always open
to an applicant
for a writ of habeas corpus, if defeated in one court, to renew his
application to another. No court was bound by the view taken by any other. A
person detained
in custody might thus proceed from court to court until he
obtained his liberty. And if he succeeded in convincing any of the tribunals
competent to issue the writ he was entitled to be discharged, his right to his
liberty could not afterwards be called in question.
The 19th section
of the Judicature Act provided (not unlike s 20(1) read with s 21(1) of our
Supreme Court Act 51 of 1959, to which
I shall
refer in due
course):
‘The said Court of Appeal shall have jurisdiction and power to
hear and determine appeals from any judgment or order, save as
hereinafter mentioned, of Her Majesty’s High Court of
Justice.’
(Emphasis added).
That provision was restrictively
interpreted so as not to interfere with established principle. At page 522 Lord
Halsbury stated the
following:
‘It is the right of personal freedom in
this country which is in debate; and I for one would be very slow to believe,
except
it was done by express legislation, that the policy of centuries has been
suddenly reversed and that the right of personal freedom
is no longer to be
determined summarily and finally, but is to be subject to the delay and
uncertainty of ordinary litigation, so
that the final determination upon that
question may be arrived at by the last Court of Appeal.’
This is the underlying principle upon which the restriction of the
State’s right to appeal is
founded.[6]
[23] Section 20(1)
of the Supreme Court Act 59 of 1959 provides:
‘An appeal from a judgment or order of the court of a provincial or local division in any civil proceedings or against any judgment or order of such a court given on appeal shall be heard by the appellate division or a full court as the case may be.’
Section 21(1) of the same Act states:
‘In addition to any
jurisdiction conferred upon it by this Act or any other law the appellate
division shall, subject to the
provisions of this section and any other law,
have jurisdiction to hear and determine an appeal from any decision of
the court of a provincial or local division.’
(Emphasis added).
It
has been suggested that these provisions are in wide enough terms to enable this
Court to hear the present appeal.
[24] Sections 20(1) and 21(1) of the
Supreme Court Act predate the introduction of ss 310A and 316B. The latter
sections granted rights
of appeal to the DPP 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
2005 (1) SA 171 (CC) para 43.
[25] In my view, in the absence of an
empowering provision in the CPA, or in any other statute, which specifically
grants this Court
jurisdiction and which is consistent with the Constitution,
this Court does not have jurisdiction to 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 monies in the
amount of R454 521-00 to sustain a luxurious lifestyle is a serious offence,
which on the face of it, was
properly appreciated by the Magistrate who imposed
a commensurate sentence. The respondent has the means to pay the fine and to
replace
the misappropriated monies. One is left with a sense of deep unease that
she has escaped appropriate punishment. However, having
regard to the
conclusions reached earlier, the appropriate order, regrettably, is refusing the
application for condonation and striking
the appeal from the roll. In respect of
the failure to provide for imprisonment in the event of the fine not being paid
s 287(2)
of the CPA may be employed. Furthermore, in respect of the payment of
compensation it has not been suggested that it will present
a practical problem.
[26] The application for condonation is refused and the appeal is struck
from the roll.
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
CONRADIE JA
MLAMBO JA
[1] Bassiouni (1993 280) 3 Duke
journal of Comparative and International Law 235
286.
[2] The change was prompted by
what was considered to be outrageously lenient sentences imposed by a circuit
court in a case concerning
interracial violence and there were calls for the
impeachment of the judge concerned. This enabled the legislature to overcome
objections
to extending the State’s right of appeal in this manner –
See the SA Law Reform Commission report infra at page
12.
[3] The attorney-general has
been supplanted by the DPP.
[4]
S v Kellerman 1997 (1) SACR 1 (A) at
3c-e.
[5] At page 18
of the Law Reform Commission’s report the following appears under the
heading THE COMMON LAW POSITION:
‘The reasons for the
traditionally restricted rights of the prosecutor to appeal lie in the common
law with its repugnance to
the idea that a man should be put in a situation
analogous to double jeopardy (though, as will be seen below, it has been held
that
appeals by prosecutors do not in fact constitute double
jeopardy).’
[6] The Canadian
case, Cullen v R [1949] SCR 658, dealt with the right of appeal against
an acquittal on a question of law. In a dissenting judgment, Rand J stated
the
following (at para 23):
‘At the foundation of criminal law lies the
cardinal principle that no man shall be placed in jeopardy twice for the same
matter
and the reasons underlying that principle are grounded in deep social
instincts. It is the supreme invasion of the rights of an individual
to subject
him by the physical powers of the community to a test which may mean the loss of
his liberty or his life; and there is
a basic repugnance against the repeated
exercise of that power on the same facts unless for strong reasons of public
policy.’
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