S v JOUBERT 2017 (1) SACR 497 (SCA)
Appeal — Against sentence — Powers of court on appeal — Increase of sentence — Court erroneously granting appellant leave to appeal against both conviction and sentence when appellant only sought such against conviction — State, without cross-appealing, seeking increase of sentence on appeal — Court increasing sentence without giving notification to appellant of its intention to do so — Substantial miscarriage of justice occurring — Increased sentence set aside.
After having been convicted in a regional magistrates’ court on 20 counts of fraud relating to false VAT claims made to the South African Revenue Service, and having been sentenced to seven years’ imprisonment which was wholly suspended for five years, the appellant appealed to the High Court against his conviction. The latter court, however, granted him leave to appeal against both the conviction and the sentence. The state then seized the opportunity to give notice to the appellant and his attorney of its intention to seek an increase of sentence on appeal. The appellant opposed the state’s application, contending, inter alia, that the state had failed to follow the proper procedural requirements contained in s 310(A)(1) of the Criminal Procedure Act 51 of 1977. * When the matter was heard the appellant was not present and the court adopted the position that, even though the state’s application was perhaps procedurally incorrect, it was still open to the court to mero motu raise the possibility of an increase in sentence. Counsel for the appellant informed the court that although the appellant had been made aware of the state’s request for an increase in the sentence she had not informed him of the court’s intention to do so as she had only just heard of such intention herself. The court nonetheless increased the sentence by suspending only four years of the term imposed.
On appeal counsel for the state contended that its application to increase the sentence had cured the court’s failure to furnish prior notice to the appellant of its intention to increase the sentence. Furthermore, there had been no prejudice to the appellant, who had been afforded an opportunity to make submissions on sentence.
Held, that the procedure adopted by the state was fatally irregular as it had to obtain leave to cross-appeal if it sought to appeal against sentence imposed by a lower court where an accused lodged an appeal against conviction and/or sentence. That being the case, it was inconceivable that one fatal irregularity could be called in aid to cure another irregularity. (Paragraph  at 506g.)
Held, further, that the appellant had been materially prejudiced and that such prejudice went further than a mere lack of adequate opportunity to prepare properly. There had been no reason at all for the appellant and his advisors to prepare for a possible increase of sentence by the court a quo, since no such intent had been foreshadowed in a prior notice, as was required. He had furthermore been denied the option of withdrawing the appeal with the leave of the appellate court. (Paragraphs – at 507a–e.)
The court held in the circumstances that there had been a substantial miscarriage of justice and the appeal had to be upheld. The matter was then remitted to the High Court for consideration of the appeal against sentence only.