Joubert v The State

The appellant, Francois Johan Joubert, an accountant, was convicted in the Nelspruit Regional Court on 20 counts of fraud relating to false VAT claims submitted to SARS. He was sentenced to seven years’ imprisonment, wholly suspended for five years on certain conditions. He petitioned for leave to appeal against conviction only, but leave was erroneously granted against both conviction and sentence. On appeal, the Gauteng Provincial Division of the High Court dismissed the appeal against conviction but increased the sentence to seven years’ imprisonment, of which four years were conditionally suspended. The High Court did so without giving prior notice to the appellant that it intended to consider increasing the sentence. Joubert appealed to the Supreme Court of Appeal against the increased sentence, contending that his right to a fair trial had been infringed.

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

The case reaffirms and applies the Constitutional Court’s decision in S v Bogaards, emphasising that appellate courts may not increase a sentence without giving clear prior notice to the accused. It underscores the constitutional importance of fair trial rights, audi alteram partem, and procedural fairness in sentencing on appeal, and clarifies that irregular conduct by the State cannot remedy a court’s own procedural failings.