Lorenzi v The State

Mr Gianmarco Lorenzi was the managing director of Cleardata (Pty) Ltd, a document destruction company owned partially by Metrofile Holdings Ltd. Between 2014 and 2016, he unlawfully transferred R4.6 million from Cleardata's bank account to his personal account and various service providers, in breach of his fiduciary duties. He used the funds primarily to renovate his house and pay for divorce proceedings. He committed 18 counts of theft totalling R4.6 million and 8 counts of forgery (amending invoices and altering bank statements for audit purposes in 2017). When the offences were detected in 2017, he resigned. He entered into a settlement agreement with Metrofile whereby his trust transferred its 30% shareholding in Cleardata for a nominal amount of R144. On 3 November 2022, he pleaded guilty to all charges. The trial court convicted him and sentenced him to 9 years effective imprisonment on 13 December 2022. Two judges of the Supreme Court of Appeal (SCA) dismissed his application for special leave to appeal on 19 October 2023. He then petitioned the President of the SCA, who on 25 March 2024 referred the matter for reconsideration under s 17(2)(f) of the Superior Courts Act.

• Whether the President's referral of the matter under s 17(2)(f) of the Superior Courts Act requires the applicant to prove 'exceptional circumstances' as a jurisdictional fact before this Court
• Whether the trial court exercised its sentencing discretion judicially and correctly
• Whether the trial court erred in finding that the settlement agreement was illegal or constituted an indemnity from criminal prosecution
• Whether the trial court erred in its assessment of the applicant's remorse
• Whether the trial court correctly interpreted s 276(3)(b) of the Criminal Procedure Act in declining to impose correctional supervision as a sentence
• Whether the trial court properly considered that the forged documents were never uttered as a mitigating factor
• Whether there are reasonable prospects of success on appeal or other compelling reasons justifying the grant of leave to appeal

The application for reconsideration and, if necessary, variation of the order of 19 October 2023 dismissing the applicant's application for special leave to appeal is dismissed.

1. Section 17(2)(f) of the Superior Courts Act requires proof of 'exceptional circumstances' as a jurisdictional fact that must be satisfied before reconsideration can succeed (per majority, Kgoele JA). The necessary prerequisite for relief is the existence of truly exceptional circumstances. If circumstances are not truly exceptional, the application must fail. 2. Once special leave has been refused, an applicant seeking reconsideration under s 17(2)(f) must demonstrate something beyond the ordinary requirements for special leave to appeal. 3. Section 17(2)(f) is not intended to afford disappointed litigants a further attempt to procure relief already refused or to provide a parallel appeal process. It is intended to enable the President to deal with situations where injustice might otherwise result, including where new evidence has come to light or to cure errors or mistakes. 4. A court of appeal will not interfere lightly with the sentencing discretion of a trial court. An appellate court will only interfere if the sentence is one that no other court could reasonably have imposed. 5. When substantial and compelling circumstances are found justifying deviation from minimum sentences, the trial court must still properly exercise its discretion in imposing an appropriate sentence considering the Zinn triad (crime, criminal, and interests of society). 6. A settlement agreement resolving civil liability does not extinguish the criminal nature of offences. Repayment or settlement cannot automatically constitute mitigation where the offender did not voluntarily report the matter to police. 7. In white-collar crime cases involving breach of fiduciary duty over an extended period, direct custodial sentences may be appropriate even where substantial and compelling circumstances justify deviation from minimum sentences, particularly where general deterrence is necessary.

1. Coppin JA expressed (in a separate concurring judgment) the view that 'exceptional circumstances' is NOT a jurisdictional fact that the applicant must prove before this Court on reconsideration under s 17(2)(f). Rather, exceptional circumstances is a jurisdictional fact only for the President's exercise of discretion to refer the matter. Once referred, this Court reconsiders whether the two judges who refused leave erred, applying the standard test in s 17(1)(a) (reasonable prospects of success or other compelling reason). However, Coppin JA acknowledged being bound by the doctrine of stare decisis to apply the majority approach that exceptional circumstances must be proven by the applicant. 2. The majority noted that whether the trial court's observation about the settlement agreement being illegal was right or wrong, it remained obiter dictum and was a neutral factor that faded into the background when weighed against undisputed facts. 3. The Court observed that the trial court 'leaned significantly towards mercy' in reducing the cumulative effect of sentences through finding substantial and compelling circumstances, ordering sentences to run concurrently, and partially suspending certain sentences, demonstrating 'mercy at its finest'. 4. The Court noted that Mr Lorenzi was aware another individual had defrauded Cleardata but was unwilling to identify or report that person, which did not reflect genuine contrition. 5. The majority indicated that Mr Lorenzi's personal circumstances were 'ordinary' and unremarkable, which is why his legal representative did not emphasize them in the appeal.

This case clarifies the proper approach to applications under s 17(2)(f) of the Superior Courts Act when reconsidering refusals of special leave to appeal. The majority judgment reinforces that exceptional circumstances must be proven by the applicant on reconsideration, not merely reasonable prospects of success. The case emphasizes that s 17(2)(f) is not intended to afford disappointed litigants a further attempt to procure relief already refused, but is a safeguard to prevent injustice. The case also illustrates the high threshold for appellate interference with sentencing discretion, particularly in white-collar crime cases involving breach of fiduciary duty. Coppin JA's separate judgment presents an alternative interpretation of s 17(2)(f) that distinguishes between the jurisdictional requirements for the President's referral power and the standard to be applied by the Court on reconsideration, though Coppin JA acknowledged being bound by stare decisis to the majority approach.