Joubert v S

The appellant, Mr Francois Johan Joubert, an accountant, was convicted in the Nelspruit Regional Court on 20 counts of fraud relating to false VAT claims made to SARS. He was sentenced to seven years' imprisonment, wholly suspended for five years. He petitioned the Gauteng High Court for leave to appeal against conviction only, but leave was erroneously granted against both conviction and sentence. The State seized this opportunity and gave notice of its intention to seek an increase in sentence. The High Court dismissed the appeal against conviction and increased the sentence to seven years' imprisonment of which four years were conditionally suspended for five years. The appellant was not present in court when the possibility of increasing sentence was raised mero motu by the court. No prior notice had been given by the court itself of its intention to consider increasing the sentence. The appellant's counsel was caught by surprise and had not advised the appellant about this possibility.

• Whether the appellant's right to a fair trial was infringed by the court a quo's failure to give prior notice of its intention to consider increasing the sentence
• Whether the State's notice of intention to seek increased sentence cured the court's failure to provide notice
• Whether the appellant suffered material prejudice from the lack of proper notice
• Whether the irregularity constituted a failure of justice requiring the sentence to be set aside

1. The appeal is upheld. 2. The sentence imposed on appeal is set aside. 3. The matter is 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 paragraph 79.

It is a fatal irregularity and infringement of an appellant's constitutional right to a fair trial for an appellate court to increase a sentence without giving the appellant prior notice of its intention to do so. Such notice is required by the principle of audi alteram partem and enables the appellant to: (1) make pointed submissions on why the sentence should not be increased; (2) consider whether to apply for leave to withdraw the appeal; and (3) adequately prepare for the possibility of an increased sentence. Failure to provide such notice constitutes material prejudice and a substantial miscarriage of justice, requiring the sentence to be set aside. One procedural irregularity (a defective State notice) cannot cure another irregularity (the court's failure to give notice). The State must obtain leave to cross-appeal if it seeks to appeal against a sentence imposed by a lower court where an accused has lodged an appeal.

The SCA noted that it was remitting the matter to the High Court as the appellate court (rather than to the Regional Court as the trial court) because the conviction had been confirmed on appeal and the only remaining issue was the increased sentence. The court expressly refrained from expressing any views on the appropriateness of the sentence to avoid fettering the High Court's sentencing discretion on remittal. The court also noted that not every irregularity constitutes a failure of justice - prejudice must be demonstrated and fairness is context-specific. The court emphasized that the State had to seek leave to appeal under s 310A(1) of the CPA, and that its failure to do so was a fatal irregularity that the court a quo had recognized.

This case reinforces the critical importance of procedural fairness in criminal appeals, particularly regarding sentence increases. It confirms that appellate courts must give accused persons prior notice before considering increasing a sentence mero motu, as required by S v Bogaards. The judgment emphasizes that the right to a fair trial under the Constitution encompasses adequate notice and opportunity to prepare for potential sentence increases, including the right to consider withdrawing an appeal. It demonstrates that one fatal irregularity (the State's defective notice) cannot cure another irregularity (the court's failure to give notice). The case provides important guidance on when material prejudice arises from procedural irregularities and when remittal is appropriate.