S v De Villiers

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Zondi JA, Molemela JA, Mothle JA, Nhlangulela AJA and Siwendu AJA
• Judgment Date: 31 May 2023
• Citation: 2023 (2) SACR 221 (SCA)
• Hearing Date: 06 March 2023
• Counsel: DF Dorfling SC for the appellant. JBK Swanepoel for the state.
• Docket Number: 996/2021 [2023] ZASCA 83
• Court: Supreme Court of Appeal

Mothle JA (Zondi JA, Nhlangelula AJA and Siwendu AJA concurring):

[1] This is an appeal against the order by the full court of the Free State Division of the High Court, Bloemfontein (the full court), dated 8 February 2021. The full court, in considering an appeal against a sentence imposed by the regional court, Bloemfontein (the regional court), dismissed the appeal, which confirmed the custodial sentence, and ordered the appellant to pay to the complainant an amount of R900 000 within 30 days of the order (the compensation order). The full court purported to grant the compensation order in terms of s 300 of the Criminal Procedure Act 51 of 1977 (the CPA). The crisp issue that falls to be determined in this appeal is whether the full court acted correctly in granting the compensation order.

[2] The factual background is briefly that the appellant, Mr Raymond Daniel de Villiers (the appellant), an accountant, on 25 May 2005 received an amount of R950 000 from a long-standing client, the complainant, Mrs Wiese, to invest on her behalf. Mrs Wiese is a widow to Mr PJ Wiese, a farmer who had recently passed on, and the R950 000 in issue was proceeds from the deceased's estate. The appellant failed to invest the money as instructed and instead used it for his speculative business ventures. He failed to pay the amount to Mrs Wiese on demand and the latter laid a charge of theft against him.

[3] The appellant was arraigned before the regional court on a charge of fraud and, in the alternative, theft of R950 000. On 11 August 2011 the appellant pleaded guilty to the alternative charge of theft in terms of s 112 of the CPA and was convicted accordingly. The following evidence on sentence, and material to the determination of this appeal, appears from the trial record of proceedings in the regional court. First, prior to the commencement of the trial, the appellant, through his legal representatives, proposed to enter into a plea-and-sentence agreement (plea-bargaining) with the prosecution, in terms of s 105A of the CPA. The prosecution rejected the proposal and it fell through. Second, testifying during sentencing proceedings following the appellant's conviction, Mrs Wiese expressed a desire to be paid back the amount that had been stolen from her.

Mothle JA (Zondi JA, Nhlangelula AJA and Siwendu AJA concurring)

[4] On 29 November 2011 the regional court imposed a sentence of seven years' imprisonment, of which three years were suspended for three years on condition that the appellant was not convicted of theft, fraud, attempted theft or fraud or any offence whereby dishonesty was an element of the crime, committed during the period of suspension. The appellant launched an application for leave to appeal both the conviction and sentence, which application was refused by the regional court. On 11 January 2012 he turned to the High Court on petition for leave to appeal. On 14 September 2012 the appellant's petition for leave to appeal against his conviction and sentence was also refused by the High Court, before Daffue J and Snellenburg AJ. The High Court further refused his application for extension of bail pending further appeal proceedings. The appellant was incarcerated for a short period.

[5] The appellant then approached this court on petition, simultaneously launching a review application regarding his conviction. On 7 January 2013 the petition served before Nugent JA and Mhlantla JA, who granted the appellant leave to appeal, only against sentence, to the full court. With the appeal to the full court held in abeyance, the review application was heard and dismissed by this court on 24 March 2016 and thereafter by the Constitutional Court on 16 August 2016. Four years later, on 9 November 2020, the full court heard the appeal against the sentence. The appellant requested the full court to consider a change in his personal circumstances and delivered an application to present further evidence, which the full court granted. [1]

[6] The further evidence, brought nine years after his conviction and sentence in the regional court, presented the following changed circumstances, as recorded in para 14 of the full-court judgment:

'14.1

The appellant is now 60 years old.

14.2

He presently resides at 4[. . .] K[. . .] K[. . .] Road, Bayswater, Bloemfontein which is situated above his work premises at Sebenza Accountants (Pty) Limited where he is an accountant in association with the said Sebenza Accountants.

14.3

He has not been charged with and/or convicted of any further offences since his conviction in 2011.

14.4

He is economically active, and a law-abiding citizen post his sentence.

14.5

Through his practise he supports approximately 23 households and presently serves approximately 800 clients.

14.6

The appellant declares himself a devoted Christian who decided to use and apply his professional skills to uplift and make a positive contribution to society by providing professional advice to young aspiring and upcoming entrepreneurs free of charge for a period ranging between 6 and 18 months, feeding schemes in under privileged communities and advi[c]e to elderly persons on how to invest their savings.

Mothle JA (Zondi JA, Nhlangelula AJA and Siwendu AJA concurring)

14.7

He has saved R1 000 000.00 which is held in trust that can be paid in restitution to the plaintiff [the complainant].'

[7] The state did not oppose the appellant's application to adduce further evidence on appeal. It also presented evidence in the form of an affidavit, deposed to by a senior state advocate, attached to the Specialised Commercial Crime Unit, Bloemfontein, (in) which it asked the full court to consider dealing with the appellant's request to present further evidence. In the affidavit, the state, dealing with the history of the litigation in this matter, concluded in paras 25 – 27 thus:

'Although it is true that personal circumstances of an accused person may change over a period of time the manner in which the appellant's exercised his rights led to this delay. His conduct in this post sentence course of action cannot [not] be ignored. His dishonest attempt in this application to convince you of his remorse and regret is not evident from his conduct post sentence.

Logic then dictates that my concession in the trial court that there were compelling and substantial circumstances justifying an imposition of a lesser sentence than the minimum sentence cannot be applicable [be] anymore because of the actions and factors emanating post sentence as described above.

Since the sword of Iustitia (Lady Justice) is a double-edged sword that cuts both ways and the appellant is asking in effect this Court to consider sentence afresh this court might well allow further evidence as prayed for by the appellant and in addition also admit the contents of this statement along the same lines as prayed for by the appellant and call upon the Appellant to give reasons why the sentence imposed should not be increased.'

[8] On 8 February 2021 Nekosie AJ, with Mbhele J and Daniso J concurring, delivered the full-court judgment, wherein the appeal was dismissed, and the custodial sentence imposed by the regional court confirmed. Both orders appeared in paras 1 and 2 of the full-court order, respectively. The full court further added paras 3 and 4 to its order, which read thus:

'3.

In terms of section 300(1) of the Criminal Procedure Act 51 of 1977 the appellant is ordered to pay to Amanda Wiese, the complainant in this matter, the amount of R900 000.00 (nine hundred thousand rand) within thirty (30) days of this order.

4.

The order in 3 above shall have the effect of a civil judgment as provided for in section 300(3)(b). The registrar is directed to bring this judgment to the attention of the registrar, Regional Court, Bloemfontein.'

[9] The appellant, aggrieved by the judgment and order of the full court, once again approached this court on petition, seeking special leave to appeal against the order of the full court. This court, per Wallis JA and Carelse AJA on 6 May 2021, granted the appellant special leave to appeal to this court, limiting the leave to appeal to paras 3 and 4 of the order of the full court. It is thus with the special leave of this court that the appeal against paras 3 and 4 of the order is before us. I turn to deal with the question whether the compensation order in terms of s 300 of the CPA was appropriately made.

Mothle JA (Zondi JA...