Synopsis:
Application for leave to appeal against an increased sentence imposed by the Supreme Court of Appeal. The question was whether the State is required to seek leave to cross-appeal in terms of section 316B of the Criminal Procedure Act 51 of 1977, in order to argue for an increase in sentence, where the accused initiates an appeal. The applicant argued that the State’s failure to cross-appeal infringed his right to a fair hearing in terms of section 35 of the Constitution. The majority upheld the appeal and set aside the increased sentence. The majority held that the failure to apply for leave to cross-appeal was fatal to the increase imposed by the Supreme Court of Appeal. In circumstances where the Court was not exercising its powers to increase sentence of its own accord but doing so at the State’s request, the Court did not have the jurisdiction to consider an increase in sentence.
The minority would have dismissed the appeal because it found there was no miscarriage of justice in the circumstances.
Majority: Jafta J (Mogoeng CJ, Froneman J, Khampepe J, Mhlantla AJ, Nkabinde J and Zondo J concurring).
Minority: Skweyiya J (Moseneke DCJ and Van der Westhuizen J concurring).
