ZACC 33
Hearing Date: 18 May 2023
Judgement Date: 10 October 2023
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 10 October 2023 at 10h00 the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the High Court of South Africa, Northern Cape Division, Kimberley (the High Court).
The applicant, Ms Natasha Liebenberg was in the employ of ABSA Bank from 1992 in the Administration of Deceased Estates Department. The applicant allegedly, in the course of employment, fraudulently completed cash withdrawal slips and subsequently withdrew the funds in the names of various beneficiaries during the period 2008 to 2011. In September 2011, ABSA Bank’s Forensic Investigator conducted an investigation into these allegations. Interviews were conducted and certain written statements were made by the applicant. Pursuant thereto, disciplinary proceedings were conducted by ABSA Bank.
Before the Kimberley Magistrates’ Court, the applicant stood accused of 269 charges of fraud, forgery, uttering and theft. During the course of the trial, the Court conducted a trial-within-a-trial and admitted into evidence the statements made by the applicant during the disciplinary proceedings. On 30 November 2018, the applicant changed her initial plea of not guilty to a plea of guilty and signed a statement in terms of section 220 of the Criminal Procedure Act 51 of 1977 (CPA). The statement, in broad terms was to the effect that the applicant understood all charges preferred against her and that she unlawfully, with the intent to defraud ABSA Bank, forged signatures of beneficiaries and withdrew funds without following proper procedures. On 20 February 2019, the Court convicted the applicant of 86 counts of fraud, 85 counts of forgery, 85 counts of uttering and 10 counts of theft. The Court then imposed a sentence of six years imprisonment in respect of all counts. The Court held that its decision is based on the strength of the section 220 statement and the exercise of its sentencing discretion based on the seriousness of the offence and the applicant’s personal circumstances.
The applicant appealed to the High Court on the grounds that the decision of the trial court was based on inadmissible evidence which infringed on her constitutional rights to a fair trial and that the sentence imposed was not in accordance with notions of basic fairness and justice. On 10 September 2021, the applicants appeal succeeded in part. The Court held that there was a duplication of charges in that the applicant should not have been found guilty on the counts of forgery and uttering. The Court exercised its discretion and reduced the sentence to four years imprisonment. On the admissibility of the evidence, the Court held that there was no infringement of the applicant’s constitutional rights because the conviction was based on the section 220 statement and further that the applicant was afforded legal representation in the disciplinary proceedings and warned that any written statements may be used as evidence against her.
The Supreme Court of Appeal refused leave to appeal and special leave on the grounds that no special circumstances exist justifying a further appeal.
Before this Court, the applicant submitted that this matter engages this Court’s jurisdiction as her rights to a fair trial were infringed by the admission of inadmissible evidence. On the merits, the applicant contended that the statement made to the ABSA Bank investigator was not made during a formal disciplinary hearing and she was not afforded legal representation at that stage. The applicant also argued that the trial court misdirected itself when it read into the record, evidence in relation to her character and past misconduct because such evidence is irrelevant due to the highly prejudicial effect it has on the mind of the trier of fact. The applicant further contended that the admission of such evidence, without laying any basis for its admissibility, contravenes sections 197 and 211 of the CPA. On sentence, the applicant sought to have her sentence reduced to a non-custodial sentence in light of the fact that the alleged offences were committed 12 years ago, during which time she has not committed any offense nor proven to be worthy of being removed from society.
The respondent conceded that the jurisdiction of this Court is engaged but argued that the application for leave to appeal should be dismissed. On the merits, the respondent submitted that the adducing of the evidence obtained from the disciplinary proceedings was aimed at proving that the applicant acted with the intention to commit the offences she was charged with and not merely to evince the applicant’s bad character. The respondent further submitted that the admissibility of the statement made by the applicant to the investigator was correctly admitted by the Court through conducting a trial-within-a-trial. The respondent submitted that even if the evidence is found to be unconstitutionally obtained, the court must still be satisfied that in the mosaic of the entire trial, whether the admission of such evidence will render the trial unfair. The respondent further argued that the applicant was not convicted solely on the strength of the statements made in the disciplinary proceedings, but on the section 220 statement made during the trial. On sentence, the respondent submitted that there is no indication that the High Court, on appeal misdirected itself and further that there are aggravating circumstances, which justify the sentence imposed, such being that the applicant abused a position of trust when she stole from ASBA Bank.
In a unanimous judgment written by Potterill AJ (Zondo CJ, Kollapen J, Madlanga J; Majiedt J, Makgoka AJ, Potterill AJ, Rogers J, Theron J and Van Zyl AJ concurring), the Court held that this matter does not engage its jurisdiction because the allegedly inadmissible evidence did not result in a procedural irregularity which undermines the basic notions of trial fairness. The Court further held that this is so because in finding the applicant guilty, the Regional Court relied on the section 220 admissions and the totality of the evidence that was led on each of the counts of theft and fraud, excluding the evidence pertaining to the disciplinary hearings. What was contended to be inadmissible evidence did not have any bearing on the applicant’s convictions. The Court further held that the applicant’s contentions of bias on the part of the Regional Court Magistrate equally do not engage this Court’s jurisdiction as it involves an assessment of factual findings.
In the premise, the Constitutional Court dismissed the appeal.
The Full judgment here