THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 996/2021

In the matter between:

RAYMOND DANIEL DE VILLIERS

Appellant

and

THE STATE                                                                                   Respondent

Neutral Citation:
Raymond Daniel de Villiers v The State (996/2021) [2023]
ZASCA 83 (31 May 2023)
Coram:
ZONDI,
MOLEMELA
and
MOTHLE
JJA
and
NHLANGULELA and SIWENDU AJJA
Heard:

6 March 2023
Delivered:

31 May 2023
Summary:
Criminal Law and Procedure – compensation order – whether a
court of appeal could impose an order of compensation in terms of s 300 of
the Criminal Procedure Act 51 of 1977 – whether in consideration of an
appeal a court may widen the limited grounds of leave to appeal.

_____________________________________________________________

ORDER
_____________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein
(Nekosie AJ with Mbhele and Daniso JJ concurring, sitting as a full court of
appeal):

1.
The appeal succeeds.
2.
The order of the Full Court of the Free State Division of the High Court
dated 8 February 2021 on appeal against sentence, is set aside and
substituted by the following:
‘(a) The sentence imposed by the Regional Court, Bloemfontein on the
appellant on 29 November 2011 is set aside and the matter is remitted to the
Regional Court, Bloemfontein for sentencing afresh.
(b) The further evidence presented by the appellant and the State and
admitted by the Full Court, shall serve before the regional court in
consideration of the sentence.’

JUDGMENT
_____________________________________________________________

Mothle JA (Zondi JA and Nhlangulela and Siwendu AJJA 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 (regional court), dismissed the appeal which confirmed
the custodial sentence, and ordered the appellant to pay to the complainant
an amount of R900 000 (nine hundred thousand rand) 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 (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 were 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.

[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 is not convicted of theft, fraud, attempted
theft or fraud or any offence whereby dishonesty is 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
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 46 Kenneth Kaunda 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

1 See Rail Commuters Action Group and Others v Transnet Ltd T/A Metrorail and Others
2005 (2) SA 359 (CC) para 41- 43.

charge for a period ranging between 6 and 18 months, feeding schemes in under
privileged communities and advise to elderly persons on how to invest their savings.
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 in 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 and Daniso JJ
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.

[10] Ordinarily when a person who has suffered an injury or loss, desires to
be compensated for such injury or loss, that person would institute civil
proceedings in a civil court for relief. When that injury or loss arises out of the
commission of a crime, and criminal prosecution ensues, that person may, on
application to the criminal court conducting the trial, be awarded
compensation for the damage or loss. That would occur after the conviction of
the person responsible for such loss or damage. The award for compensation
could be made either in terms of s 297 of the CPA, where such award is made
as a condition of a suspended sentence or in terms of s 300 of the CPA,
where the amount would be payable.

[11] In Stow v Regional Magistrate, Port Elizabeth,2 the appeal court
compared and contrasted ss 297 and 300 of the CPA, which both provide for
compensation to be awarded by the criminal court, albeit under different
circumstances. The appeal court wrote:

2 Stow v Regional Magistrate, Port Elizabeth [2017] ZAECGHC 12; [2017] (2) SACR 96; 2017
(2) SACR 96 (ECG) para 64.

‘I do not agree that the different consequences flowing from compensation as a
condition of suspension and compensation in terms of s 300 result in discrimination.
Compensation as a condition of suspension is an integral part of the sentence which
has its purpose as described in Tshondeni supra. It is a flexible condition which can
be adapted to a person's means and the length of time it will take to make full
restitution. Its imposition is subject to the safeguards mentioned above. Section 300
on the other hand is a convenient means of recovering a debt without having to
institute a civil action. The order will be made for the full amount determined as
compensation for the damage or loss and would be executable for the full amount.
Section 300 can only be utilised if the victim or the state, applies for such an order.
The victim can renounce the order, which impacts on the effectiveness of the order,
whereas compensation as a condition of suspension remains the prerogative of the
court and will serve a more meaningful purpose in the sentencing process.
Section 300 is therefore only available in restricted circumstances and lacks the
flexibility which can be used in shaping a suitable sentence. If it was the only means
of ordering compensation, a valuable sentencing option would be lost.'

[12] Section 300(1) of the CPA provides:
‘(1) Where a person is convicted by a superior court, a regional court or a
magistrate’s court of an offence which has caused damage to or loss of property
(including money) belonging to some other person, the court in question may, upon
the application of the injured person or of the prosecutor acting on the instruction of
the injured person, forthwith award the injured person compensation for such
damage or loss: Provided that -
(a) a regional court or magistrate court shall not make such award if the
compensation applied for exceeds the amount determined by the Minister from time
to time by notice in the Gazette in respect of the respective courts.’

[13] First, on a proper construction of s 300(1) of the CPA, only the court
that convicted a person, referred to as ‘the court in question’ may award
compensation under the provisions of s 300 of the CPA. In this case it is the
regional court. The request made by counsel for the appellant that the full
court should not refer the matter back to the trial court, for the purpose of
imposing a compensation order in terms of s 300 of the Act, was bad in law
and the full court erred in acceding to it. The full court, as a court of appeal, is

not the court that convicted the appellant and thus it lacked the authority or
jurisdiction to award a compensation under s 300 of the CPA.

[14] Second, and related to the first issue in the preceding paragraph, in
terms of s 300 of the CPA, the compensation order is triggered ‘upon the
application of the injured person or of the prosecutor acting on the instruction
of the injured person.’ The full court did not have an application in terms of
s 300 of the CPA made to it either by Mrs Wiese or by the prosecutor on her
instruction. The application for compensation award is an essential pre-
requisite to trigger a consideration of compensation in terms of s 300 of the
CPA. The full court, therefore, erred in considering and awarding
compensation in terms of s 300 of the CPA, without an application before it.

[15] Third, it was only after hearing argument and the proceedings had
been adjourned, that the full court informed the legal representatives of the
appellant and the State, that it was considering a possible increase of the
sentence. It invited the parties to submit supplementary heads of argument. In
extending that invitation to the parties, the full court did not give notice that it
was considering invoking s 300 of the CPA. The appellant submitted the
heads of argument without specifically dealing with submissions on s 300 of
the CPA.3 The appellant was thus prejudiced in that he was not granted a
proper notice and hearing before the full court invoked the compensation
order in terms of s 300 of the CPA. Section 300 of the CPA, envisages an
inquiry to be held to determine whether it is possible to make the award. All
parties before the court must be provided an opportunity to participate in the
proceedings.

[16] Based on the findings by this Court in the preceding three paragraphs,
it suffices to conclude that the full court erred in awarding compensation in
paras 3 and 4 of its order. Counsel for the State conceded, only on the narrow

3 S v Van Rensburg 1974 (2) SA 243 (T) at 244H-245A; S v Baadjies 1977 (3) SA 61 (E) at
63A-B.

basis that the full court erred in regard to awarding a compensation in terms of
s 300 of the CPA. This concession was correctly made. Therefore, the full
court’s award of compensation in terms of s 300 of the CPA as stated in
paras 3 and 4 of its judgment, cannot stand, and it falls to be set aside.

[17] The further evidence by the appellant and the State, admitted by the
full court, was not available to the regional court during the sentence
proceedings. The setting aside of paras 3 and 4 of the full court order, leaves
that evidence still intact and available for consideration. The only court
competent to consider that evidence and impose an appropriate sentence
would, in this instance, be the trial court. Consequently, this Court is at large
to remit the matter to the regional court to determine the sentence afresh. In
S v Sion4 (Sion) the high court wrote:
’Where the complainant had merely expressed, in the course of his evidence, a
desire to be compensated, the Court on review remitted the case to the magistrate to
enable the complainant to make a proper application for compensation should he so
desire; alternatively, to enable the magistrate to impose a compensatory fine.’5

[18] Therefore, in remitting the matter back to the trial court for the purpose
of considering the issue of sentence afresh, it will be necessary for the trial
court to re-consider not only the evidence that was presented before it at the
time when it passed the original sentence, but should include the further
evidence as well. Inexorably, a reason for the widening of the terms of this
appeal beyond those that were contemplated in paras 3 and 4 of the full court
order, has emerged. In a situation that is similar to the present one, it was
stated appositely by this court in R v Mpompotshe and Another, 6as follows:
‘In any event it would always be open to this Court, if not prevented by the legal
requirements as to finality discussed in R v Sibande, 1948 (3) SA 1 (AD), and R v
Maharaj (Appellate Division 8th September 1958), to condone the delay and grant
leave to appeal on wider grounds than those allowed by the trial Judge. This appeal

4 S v Sion 1975 (2) SA 184 (NKA).
5 Ibid at 185.
6 R v Mpompotshe and Another 1958 (4) SA 471 (A) at 473E.

was therefore dealt with on the basis that leave to appeal had been granted
generally.’

[19] The principle stated above was followed in S v Safatsa and Others7
(Safatsa) thus:
‘This Court will not necessarily consider itself bound by the grounds upon which
leave has been granted.’ What has emerged as a difference in approach is that
in Safatsa, this Court went on to state as follows: ‘…A formal petition for leave to
appeal on wider grounds is not an indispensable prerequisite, since the matter is
before the Court whose members would be conversant with the record, but the
remarks I have quoted show that the Court will certainly decline to hear argument on
an additional ground of appeal if there is no reasonable prospect of success in
respect of it…’ This approach should be contrasted with that in Douglas v
Douglas8 (Douglas) where this Court again, after accepting the principle that it
will not necessarily consider itself bound by the terms of the order granting
leave to appeal, held: ‘Although leave to appeal on a ground refused by the court
which granted leave to appeal to this Court should, generally speaking, be requested
by way of petition, which would normally be considered by the court hearing the
appeal, the required leave can also be sought by way of application when the appeal
is heard. In such a case condonation for the delay in asking such leave should also
be requested.’ (Own emphasis.)

[20] In Douglas, this Court was dealing with the instance where additional
grounds of appeal were raised and leave requested to have them considered.
In such instance, it is necessary for an application to be made by the party
seeking to rely on such new grounds, to have the limit on the grounds of
appeal widened. In the present appeal, this Court is seized with different set
of circumstances. The full court had accepted ‘further evidence’ submitted in
mitigation and also in aggravation of sentence from the appellant and the
State respectively, a considerable time after the appellant had been
sentenced by the regional court. At the time this appeal was before this Court,

7 S v Safatsa and Others 1988 (1) SA 868 (A) at 877A-G.
8 Douglas v Douglas [1995] ZASCA 147; [1996] 2 All SA 1 (A).

approximately ten years had elapsed since the appellant was sentenced. As
is apparent, the full court had no jurisdiction to make a compensatory award in
terms of s 300 of the CPA, notwithstanding the receipt of the further evidence.
Similarly, this Court has no such jurisdiction. The jurisdiction lies with the trial
court, which in this instance is the regional court.

[21] I have had the pleasure of reading the judgment of my sister, Molemela
JA (the concurring judgment). I however respectfully disagree with the
conclusion in para 29 that, by not awarding compensation to the complainant,
the regional court exercised its discretion unreasonably. If it is indeed so, that
would constitute a misdirection, justifying intervention by the appeal court.
However, it is a fact that there was no ground of appeal or argument placed
before this Court, suggesting that the regional court unreasonably exercised
its discretion on sentence. It is trite that in criminal trials, the primary purpose
of determining sentence is to impose an appropriate punishment to the
convicted person. Where the trial court in its discretion deems it appropriate to
impose a custodial sentence, as it happened in this case, the question of
compensation recedes, as it would be unrealistic to expect a person in
custody to pay compensation as contemplated in s 297 of the CPA. The
regional court was under no legal obligation to suspend the whole custodial
sentence in order to award compensation. Such a decision would occur where
the regional court in the exercise of its discretion, deems it so. In S v Sadler9
this Court held that the appeal court should not erode the exercise of a
sentencing discretion by the trial court, simply because it does not accord with
what the appeal court would have imposed. It is not sufficient that the appeal
court’s own choice of sentence would have been appropriate. Therefore the
remittal of this matter to the regional court need not be burdened by any view
as to how this Court prefers to have the regional court exercise its discretion
in imposing a sentence.

9 S v Sadler 2000 (1) SACR 331 (SCA).

[22] The net effect of the finding by this Court, is that the entire order of the
full court should be set aside, and the further evidence submitted by the
appellant and the State as admitted by the full court, be remitted to the
regional court for the determination of sentence afresh.

[23] In the result, I make the following order:

1.
The appeal succeeds.
2.
The order of the Full Court of the Free State Division of the High Court
dated 8 February 2021 on appeal against sentence, is set aside and
substituted by the following:
‘(a) The sentence imposed by the Regional Court, Bloemfontein on the
appellant on 29 November 2011 is set aside and the matter is remitted to the
Regional Court, Bloemfontein for sentencing afresh.
(b) The further evidence presented by the appellant and the State and
admitted by the full court, shall serve before the regional court in
consideration of the sentence.’

__________________________
SP MOTHLE
JUDGE OF APPEAL

Molemela JA
[24] I have had the pleasure of reading the judgment of my brother, Mothle
JA (the first judgment) and agree with the outcome proposed therein.
However, I follow a different reasoning in coming to the same outcome.

[25] As the facts and authorities have correctly been canvassed in the first
judgment, there is no need for me to cover the same ground in this section of
the judgment. The record of the proceedings in the regional court reveals that
after the appellant’s conviction, there was a discussion on the issue of the
appellant offering to pay an amount of money to ameliorate the complainant’s

loss. The appellant indicated that he would be in a position to pay an amount
of R209 302.65 to the complainant the next day, and offered to pay the
balance in instalments.

[26] It is evident from the record that the complainant is a lay person and
had made it clear, in response to questions from the defence counsel, that
she was prepared to accept the appellant’s offer of paying the lump sum
indicated above, plus payment of the balance in instalments. From her
responses to the prosecutor’s questions, it was clear that the complainant was
even willing to accept an award of a lesser amount as compensation, given
her dire financial situation. Although the complainant had uncovered the theft
committed by the appellant in 2008, she had, at the time of the
commencement of the trial, not instituted a civil action for the recovery of that
money. In response to the trial court’s questions regarding why she laid
criminal charges as opposed to instituting a civil claim, if all she was
interested in was to get her money back, she stated that she had not pursued
a civil claim because she did not have enough money to do so. Notably, the
trial court, in the course of sentencing the appellant, remarked that ‘the
complainant . . . testified in this court that she would want nothing more than
to have her money back’.

[27] On the conspectus of the record, I am satisfied that the complainant
repeatedly indicated her eagerness to receive a compensation award
envisaged in s 300 of the CPA. From my point of view, the fact that the offer
for the payment of the compensation was in the form of a down-payment of a
lump sum, followed by payment of the balance in instalments and the
complainant had accepted it on that basis did not detract from it being an offer
for the payment of compensation within the contemplation of s 300 of the
CPA.10 I therefore accept that there was a proper application before the trial
court within the contemplation of s 300 of the CPA. However, the appellant’s

10 In S v Williams [2016] ZAFSHC 20 para 3 –the court, on review, held that payment of
compensation envisaged in s 300 of the CPA in monthly instalments is permissible.

counsel had made it clear that the appellant would not be able to pay off the
outstanding balance in instalments if he was incarcerated. Notwithstanding
this, I am of the view that the circumstances were such that some measure of
restorative justice would have been achieved by a compensation award
envisaged in s 297(1)(a)(i)(aa) of the CPA as the complainant’s financial loss
was as a direct result of the offence committed by the appellant. Thus, even if
the regional court had held the view that the appellant was not in a position to
pay the full amount of the loss (R950 000), and that it was therefore not an
appropriate case in which to award compensation within the contemplation of
s 300 of the CPA, nothing precluded it from ordering compensation in terms of
s 297(1)(a)(i)(aa) of the CPA. In my opinion, the concerns of victims of crime
need to be recognised in the sentencing process.

[28] In Director of Public Prosecutions, North Gauteng v Thabethe,11 in the
context of a sentence imposed in respect of a rape charge, this Court
observed that a victim’s voice deserves to be heard, given that the victim
‘bears the real brunt of the offence committed against him.’12 Although this
Court cautioned that a victim’s views are not decisive, it pointed out that it was
only fair that the victim be heard regarding how the crime had affected him or
her. In my opinion, the fact that an economic offence in respect of which a
substantial amount of money was stolen from a complainant who had not only
indicated to the court that she had no way of recouping her loss, but had
specifically requested a compensation award, rendered this case an
appropriate one for the granting of a compensation award.

[29] Even on an acceptance that the appellant was not, at the time of his
conviction, able to pay the full amount representing the complainant’s loss but
only a part thereof, the fact remains that the judgment of the regional court
does not indicate why it did not, in circumstances where it was clear that there
was no other avenue open to the complainant to recoup her substantial

11 Director of Public Prosecutions v Thabethe [2011] ZASCA 186; 2011 (2) SACR 567 (SCA).
12 Ibid para 21

financial loss from the appellant, at least consider ordering the appellant to
pay the complainant the amount he had available as a condition for
suspending part of the sentence as envisaged in s 297(1)(a)(i)(aa) of the
CPA, as this was one of the options proposed by the prosecutor. Despite an
indication that only an amount of R209 302.65 would be available to be
transferred to the complainant’s bank account the very next day, the trial court
suspended part of the appellant’s sentence without awarding the complainant
any compensation. This leads me to conclude that insufficient regard was
paid to the substantial loss that the complainant had suffered as a result of the
offence committed by the appellant, and to the complainant’s dire financial
position. While I accept that it was within the discretion of the regional court to
determine an appropriate sentence, I am of the respectful view that its
judgment does not demonstrate that it followed a victim-centred approach13
which the circumstances of this case and interests of justice required. In
failing to do so, it exercised its discretion unreasonably.14 It is for that reason
that I conclude that the full court correctly found that the sentence imposed by
the regional court had to be tampered with.

[30] Despite the aforesaid conclusion, I am of the view that once it is
accepted that the appellant was not, at the time of the trial, in a financial
position to repay the full amount to the complainant, it was not open to the full
court to make an award of compensation in terms of s 300 of the CPA, on
appeal. The full court, being a court of appeal, simply lacked the power to do
so. This is because on a proper construction of s 300(1) of the CPA, only the
regional court, as the court that convicted the appellant, could have awarded
compensation that would have the effect of a civil judgment as stipulated in
that provision. Both parties are of the view that the full court erred in issuing

13 Compare S v Matyityi 2011 (1) SACR 40 (SCA) paras 16-17. However, in this matter, the
rights of victims to participate during sentencing were emphasised in circumstances where
there was an absence of any information about the victims of rape and murder. It was in that
context that this Court urged for an increased involvement of victims in the sentencing
process.
14 See S v Pillay 1977(4) SA 531 (A) at 538A-B.

the compensation order set out in paragraphs 3 and 4 of its order. For the
reasons I have set out above, I agree with their submission.

[31] Since the appeal before us was limited to whether the full court could
award compensation on appeal, the appellant urged this Court to confine its
interference on appeal to the setting aside of paragraphs 3 and 4 of its order.
This submission fails to take into consideration that further evidence was
admitted on appeal by the full court, and its ruling in relation to the admission
of further evidence has not been attacked on appeal. In this regard, it must be
borne in mind that the admission of further evidence on appeal was at the
instance of the appellant, with no opposition from the State.

[32] The full court rightly granted the order for the admission of further
evidence, given the delays caused by the application for leave to appeal and
the application for review, respectively, resulting in a period of some nine
years elapsing before the hearing of the appeal. Thus, there were exceptional
circumstances that warranted the admission of this evidence.15 It is for this
reason that I am of the view that, to only grant an order setting aside
paragraphs 3 and 4 of the full court’s order would serve to perpetuate the
injustice occasioned by the trial court’s failure to pay due regard to the
complainant’s express wish to be awarded compensation. That being the
case, I, too, am of the view that these limited grounds of appeal ought to be
widened,16 so that sentence can be considered afresh.

[33] As explained earlier, this matter has been pending before the courts for
approximately a decade. Under different circumstances, it would have been
desirable for this Court to bring this matter to a close without remitting it back
to the regional court.17 This, it could do by replacing the full court’s order with
an order setting aside the regional court’s sentence. Cognisant of the flexibility
granted by s 297 of the CPA, it could, in replacing the sentence imposed by

15S v Rapholo 2022 (1) SACR 447 (SCA).
16 See S v Safatsa and Others, note 8 above.
17 S v M [2007] ZACC 18; 2008 (3) SA 232 (CC; 2007 (12) BCLR 1312 para 50.

the regional court, suspend part of the sentence on condition that the
appellant pays compensation to the complainant within the contemplation of
s 297(1)(a)(i)(aa). That said, a noteworthy consideration in this matter is that,
save for submissions pertaining to the setting aside of the compensation
award, both counsel made no submissions to us regarding any other aspect
of sentencing. This is probably because they did not anticipate that the
grounds of appeal could be widened. Under these circumstances, the only
appropriate order that can best serve the interests of justice is to remit the
matter to the regional court for a fresh consideration of all aspects relevant to
sentencing, including additional evidence to the effect that the appellant is
now able to pay the full amount of the complainant’s loss as compensation
within the contemplation of s 300 of the CPA. For all the reasons set out in the
preceding paragraphs, I agree with the order proposed in the first judgment.

____________________
MB MOLEMELA
JUDGE OF APPEAL

APPEARANCES:
For appellant:

D.F Dorfling SC

Instructed by:
Du Plessis & Associates
C/o Martins Attorneys, Bloemfontein

For respondent:

J.B. K Swanepoel

Instructed by:

Office
of
the
Director
Public
Prosecutions,
Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

31 May 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Raymond Daniel de Villiers v The State (996/2021) [2023] ZASCA 83 (31 May 2023)
Today the SCA handed down judgment dismissing the appeal against the decision of the Full Court
Free State Division of the High Court of South Africa, Bloemfontein (the full court).
The factual background is briefly that the appellant, an accountant received an amount of R950 000.00
on 25 May 2005, from a long-standing client, the complainant, to invest on her behalf. The appellant
failed to invest the money as instructed and instead used it for his speculative business ventures. He
paid only R50 000.00 to the complainant on demand and the latter laid a charge of theft against him.
The appellant was arraigned before the regional court on a charge for fraud, and in the alternative, theft
of R900 000. On 11 August 2011 the appellant pleaded guilty to the alternative charge of theft in terms
of s 112 of the Criminal Procedure Act (CPA) and was convicted accordingly. Testifying during the
sentencing proceedings following the appellant’s conviction, the complainant expressed a desire to be
paid back the amount that had been stolen from her. On 29 November 2011, the regional court imposed
a sentence of seven years’ imprisonment, of which three years were suspended for three years. On
9 November 2020 (nine years since his conviction and sentence in the regional court) the full court
heard the appeal against the sentence and on 8 February 2021 it delivered judgment wherein the appeal
was dismissed, and the custodial sentence imposed by the regional court confirmed. The full court
stated in paras 3 and 4 of its order, that the appellant is ordered to pay to the complainant, the amount
of R900 000 within thirty (30) days of that order.
The appellant, aggrieved by the judgment and order of the full court, approached this Court on petition,
seeking special leave to appeal against the order of the full court which was granted but limited to only
para 3 and 4 of the full court judgment.
The SCA found that: First, on a proper construction of s 300(1) of the CPA, only the court that convicted
a person, referred to as ‘the court in question’ may award compensation under the provisions of s 300
of the CPA. In this case it was the regional court. The full court, as a court of appeal, was not the court
that convicted the appellant and thus lacked the authority or jurisdiction to award a compensation order
under s 300 of the CPA. Second, in terms of s 300 of the CPA, the compensation order is triggered
‘upon the application of the injured person or of the prosecutor acting on the instruction of the injured
person.’ The full court did not have an application in terms of s 300 of the CPA made to it either by the
complainant or by the prosecutor on her instruction, which was an essential pre-requisite for
consideration of a compensation in terms of s 300 of the CPA. The full court therefore erred in
considering and awarding a compensation, without an application before it. Third, s 300 of the CPA,
envisaged an inquiry to be held to determine the award. All parties before the court must be provided
an opportunity to participate in the proceedings. The full court gave notice to the parties after the hearing
of the appeal that it is considering increasing the sentence and invited submission of further heads of
argument. Of importance, the full court did not indicate to the parties that it had in mind to invoke s 300
of the CPA. As a consequence, the appellant submitted the heads of argument without specifically
dealing with submissions on s 300 of the CPA.  The appellant was thus prejudiced because he was not

granted a proper notice. Based on the above findings, the SCA concluded that the full court erred in
awarding compensation in paras 3 and 4 of its order.  Therefore, the full court’s award of compensation
in terms of s 300 of the CPA was set aside and the matter was remitted to the regional court for
sentencing afresh.
In a separate judgment, Molemela JA supported the conclusion of the majority judgment on the basis
of a different reasoning. She found that the sentence imposed by the regional court did not serve the
interests of justice. She explained that by imposing a partially suspended sentence without making any
compensation award envisaged in s 297(1)(a)(i)(aa) in circumstances where (1) the complainant’s loss
was almost R1 million rand, (2) the appellant had indicated a willingness to pay a lump sum of
approximately R300 000.00 the next day, (3) the complainant had expressed a willingness to accept
part-payment of the amount stolen as compensation, (4) the complainant had indicated that she had no
other way of recouping her loss, the regional court had not exercised its sentencing discretion
reasonably, thus warranting the setting aside of that sentence.

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