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[2010] ZAWCHC 595
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Van Zyl v S (A325/07) [2010] ZAWCHC 595 (2 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN
CASE
NO: A325/07
In
the matter between:
HENDRIK
VAN ZYL
…...................................................................................................
Appellant
and
THE
STATE
…............................................................................................................
Respondent
JUDGMENT
: THURSDAY 2 DECEMBER 2010
GAMBLE,
J:
INTRODUCTION
[1
] The Appellant was charged in the Regional Court with various
offences linked to the ultimate demise of the Seven Eleven
Corporation (Pty) Ltd ("the Corporation") in the Western
Cape. The Corporation, which was run by the late George Hadjidakis,
owned and operated (through a franchise system) a large number of
suburban convenient stores primarily in the Western Cape. By
way of
example, the Appellant had a store in the suburb of Richwood (near
Milnerton) which was owned by him and run under franchise
with the
Corporation. As a franchised business the Appellant was required to
pay franchise fees to the Corporation and also to
buy his stock from
the Corporation at fixed prices.
[2]
Hadjidakis was a tough business man (some of the witnesses suggested
that ruthless was the more appropriate epithet) who ran
his business
with an iron fist. The way
in
which he went about the corporation's affairs brought him into
conflict with many of the store owners and franchisees, to the
extent
that by early 2001 there was significant strain between Hadjidakis
and many of the franchisees. The basis for that tension
is not really
material to this matter, other than for the detail which will follow
hereunder.
[3]
During the period May 2001 to March 2002 Hadjidakis received various
death threats, threats of arson, and other forms of blackmail.
These
threats were mostly in the form of letters but there were also
telephone calls made to his office and/or his cell phone.
[4]
Towards the end of 2001 a number of Seven Eleven stores were torched,
many of which burnt down completely. Arson was suspected
in the light
of the threats which had been made to,
inter
alia,
Hadjidakis.
Thereafter a number of store owners were contacted telephonically and
threatened that if they did not desist from paying
certain monies
over to Hadjidakis, their stores too would be burnt down.
[5]
Ultimately, with its business in disarray, the Corporation went into
liquidation and later arose like Phoenix from the ashes
to become the
"Friendly
Seven Eleven Store"
chain.
[6]
The Appellant was charged with twelve offences relating to the above
scenario:
Charges
1 and 2 were charges of attempted blackmail;
Charges
3-7 were charges of intimidation; and
Charges
8-12 were charges of arson.
The
trial commenced in July 2003 in the Regional Court, Parow, where the
Appellant pleaded not guilty to all the charges put to
him. The
matter then proceeded over a three year period with various attorneys
representing the Appellant and ultimately him representing
himself,
before he was convicted on 24 October 2006 on ten of the twelve
charges. He was acquitted on count 1 (attempted blackmail)
and count
5 (intimidation). The Appellant was sentenced to direct imprisonment,
the cumulative effect whereof was that he was to
serve eight years
imprisonment - effectively the sentences imposed on counts 8-12
(arson).
[7]
The Appellant appeals against both the convictions and sentence.
[8]
In the Court a
quo
the
evidence against the Appellant was purely circumstantial:
(1)
In respect of the blackmail charge he was allegedly linked by DNA;
(2)
In respect of certain of the intimidation charges he was linked by
the use of certain Telkom telephone cards which were found
at his
home; and
(3)
In respect of the arson charges the State attempted to establish that
the logical conclusion of the campaign of intimidation
and blackmail
was to effect the destruction of the buildings referred to in the
various charges, the last of which was the Appellant's
own shop.
In
respect of the latter, the State sought to link the Appellant by
virtue of certain allegedly unusual events which occurred shortly
before the building was burnt down.
[9]
For the sake of convenience I will approach the matter somewhat
differently to the magistrate and will commence at the end,
as it
were.
CHARGES
8-12: ARSON
[10]
The following counts were put to the Appellant in relation to the
arson charges:
(1)
On 30 November 2001 a second store in Richwood (referred to in
evidence as "Richwood 2") belonging to George Meiring
burnt
down;
(2)
On 11 December 2001 a store in Bellville belonging to George
Tsombanellis burnt down;
(3)
On 21 December 2001 a store in Stellenberg belonging to Cornelius
Carsten was partially burnt;
(4)
On 29 January 2002 a store in Parow belonging to Elna Hurter bunt
down; and
(5)
During the night of 25-26 February 2002 the Appellant's store
(referred to in evidence as "Richwood 1") was destroyed
by
fire.
[11]
As I have stated above, the Appellant could not be linked directly to
the destruction of any of these stores. In fact, in some
respect the
evidence revealed the existence of other persons. So, in respect of
count 9 (the Bellville Store) a man with longish
blonde hair (clearly
not the Appellant) was seen running away from the store by a
passer-by shortly after the conflagration had
commenced. The person
was never identified and was not linked to the Appellant in any way
at all.
[12]
In respect of the Stellenberg Store the evidence was that the front
door of the store had been forced open (presumably by a
motor vehicle
which had attempted to bulldoze open the sliding doors), an
incendiary substance had been thrown in through the gap
and ignited.
Once again the perpetrators were not identified and there was no
evidence to link this incident to the Appellant.
[13]
The destruction of the Parow Store occurred at around 04h30 in the
morning and the owner (Ms Hurter) was contacted telephonically
by
someone who wished her "a
nice
morning"
after
the store had burnt down. This call could not be linked to the
Appellant. Furthermore, Ms Hurter testified that on the previous
evening, a young blonde man carrying a crash helmet had come into the
store on the pretext of discussing a new burglar alarm system
for the
premises. Although the visit was extremely suspicious, the man in
question could not be linked to the Appellant and his
conduct
remained that - simply suspicious.
[14]
In regard to the fire at his own store (Richwood 1) witnesses gave
evidence that shortly before the store burnt down the Appellant
removed the closed circuit television system from the store. It was
also noted that on the night before the incident, the Appellant
had
stayed later than usual at the store and was seen packing large
quantities of Nescafe instant coffee in the store room. This
conduct
(given that Nescafe is evidently an expensive brand of coffee) was
regarded by some as suspicious. Finally, there was evidence
that when
the Appellant discovered that his store insurance had lapsed he was
visibly shocked. While this evidence may point to
his involvement in
the destruction of the premises, it is equally consistent with the
response of one who has "lost everything"
through the
absence of adequate insurance cover.
[15]
In summary, then, on the arson charges, there are certainly
suspicious circumstances which suggest the possible involvement
of
the Appellant in relation to his own store. Other than that, the
evidence points directly to the involvement of other persons
(in
particular a blonde man) and a red Nissan or Mazda motor vehicle with
a North West Province registration number which was seen
in the
vicinity of one of the fires, neither of which could be linked to the
Appellant.
[16]
Counsel for the State readily conceded during argument before us that
there was a paucity of evidence against the Appellant
(even
circumstantial) in relation to the arson
charges.
[17]
In my view the Appellant was wrongly convicted in relation to the
arson charges and his convictions in respect of charges 8,9,
10, 11
and 12 fall to be set aside.
ATTEMPTED
BLACKMAIL
[18]
Originally the Appellant was charged with two charges of attempted
blackmail in that during the period 23 May 2001 to 6 March
2002
Hadjidakis was contacted on a number of occasions telephonically,
initially with death threats and later, once the incidents
of arson
had occurred, with threats of robbery and further arson. In addition
to telephonic threats, a number of letters were sent
to Hadjidakis,
some of which were written in manuscript and others which were
inelegantly typed in a short, perfunctory telegram
style using
similar phrases in various letters.
[19]
During the period 23 May 2001 to 1 June 2001 it was alleged that
certain death threats were made to Hadjidakis which were contained
in
two letters, the first of which read as follows (I reproduce the
document in its original form):
(1)
"I have been paid R250 000,00 to take you out. Do you want to
offer more. Your secretary can say yes or no to the above
answer and
give me your cell number in order to arrange."
The
letter was signed by one "Greg Norman"- perhaps a jocular
reference to the famous Australian golfer.
(2)
"I got the cassette of the talks to kill you: you can buy for
R300.00:1 have to please my master to teach you lesson: will
soon
call"
That
letter was signed simply by "Greg".
[20]
In respect of count 1 there was nothing to link the Appellant to the
threat and he was duly acquitted by the Regional Magistrate.
[21]
In respect of count 2 it was said that an attempt had been made to
blackmail Hadjidakis by telling him that the robbery and
arson would
not stop until an amount of R900 000,00 had been paid over. These
threats were contained in a number of letters, initially
hand written
and later typed, and which were sent to the Corporation's
headquarters marked for the attention of Mr Hadjidakis.
[22]
Through some deft detective work, one of the envelopes containing
such a threatening letter was subjected to DNA analysis.
That
analysis showed that the Appellant's saliva had been employed to seal
the envelope - presumably he had licked same before
closing it. The
document was placed before the Court a
quo
as
Exhibit J and was purportedly date stamped 24 January 2002.
[23]
The contents of Exhibit J read as follows (once again I reproduce the
document exactly as it appears from the record):
"I
leave message you must drop money ... your secretary answer RULES;
(1) you go alone (2) money in bags (3) used money (4)
You will be
surrounded by armed people in cars (5) when you get called to stop
and drop.. .stop drop (my people will pick up) and
drive on towards
Worcester where you will get another call., and meet me., when do all
these..action against you will stop but
first another lesson pick up
your own phone..now you owe us R1,4... ifmoney ready for drop...send
email "shop will be upgraded
soon""
[24]
The blackmail threat contained in Exhibit J is self evident. But that
is not the end of the matter. Exhibit J follows upon
various other
documents, all in a similar type-face although certain letters were
typed exclusively in upper case. If one has regard
to exhibit C,
which is date stamped 23 December 2001 one sees the commencement of a
series of threats:
"THE
LAST STORE WAS A WARNING..! TOLD YOU NO TRICKS..IF MY ASSISTANT
(HARRY D'OLIVIEA) PHONE DO NOT WAIST HIS TIME.. GIVE HIM
YOUR CELL
NUMBER THAT YOU WILL HAVE WITH YOU DURING DROP OFF..BE READY..DROP
OFF WILL BE ON 24/25 OR 26 DES..WE WILL BE MEETINIG
YOU IN
WORCESTER..EVEN IF YOU DROP THE MONEY EARLIER..WE WILLL STILL MEET IN
WORCESTER.. .DISOBYING ANY ORDER WILL MEEN ONE THING..NOW
IT IS R995
000,00...IF YOU TRY ANYTHING ELSE..IT WILL BE R1,1M..AND THE NEXT
STORE WILL BE A PROPER 1 AGAIN.."
I
pause to point out that the spelling mistakes and poor grammar
contained in this exhibit (and various of the others) suggest that
English may not be the first language of the author thereof.
[25]
I do not propose to recite the contents of all of the letters sent to
Mr Hadjidakis. Suffice it to say that there is a pattern
of threats
contained therein which demonstrate knowledge on the part of the
author of the inner workings of the franchise system
of the
Corporation, as also knowledge of the fact that certain stores
belonging to. or associated with, the company had burnt down.
[26]
It is arguable of course that the author thereof may have read about
the destruction of the businesses in the newspaper and
was simply
joining in or jumping on the band wagon, as it were. However, I am
inclined to think that it is more likely than not
that the author of
the letters was the same person, or at the very least, a member of a
group of persons who were acting in concert
in an attempt to extort
money from Mr Hadjidakis by threatening arson and robbery of other
Seven Eleven outlets.
[27]
In argument before us
Mr
Bruinders
for
the Appellant conceded that the co-called "DNA chain" was
in order and that it could not be disputed that the Appellant's
saliva was found on one of the letters in this series. In the absence
of any explanation by the Appellant as to how his saliva
came to be
on the envelope in question, I am satisfied that the evidence
establishes, beyond reasonable doubt, that the Appellant
was at least
a participant in one of these attempts and that he was correctly
convicted on count 2. In this regard it will be noted
that there is a
commonality in the language and threats used in the documents.
Further the subsequent documents follow on from
threats and
allegations contained in the earlier documents and it is clear that
there was a pattern of conduct aimed at increasing
the pressure
sought to be imposed on the recipient. The only logical conclusion
therefore is that the threats were intended to
constitute a
persistent attempt to blackmail Mr Hadjidakis and the only reasonable
inference in the circumstances is that Appellant
was party to this.
[28]
I turn finally to the five charges of intimidation. As I have noted
above, the Appellant was acquitted on count 5 and nothing
more need
be said in that regard. The substance of the remaining charges
relates to various threats made to the proprietors of
certain Seven
Eleven outlets extending from Malmesbury and Paarl to Brackefell,
Kraaifontein and
Bellville.
The threats were made telephonically to the proprietors or managers
of the relevant stores and were threats to the effect
that if the
proprietor paid certain fees which were due to the Corporation, the
relevant store would be burnt down, or put differently,
the store
would not be burnt down if the fees were not paid.
[29]
The ultimate purpose of these threats was to cause financial harm to
the Corporation by the withholding of monies due to it.
[30]
The crime of intimidation is a statutory one in accordance with the
provisions of
Section 1
of the
Intimidation Act no. 72 of 1982
. The
legislation was originally introduced in the context of addressing
acts of political violence in the early 1980s and was extensively
used in that context. It is, however, still on the statute book and
reads as follows:
"1.
Prohibition
of and penalties for certain forms of intimidation.
(1)
Any person who -
(a)
without
lawful reason and with intent to compel or induce any
person or
persons of a particular nature, class or kind or
persons in
general to do or to abandon from doing any act or
to assume or to
abandon a particular standpoint -
(i)
assaults,
injures or causes damage to any person; or
(ii)
in
any manner threatens to kill, assault, injure or cause
damage to
any person or persons of a particular nature,
class or kind; or
(b)
acts
or conducts himself in such a manner or utters or publishes such
words that it has or they have the effect, or that it might
reasonably be expected that in natural and probable consequences
thereof would be that a person perceiving the act, conduct, utterance
or publication-
(i)
fears for his own safety or for the safety of his property or the
security of his livelihood, or for the safety of any other
person or
the safety of the property of any other person or the security of the
livelihood of any other person;
shall
be guilty of an offence and liable on conviction to a fine not
exceeding R40 000,00 or to imprisonment for a pehod not exceeding
ten
(10) years or to both such fine and such imprisonment.
(2)
In any prosecution for an offence under sub-section 1, the onus of
proving the existence of a lawful reason as contemplated
in that
subsection shall be upon the accused, unless the statement
clearly indicating the existence of such lawful reason
has been made
by, or on behalf of the accused for the close of the case for the
prosecution."
[31]
It will immediately be obvious that the wording of
Section 1(1
)(a)
of the
Intimidation Act (the
section with which the Appellant was
charged) was formulated in particularly wide terms - sufficiently
wide to cover the allegations
made
in
casu.
It
will further be observed that the wording of the Act does not require
that the person(s) to whom the threat of violence, injury
or damage
to property is made needs to be shown to have responded thereto.
Accordingly, where a witness says that he/she did not
take the
threats seriously, in my view does not mean that the person making
the threat cannot be convicted under the section in
question.
[32]
It is therefore necessary to consider all four charges of
intimidation against which
appeals
were noted i.e. charges 3, 4, 6 and 7 before the Court
a
quo.
■
[33]
The State adduced evidence of various Telkom officials to attempt to
link the Appellant to the communication of the four threats
which
formed the basis of each of the said charges.
[34]
Pursuant to a search warrant issued to the police, certain Telkom
telephone cards were found on the Appellant's residential
premises.
Three such cards were found in the bedroom of the Appellant's fifteen
year old son (two of them in the son's wallet)
and one on a cabinet.
A fourth card was found in an Opel Kadet motor vehicle parked in the
garage and belonging to the Appellant.
[35]
These telephone cards are customarily purchased at a variety of
retail outlets (including Seven Eleven stores) and enable the
user
thereof to make calls from Telkom call-boxes specially designed for
that purpose. The evidence before the court a
quo
was
that each card has an identifying number and through a computerised
program it is possible to establish when the card was used,
at which
call-box the call was made and to what telephone number (either
landline or cell) the call was directed. The duration
of any call
made can also be established.
[36]
It would appear that various of the Seven Eleven Franchises have
landline numbers that end with the digits "711"
- evidently
this is by design. Mr Hadjidakis' cell number also ends with these
digits. Perusal of the various print-outs relating
to the four Telkom
phone cards show that a host of calls were made to various Seven
Eleven outlets with these cards during December
2001 and January to
February 2002, including those referred to in relation to the
intimidation charges.
[37]
The telephone card found in the Opel Kadet (with reference TGBB
17314576932) was shown to have made two calls (27 February
2002 and 6
March 2002) to a cell phone number (0836296711) belonging to Mr
Hadjidakis. Another four calls were made on 21 February
2002, one of
which was directed to the Seven Eleven Store in Bellville (referred
to in count 7).
[38]
The telephone card with reference TGBC 174505675898 (which was found
in the Appellant's son's room) was used to make,
inter
alia,
the
following calls:
(1)
On 23 January 2002 to the cell phone no. of a Mr Havenga, a friend of
the Appellant. Mr Havenga confirmed this call which was
made from a
call-box close to the High Court building - at the corner of Wale and
Queen Victoria Streets, Cape Town.
(2)
At 12:35 pm on 18 February 2002 a call was made to landline no. 021
982 3711. This is the number of the Seven Eleven store in
Brackenfell
and corresponds with the date of the call referred to in charge 3.
(3)
At 3:33 pm on the same day a call was made to landline no. 022 482
3711, which is the number of the Seven Eleven store in Malmesbury.
This corresponds with the date of the call referred to on charge 4.
(4)
At 3:46 pm on the same day a call was made to landline no. 021 872
0711. This is the number of the Seven Eleven store in Paarl
and
corresponds with the date of the call referred to in charge 6
[39]
The Appellant strenuously denied using the four phone cards in
question and suggested that his son may have picked them up
when
visiting the Richwood 2 store of the Appellant. He said that people
often brought in defective cards for reimbursement and
attempted to
explain away the repeated use of the cards to Seven Eleven numbers in
this fashion.
[40]
The Court a
quo
found
that the Appellant was a poor witness whose explanations were not
reasonably possibly true. I agree with the Regional Magistrate's
credibility findings, by which we are bound given the circumstances
of this case. The use of one of the cards to call Mr Havenga
is
obvious proof that the Appellant had that card in his possession on
23 January 2002. This was, of course, the card that was
found in his
son's room. Clearly the Appellant had either secreted the card there
or given it to his son to keep for him when the
search of his house
was conducted.
[41]
Further we know that the card found in the Opel Kadet was used to
phone Mr Hadjidakis twice and also the Bellville store which
was the
subject of an intimidatory threat. It is inconceivable that the
Appellant's son would have made these calls and certainly
no reason
therefore was advanced.
[42]
In my view the Court a
quo
correctly
held that the only reasonable inference was that the Appellant had
utilized the cards in question. Indeed, the evidence
is overwhelming.
I am accordingly satisfied that it was the Appellant who made the
intimidatory calls which formed the basis of
charges 3, 4, 6 and 7.
[43]
The next issue then is whether the intimidatory threats made during
these phone calls fall foul of the statute. I shall deal
with each
count separately.
[44]
In respect of count 3 the State alleged that the substance of the
threat towards the complainant, Mr Sebastian Klue, was that
unless he
did not pay his so-called "CPC" fees to the Corporation,
his business (i.e. the Brackenfell Seven Eleven store)
would be
burned down. The "CPC" fees are a component of the
franchise agreement and relate to the account payable in
respect of
goods which a store owner is obliged to buy from the Corporation.
[45]
Mr Klue testified that on 18 February 2002 between midday and 13h00
he received a phone call on the landline 021 982 3711.
This time
accords with the call made by the Appellant on the Telkom card
referred to in paragraph 35 above.
[46]
He testified that the call was made by a person speaking with the
accent of an African male in broken English. Mr Klue said
that the
person spoke incoherently and that he did not properly understand
what was being said to him. He said that words to the
effect of "tell
George, pay CP or I will burn your store down" were uttered. He
understood the reference to "CP"
to relate to the CPC fees
and "George" to be a reference to Mr Hadjidakis.
[47]
Mr Klue said in his evidence-in-chief that he paid no attention
further to the threat which he regarded as ridiculous ("belaglik").
That, with respect, should have been the end of the matter on this
charge. Under cross-examination, he testified that his impression
was
that the caller was intentionally disguising his voice but, more
importantly, that the threat was senseless: it was directed
at
"George" not paying the CPC fees whereas the responsibility
to pay was his, as a store-owner.
[48]
In my view, therefore, the State failed to prove that there was a
threat made vis-a-vis Mr Klue which was intended to induce
him to
take up a particular view or to take up a particular course of
conduct. He should therefore not have been convicted on
this count
and the conviction falls to be set aside.
[49]
In respect of count 4 it was alleged that on 18 February 2002 the
Appellant threatened Martha Kock that she should not pay
money to
George Hadjidakis lest her store (the Malmesbury Seven Eleven) be
burned down.
[50]
Ms Martha Kock testified on this count and said that on 18 February
2002 at around 5h15 she received a call on her landline
number 022
482 3711. The caller was an English-speaking male who spoke quickly
and loudly. He said words to the effect of "Harry"
and
"not to pay".
[51]
Ms Kock said that she thought it was someone calling from the
Corporation's Head Office and she told him that, as it was
a Monday,
she would be paying the monies due to the Corporation. She did not
really understand what the man was trying to convey
to her due to
the incomprehensible nature of the call.
[52]
Ms Kock went on to say that she was briefly called away from the
phone by an employee and that she asked the caller to hold
on. She
did not put down the handset and when she returned to the phone the
man said "You don't understand. Tell George
Hadjidakis if you
pay him, I'll burn your shop down!".
[53]
The person sounded angry and spoke quickly in a gruff foreign accent
which she classified as Greek. Ms Kock was not asked
in her
evidence-in-chief to describe her response or state of mind when she
received this call.
[54]
Ms Kock was clearly not perturbed by the call because she said that,
although her husband had not yet paid the monies in
question on the
day of the call, they were indeed paid later. She said that she
regarded the call as a reminder from the Corporation
that there were
monies due to it and that these were then paid.
[55]
The evidence of Ms Kock establishes that she in no way felt
threatened by the call. In light of the wide wording of
Section 1
(1
)(a) of the Act to which I have referred above, the actual state of
mind of the person to whom the threat is conveyed is not
relevant.
Rather, the Act contemplates an objective assessment thereof - the
purpose of the Act being to criminalize the threat
perse
rather
than the consequences thereof.
[56]
Whatever may have been said initially, the words uttered to Ms Kock
(as set out in para 52 above) were obviously intended
to persuade
her not to pay CPC fees to the Corporation, thereby causing it
financial harm or embarrassment. It follows that the
Appellant was
correctly convicted on this count.
[57]
Turning to count 6, the substance of the charge was that on 18
February 2002 Mr Wesley Swart (proprietor of a Seven Eleven
store in
Main Road, Paarl) was threatened that his store would be burned down
if he paid his CPC account.
[58]
Mr Swart testified that he received a telephone call on 18 February
2002 at approximately 15h40 on his landline number 021
872 0711. As
pointed out above this call is one of those made with the Telkom
card found in the Appellant's son's room.
[59]
The caller was a male with a gruff voice who spoke English. He
claimed to be phoning on the instructions of Mr Hadjidakis.
He told
Mr Swart that it was not necessary for him to pay his CPC account.
When Mr Swart attempted to engage further with the
caller he was
told that, in the event that he paid, his shop would be burned down.
[60]
Mr Swart said that at the stage that he received the call his CPC
fees had already been paid earlier that day - it was a
Monday and
they were then due. He said that his immediate response was to
regard the phone call as a hoax but at the same time
he did give
consideration to the fact that his store was not insured at the
time.
[61]
For the same reasons as set out in regard to count 4 above, I am of
the view that the State established beyond reasonable
doubt that the
Appellant was guilty of the act of intimidation alleged in count 6.
It follows that the Appellant was correctly
convicted on this count.
[62]
Finally, I turn to count 7 in which it was alleged that on 21
February 2002 Mr Peter Klue of the Seven Eleven store in Barnard
Street, Bellville was threatened not to pay his account with George
Hadjidakis, failing which his store or his home would be
burned
down. Mr Klue testified that the threat was conveyed telephonically
to him shortly after15h00 on 21 February 2002 by a
caller who phoned
him on his landline number 021-946 2711. This call, as stated
earlier, was made with the Telkom phone card
found in the Opel
Kadet. Like the other witnesses the caller's voice was described as
gruff, speaking English with a Greek or
Portuguese accent. Mr Klue
went on to say that the caller may have disguised his voice. The
words uttered were to the effect
that "if you pay George we
will burn down your shop and your house".
[63]
Mr Klue said that the caller gave no indication of the accounts
which he was not supposed to pay but since all that were
payable
were the CPC accounts, the conclusion was inevitable. He said that
he was concerned about the threat because a number
of Seven Eleven
stores was burned down shortly before that. Nevertheless, his was
undeterred by the threat as his business continued
as usual.
[64]
As with counts 4 and 6, the fact that Mr Klue was not alarmed by the
threat made to him telephonically is irrelevant. In
my view the
threat was sufficient (viewed objectively) to constitute a
contravention of
Section 1
(1 )(a) of the Act. It follows that the
appeal against the conviction on count 7 must fail.
[65]
It follows from the afore going that the appeal against the
convictions on counts 3, 9, 10, 11 and 12 should be upheld while
the
appeal against the convictions on count 2, 4, 6 and 7 should fail.
[66]
In sentencing the Appellant the Court a
quo
imposed
a period of direct imprisonment of three years on count 2. The
sentence on the intimidation charges, which were taken
together for
purposes of sentence, was two years imprisonment. As regards the
five counts of arson upon which the Appellant was
convicted, these
too were taken together for the purposes of sentence and a sentence
of eight years imprisonment was imposed.
The Court ordered that all
of the sentences should run together so that the cumulative effect
thereof was eight years.
[67]
Because of the extent of the convictions the Court a
quo
was
clearly (and correctly in my view) influenced by the enormity of the
crimes in considering sentence. In my view that fact
alone should
entitle this Court to consider sentence afresh. But, in any event,
because the sentence that I consider appropriate
differs markedly
from the sentence imposed by the Regional Magistrate, I am of the
view that this Court is entitled to interfere.
[68]
The evidence before the Court a
quo
was
that the arrest of the Appellant and the protracted trial had had a
devastating effect on him and had practically destroyed
his life. He
and his wife were divorced shortly after the trial commenced and she
and their two children have moved overseas.
[69]
The appellant said that he was unemployed and that he lodged in a
room with an old woman in Vredenburg. He was busy studying
for his
LLB in October 2006 when he was sentenced. The Appellant's business
had been destroyed in the fire and he had been reduced
to penury.
[70]
The Appellant has a pervious conviction for theft in 1995 when he
was sentenced to a fine of R400.00/40 days imprisonment.
Clearly
that was not a particularly serious case.
[71]
Regarding the crime itself, the amount which the Appellant attempted
to extort from
Mr
Hadjidakis was large - R900 000.00. However, it seems as if Mr
Hadjidakis did not take the matter very seriously as no concerted
attempt was made to pay anything over.
[72]
Similarly, in respect of the intimidation counts, none of the
witnesses was particularly alarmed by the threats and some
even
thought that it was all a bit of a joke.
[73]
One cannot lose sight either of the fact that the Appellant was
probably caught up in a campaign with others aimed at causing
economic rather than physical harm to Mr Hadjidakis because of
general dissatisfaction with the way in which he conducted the
Corporation's affairs to the detriment of the franchisees.
[74]
In my view it is unlikely, given his present circumstances, that the
Appellant will easily become embroiled in this sort
of crime again.
Consequently, I do not believe that this matter warrants direct
imprisonment. In respect of count 2, I consider
that a fine coupled
with a suspended sentence of imprisonment will adequately address
the gravity of the offence, the interests
of society and the
personal circumstances of the Appellant. As far as counts 4, 6 and 7
are concerned I am of the view that a
suspended sentence will
achieve the objectives of sentencing.
[75]
In the circumstances I would make the following order:
(A)
The appeal against the convictions on counts 3, 8, 9,10,11 and 12 is
upheld and the convictions and sentences on those counts
are set
aside.
(B)
The appeal against the convictions on counts 2, 4, 6 and 7 is
dismissed and the convictions on these counts are confirmed.
(C)
The sentence on count 2 is set aside and replaced with the
following:
"The
accused is sentenced to a fine of R5 000 (five thousand rand) or 6
(six) months imprisonment and a further 18 (eighteen)
months
imprisonment, the latter being suspended for a period of 3 (three)
years on condition that the accused is not convicted
of blackmail or
extortion during the period of suspension."
(D)
The sentence on counts 4, 6 and 7 is set aside and replaced with the
following:
"The
counts are taken as one for the purposes of sentence. The accused is
sentenced to 6 (six) months imprisonment which
is suspended for 3
(three) years on condition that he is not convicted of a
contravention of any of the provisions of Act 72
of 1982 during the
period of suspension."
P.A.L.
GAMBLE, J
I
agree. It is so ordered.
A.H
VELDHUIZEN, J