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[2010] ZAWCHC 598
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Vaveki v S (A414/10) [2010] ZAWCHC 598 (3 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO. : A414/10
Date
Delivered: 3
rd
December
2010
In
the matter between:
NKOSANA
GARETH VAVEKI
…...................................................................
APPELLANT
And
THE
STATE
….............................................................................................
RESPONDENT
JUDGMENT
MATTHEE
AJ
:
[1]
Appellant was convicted on 10
th
June
2008 of one count of theft of trust money in the amount of R656 500 -
35 (read with
section 100
of the
Criminal Procedure Act 51 of 1977
,
hereafter the Act). On 31
st
July
2008 Appellant was sentenced to:
"1.
To pay a fine of R100 000 - 00 (one hundred thousand rand) and in
default of payment to undergo a period of 3 (three) years
of
imprisonment.
A
further 5 (five) years imprisonment is suspended for a period of 5
(five) years on conditions that:
1.1.
the accused is not again convicted of theft/fraud or an attempt to
commit either of these offences, and in respect of which
conviction
the accused is sentenced to a term of imprisonment without the option
of a fine, committed during the period of suspension.
1.2.
The accused pays the sum of R656 500 - 00 (six hundred and fifty six
thousand five hundred rand) to the Attorneys Fidelity
Fund by no
later than 31/12/2008.
2.
In terms of
Section 103(1)
of the
Firearms Control Act 60 of 2000
-
Accused not declared unfit to possess a firearm."
[2]
The payment of the fine was deferred and was subsequently paid by
Appellant during 2008.
[3]
Appellant did not comply with the condition of payment of the R656
500 - 00 and on 4 December 2009 the suspended sentence was
put into
operation and Appellant was committed to prison to serve the 5 year
sentence.
[4]
On 28
th
January
2010 Appellant unsuccessfully applied to the court a
quo
for
Condonation of the late filing of The Application For Leave To Appeal
and for Leave To Appeal against sentence.
[5]
Thereafter Appellant petitioned this Court for Condonation of the
late filing of The Application For Leave To Appeal and for
Appeal
against sentence. On 9
th
June
2010 this Court granted Leave To Appeal. On the same day Appellant
was granted bail pending the outcome of his Appeal. Appellant
accordingly spent some 6 months in prison.
[6]
At his trial Appellant initially pleaded not guilty. He chose not to
reveal the basis of his defence to the court. After two
witnesses
testified on behalf of the state, Appellant changed his plea and made
admissions in terms of
section 220
of the Act. In the admissions
Appellant set out the circumstances of the theft of the trust money
in the amount of R656 500 - 35.
In essence Appellant admitted that
during the period January 2003 to April 2005 he appropriated an
amount of R656 500 - 35 from
his Trust Account, money which had been
entrusted to him by members of the public, pending the finalisation
of their matters by
his firm. These admissions were accepted by the
state and Appellant was duly convicted as charged.
[7]
The matter was postponed for a correctional supervision officer's
report and thereafter Appellant was sentenced as set out above.
[8]
In sentencing Appellant the court a
quo
sought
to balance the competing interests when it comes to sentencing. In
this regard, both from what he stated at the trial and
from the
design of the sentence, it is clear that the magistrate decided that
in principle it should be made possible for Appellant
to avoid an
effective term of imprisonment and that by doing so all the competing
interests of sentencing can adequately be met.
Also of great import
to the magistrate was that the victim receive compensation for its
loss. In this regard the magistrate stated
as follows:
"...
this court is of the view that what is important in this instance is
that the monies that you have removed from the trust
account and
which then has been funded by the attorneys fidelity fund, need to be
repaid by you... this court is going to give
you the opportunity to
stay out of jail because you have the means to earn sufficient to
repay these monies and that is the only
reason that you are being
allowed to stay out of prison, but conditions are going to be imposed
that will ensure you make the payment,
because if you fail to do it,
then the alternative is a term in prison.... This court is giving you
the opportunity to stay out
of jail and you need...to take this
opportunity with both hands...."
[9]
At the hearing on 4
th
December
2009 for the execution of the suspended sentence Appellant did not
complain about the sentence or request that the conditions
attached
by the magistrate be deferred, he merely asked that the court show
him mercy. The magistrate ordered that in terms of
section 297(9)
(a)
(ii) of the Act Appellant's suspended sentence be put into operation
forthwith.
[10]
Appellant's application for Condonation and for Leave To Appeal in
the magistrate's court was filed some eighteen months after
judgment
and sentence were handed down by the court a
quo.
[11]
In essence the only reason forwarded by Appellant in seeking
condonation for this long delay was that he "put all my efforts
to ensuring that I place myself in a position (financially) to meet
the conditions of sentence and was a month away at the time
of the
arrest of realising the fruits of my efforts."
[12]
In his condonation application Appellant for the first time indicates
that he was not satisfied with the sentence when first
imposed in
July 2008. He proffers no acceptable reason or explanation for
failing to act on this dissatisfaction for eighteen months.
Nor does
he give any reason for his failure to apply to the court a
quo
during
this period for an amendment to the conditions imposed by the court a
quo,
especially
in the light of his alleged change of personal circumstances
subsequent to the sentence being imposed highlighted by
him in his
application for condonation.
[13]
In Appellant's Petition For Condonation to this Court, in substance
he takes the matter no further. If anything he exacerbates
his
failure to act timeously by trying to argue that as a
"conveyancing/commercial law practitioner, my criminal law was
suspect" and that it was only when he was incarcerated that he
established that his sentence was harsh and/or unfair. If one
has
regard to
inter
alia
that
Appellant holds an LLM, was admitted as an Attorney, Notary and
Conveyancer in 1998, had his own practice since 1998, was a
member of
a committee of the Law Society, had acted as a magistrate in the Cape
Town Magistrate's Court prior to his trial and
conviction and was
legally represented at his trial, this argument of Appellant must be
rejected.
[14]
In my view Appellant has given no explanation whatsoever for the long
delay in seeking leave to appeal.
[15]
This raises the issue of whether or not in such a case a court should
even consider the prospects of success of Appellant.
[16]
In S
v
Van Der Westhuizen
2009(2)
SACR 350 (SCA) at page 353 paragraphs [4] and [5] Snyders JA states:
"[4]
When an application for condonation is considered the court has to
exercise a judicial discretion upon a consideration
of all the
relevant facts. Factors such as the degree of non-compliance, the
explanation for the delay, the prospects of success,
the importance
of the case, the nature of the relief, the interests in finality, the
convenience of the court, the avoidance of
unnecessary delay in the
administration of justice and the degree of negligence of the persons
responsible for non-compliance are
taken into account. These factors
are interrelated, for example, good prospects of success on appeal
may compensate for a bad explanation
for the delay.
[5]
This court is only entitled to interfere with the discretion
exercised by the court a quo if it was done capriciously or upon
a
wrong principle, if it has not brought an unbiased judgment to bear
on the question or has not acted for substantial reasons."
[17]
In this matter Snyders JA found at page 355 paragraph [14] that "The
Appellant's explanation for the non-compliance with
the rules amounts
to no explanation at all."
[18]
Having found this Snyders JA nevertheless proceeds to examine the
prospects of success on appeal of the appellant in that matter.
It is
my respectful view that this approach of Snyders JA supports the
conclusion that even where there is "no explanation
at all"
for non-compliance by an appellant, the facts and circumstances of a
particular matter, not least of all the prospects
of success on
appeal, may still override this absence of an explanation.
[19]
Furthermore, I am of the opinion that in terms of the oath I have
taken to uphold the Constitution, not only am I duty bound
to uphold
and promote the constitutional rights of all when approached by
someone to do this, but I am also duty bound to act
mero
motu
when
it is required, especially where a person's dignity and liberty are
at stake, as is the case where a person faces the prospect
of
imprisonment.
[20]
A court always will have to be mindful of the constraints imposed on
it by the record before it when it seeks to fulfil the
duty on it to
protect and promote the rights in the Constitution. However such
constraints must not be allowed to prevent a court
from fulfilling
the said duty on it. As regards the approach to this duty on a court,
I respectfully associate myself with the
sentiments of Froneman J in
the matter of Kafe
v
MEC for the Department of Welfare, Eastern Cape
2005
(1) SA 141
at 152 (16), whilst recognizing that this judgment may not
specifically address my finding that I am duty bound to act
mero
motu
when
required. This duty on me must inform every action and decision of
mine as a judge, and I cannot permit an injustice to be
perpetrated
on an accused even if the accused is the author of or is partly to
blame for such an injustice on himself. The oath
compels me to be an
active participant in the quest for justice for accused people (and
litigants) and not merely an umpire or
referee.
[21]
Mindful of my constitutional duty and that in a condonation
application the strength of an applicant's case can trump the absence
of an explanation, I now turn to the merits of Appellant's case. (As
regards my interpretation of Van Der Westhuizen
supra,
if
it is incorrect, I am then of the view that the common law must be
developed in this regard to make it conform to the constitutional
duty on judges as set out above.)
[22]
At the hearing of this appeal Ms Kloppers, who appeared for
Appellant,
inter
alia
argued
that the court a
quo
overemphasized
the interests of the community at the expense of the personal
circumstances of Appellant. She also argued that
the cumulative
effect of the sentence resulted in a sentence which induced a sense
of shock and that it not blended with an element
of mercy.
[23]
In my opinion these arguments have no merit. If anything, if one has
regard to the nature of the crime, the various positions
of trust and
responsibility Appellant occupied at the time of the commission of
the crime and the sentences imposed on other attorneys
convicted of a
similar crime, Appellant can count himself extremely fortunate that
the magistrate decided to impose a sentence
which in principle
allowed him the option of serving no effective term of imprisonment.
[24]
However an argument raised by Appellant which requires further
attention is that when the court a
quo
imposed
the sentence it did not adequately apply its mind to whether or not
Appellant reasonably would be in a position to pay the
two sums
timeously so as to comply with the conditions of the sentence.
[25]
In this regard the magistrate stated as follows:
"
This court is going to give you the opportunity to stay out of jaii
because you have the means to earn sufficient to repay
these monies
and that is the only reason that you are being allowed to stay out of
prison, but conditions are going to be imposed
that will ensure you
make the payment, because if you fail to do it, then the alternative
is a term in prison....This court is
giving you the opportunity to
stay out of jail and you need, Mr Vaveki, to take this opportunity
with both hands and make sure
that you comply with each and every
condition of the conditions of suspension because the conditions
(are) going to be stringent
so that all of the (objectives) of
sentencing that were outlined to you at the beginning must be
ensured, and this court will seek
to uphold those objectives."
[26]
In his judgment in Appellant's condonation application the magistrate
reasoned as follows:
"
...the Court considered the circumstances of Mr Vaveki, took
particular cognisance of the plea by the defence at the time
that a
non-custodial sentence, or rather a sentence that gives the accused
an option to stay out of jail, could possibly be exercised
for the
reason that payment, or rather that compensation to the victim was
eminently possible. The court was informed at the time
that the
accused was in the process of selling a dwelling house that he owned
and that the proceeds after the bond had been settled,
would be more
than sufficient to meet the amount of the compensatory order, and
therefore the Court gave the accused the opportunity
to stay out of
jail by imposing a fine as an alternative to a term of imprisonment
and a further suspended term of imprisonment
on condition that
compensation was paid to the complainant."
[27]
Two things clearly emerge in the above extracts from the
court
a quo.
Firstly,
the magistrate was convinced that Appellant, with the necessary
application, was in a position to pay the two amounts within
the time
period given by him. Secondly, he had decided that in the
circumstances of the present matter it was appropriate to give
Appellant an opportunity to raise the money so that there would be no
effective term of imprisonment. As already indicated, as
regards the
latter Appellant can count himself extremely fortunate that the
magistrate decided to use his sentencing discretion
in such a
merciful manner. Had he simply imposed an effective term of
imprisonment, in my view no court would have interfered with
such a
sentence. Be that as it may, for purposes of this judgment it is
important to remember that the magistrate's aim when imposing
sentence was to allow Appellant an opportunity to escape an effective
term of imprisonment.
[28]
Thus central to the conditions the magistrate imposed was his belief
that according to Appellant himself, Appellant was able
timeously to
raise the two sums of money. In this regard the record does not
support this view of the magistrate.
[29]
During the sentencing stage of the trial, at one point Appellant's
legal representative informed the court a
quo
that
if Appellant sold his immovable property his proposed repayment time
table could be greatly reduced. This after indicating
that Appellant
would be able to pay R10 000 - 00 per month for the first six months
after sentence, R15 000 - 00 for the following
six months and
thereafter Appellant would endeavour to pay off the balance on the
amount stolen, the proceeds from the possible
sale of the said
immovable property obviously being pivotal to this line of thinking.
[30]
These submissions are not sufficient to support the magistrate's view
that it had been informed at the time of sentencing "that
the
accused was in the process of selling a dwelling house that he owned
and that the proceeds after the bond had been settled,
would be more
than sufficient to meet the amount of the compensatory order."
[31]
In any event the evidence of the claims director of the Attorneys
Fidelity Fund, Mr du Plessis, clearly contradicts this conclusion
of
the magistrate. When asked by the state whether the Law Society had
as yet initiated proceedings against Appellant to recover
the stolen
money he answered as follows:
"It
was not done in this case your worship as funds indications were that
it would not be worthwhile economically to act against
Mr Vaveki. We
became aware at a certain stage that he possessed a house,
(immovable) property, but the property was bonded to such
an extent
that at the time it was decided not to take any action against Mr
Vaveki for recovery."
[32]
The principles applicable to an appeal against sentence are set out
in S
v
Malgas
2001
(SACR) 469 SCA where Marais JA states as follows at 478 d - h:
"A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the
question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers
it. To do so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates
its exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing
so, it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance.
As it is said, an appellate Court is at
large. However, even in the absence of material misdirection, an
appellate Court may yet
be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence
of the trial court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that
it can properly be described as 'shocking', 'startling' or
'disturbingly inappropriate'. It must be emphasised that in the
latter
situation the appellate Court is not at large in the sense in
which it is at large in the former. In the latter situation it may
not substitute a sentence which it thinks inappropriate merely
because it prefers it to that sentence. It may do so only where
the
difference is so substantial that it attracts epithets of the kind I
have mentioned. No such limitation exists in the former
situation."
[33]
In the present matter I am of the opinion that the incorrect
interpretation of the evidence concerning whether or not Appellant
reasonably could be expected to meet the conditions of the payment of
the fine and the repayment of the money stolen by Appellant,
was a
material misdirection by the magistrate. I conclude this as his
sentence was premised on this wrong interpretation.
[34]
Furthermore I am of the opinion that this misdirection arose, or is
closely linked to, a further misdirection by the court
a
quo.
[35]
Reynolds J in the matter of Rex
v
Mashabane
1950(4)
SA 191 (EDLD) at page 192 F-G states:
"...it
does seem that two principles at least should be observed in the
imposition of the conditions. The first is that the
condition imposed
should bear at least some relationship to the circumstances of the
crime which is being punished by the imposition
of the suspended
sentence. ...The second is that the condition be stated with such
precision that the convicted person may understand
the ambit of the
condition."
[36]
In S
v
Benn; S v Jordaan; S v Gabriels
2004
(2) SACR 156
(CPD) at page 161a Bozalek J, referring to Reynolds J's
two principles, states:
"In
addition to these two requirements, a third has developed over the
years, namely that the suspending condition has to be
reasonable.
Thus where it was found that a condition was unduly onerous for the
accused and it was not reasonably possible for
the accused to comply
therewith, such a condition was set aside."
[37]
In S
v
Koko
2006
(1) SACR 15
(CPD) at page 21 paragraph [21] Van Reenen J said that
the purpose of suspending a sentence is two-fold: "The first is
to
avoid a repetition in the future of the criminal conduct of which
an accused has been found guilty and the second is to obviate
the
deleterious consequences that direct imprisonment may have."
[38]
I am in respectful agreement with these judgments.
[39]
Having decided that he wanted to impose a sentence which made it
possible for Appellant to avoid an effective period of imprisonment
the court a
quo
ought
to have made a more thorough investigation of Appellant's financial
circumstances before he decided on the terms of the conditions
he
attached to the sentence. Had he done this he would have realised
that his first impression of the evidence as regards Appellant's
house was not correct. His failure to do this led him to impose an
unreasonable condition on Appellant as far as the repayment
of the
stolen money was concerned, especially when combined with the fine
Appellant also had to pay. In doing this he undermined
one of the
main purposes of a conditional sentence, "to obviate the
deleterious consequences that direct imprisonment may
have."
(Koko
supra).
This
failure to do a thorough investigation before imposing the conditions
also amounts to a material misdirection.
[40]
Accordingly this court would be entitled to consider the question of
sentence afresh, if condonation was granted.
[41]
Thus whilst no adequate explanation has been given for the delay, the
merits of Appellant's appeal are sound. Furthermore,
as already
stated, my constitutional duty set out above compels me to intervene
in the sentence of the court a
quo,
even
if Appellant has failed in his responsibility to furnish the court
with a reasonable explanation for his long delay and for
his failure
to seek an amendment to the conditions of the sentence imposed by the
magistrate.
[42]
In any event one of the main reasons for the court a
quo
not
granting condonation was its incorrect interpretation of the evidence
before it concerning the ability of Appellant to comply
with the
conditions of the sentence. For this reason alone, the magistrate
cannot be said to have "acted for substantial reasons"(Van
Der
Westhuizen supra)
when
he refused condonation.
[43]
I am of the opinion that in such circumstances it would be remiss of
this court not to grant condonation to Appellant.
[44]
Having found on the merits of the appeal that this court would be
entitled to consider the question of sentence afresh, I now
turn to
the issue of an appropriate sentence.
[45]
As is apparent from this judgment so far, I am of a view that the
sentence imposed was not too severe and that Appellant can
count
himself very fortunate that the magistrate decided to try and keep
him out of prison. However, although this court can consider
the
question of sentence afresh, in the absence of any notice to
Appellant of a possible increase in his sentence, it would be
improper for this court to impose a sentence more severe than that
imposed by the magistrate. It also would be inappropriate for
this
Court to impose a suspended sentence with conditions which Appellant
reasonably could not meet. The most obvious such condition
being
requiring Appellant to pay a fine and repay the money stolen within a
certain time frame whilst this court is not in a position
to decide
on whether or not Appellant reasonably can be expected to meet such
conditions.
[46]
Another consideration of this Court must be the need to compensate
the victim, quite correctly highlighted by the magistrate,
in this
regard, the victim must be placed in the same position it would have
been was it not for the theft by Appellant. Consequently
it would be
appropriate if Appellant is held liable for the capital sum and any
interest accrued on
[47]
As is obvious from what already has been stated in this judgment, an
important question is whether Appellant reasonably is
in a position
to pay a large fine and compensate the victim within a time period
stipulated by this court. In this regard, as highlighted
above, where
a court has decided that it wants to give a person the opportunity to
avoid effective imprisonment by ordering a fine
and/or a compensation
order as an alternative or as a condition, it must endeavour as best
possible to establish whether such person
is in fact in a position to
pay such amounts at all and/or within the time frames stipulated.
[48]
If this is not done there is the ever present danger of favouring the
rich over the poor which will be in conflict at least
with section 9
(1) of the Constitution. Thus for example in the present matter the
indications are that Appellant's resources outside
of his own
immediate resources were either very limited or non existent. The
realities of South Africa include that the probabilities
are that had
the same sentence been imposed on an attorney who for many years had
been part of a privileged community, such attorney
would have been
able to access the amount of money involved and so prevent an
effective period of imprisonment.
[49]
It is thus important, to give effect and real content to the equality
provision in the Constitution, for a court to be aware
of the
immediate and wider financial circumstances and history of an accused
person where it decides to impose a fine or make a
compensation order
in terms of section 297.
[50]
As I see it such an approach would be consistent with the decision in
Minister
of Finance v Van Heerden
2004(6)
SA 121 (CC) as regards substantive equality.
At
paragraph [26] thereof Moseneke J (as he then was) states:
"The
jurisprudence of this Court makes plain that the proper reach of the
equality right must be determined by reference to
our history and the
underlying values of the Constitution. As we have seen a major
constitutional object is the creation of a non-racial
and non-sexist
egalitarian society underpinned by human dignity, the rule of law, a
democratic ethos and human rights. From there
emerges a conception of
equality that goes beyond mere formal equality and mere
non-discrimination which requires identical treatment,
whatever the
starting point or impact."
At
paragraph [27] he continues:
"This
substantive notion of equality recognises that besides uneven race,
class and gender attributes of our society, there
are other levels
and forms of social differentiation and systematic under-privilege,
which still persist. The Constitution enjoins
us to dismantle them
and to prevent the creation of new patterns of disadvantage. It is
therefore incumbent on courts to scrutinise
in each equality claim
the situation of the complainants in society; their history and
vulnerability; the history, nature and purpose
of the discriminatory
practice and whether it ameliorates or adds to group disadvantage in
real life context, in order to determine
its fairness or otherwise in
the light of the values of our Constitution."
[51]
There are obvious problems and dangers attached to applying such an
approach to a practical situation such as the present one,
not least
of all trying to answer the question of how thorough an investigation
into the personal and other financial resources
of an accused must be
to comply with the substantive approach to the equality provision. In
my view the use of section 300 of the
Act can go a long way to
address these problems and dangers. Where a section 300 award has
been made there are then other procedures
which can be followed by
the parties which allows for a thorough investigation into the wider
financial circumstances of the accused,
the obvious procedure being a
section 65 investigation in terms of the
Magistrates' Courts Act 32
of 1944
. In the present matter, if an order is made in terms of
section 300
of the Act, the Law Society and Appellant would have the
civil mechanisms in place to ensure that their respective rights are
protected.
(In my view the approach to substantive equality set out
by Moseneke J must impact on all procedures and practices in our
courts,
which obviously will include a process such as a
section 65
investigation.)
[52]
The
section 300
route also is better suited to addressing the main
mischief a sentencing officer is seeking to address with a
compensation order,
namely that the victim be compensated. If a
compensation order is made in terms of
section 297
and made a
condition of suspension of a prison sentence, as in the present
matter, and the accused cannot meet the condition timeously,
by going
to prison the chances of the accused ever compensating the victim
become less than if the accused was kept out of prison
and remained
free to try and raise the money to pay the compensation awarded. The
facts of the present matter clearly illustrate
this.
[53]
In the present matter there is sufficient information at this Court's
disposal to make a decision about an appropriate amount
for a fine.
However it does not have sufficient information at its disposal
properly to give effect to the need highlighted by
the magistrate to
compensate the victim by using
section 297
of the Act without making
the same error as the court a
quo
as
regards the ability of Appellant to meet any conditions imposed by
this court.
[54]
An option open to this Court in this regard is to refer the matter
back to the court a quo. For purposes of finality I am of
the view
that it would be unsatisfactory to further delay this matter by
referring it back to the court a
quo.
Furthermore,
given the sentence I have in mind and the amount of money stolen, the
jurisdictional limits on the magistrates' court
as far as the amount
of compensation which a magistrate can award in terms of
section 300
also precludes me from referring this matter back to the court a
quo.
(In
this regard, to facilitate a more creative and frequent use of
section 300
of the Act by magistrates it might be prudent for
parliament to consider amending the requisite legislation to remove
the said
jurisdictional limits when it comes to using
section 300
of
the Act. This could be seen as complementary to the efforts of the
Department of Justice to train lower court magistrates so
that they
are equipped to fulfil their new civil law duties.)
[55]
With this in mind, and accepting that on the issue of compensation
section 300
of the Act would be a more appropriate vehicle in the
present matter than using
section 297
of the Act, I now turn to an
appropriate sentence in the present matter.
[56]
Section 300
states that after conviction of an offence which has
caused damage to some person and "upon the application of the
injured
person or of the prosecutor acting on the instructions of the
injured person" a court can make an award in terms of this
section.
Although not apparent in a single structured application in
the record, I am satisfied that when the entire record is taken into
account this requirement of
section 300
of the Act is met. Similarly
I am satisfied that all the other requirements of
section 300
are
also present in the record as a whole.
[57]
Having made this finding in the present matter, I would emphasize
that it is not ideal for a court to have to read a record
as a whole
to decide whether or not the various requirements of
section 300
have
been met. It would be prudent for presiding officers to be more
structured and disciplined in their approach when a compensation
order in terms of
section 300
of the Act presents itself as an option
for sentence.
[58]
In Du Toit ef
al's
Commentary On The
Criminal Procedure Act,
there
is a useful discussion at pages 29-2 and 29-3 on
inter
alia
what
such a more structured and disciplined approach would include. At
page 29-3 the authors write:
"(11)
Practical guidelines have been laid down:
a)
The court must obtain all relevant facts before making an award and
especially as far as the following aspects are concerned:
•
the
amount of damages suffered, through proper evidence (SvJoxo &
others...(1964(1) SA 368(E))369A-B; S v Mape & another
1972(1) SA
754 (E) 754H-755A; S v Msiza 1979(4) SA
473
(T)475);
it
must be clear that the damages were caused by the offence...;
it
must be clear who the injured person is...;
that
a proper application has been lodged by the injured person (S v Sion
1975(2) SA 184 (NC) 186A-B);
that
the prosecutor, where he brings the application, received proper
instructions from the injured person....
b)
All
relevant facts must be recorded (S v
Claassens en 'n ander 1973(4)
SA 300 (O) 301E).
c)
The court must give early notice to the parties that an award may be
considered (S v Van Rensburg 1974(2) SA 243 (T) 244H-245;
S v
Baadjies 1977(3) SA 61 (E) 63; ...).
d)
The accused must be afforded the opportunity to address the court on
the matter and to lead evidence (S v Maelane 1978(3) SA
528 (T); S v
Msiza (supra) 475F-G).
e)
The attention of the injured person (complainant) should be drawn to
this section....
f)
The court may not lay down a date before which compensation should
take place,...(...S v Tlame 1982(4) SA 319 (B)).
g)
No
alternative imprisonment in the event of non- payment of the
compensation is possible (S v Luthuli 1972(4) SA 463 (N); S v Msiza
(supra) 474-5; S v N & others 1980(3) SA 529 (Tk)).
h)
An
order to compensate in the event of culpa and traffic offences is not
desirable (S v Du Plessis 1969(1) SA 72 (N); S v Dunywa
1973(3) SA
869 (E)). See also generally S v Mgabhi
2008 (2) SACR 377
(D).
i)
Where
the accused is to be sent to prison for a substantial period of time
and has no assets, an order under
s300
is usually inappropriate (S v
Baloyi 1981(2) SA 227 (T)).
j)
In S v Medell 1997(1) SACR 682 (C) a compensatory order under
s300
was combined with a sentence of correctional supervision. The court
held that as the accused did not have the means to comply with
the
compensatory order the trial magistrate should not have made the
order. It was also held that a compensatory order was not
a form of
correctional supervision and that a failure to comply therewith did
not entitle a court to reconsider or impose any other
punishment.
(12)
If applicable, an award for compensation can form part of a plea and
sentence agreement as provided for in terms of
s105A.
See
also
s105A(1)(a)(ii)(dd).
"
Whilst
the said discussion is useful, the approach in certain of the pre
1994 authorities cited must be weighed against the approach
required
by the Constitution as already dealt with in this judgment.
[59]
Furthermore, for reasons already expounded upon in this judgment, I
would disagree with the reservation expressed therein at
the foot of
page 29-3 with reference to the view of the author Terblanche that "a
criminal court is not an ideal forum to
resolve private law issues
and that 'courts should rather make use of the opportunities provided
by s 297 [of the Act], namely
to impose compensation as part of the
punishment as a suspensive condition to the sentence' ".
[60]
I am of the view that section 300 needs to be used far more often and
creatively than it is being used at the moment. The underlying
concern of the reservation of Terblanche can be dealt with by a more
structured and disciplined approach by the courts.
[61]
Returning to the matter at hand, the assessment of what a court
considers an appropriate sentence is always a difficult matter
and
this particular case is no exception.
[62]
I have weighed up the various factors pertinent to sentence and have
had specific regard to the magistrate's view that in the
present
matter Appellant should be given an opportunity to avoid an effective
term of imprisonment and compensate the victim of
his crime. In this
regard I once again emphasize that Appellant must count himself very
fortunate that the magistrate adopted this
view. It also must be
emphasized that it would be disingenuous of any practitioner in the
future to use the sentence I am going
to impose on Appellant as a
precedent for similar offences. Any reliance on this judgment must
take cognisance of the full judgment.
In this regard it must also be
noted that in arriving at a sentence I have been mindful of the fact
that Appellant has spent about
6 months in prison.
[63]
Accordingly I would allow the appeal and make the following order:
1.
The sentence imposed by the Magistrate on Appellant is set aside and
substituted by the following:
a.
Appellant
is to pay a fine of R100 000 - 00 (one hundred
thousand rand) and
in default of payment to undergo a period of 3 (three) years of
imprisonment.
b.
A
further 5 (five) years imprisonment is suspended for a
period of 5
(five) years on condition that the accused is not
again convicted
of theft or fraud or an attempt to commit
either of these
offences, and in respect of which conviction
the accused is
sentenced to a term of imprisonment without
the option of a fine,
committed during the period of
suspension.
c.
In
terms of section 300 of Act 51 of 1977, the Attorneys
Fidelity
Fund is awarded compensation in the sum of R656
500 - 00 (six
hundred and fifty six thousand five hundred
rand), such
compensatory award being against Appellant in
favour of the
Attorneys Fidelity Fund.
d.
Appellant
is further ordered to pay the Attorneys Fidelity
Fund interest on
R656 500 - 00, calculated at the legal rate from the date of
conviction to the date of payment of the R656 500
– 00.
e.
In terms of
Section 103(1)
of the
Firearms Control Act 60 of 2000
Appellant is not declared unfit to possess a firearm.
K MATTHEE
ACTING
JUDGE OF THE HIGH COURT
ERASMUS, J
I
agree, it is so ordered.
N
ERASMUS
JUDGE
OF THE HIGH COURT