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[2011] ZASCA 77
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Ramokolo v S (251/10) [2011] ZASCA 77 (26 May 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 251/10
In the matter
between:
BRUCE
SABELO MPUMELELO RAMOKOLO
.................................
Appellant
and
THE
STATE
...........................................................................................
Respondent
Neutral citation
:
Ramokolo v The State
(251/10)
[2011] ZASCA 77
(26 May 2011)
Coram:
PONNAN, MAYA JJA and PETSE AJA
Heard:
17
March 2011
Delivered:
26
May 2011
Summary:
Criminal
law – extortion – s 156 of the Transkei Penal Code, Act 9
of 1983 – consulting engineer responsible for
facilitating
payment to building contractor in a state road construction project
coercing the contractor to give him monies not
legally due from
proceeds thereof – held to have committed extortion –
sentence – seriousness of offence discussed
– appropriate
sentence custodial sentence.
__________________________________________________________________
ORDER
On appeal from:
Eastern Cape
High Court (Mthatha) (Alkema and Dawood JJ sitting as court of
appeal):
1. The appeal
against conviction is dismissed.
2. The appeal
against sentence is upheld. The sentence imposed by the high court is
set aside. The following sentence is substituted:
‘
The
accused is sentenced to undergo four years imprisonment of which two
years is suspended for five years on condition that he
is not
convicted of extortion, committed during the period of suspension.’
____________________________________________________________________
JUDGMENT
__________________________________________________________________
MAYA JA (Ponnan JA
and Petse AJA concurring):
[1] The appellant
was indicted in the Mthatha Regional Court (N Conjwa) on two counts
of extortion. Despite his plea of not guilty,
he was convicted as
charged. The magistrate, taking both counts together, sentenced him
as follows:
‘…
that
the accused be sentenced to pay a fine of
FIFTY
THOUSAND RAND (R50 000,00)
or
in default of payment to undergo
TWO
(2) YEARS IMPRISONMENT
.
The accused is further sentenced to undergo
THREE
(3) YEARS IMPRISONMENT
,
which is wholly suspended for a period of five years on the following
condition, that the accused is not convicted of an offence,
an
element of which is dishonesty committed during period of suspension
or sentence and for which he is sentenced to an effective
term of
imprisonment. And further, that the accused repays the amount of R187
000,00 to the complainants in the matter on or before
30 December
noon, in the year 2010.’
On appeal to the
high court (per Alkema J, Dawood J concurring) the conviction on the
first count was overturned. The sentence was
also set aside and
substituted as follows:
‘
The
sentence imposed by the court
a
quo
in
respect of count 2 is set aside, and is replaced by the following
sentence:
“
The
accused is sentenced to four years imprisonment; of which two years
is suspended for five years on condition that the accused
is not
convicted of a crime of which dishonesty is an element, committed
during the period of suspension.” ’
1
The appeal, which is
against both conviction and sentence, is with the leave of the court
below.
[2] The
witnesses who testified in the trial – Ms Vatiswa Poswa
(Poswa), the complainant, Ms Uchell Althea Jones, an official
of the
Mthatha branch of the First National Bank (FNB), and Mr Zwelabantu
Arnold Makwabe, a director in the Eastern Cape Department
of Public
Works ( the Department) – were all called by the state. The
appellant did not testify or lead any evidence. It
appears from the
evidence of Poswa and, to a limited extent, Makwabe, that the fount
of the dispute is the award, by the Department,
of a tender valued at
R2 932 575,05 for the upgrading, rehabilitation and improvement of
certain urban roads in Ngangelizwe, Mthatha
in October 2003, to
Mageba Construction (Pty) Ltd (Mageba), in which Poswa and her
brother, Mr Sakhiwo Poswa, were joint directors
and shareholders. A
consulting civil, structural and development engineering company,
Manong & Associates (Pty) Ltd (Manong),
was appointed as the
consulting engineer on the project. Its role was mainly to ensure
that Mageba performed the construction work
properly and the
appellant, a professional engineer, was one of its directors and its
manager on the project.
[3] In terms of the
construction contract Mageba was required to submit monthly payment
certificates to Manong in respect of work
done. Thereafter, the
appellant would conduct a site inspection to assess the quality of
such work and measure it to verify the
amount claimed. Mageba had
been granted bridging finance to undertake the project by the Eastern
Cape Development Corporation (ECDC)
to which as security for the
discharge of its obligations, it then ceded its claim to payment
under the contract. Thus the Department
would pay the certified
amounts to ECDC which, in turn, made partial payments to Mageba and
paid the latter’s suppliers.
[4] Construction
operations began shortly after the award of the tender and the site
handover in November 2003. Pursuant to payment
certificates issued by
Mageba, sums of R1 466 241,27, R1 170 784,59 and R146 854,19 were
paid by the Department to ECDC on 2 February
2004, 1 March 2004 and
11 March 2004, respectively. There was a later variation order in the
sum of R274 978,42 by which the original
contract amount had
purportedly been exceeded. However, no payment certificate seems to
have been issued in respect of this amount.
This document constitutes
a significant part of the controversy as will appear later in the
judgment. From February 2004, at Mageba’s
instance and flowing
from ECDC’s delay in paying Mageba and its suppliers, ECDC was
required to pay the entire amounts received
from the Department into
a special banking account in Manong’s name. This account would
be administered by the appellant
who would then make the necessary
disbursements on Mageba’s behalf.
[5] Things started
going awry in the middle of March 2004. Mageba had not been paid for
a while and had complained to the appellant
as it was battling to
meet its overheads and had to use funds from other projects to
sustain the contract. On 17 March the appellant
arrived at Mageba’s
site and, after driving around the site without taking any
measurements, gave Poswa and her brother a
cheque in the sum of
R300 000. This was payment for work done made at the appellant’s
discretion as no payment certificate
in that amount had been issued.
Mageba nonetheless continued to issue payment certificates in the
prescribed manner thereafter.
But the appellant did not conduct any
proper site inspections or verify its payment certificates again.
Thus, the subsequent payments
of R500 000 and R55 000 which it
received on 4 May and 24 August 2004 were fixed by the appellant at
his discretion.
[6] The charges
preferred against the appellant relate to two separate incidents. The
first one occurred in the early stages of
the project, on 15 December
2003 and is the subject of count 1. As I have already stated, the
appeal to the court below succeeded
to the extent that the conviction
on that charge was quashed. It accordingly warrants no further
consideration in this judgment.
[7] The events upon
which count 2 was based took place in early May 2004, as Poswa
testified. The appellant visited Mageba’s
building site. He
asked to meet Poswa and her brother alone.They requested their
secretary to leave. He then told Poswa and her
brother that according
to calculations that he had performed on a certain computer programme
Mageba had been overpaid by a sum
of R600 000 which would have to be
returned to the Department. An argument ensued between them. Poswa
and her brother were of the
view that the quantities to which the
appellant referred in his calculations were less, and not more, than
those onsite as the
appellant claimed. The appellant however
maintained that his computer programme was foolproof and would not
budge.
[8] The appellant
said that he had very recently, in similar circumstances, returned to
the Department a sum of R1,2 million in
respect of another project in
that area which was conducted by another entity. He then suggested
that the only way he could avoid
returning the money in their case
would be if he took a portion of it – by making out a cheque to
them for R180 000, which
Poswa would then cash and give him the
proceeds thereof. He would thereafter make out another cheque to
Mageba in the sum of R500
000 for the work that it had done. After
enough pressure, as Poswa put it, she and her brother finally agreed
to the scheme. The
appellant drew a FNB cheque in Mageba’s name
in the sum of R180 000 which Poswa subsequently attempted to cash
without success
as Mageba no longer had an account with that
institution. Poswa then called the appellant on his cellular phone
and informed him
about the problem. The appellant promptly came to
the bank and drew a cheque in Poswa’s name in the same amount.
[9] The bank
required identification from the appellant as the drawer of the
cheque and Poswa as the payee thereof. Once this was
verified a cash
sum of R180 000 contained in money bags was paid to Poswa. She handed
the entire amount to the appellant outside
the bank, in her brother’s
presence. They parted thereafter. Poswa’s evidence was not
elucidated during the trial about
the timing of this event but it
appears that after the handing over of the R180 000, the appellant
gave them a R500 000 cheque
drawn in Mageba’s favour which
Poswa deposited into Mageba’s banking account on the following
day and was duly paid
by the bank.
[10] The
relationship between the appellant and the Poswa siblings soured
dramatically after this incident. About two days later
the appellant
accused Mageba of poor workmanship. He ordered it to cease operations
and threatened to cancel the contract. Mageba
was left with no choice
but to seek the Department’s intervention and report the whole
episode to its attorney and the Joint
Anti-Corruption Task Team of
the Special Investigating Unit in East London. Mageba, through its
attorneys, demanded the return
of the sum of R180 000 from the
appellant. In response to the demand, the appellant telephoned
Poswa’s brother. Poswa was
present during the call and the
phone was put on speaker mode. The two men argued and the exchange
ended without resolution.
[11] Sometime later,
the appellant telephoned the siblings in a state of panic after he
had been contacted by the Department and
removed from the project. He
said that he had formulated a strategy to refund the R180 000 and
asked to meet them to discuss the
issue. They agreed to meet him in
East London at a car park in Vincent Park. The Poswas reported the
planned meeting to the police.
A police trap was set and members of
the Joint Anti-Corruption Team would be present in the vicinity of
the meeting which subsequently
took place in a car at the car park as
arranged. There, the appellant reported on the plan that he had
formulated to recover the
R180 000. He said that it could be
recovered from the earthwork quantities because nobody would go and
dig up the road to measure
it as it was already covered with asphalt.
To that end, he would submit a variation order in the sum of R274
978,42 which he said
was ready and approved as he had previously
discussed the matter with Makwabe. Only Poswa’s signature was
outstanding and
he was available to submit the document in Bisho on
the following day. Poswa asked to make a copy of the variation order
and, as
she left the car, the police pounced and seized the document.
Mageba never recovered the monies which Poswa gave to the appellant.
[12] The gist of the
testimony of the FNB official, Jones, was that she had served Poswa,
who was accompanied by the appellant,
when she presented the R180 000
cheque at the bank and that they had both produced their identity
documents and were positively
identified by the bank as the drawer
and payee of the said cheque. The cheque had to be verified with the
bank’s Port Elizabeth
branch, from which it originated, and
then authorised by her supervisor. The appellant remained with Poswa
throughout that process.
He was still present when she counted the
money, bagged it and handed it to Poswa and she saw them leave the
bank together at about
17h00. She estimated that the transaction had
taken about one and a half hours as Poswa had initially arrived at
the bank shortly
before it closed to the public at 15h30.
[13] Nothing much
turns on Makwabe’s brief evidence which dealt mainly with the
manner in which the respective parties performed
under the contract
and the details of the payments made by the Department to Mageba. His
version was largely consonant with Poswa’s
evidence on the
relevant aspects although he mentioned, albeit briefly, that there
were certain problems with the construction
but that the work was
done well and the project ultimately completed. More important is his
assertion that it was impermissible
for payment to a contractor to be
effected without the foundation of a payment certificate and that he
had not been aware of the
appellant’s alleged conduct in this
regard.
[14] This was the
conspectus of the state case and, as mentioned , the only evidence
that adduced in the trial as the appellant
closed his case without
leading any evidence. The magistrate acknowledged that Poswa was a
single witness in so far as the events
relevant to the commission of
the offence were concerned and found that there were flaws in her
evidence.
[15] The magistrate
nevertheless concluded that such flaws as existed ‘did not
vitiate the whole of the State’s case’.
In her view, the
contradictions were not unexpected in the light of the considerable
lapse between the commission of the crimes
and the trial, and the
gruelling cross-examination, which took over a week, to which Poswa
was subjected. In the event, the magistrate
found Poswa to be a
reliable witness. She concluded that
‘
Although
the complainant stands as a single witness in as far as the events
relevant to the charges are concerned, the Court is
convinced beyond
a reasonable doubt that a case has been established against the
accused. The evidence pointing towards the commission
of the offence
is not only convincing but overwhelming. Just as the Courts are
enjoined to exercise caution when dealing with the
evidence of a
single witness, caution should not be allowed to displace reason. The
accused had elected, in the exercise of his
rights, not to refute the
State’s case. The State’s case therefore remains
unchallenged.’
In
arriving at that conclusion the magistrate relied on
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) and
Osman
and another v A G Transvaal
1998 (4) SA 1224
(CC) which held that once the prosecution has produced evidence
sufficient to establish a prima facie case, an accused who fails
to
produce evidence to rebut that case runs a risk as the court may well
be entitled to conclude that such evidence is sufficient
to found a
conviction.
[16] On appeal, the
court below found that the magistrate had misdirected herself in
certain respects. But nonetheless confirmed
the conviction in respect
of the second count although it found that the case had been ‘poorly
prosecuted by the State’
and that Poswa’s evidence
remained unsatisfactory in certain respects. The court found that
despite the flaws and the state’s
inexplicable failure to call
Poswa’s brother and the police who partook in the sting
operation in Vincent Park as witnesses,
the state had nonetheless
established a prima facie case. Poswa’s evidence, it held, was
‘not totally uncorroborated’
and demanded an explanation
from the appellant. The court drew an adverse inference from the
appellant’s failure to testify
when his counsel had put to
state witnesses that he would do so and said that this suggested that
‘he changed his mind because
he had something to hide’.
The court concluded that Poswa’s evidence clearly established
an express and unlawful threat
by the appellant to prevent any
further payments to Mageba if he was not paid R180 000 and that his
conviction was therefore proper.
The court below however found that
the sentence imposed by the magistrate was shockingly
disproportionate to the seriousness and
prevalence of the crime of
extortion and corruption and substituted it with one of direct
imprisonment.
[17] The matter fell
to be decided under the provisions of the Transkei Penal Code, Act 9
of 1983 (the Penal Code) which was applicable
in the area of
jurisdiction in which the offences were alleged to have been
committed. Extortion is dealt with in s 156 of the
Penal Code which
provides:
‘
Any
person who takes from another some advantage by intentionally and
unlawfully subjecting such other person to pressure which
induces him
to submit to that taking shall be guilty of an offence.’
[18]
The requirements of extortion under the Penal Code are no different
from those of the offence under the common law. Both versions
of the
offence consist ‘in obtaining from another some advantage by
unlawfully and intentionally subjecting him to pressure
that induces
him to submit to the taking’.
2
The
element of ‘unlawfully subjecting another to pressure’
implicitly requires a threat to be used to apply such pressure.
And
it is that threat and the purpose for which it was used that
the
court will consider when deciding whether a person was subjected to
unlawful pressure.
3
[19] State counsel
correctly conceded that the state case could have been better
presented.
I respectfully agree with the court below that Poswa’s evidence
was not entirely satisfactory in parts. This, it
appears to me, was
largely due to the manner in which her evidence was led; her
examination-in-chief was cursory at best and it
is mostly in
cross-examination that most of the material issues she raised were
explained. Further, there seems no reason on the
face of it why
Poswa’s brother who was said to have been present when the
offences were committed and the police who were
involved in the sting
operation were not called as witnesses. But, having said that, it
must be considered that the state has an
unfettered discretion in its
choice of witnesses
4
and
that the failure by a litigant to call a witness in support of his
case does not necessarily warrant the drawing of an inference
adverse
thereto if such case may have been sufficiently presented without the
witness.
5
[20] I agree with
the defence counsel that Poswa’s evidence must be carefully
viewed against the probabilities as she was
a single witness in
relation to the events
giving rise to the
offence. That the trial court and the court below did. Both subjected
her evidence to careful scrutiny. I accept
as both courts did, that
her evidence is not without its blemish but I can find no warrant for
rejecting her evidence in its entirety
as submitted by counsel. Her
evidence, it must be added, did not stand in isolation. There was
much in the documetary exhibits
and the evidence of the other state
witnesses that afforded material corroboration for her version. The
documentary evidence consisted
of the appellant’s and Manong’s
bank statements reflecting the changing of hands of the sum of R180
000; the bank cheques
of R300 000 and R500 000 paid by the
appellant to Mageba without the basis of payment certificates in
contravention of the
relevant requirements and the variation order
which was similarly unaccompanied by a payment certificate.
[21] It was
contended on the appellant’s behalf that Poswa’s evidence
was unreliable, inconsistent and inherently improbable
and that there
was no reason for
him to testify when
it was seriously doubtful on the State’s own version that he
had committed the offences. I do not agree.
By the end of the state
case it had become either common or undisputed that:
(a) On 3 May the
appellant had issued two cheques in the sums of R180 000 and R500 000
dated 3 and 4 May, respectively.
(b) The appellant
had gone to the bank on 3 May to confirm the authenticity of the
cheque for R180 000 and verify his identity as
the drawer of the
cheque.
(c) At the bank the
appellant met Poswa and after a protracted wait the cheque was cashed
by Ms Jones, an employee of the bank.
(d) The appellant
left the bank together with Poswa, who was possessed of the cash.
(e) The next day the
other cheque for R500 000 was presented for payment by Poswa and met.
(f) The Poswas
thereafter sought, through their attorneys, to recover the sum of
R180 000 from the appellant.
(g) The Poswas
reported the matter to the police and a trap was set for the
appellant.
(h)The appellant met
with the Poswas in Vincent Park in East London some two to three
months later and when he so met with them
he was possessed of a
variation order that he proposed should be submitted to the
Department.
These facts plainly
called for a rebuttal from the appellant and it was inconceivable
that if an innocent explanation was available
to him he would have
elected not to testify nor to adduce any evidence in his defence.
[22] I find the
appellant’s decision to wait at the FNB with Poswa until she
received the money perplexing. It seems to me
highly unusual that a
busy professional would continue waiting idly in a bank as the
appellant did long after he had fulfilled
what was required of him to
have the cheque authorised, which also took time, unless he had an
interest in the proceeds. There
appears no reason whatsoever on the
evidence for him to have kept Poswa company when her brother waited
for her outside the bank.
The same may be said for his agreeing to
meet the Poswas in Vincent Park after their relationship had
obviously soured. This conduct
also called for an explanation. And it
needs to be asked why Mageba’s directors would initiate the
drastic steps of reporting
the appellant to the police when this
would expose their own complicity in serious acts of dishonesty if he
had done nothing untoward.
But most compelling is Poswa’s
assertion, which remains uncontested, that the appellant threatened
to cut Mageba’s
lifeblood by not paying it further for its
services unless he was given a portion of the available project
funds.
[23] Both courts
below were thus fully justified in drawing an adverse inference from
the appellant’s failure to testify.
In those circumstances they
were entitled to conclude that the evidence was sufficient in the
absence of any explanation from the
appellant to rebut the
accusations levelled against him. It follows that the appellant’s
conviction cannot be faulted and
must be confirmed.
[24]
Turning to the question of sentence: The approach to be adopted by an
appellate court to an appeal against sentence is trite.
It is that
punishment is pre-eminently a matter for the discretion of the trial
court and that a court sitting on appeal will interfere
only if such
discretion is not judiciously and properly exercised ie where the
sentence is vitiated by misdirection or is disturbingly
inappropriate.
6
Thus,
an appellate court may not interfere merely because it would have
imposed a heavier or lighter sentence and will do so only
if there is
a striking or startling or
disturbing disparity
between the trial court’s sentence and that which it would have
imposed.
7
[25] Counsel for the
appellant submitted that the court below had misdirected itself in
certain material respects when altering
the sentence imposed by the
magistrate. The first is that the appellant manipulated state funds
to be paid into Manong’s
bank account. In arriving at that
conclusion the court misconstrued the evidence. The second was that
the prejudice he suffered
as a result of a provisional restraint
order granted against him in proceedings for a confiscation order
under the
Prevention of Organised Crime Act 121 of 1998
, and the
likely censure by the professional bodies to which he belongs as a
result of the case was deemed irrelevant. To my mind,
these factors
are relevant in the determination of an appropriate sentence. I am
thus willing to accept that the court below did
indeed misdirect
itself.
[26]
But I agree entirely with the court below that the sentence imposed
by the magistrate was too lenient and did not adequately
address the
seriousness of the offence committed by the appellant and its
prevalence. For decades the courts have lamented the
ever-increasing
scourge of crimes involving dishonesty such as corruption, fraud and
extortion. The devastating effect of these
offences is articulately
described by this court in
S
v Shaik and others
where
it said:
8
‘
The
seriousness of the offence of corruption cannot be overemphasised. It
offends against the rule of law and the principles of
good
governance. It lowers the moral tone of a nation and negatively
affects development and the promotion of human rights. As
a country
we have travelled a long and tortuous road to achieve democracy.
Corruption threatens our constitutional order. We must
make every
effort to ensure that corruption with its putrefying effects is
halted. Courts must send out an unequivocal message
that corruption
will not be tolerated and that punishment will be appropriately
severe. In our view,
the trial Judge was correct not only in viewing the offence of
corruption as serious, but also in describing
it as follows:
“
It
is plainly a pervasive and insidious evil, and the interests of a
democratic people and their government require at least its
rigorous
suppression, even if total eradication is something of a dream.”
It is thus not an
exaggeration to say that corruption of the kind in question eats away
at the very fabric of our society and is
the scourge of modern
democracies. However, each case depends on its own facts and the
personal circumstances and interests of
the accused must always be
balanced against the seriousness of the offence and societal
interests in accordance with well-established
sentencing principles.’
[27]
In
South
African Association of Personal Injury Lawyers v Heath
,
9
the
Constitutional Court, dealing with a matter involving corruption,
said:
‘
Corruption
and maladministration are inconsistent with the rule of law and the
fundamental values of our Constitution. They undermine
the
constitutional commitment to human dignity, the achievement of
equality and the advancement of human rights and freedoms. They
are
the antithesis of the open, accountable, democratic government
required by the Constitution. If allowed to go unchecked and
unpunished they will pose a serious threat to our democratic State.’
[28]
The
circumstances of this case undoubtedly demand a custodial sentence.
As pointed out by Marais JA in
S
v Sadler
,
10
the
view that perpetrators of white-collar crime are not true criminals
and do not belong in jail because it is non-violent and
the
perpetrators are usually first offenders with ostensibly respectable
backgrounds is a dangerous fallacy in view of the corrosive
impact
upon society of such crime. This view results in sentences which send
out a message that it pays to commit these types of
crime. There is
absolutely nothing respectable about a white-collar criminal and the
effect of his actions may be as devastating
as those of a violent
crime.
[29] The appellant
was tasked by the state to oversee a critical developmental project
which would ensure the betterment of a poor
area. Indications are
that Mageba was a small, emerging building contractor, struggling to
establish itself in the market whiltst
obviously providing
much-needed employment in the area. The appellant was placed in a
position of trust which required the utmost
integrity and care. But
he abused it by deliberately devising a scheme by which to fleece the
very state which
provided him with a
means of income and the contractor he was expected to monitor to
satisfy his avarice, placing the whole project
in jeopardy. One would
have expected that Poswa’s refusal to acquiesce to his vile
scheme would stir his conscience. Instead,
it propelled him to devise
a further, elaborate plot to defraud the state to buy her silence.
[30] That said
however, the appellant’s personal circumstances and interests
must be balanced against the seriousness of the
offence he committed
and societal interests as enjoined in
S v Shaik
. He was 38
years of age when he committed the offences. He is a first offender
with two minor children whom he maintains. His highly
successful
career seems to have been peaking when the sky fell on him and he
must indeed have suffered considerably in many ways
as a result of
this case. In addition to the trauma
and shame he, and
probably his family, must daily endure from his fall from grace, he
has for many years had to live with the anxiety
and stress of the
criminal proceedings which started in July 2005.
[31] As I have said,
it is a relevant factor that the appellant’s troubles and
punishment have not been confined to this case
and he has had to
contend with other litigation under which a significant portion of
his assets were frozen and may very well be
impeded in future from
effectively practising his profession. He was a productive member of
society until his lapse and contributed
materially in the building of
national infrastructure by his involvement in various vital
development projects. Although I do not
agree with his counsel that
his conduct was impulsive, I nonetheless accept that that his lapse
was an isolated breach and that
no pattern of wrongdoing was
established.
[32]
Approaching the question of sentence afresh, as I am obliged to, I
remain unpersuaded that any warrant exists for interfering
with the
sentence imposed by the court below. If anything, on the view that I
take of the matter, the sentence errs on the side
of leniency, not
severity.
11
[33] There remains
one aspect, namely, the condition of suspension stipulated by the
court below. Conditions must be clearly set
out and must leave the
accused in no
doubt
as to what conduct is prohibited or required. Clarity in the
condition will also make it easier for any court which has to
consider an alleged violation of any condition. It is thus not
advisable to refer to groups of crimes in the condition such as
‘crimes of which dishonesty is an element’ as occurred
here.
12
It
is not necessary, it seems to me, to further qualify the condition of
suspension in an attempt to avoid the risk of the sentence
being put
into operation for relatively minor contraventions.
13
[34]
In the result the words ‘
a
crime of which dishonesty is an element’ falls to be deleted
from the condition of suspension to be replaced
with
‘extortion, corruption, forgery and uttering, fraud or theft’.
The sentence will thus read
‘
The
accused is sentenced to four years imprisonment of which two years is
suspended for five years on condition that the accused
is not
convicted of extortion committed during the period of suspension.’
Save to that extent,
the appeal against conviction and sentence fails and it is
accordingly dismissed.
__________________
MML Maya
Judge of Appeal
APPEARANCES
APPELLANT: A
Schippers SC (with him T Masuku)
Nongogo, Nuku Inc.,
Cape Town
EG Cooper Majiedt
Inc., Bloemfontein
RESPONDENT: JMK
Joubert
Director of Public
Prosecutions, Mthatha
Director of Public
Prosecutions, Bloemfontein
1
Prior
to the hearing of the appeal the parties had been given an
opportunity to file submissions as to why the sentence imposed
by
the Magistrate should not be increased.
2
Jonathan
Burchell
Principles of the Criminal Law
3ed 174.
3
Ibid
174 -175.
4
S
v Kelly
1980 (3) SA 301
(A).
5
S
v Ramroop
1991 (1)
SACR 555
(N) at 559d-e.
6
S
v Rabie
1975 (4) SA 855
(A) at 875 D-F.
7
S
v Sadler
2000 (1)
SACR 331
(SCA) para 8.
8
S
v Shaik and others
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA) para 223.
9
South
African Association of Personal Injury Lawyers v Heath
2001(1)
SA 883 (CC) para 4.
10
Ibid
fn 9 para 11.
11
C
ompare
De Sousa v The State
(626/2007)
[2008] ZASCA 93
(12 September 2008).
12
SS
Terblanche
Guide to
Sentencing in South Africa
2ed
p359.
13
See
S
v Mnguni & others
1985
(2) SA 448
(N).