Van der Westhuizen v S (479/08) [2009] ZASCA 48; 2009 (2) SACR 350 (SCA) ; [2009] 4 All SA 51 (SCA) (22 May 2009)

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[2009] ZASCA 48
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Van der Westhuizen v S (479/08) [2009] ZASCA 48; 2009 (2) SACR 350 (SCA) ; [2009] 4 All SA 51 (SCA) (22 May 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 479/08
GERHARD VAN DER WESTHUIZEN
Appellant
and
THE STATE Respondent
Neutral citation:
Van
der Westhuizen v The State
(479/08)
[2009]
ZASCA 48
(22 MAY 2009)
Coram:
CLOETE, SNYDERS JJA
and GRIESEL AJA
Heard:
06 MAY 2009
Delivered:
22
MAY 2009
Summary:
Condonation –
failure to prosecute appeal in compliance with the rules –
explanation for delay and prospects of success evaluated
ORDER
On appeal from: High Court, Pretoria
(Claassen and Basson JJ sitting as court of
appeal
from a regional court):
The appeal against the refusal of the
application for condonation is dismissed. The order by the court a
quo dismissing the appeal
is set aside.
JUDGMENT
SNYDERS JA: (CLOETE JA and GRIESEL
AJA concurring)
[1] This is an appeal against the
refusal of condonation by the High Court in Pretoria (Claassen and
Basson JJ). The appellant applied
for condonation as he had failed to
comply with several rules of court in the prosecution of his appeal.
The matter is before this
court as the appellant exercised his
automatic right of appeal that arises from s 21(1)
1
of the Supreme Court Act 59 of 1959 (despite the provisions of s
20(4)
2
)
as explained in
S v
Gopal
1993 (2) SACR
584
(A) at 585c-d:
3
‘
. . . indien ‘n persoon in die landdroshof aan ‘n
misdryf skuldig bevind en gevonnis word en sy appèl na die
Provinsiale
(of, indien van toepassing, die Plaaslike) Afdeling van
die Hooggeregshof misluk, mag hy alleen met die nodige verlof na
hierdie
Hof appelleer. As hy egter sou nalaat om sy eerste appèl
na behore voort te sit en dit nodig is om kondonasie te verkry (soos

bv vir die laat aantekening van appèl) en dié aansoek
misluk, het hy ‘n outomatiese reg van appèl teen die
afwys
van sy aansoek na hierdie Hof.’
[2] The appeal that the appellant
sought to pursue in the court a quo was from the Special Commercial
Crimes Court for the Regional
Division of the Northern Transvaal in
Pretoria, where he was convicted of fraud and sentenced to five
years’ imprisonment in
terms of s 276(1)(i) of the Criminal
Procedure Act 51 of 1977 (CPA). The appellant appealed against his
conviction and sentence.
His appeal was enrolled in the court a quo
on 30 January 2006. On that day it was struck off the roll due to the
fact that no heads
of argument were filed and there was no appearance
by the appellant, or on his behalf.
[3] On 14 June 2006 the appellant
launched an application for condonation. In that application he
sought the re-instatement and
enrolment of his appeal, condonation
for the failure to appear in his appeal on 30 January 2006 and
condonation for the lateness
of the application for condonation. This
application was heard and dismissed on 13 August 2007.
[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.
4
[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.
5
[6] The appellant was obliged to file
heads of argument in his appeal before the end of December 2005.
6
He failed to do so. There was no appearance on his behalf on 30
January 2006. To have his appeal re-instated and re-enrolled those

failures had to be condoned.
7
He waited until 14 June 2006 to lodge an application for condonation.
[7] The appellant explains that the
reason for these failures is that there was ‘an innocent
misunderstanding’ between him and
his attorney which caused him not
to contact his attorney, not to place his attorney in funds and
caused his attorney to assume
that he was not interested in
prosecuting his appeal.
[8] As a consequence of his appeal
having been struck off the roll, the appellant was contacted during
March 2006 and instructed
to hand himself over in order to start
serving his sentence. This prompted him to contact his attorney for
the first time since
his conviction and sentence in December 2002. He
also suggests that he had been unable to make contact with a certain
Erasmus,
whose existence he claims to be vital to his appeal, until
two months prior to the application for condonation when he
‘serendipitously’
came upon Erasmus’ business card, which
enabled him to make contact.
[9
] In
the appellant’s own words he explains the misunderstanding as
follows:
’
8 Immediately following my
conviction, I discussed the matter with my attorney and instructed
him regarding my appeal.
9 As I recall, part of the reason for the appeal inter
alia concerned the magistrate’s finding that a certain person whom
I referred
to in my evidence did not exist. This person is a Mr.
Pieter Erasmus (“Mr. Erasmus”), who is more commonly known as
Rassie
Erasmus, and who is employed by the National Intelligence
Service.
10 It was necessary and of utmost and
crucial importance for the purposes of my appeal that I furnish
further instructions to my
legal representatives regarding the
existence of Mr. Erasmus. It has always been my contention that I was
the victim of an elaborate
“sting”, orchestrated by Boer Barnard
during which I was convinced that I needed to open an account for the
entity known as
“Proliferation Intelligence Services”. At the
time I verily believed that Proliferation Intelligence Services was a
part of
the South African Intelligence Services in the general sense.
It was also my version before the court a quo that Mr. Erasmus was
a
member of the National Intelligence Service and that I had first met
him when approached to open the account. This was material
in my
recommendation to Dunlop to open the account against which the first
accused perpetrated the fraud.
11 When the presiding officer had found that Mr. Erasmus
did not exist, he had done so on the basis of the evidence of an
official
of the National Intelligence Service who indicated that no
such person was employed by the National Intelligence Service. I wish

at this early juncture to humbly submit that this finding of the
court a quo was, inter alia, a material misdirection.
12 As such, an adverse (and I humbly
submit wrong) finding in respect of my credibility had been made, and
I submit that this had
played a significant role in my conviction in
the matter.
13 I had advised my attorney that Mr. Erasmus does
exist, contrary to the evidence of the official from the National
Intelligence
Service (and as will become apparent during the course
of this affidavit, my attorney, Mr. Wayne Venter from Lindsay Keller
&
Partners, has indeed spoken to Mr. Erasmus).
14 As such, it was necessary for me to consult with both
my attorney and counsel regarding this issue and to amend the Notice
of
Appeal and acquire the necessary affidavits relating to the actual
existence of Mr. Erasmus of the National Intelligence Service.
15 The period during which these events transpired was
shortly before Christmas, and I was scheduled to go on annual leave
with
my family. I did not believe that there was any necessity to
consult with my legal representative over Christmas and New Year,
when they in any event would not have been available, in particular
Mr. Van der Sandt, who had been involved in the matter from
the
outset.
16 I therefore advised my attorney that I would contact
him, only in the event of it being necessary, at a stage subsequent
to my
return from holiday.
17 Upon my return from holiday, and in the mistaken
belief that the matter was being dealt with by my legal
representatives, I did
not deem it necessary to contact my attorney.
18 My attorney was however labouring under the
impression that I had specifically undertaken to contact him
subsequent to my return
from holiday.
19 In the premises, and in the light of the facts as set
forth hereinabove, it is my humble submission that, already at that
early
juncture, an innocent misunderstanding had prevailed between
myself and my attorney, which ultimately led to the matter being
struck
off the roll.’
[10
] The
explanation carries the seeds of its own destruction. The appellant’s
subjective belief that it was ‘necessary and of
utmost and crucial
importance’ that he furnish instructions to his attorney for the
purpose of his appeal (para 10) belies his
allegation that he did not
deem it necessary to contact him (para 17).
[11] From December 2002 until March
2006 the appellant, on his own version, did absolutely nothing to
pursue his appeal: he did
not contact his attorney, he did not place
his attorney in funds, he did not attempt to find Erasmus and he did
not enquire about
the progress of his appeal. His attorney reasonably
inferred that the appellant was no longer interested in pursuing his
appeal
and took no further action on his behalf. The inertia by the
appellant ultimately led to the failure to file heads of argument and

the failure to appear in the appeal.
[12
] The
appellant alleges that the magistrate found that Erasmus does not
exist and that he believed it crucial to his appeal to show
that
Erasmus does in fact exist. Yet he did nothing, from the time of his
conviction on 2 December 2002 until two months before
his application
for condonation, April 2006, when he ‘serendipitously’ came upon
Erasmus’ contact details. This is yet another
example of the
appellant’s inaction.
[13
] It
was necessary for the appellant to explain not only why heads of
argument were not filed and why there was no appearance, but
also the
delay in bringing an application for condonation.
8
There is no attempt by the appellant to explain why it took him until
14 June 2006 to bring an application for condonation when
he was
alerted to all the problems surrounding his appeal during March 2006.
[14
] The
appellant’s explanation for the non-compliance with the rules
amounts to no explanation at all. In addition, there are no
prospects
of success on appeal.
[15
] On
the merits of his appeal the appellant contends that he should not
have been convicted, but that even if he was rightly convicted
the
magistrate should not have made a distinction between his sentence
and that of his co-accused, Barnard, and given him (the
appellant) a
heavier sentence.
[16
] The
following common cause facts gave rise to the appellant’s
conviction: He was the National Contracts Manager for Dunlop Tyres

(Pty) Ltd (Dunlop) when he opened a so-called secret account with
Dunlop for a secret customer, connected to the National Intelligence

Service of South Africa (NI) for the sale of tyres to this customer
at the usual 45% discount available to government departments.
He
specifically instructed the staff at Dunlop that queries on the
account were not to be dealt with in the ordinary course but
only by
him. He instructed the Senior Clearance Clerk of Dunlop, Ms
Scheepers, not to try and make contact with anybody in relation
to
the account by using the contact telephone number supplied by him.
When she ultimately did try the contact number provided by
the
appellant, she discovered that it did not exist. He also instructed
staff to ignore the usual procedures that require an official
order
form from government departments but to accept oral and informal
orders by him and Barnard on this account. The appellant
placed
orders and furnished different delivery addresses for the orders.
Numerous of the delivery addresses supplied by the appellant
was the
address of a private individual, Ms Kruger, also a state witness, who
did business for her own account. She started buying
tyres from
Condor Enterprises, a business that Barnard, a buyer of tyres from
Dunlop for the South African Police Services (SAPS),
set up in order
to do private business. Kruger placed her orders and made payments
through an intermediary, Mulder. Invoices and
delivery notes handed
in at the trial corroborated Kruger’s evidence that purchases made
by her were on this secret account and
were delivered to her business
address. At least one cheque payment for these purchases was handed
by Mulder to Barnard in the
presence of the appellant. The accused
even assisted an employee of Dunlop, Mr Bali, to purchase tyres for
his personal use from
Kruger at a reduced price.
[17
] The
facts summarised in the previous paragraph are common cause as the
appellant’s legal representative at the trial did not
challenge the
state witnesses on their evidence during cross examination. The cross
examination was of an exploratory nature and
the appellant’s
version was not put to the state witnesses.
[18
] During
his evidence the appellant tried to meet the state’s version by
explaining that he was approached by three men, Stefan
Terblanche,
Pieter Erasmus and an unknown black person, who identified themselves
as employees of NI. They wanted to open an official
account with
Dunlop for the division of NI that they allegedly worked for. It was
to be a highly secret account. The appellant
took their details which
included copies of their identity documents. A few days later they
urgently wanted tyres which were then
supplied on the instructions of
the appellant on the account of another state department, delivered
and paid. The appellant even
visited their premises on their
invitation to make an assessment of their likely need for tyres. He
had no suspicion that they
were not from NI, nor that the account
that they opened were not for a government department. In terms of s
220 of the CPA the
appellant ultimately admitted that the account was
not opened for a department of NI. He received orders telephonically
from Mulder
and Barnard on this account, which he instructed members
of Dunlop’s staff to process. He knew that Barnard made purchases
on
that account for his private business. He was aware that Barnard
received cheques in payment for tyres ordered on that account from

Kruger through Mulder.
[19] Significantly, he did not
testify that he ever received any orders on this account from any of
the three men that initially
approached him to open this account. He
only went so far as to say that Terblanche asked him for a reference
to a person with experience
in the handling of a tyre account with
Dunlop. He referred Terblance to Barnard. The appellant did not
testify that Barnard was
operating this account for the three men
that opened the account, nor was any of this evidence put to Barnard.
[20
] This
summary of the appellant’s evidence shows that he did not address
the case against him. The only piece of evidence that
has exculpatory
potential is that he did not know that the three men did not in truth
and reality represent a government institution.
[21] The uncontested evidence of the
state witnesses gives rise to only one reasonable inference: that the
appellant opened this
account with the intention to defraud Dunlop by
allowing purchases on that account at the usual 45% discount to
government departments,
by persons and businesses that were not
entitled to such discount from Dunlop. His attempt to hide behind the
alleged secrecy of
the account serves only to illustrate a false
gullibility on his part and extraordinary improbabilities. It is
simply unbelievable
that as the National Contracts Manager of Dunlop
he was so gullible that he believed that to open a highly secretive
account for
NI without any official documentation, to allow that
account to be conducted informally and with the complete absence of
any official
documentation, and to allow individuals and businesses
unconnected to NI - or to the individuals who opened the account - to
make
purchases on that account, did not amount to fraud.
[22
] Insofar
as the appellant suggests in his application for condonation, for the
first time, that his true defence is that he has
been the victim of
the deceit of Barnard, this was never put to Barnard and is contrary
to his own evidence insofar as he allowed
people to purchase on that
account for their own benefit.
[2
3] The
appellant challenges the magistrate’s finding that the failure to
put his version to the state witnesses indicates that
his version was
a recent fabrication. He explains that it would have been senseless
to put his version to the state witnesses as
they would have been
unable to comment on it. This is desperate and unfounded speculation
by the appellant. The answers of the
state witnesses to the
appellant’s version do not lie in the mouth of the appellant and,
at the very least, a finding of recent
fabrication would not have
been possible if his version was put, even if it was not answered.
[24
] Another
alleged material misdirection that the appellant relies upon in his
application for condonation is that the magistrate
found that Erasmus
does not exist. He alleges that Erasmus does indeed exist, that he
has managed to make contact with him again
and that his attorney has
spoken to Erasmus over the telephone (this latter fact is confirmed
by the attorney). But the magistrate
did not find that Erasmus does
not exist. Insofar as the appellant understood that he did, he fails
to say how proof of the mere
existence of Erasmus would change the
facts relied upon for conviction, or whether leave would be sought to
introduce evidence
that Erasmus did exist. In my view, the summary of
the uncontested evidence above clearly shows that a finding of fact
that Erasmus
exists, would not change the inevitable conclusion that
the appellant committed fraud.
[25
] In
relation to sentence the appellant relies on three alleged
misdirections by the magistrate: that his admission to the probation

officer, that the account that was opened was fictitious, was taken
out of context to be an admission of knowledge that he was
committing
fraud; that the disparity in the sentence imposed on him and that
imposed on Barnard is unsubstantiated (Barnard was
sentenced to three
years’ imprisonment in terms of s 276(1)(h) of the CPA); and that
the sentence imposed on him is shockingly
inappropriate. (The latter
alleged misdirection was not pursued in the heads of argument or
during argument.)
[
26] The
first misdirection was not material. The magistrate used the finding
only to find that the appellant had no remorse –
and that fact was
established independently of the misdirection.
[27
] I
turn to consider the argument based on the disparity of the
sentences. The appellant defrauded his employer. The extent of
Dunlop’s loss as a result of this fraud is uncertain. It is common
cause that an amount of approximately R165 000 remained outstanding

on the account and was ultimately written off. The total amount of
sales on that account, at an unjustified discount of 45%, was
put by
Scheepers as having been more than R300 000. The nature of the fraud
is serious and the potential loss to Dunlop was huge.
[28
] The
magistrate distinguished between Barnard and the appellant because,
unlike Barnard, the appellant defrauded his employer and
made it
possible for Barnard also to defraud Dunlop. The breach of a
relationship of trust through the commission of fraud or theft
is
generally regarded as an aggravating factor, but a consideration of
all other relevant factors still remains essential in arriving
at an
appropriate sentence.
9
This the magistrate did. He individualised the sentences in express
terms by taking the personal circumstances of the appellant
and
Barnard into account. (There was no intimation in this court that
there was any failure by the magistrate to take the appellant’s

personal circumstances into account.)
[29
] That
the appellant perpetrated the fraud on his employer was not the only
basis for the distinction drawn by the magistrate between
Barnard and
the appellant. Barnard’s personal circumstances were vastly
different to the appellant’s: he had lost a young child;
his
financial circumstances were trying; he showed remorse; he was a soft
hearted person who could easily be taken advantage of;
and he
suffered from depression which resulted from post traumatic stress
disorder that arose from his active service in the South
African
Police Services. Similar mitigating factors are not evident from the
appellant’s circumstances. The magistrate’s attempts
to
individualise the sentences, are sound and reflect that Barnard was
given a lighter sentence rather than the appellant having
been given
a heavier sentence.
[30
] Considering
a fraud of this nature, committed by a person in the circumstances of
the appellant, the sentence imposed does not
induce a sense of
shock.
10
[31
] There
are no prospects of success on appeal in relation to conviction or
sentence. No other factors relevant to condonation were
raised or
argued by any of the parties.
[32
] Condonation
was therefore rightly refused. The order dismissing the appeal that
followed the order by the court a quo refusing
condonation was
however not a competent one as the appeal was not heard, and that
order has to be set aside.
[33
] The
following order is made:
The appeal against the refusal of the application for
condonation is dismissed. The order by the court a quo dismissing the
appeal
is set aside.
_______________________
S SNYDERS
Judge of Appeal
APPEARANCES:
For appellant: JLCJ van Vuuren SC
G H Ferrar
Instructed by: JDC Attorneys, Pretoria
Correspondent: Symington & De
Kok, Bloemfontein
For respondent: FW van der Merwe
Instructed by: Director of Public Prosecutions, Pretoria
Correspondent: Director of Public Prosecutions,
Bloemfontein
1
Section 21(1): ‘
In addition to any jurisdiction
conferred upon it by this Act or any other law, the appellate
division shall, subject to the provisions
of this section and any
other law, have jurisdiction to hear and determine an appeal from
any decision of the court of a provincial
or local division.’
2
Section 20(4): ‘No appeal shall lie against a
judgment or order of the court of a provincial or local division in
any civil
proceedings or against any judgment or order of that court
given on appeal to it except – (a) in the case of a judgment or

order given in any civil proceedings by the full court of such a
division on appeal to it in terms of subsection (3), with the

special leave of the appellate division; (b) in any other case, with
the leave of the court against whose judgment or order the
appeal is
to be made or, where such leave has been refused, with the leave of
the appellate division.’
3
See also
S v
Moosajee
2000 (1) SACR 615
(SCA) at
615i-j and 618d-h;
S v Farmer
2001 (2) SACR 103
(SCA) at 104d-i.
4
S v Mohlathe
2000 (2) SACR 530
(SCA) at 535g-536a;
S
v Leon
1995 (2) SACR 594
(C) at 595
e-h; Harms
Civil Procedure in the
Supreme Court
at B-182.
5
S v Leon
1996
(1) SACR 671
(A) at 672j-673h.
6
One month prior to 30 January 2006 in terms of
Transvaal Rule 8(1) read with rule 51(4) of the Uniform Rules of
Court.
7
Uniform Rules of Court, rule 27.
8
Darries v Sheriff, Magistrate’s Court,
Wynberg
1998 (3) SA 34
(SCA) at
40I-41A.
9
S v Kunene
2001
(1) SACR 199
(W) at 200d.
10
To compare sentences in different matters is not
a reliable guide to sentencing, but provides only a broad and
general perspective.
For that purpose reference is made to
S
v Sindhi
1993 (2) SACR 371
(A);
S
v Howells
1999 (1) SACR 675
(C);
S
v Landau
2000 (2) SACR 673
(W);
S
v Kwatsha
2004 (2) SACR 564
(E). See
also
S v Blank
1995 (1) SACR 62
(A) at 70b-71g and 81e-h.