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[2021] ZANCHC 10
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Appie v S (C A & R 30/2019) [2021] ZANCHC 10 (15 January 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: C
A & R 30/2019
Heard
on:
30/11/2020
Delivered
on:
15/01/2021
In
the matter between:
DESMOND
APPIE
Appellant
and
THE
STATE
Respondent
Quorum:
Mamosebo J et Mofokeng AJ
JUDGMENT
ON APPEAL
MAMOSEBO
J
[1]
The appellant was convicted
by Regional Court Magistrate Z Mbalo in
Kimberley on 11 counts of fraud and 10 of the contravention of s 4 of
the Prevention of
Organised Crime Act, 121 of 1998 (POCA)
notwithstanding his plea of not guilty. All counts were taken
together for purposes of
sentence and he was sentenced to ten (10)
years imprisonment, three (3) years of which were suspended for a
period of five years
on certain conditions.
[2]
The appeal serves before us with leave
of this Court (Olivier J et
Chwaro AJ) limited in these terms:
“
The
petitioner
is
granted
leave to appeal:
2.1
Against his conviction on counts 11 to 20, only on the ground
advanced
in his petition, viz that the convictions amount to
a
duplication of those [in] counts 1 to 10; and, in the event that
the appeal against those convictions should succeed;
2.2
Against his sentence, only on the ground that it
was
imposed
in respect
of all convictions taken together.”
[3]
In essence the grievance of the
appellant is captured in these
submissions by his counsel, Mr Pieterse:
3.1
That the Regional Magistrate misdirected herself in finding that the
State proved
all the elements of the offence of money laundering in
respect of Counts 11 to 20 by merely relying on the same facts found
to
be proven in respects of Counts 1 to 10 for fraud;
3.2
Invoking
the authority in
De
Vries and Others v The State
[1]
counsel
contended
that if the source of the money that the appellant used was legal
then the property derived from that source
is
concomitantly
legal.
Differently
put,
there was nothing to be washed or laundered because the money was
legal or clean. What the appellant disguised was the destiny
of the
money, hence the misdirection on this aspect by the magistrate; the
argument went.
[4]
The background facts to this case are
mainly common cause. The State
called 15 witnesses and also relied on documentary evidence to make
out its case. The appellant
was formerly an attorney who was struck
off the roll of attorneys by the Northern Cape Division of the High
Court on the application
of the Law Society of the Cape of Good Hope
on 25 November 2011 but had continued to practice notwithstanding.
[5]
In counts 1 to 10 he was charged with
fraud read with
section 103
of
the
Criminal Procedure Act, 51 of 1977
, alternatively theft. The
State alleged that he sold houses to state witnesses at specified
amounts as an agent. He furnished the
witnesses with his ABSA bank
account into which deposits were made. Each witness was shown a house
which they inspected before
making payment into the appellant’s
personal bank account. He gave an undertaking regarding occupation
and transfer of the
houses in their names upon registration.
[6]
The witnesses paid the money in cash
to Mr Walter Mocumi and a female
employee who issued them with receipts and also signed as witnesses
on the Deed of Sale. The appellant’s
signature does not appear
on the Deeds of Sale. As time passed by but no occupation was
effected the witnesses, at different instances,
visited the
appellant’s office to enquire about the transfers. Mr Mogotsi,
one of the buyers, was met with a padlock on the
office door of the
appellant. Upon advice he was able to recover his money from the
Fidelity Fund. Not all witnesses were so lucky.
[7]
The
second count related to money laundering in contravention of
s
4
r/w
sections 1
,
8
(1) of the Prevention
of
Organised Crime Act, 121 of 1998 (POCA). The State relied on the same
facts and witnesses to prove Count 2. The trial court made
the
following remarks
[2]
in part of
its finding:
“
But
now coming to the aspect of the agreement between Thelma and the
accused person I find it hard to believe that the accused,
being an
attorney, would enter into any sort of an agreement without checking
its legitimacy. The
accused’s
failure to lay charges against Thelma, whom he says defrauded him and
dragged his good name into the mud, points
towards collusion between
the two. The accused wanted to protect Thelma as they were working
together. They were interested in
the high interest rates. The
explanation given by the accused that he waited for his day in court
does not make any sense. More
so that the accused is an attorney.”
[8]
Both
counsel invoked
S
v Dlamini
[3]
for
the test applied in considering the issue of duplication of
convictions where it is stated:
“
[19]
Our Courts have applied different tests to decide whether duplication
has occurred.
In
S
v
Maneli Stricher JA explained:
‘
One
such test is to ask whether two or more acts were done with single
intent and constitute one continuous transaction. Another
is
to ask whether the
evidence necessary to establish one crime involves proving another
crime.
[20]
There is, however, no all-embracing formula. The various tests are
more guidelines they are not
rules of law, nor are they exhaustive.
Their applicability may yield a clear result, but, if not, a court
must apply
its common
sense,
wisdom, experience and
sense
of fairness to make
this determination.”’
[9]
Mr Pieterse further submitted that
the appellant did not conceal the
fact that he received the money from all the witnesses; that there is
no evidence that he denied
same; that the way in which the appellant
disposed of the money is irrelevant; that what is relevant is whether
the money that
he received was illegal or tainted and had to be
washed before going back into the economy which, he contended, was
not the case.
[10]
The State had alleged in the charge
sheet that the agreement between
the appellant and the complainants had the effect of concealing or
disguising the money trail.
Mr Pierse submitted that the allegation
cannot be true as the State was able to trace all the payments and
detailed them in Schedule
A to the charge sheet.
[11]
Mr Els, for the State, emphasised that the
appellant received cash
deposits into his personal bank account as opposed to trust account
through which he had to account to
his clients. The appellant
subsequently withdrew the deposits and paid the money over to Thelma
based on a scheme they devised.
[12]
In
S
v Dos Santos and Another
[4]
where
Ponnan JA pronounced:
“
[43]
Prosecutions under POCA, as also predicate offences, would usually
involve considerable overlap in the evidence,
especially where the
enterprise exists as a consequence of persons
associating
and committing
acts making
up a pattern
of racketeering. Such
overlap does not in
and
of
itself occasion an
automatic invocation of an improper splitting of charges
or duplication
of convictions.”
[13]
The
learned
Judge
of Appeal
a
l
so
made the following
concluding
remarks
in
Dos
Santos
[5]
:
“
Our
legislature has chosen to make commission of two or more crimes
within
a
specified period of time, and within the course of a particular type
of enterprise, independent criminal offences. Here the two
statutory
offences are
distinctly
different.
Since
POCA substantive offences are not the same as the predicate offences,
the State is at liberty to prosecute them in separate
trials or in
the same trial. It follows as well that there could be no bar to
consecutive sentences being imposed for the two different
and
distinct crimes, as
the one requires proof of a fact, which the other does
not.
Although
a court in the exercise of its general sentencing discretion may,
with a view to
ameliorating any undue harshness, order the sentences to run
concurrently.”
(Own
emphasis)
[14]
The
following remarks in
De
Vries and Others v The State
[6]
bear
some
significance:
“
[56]
By receiving the cigarettes for himself well knowing they were
stolen, the appellant made himself guilty
of theft as it is a
continuing crime. By proceeding to use the cigarettes as part of his
stock in trade as a wholesaler as if they
were goods lawfully
acquired, and thereby disguising or concealing the source, movement
and ownership of the cigarettes and enabling
and assisting the
robbers to either avoid prosecution or to remove property acquired in
the robberies, the appellant clearly made
himself guilty of a
contravention of s 4. Doing so
involved
different actions and a different criminal intent to that required
for theft. In these circumstances there was no improper
splitting of
charges.”
See
also
Horn
v
S
[7]
.
[15]
Now turning more specifically to the
factual matrix to establish
whether or not the Magistrate has misdirected herself:
15.1
The appellant has already been found guilty of fraud in counts 1 - 10
and has not appealed against
the convictions. His conduct involved a
misrepresentation pertaining to payments made to him by the
witnesses. The money was paid
specifically for the purchase of their
homes.
15.2
For purposes of POCA, it is necessary to also point out that the
manner in which the appellant arranged
to receive the money either in
cash or payable into his personal bank account while knowing that he
was stripped off his attorney
profession, is a clear manifestation of
his criminal intent;
15.3
It is clear from the record that the appellant’s intention was
not to have the ownership of the
property pass to the witnesses as
undertaken. This forms the basis for the offence of money laundering;
15.4
The element of disguise features when the appellant either received
the money in cash or withdrew all
the deposited amounts and overtly
paid the money over to Thelma as per their (his and Thelma’s)
scheme. This action, in my
view, clearly conceals the origin of the
money, its location, disposition and movement.
15.5
Astonishingly, the appellant did not call Thelma as his witness
during trial and did not lay any charges
against her or report her to
the authorities for failing to reimburse the money on demand. This
failure can only serve to confirm
a collusion or agreement between
them. These findings were correctly made by the Magistrate.
15.6
It cannot be correct to maintain that the money received was legal as
argued by Mr Pieterse since the
money was proceeds of a crime of
fraud for which the appellant was convicted. It remains unclear and
inexplicable why the money
had to be in cash whereas there was the
facility of an electronic transfer from the appellant’s bank
account to Thelma’s
which was not utilised for nefarious
reasons.
[16]
In the premises there was no misdirection
by the Magistrate in her
finding that the appellant was also guilty of money laundering. He
clearly disguised or concealed the
money that was not his, which he
received fraudulently, to hide its movement by appropriating the cash
payments to avoid prosecution
while simultaneously gaining higher
interest in Thelma’s account. This action amounts to a
contravention of s 4 of POCA.
The State was therefore entitled to
prosecute both offences under a single prosecution which did not
constitute an irregular splitting
of charges.
[17]
With
regard to sentence: It is trite that sentencing is within the
discretion of the trial court and a court of appeal will only
interfere if
there
is a clear misdirection on the part of the trial court, or the
sentence is shockingly severe. See
Haarhoff
and Another v Director
of
Public Prosecutions
,
Eastern
Cape
[8]
.
[18]
The
SCA made the following
instructive
remarks
in
S
v Pillay
[9]
:
“
[M]ere
misdirection is not by itself sufficient to entitle the Appeal Court
to interfere with the sentence; it must be of such
a
nature,
degree, or seriousness that it shows, directly or inferentially, that
the Court did not exercise its discretion at all or
exercised it
improperly or unreasonably. Such misdirection is usually and
conveniently termed one that vitiates the Court's decision
on
sentence.”
[19]
The
appellant was only granted leave against his sentence on condition
that his appeal against the conviction on money laundering
would
stand. The decision was based on the fact that all counts were taken
as one for purposes of sentence. This Court
is
strictu
sensu,
in
any event, not competent to venture beyond the
contours
circumscribed in the petition. Imposing a globular sentence is not
per
se
incompetent.
Bosielo JA, writing for a unanimous court in
S
v Rantlai
[10]
pronounced:
“
[9]
It is widely accepted that there is no law which prohibits or
provides for the imposition
of
a
globular
sentence.
See
S
v
Young
1977 (1)
SA
602(A)
at
610E.
The imposition of
a
globular
sentence depends upon the discretion of the sentencing officer, based
on the peculiar facts of the case. However, our courts
have on
various occasions expressed some
misgivings
about such sentences, particularly where an accused was convicted
after having pleaded not guilty, but subsequently having
the
conviction on some counts set aside on appeal.
See
Director
of Public Prosecutions, Transvaal v Phillips
2013 (1)
SACR
107
(SCA) ([2011]
ZASCA
192)
para 27 where Petse AJA stated:
‘
The
practice of imposing globular sentences for multiple counts
is generally an
undesirable one.’
See
also
S
v
Kruger
2012
(1)
SACR
369
(SCA)
([2011]
ZASCA
219 para 10.”
[20]
On a conspectus of the above, the
appeal against the appellant’s
conviction on money laundering and the sentence is dismissed.
MC
MAMOSEBO
JUDGE
OF THE HIGH COURT NORTHERN CAPE DIVISION
I
agree
A
MOFOKENG
ACTING
JUDGE
OF
THE
HIGH
COURT
NORTHERN
CAPE DIVISION
For
the appellant:
Adv RJ Pieterse
For
the respondent:
Adv. WJ Els
Instructed
by:
The office of the DPP
[1]
2012 (1) SACR 186 (SCA)
[2]
Record Volume
10
page 782
lines
20 to page 783 line 3
[3]
2012 (2) SACR I (SCA) at paras 19 and 20
[4]
2010 (2) SACR 382
(SCA) at para 43
[5]
At para 45
[6]
2012 (I)
SACR
186 (SCA)
[7]
2020 (2) SACR 280
(ECG) at para 54
[8]
2019 (I ) SACR 371
(SCA)
[9]
1977 (4) SA 531
(A) at 535
[10]
2018 (1) SACR 1
(SCA) at (para 9