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[2019] ZAFSHC 248
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Gouws v S (A200/2018) [2019] ZAFSHC 248 (12 December 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: A200/2018
In
the matter between:-
JACOBUS
SAMUEL
GOUWS Appellant
and
THE
STATE Respondent
CORAM:
MUSI, JP
et
MOLITSOANE, J
HEARD:
30 SEPTEMBER
2019
JUDGMENT
BY
MOLITSOANE, J
DELIVERED:
12 DECEMBER 2019
[1]
The appellant was convicted on two counts of fraud in the Regional
Court: Bloemfontein. He was sentenced to 30 months imprisonment
on
each court. The court ordered the two sentences to run concurrently.
He appealed his conviction on both counts. He was partially
successful in the appeal. In the order I recorded that the conviction
on count, fraud, was upheld and set aside the said conviction;
I
substituted same with a conviction on theft. I dismissed the appeal
on count 2. In view of the alteration of the conviction to
theft we
were urged to reconsider the sentence imposed by the trial court. The
record before us did not contain the sentencing
proceedings and I
ordered same to be provided. These proceedings are thus for the
reconsideration of sentence.
[2]
The reference to the counts in the previous order I made was
erroneous. The judgment on the merits clearly indicate that I
intended to dismiss the appeal on count 1 and uphold it on count 2.
In my view the appellant also understood my order as such
because in
his heads of argument and the submissions before us, he confines
himself to the reconsideration of the sentence in respect
of count
2.The order made should thus be amended to reflect the true intended
position.
[3]
The appellant, an attorney, was convicted on a charge of theft of
trust monies. The evidence prove that he misappropriated an
amount of
R38 000 from the complainant. This money was for the purchase of
the house by the complainant.
[4]
It was submitted in this court on behalf of the appellant that in the
absence of a fraudulent misrepresentation and intent,
the conviction
on a charge of theft is to some degree less serious. It was further
submitted that the appropriate sentence in this
case would be one in
terms of s276 (1) (i) of the Criminal Procedure Act 51 of 1977(the
CPA).
[5]
It is settled that sentencing lies in the discretion of the trial
court. The appeal court will interfere with the discretion
of the
trial court in circumstances where that court did not exercise its
discretion properly or where the sentence is shockingly
inappropriate.
[1]
The court must
also seek to achieve a balance between the personal circumstances of
the accused and the interest of society. In
S v Rabie
[2]
the
court said the following:
“
Punishment should
fit the criminal as well as the crime, be fair to society, and be
blended with a measure of mercy according to
the circumstances.”
[6]
The appellant is 46 years old. He is married with two children aged
14 and 11 years old. He was an admitted attorney. He is
no longer in
practise as he was stuck off the roll of practising attorneys .He is
currently a manager of a guest house. He earns
an amount of
R10 000.00 per month. His wife is employed and earns an amount
of R13 000 per month as a data management
officer.
[7]
It was submitted before us that theft is a less serious offence than
fraud. I am unable to agree with this submission in the
circumstances
of the case before us. It has to be borne in mind that fraud may be
real or potential. In circumstances where fraud
is real, the victim
suffers actual financial or proprietary loss. However, where the loss
is potential, the victim need not suffer
financial or proprietary
prejudice. On the other hand, in the case of theft the victim mostly
suffers either financial or proprietary
prejudice. In the case before
us the complainant suffered financially. It would not have mattered
if it was fraud or theft as in
both instances the loss is or would
have been actual. The distinction between the two crimes does not
take away the actual loss
the victim sustained. At the heart of both
crimes is an element of dishonesty. There is in my view no merit in
their differentiation
when it comes to sentencing. The submission by
the appellant that theft is less serious than fraud in this case
stands to be rejected.
[8]
It was argued on behalf of the appellant that the appropriate
sentence in the circumstances of this case is one of imprisonment
in
terms of s276 (1)(i) of the CPA. Much reliance was placed on the
previous judgment of this court,
Macheka
v S
[3]
.
As a starting point it must be acknowledged that courts may have
regard to past sentencing patterns when imposing sentences. This
was
also recognised in
Malgas
v S
[4]
although the court dealt with the issue of prescribed minimum
sentences. The sentiments expressed in that case are in my view
equally applicable to this case. The court said the following:
“
It would be
foolish of course, to refuse to acknowledge that there is an abiding
reality which cannot be wished away, namely, an
understandable
tendency for a court to use, even if only as a starting point, past
sentencing patterns as a provisional standard
for comparison when
deciding whether a prescribed should be regarded as unjust. To
attempt to deny a court the right to have any
regard whatsoever to
past sentencing patterns when deciding whether a prescribed sentence
is in the circumstances of a particular
case manifestly unjust is
tantamount to expecting someone who has not been allowed to see the
colour blue to appreciate and gauge
the extent to which the colour
dark blue differs from it. As long as it is appreciated that the mere
existence of
some
discrepancy between them cannot be the sole
criterion and that something more than that is needed to justify
departure, no great
harm will be done.”
[9]
In
taking into account past sentencing patterns caution must not lost
that the court seized with a matter retains its judicial discretion.
Bearing this in mind sight should also not be lost of the fact that
the court must ‘guard against imposing uniform sentences
that
do not distinguish between the facts of cases and the personal
circumstances of offenders
[5]
’
[10]
The facts of the case of
Macheka
are distinguishable from the facts of this case. In that case, the
appellant, an attorney, 50 years of age was convicted of theft
of
money entrusted to him in the amount of R49 702.45. He had
previously signed an acknowledgment of debt with the complainant
but
failed to perform in terms of the undertaking. The complainant was
reimbursed by the Attorneys Fidelity Fund.
[11]
In the case before us the appellant did not acknowledge his
indebtedness to the complainant. While he acknowledges that he
received the money he persists that he did not benefit from it. This
argument is difficult to fathom. He did not pay the money
over to the
seller. He also did not pay it back to the complainant upon demand.
If indeed it was so that the appellant did not
benefit from the money
he could have easily paid it back upon request. The appellant kept on
giving the complainant every possible
excuse sending her from pillar
to post. The complainant in the
Macheka
case was reimbursed by
the AFF while the complainant in this case remains without her money.
[12]
The appellant was convicted of a
serious crime. The fact that this crime was committed by an attorney
regarding the monies entrusted
to him in good faith aggravates the
offence. The position of an attorney demands that legal practitioners
should uphold high ethical
standards and be of incorruptible
integrity. They should be accountable to their clients. Conduct as
demonstrated by the appellant
is unacceptable and tends to project
and paint honest legal practitioners as dishonest.
[13]
It has to be borne in mind that the courts are obliged to impose
sentences which are implementable. The appellant has not appealed
his
sentences on both counts. The
de facto
position is that seeing
that his conviction on count 1 was dismissed, he must serve his
imprisonment term on that count. Adv. Pieterse
on a question as to
how the appellant would serve a sentence in terms of s276 (1)(i)
together with direct imprisonment indicated
that the appellant would
consider appealing the dismissed ruling of this court to the Supreme
court of Appeal and concomitantly
apply for bail pending appeal.
[14]
The fact is that there is no appeal pending in respect of count 1 at
the time of the reconsideration of this sentence almost
a year later
after the said appeal was dismissed. I will however hasten to admit
that the appellant may have thought it prudent
to await the decision
in this case in order to lodge his appeal to the Supreme Court of
Appeal. In that way, the appeals in both
counts would not be brought
piece meal. Imprisonment in terms of s276 (1) (i) presupposes that an
accused serve part of a sentence
and be released at the discretion of
the Commissioner of Correctional Services. It would in my view be
difficult to implement such
a sentence should the order of the
dismissal on the merits remain as is.
[14]
Having regard to the personal circumstances of the appellant, the
seriousness of this offence and the interest of the community
I am of
the considered view that the sentence imposed for fraud by the court
a quo would still be appropriate in this case even
though the
appellant was convicted of theft. I would make the following order as
amended:
ORDER
1.
The appeal against the conviction on count
1 is dismissed.
2.
The appeal against the conviction on Count
2 is upheld and the order of the trial Court with regard thereto is
set aside and substituted
with the following:
2.1
The appellant is guilty of theft.
2.2 The appellant is
sentenced to 30(thirty) months imprisonment.
2.3
The sentences in count 1 and 2 to run
concurrently.
2.4
An order in terms of s103 of the Firearms
Control Act is confirmed
____________________
P.E. MOLITSOANE, J
I
concur and it is so ordered.
_______________
C.J. MUSI,JP
On
behalf of appellant:
Adv C Pieterse
Instructed by:
Steenkamp and Jansen
BLOEMFONTEIN
On
behalf of the respondent: Adv M. Ponye
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
[1]
S v Pillay 1977(4) SA 531 at 535 E-G; S v Malgas 2001(1) SACR 469 (
SCA) at par[13].
[2]
1975(4) SA 855 (AD) at 862 G-H
[3]
[2019] JOL 45822(FB).
[4]
Malgas v S (
supra
)
at par [21]
[5]
S v Ndlovu 2007(1) SACR 535(SCA) at 538.