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[2016] ZAFSHC 60
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Mbuyisa and Another v S (A216/2015) [2016] ZAFSHC 60 (7 April 2016)
FREE STATE DIVISION,
BLOEMFONTEIN
Case No: A216/2015
DATE: 7 APRIL 2016
In the matter between:-
BAFANA SIPHO
MBUYISA
..............................................................................................
1st
Appellant
DAVID FONO
SAMOSAMO
...........................................................................................
2nd
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:VAN DER MERWE, J et CHESIWE,
AJ
JUDGMENT BY: THE COURT
HEARD ON:22 FEBRUARY 2016
DELIVERED ON: 7 APRIL 2016
[1] The two appellants were each
convicted in the regional court, Bloemfontein, on 10 counts of fraud.
In addition, the first appellant
was convicted of contravention of
section 3(a) of the Prevention and Combating of Corrupt Activities
Act 12 of 2004 (count 11,
acceptance of a gratification) and the
second appellant was convicted of contravention of section 3(b) of
Act 12 of 2004 (count
12, giving a gratification). The ten counts of
fraud were taken together for purposes of sentence. On 26 August
2010 the first
appellant was sentenced to 5 years imprisonment on
counts 1 to 10 and to 3 years imprisonment on count 11, to be served
concurrently
with the sentence on counts 1 to 10. On the same date
the second appellant was sentenced to 3 years imprisonment on counts
1 to
10 and to 2 years imprisonment on count 12, to be served
concurrently with the sentence on counts 1 to 10. The appellants
appeal
only against the sentences, with the leave of the trial court.
The appellants were released on bail pending the appeal.
[2] The material circumstances of the
commission of the crimes in question are as follows. The first
appellant was employed by
Eskom. A part of his official duties was
to appoint contractors to do technical drawings for Eskom. The
second appellant is an
electrical engineer. He is a director of
Dihlase Consulting (Pty) Ltd (Dihlase). A fraudulent scheme devised
by the first appellant
for his benefit, was agreed upon by the
appellants. In terms of the scheme the first appellant’s wife
would supply invoices
to Dihlase for drawings purportedly done by her
as subcontractor for Dihlase. Based on these invoices, the second
appellant would
cause Dihlase to invoice Eskom for these drawings
purportedly done by Dihlase for Eskom. Upon payment of the invoices
by Eskom
to Dihlase, Dihlase would channel part of the funds to the
first appellant via his wife. At all relevant times the first
appellant
represented to the second appellant that he would actually
do the work for Eskom. Although the second appellant misrepresented
to Eskom that Dihlase did the work, he was under the impression that
the work was in fact done by the first appellant. In truth,
however,
the first appellant did not do any of the invoiced work.
[3] In execution of the scheme, the
total amount of R293 350,50 was paid by Eskom to Dihlase on ten
occasions during the period
from 11 August 2004 to 5 April 2005. An
amount of R180 000,00 was channelled to the first appellant whilst
the amount of R113
350,50 was retained by Dihlase. After the scheme
was uncovered, the first appellant paid the amount R140 000,00 to
Dihlase. The
second appellant paid an amount of R40 000,00 to
Dihlase out of his own pocket. Dihlase, in turn, repaid the full
amount of R293
350,50 to Eskom.
[4] Both appellants pleaded guilty on
all the counts against them. Pre-sentence reports in respect of both
appellants were placed
before the court a quo by agreement between
the prosecution and the defence. In terms of these reports a
sentence of correctional
supervision in terms of
section 276(1)(h)
of
the
Criminal Procedure Act 51 of 1977
was recommended in respect of
the first appellant and a suspended term of imprisonment in respect
of the second appellant. The
public prosecutor proposed that
sentences of correctional supervision be imposed in respect of both
the appellants.
[5] It is trite that sentencing lies in
the discretion of the trial court. A court of appeal may only
interfere with a sentence
if the discretion was not exercised
judicially. That would be the case if the sentence was affected by a
material misdirection
or was disturbingly inappropriate, in other
words, could not reasonably have been imposed in the particular
circumstances.
[6] As we have said, at the time the
first appellant brought the second appellant under the impression
that he had in fact done
the invoiced work for the benefit of Eskom.
In the view of the second appellant he only assisted the first
appellant to do private
work by misrepresenting to Eskom that Dihlase
had done the work. The trial court failed to take this important
element of the
moral blameworthiness of the second appellant into
account. It wrongly found that it appeared that the second appellant
acted
out of greed or ambition (“gierigheid of eersug”).
The trial court therefore misdirected itself and for this reason
alone, this court must consider the sentence of the second appellant
afresh.
[7] We now turn to the question whether
the sentence of the first appellant was disturbingly inappropriate.
There is no doubt that
serious crimes were committed. The crimes
were carefully planned and executed over a period of time. The first
appellant breached
his duty of trust towards his employer. Fraud and
corruption in the public and private sectors are rife and the
sentences of the
courts should convey the message that this cannot be
tolerated.
[8] On the other hand, there were
weighty considerations favouring a non-custodial sentence for the
first appellant. He was 39
years of age at the time of sentencing.
He is married and has two minor children. He has strong family ties.
He pleaded guilty
and took real responsibility for his crimes. He
co-operated with the investigation of the crimes. He did not destroy
the documentary
evidence of the crimes in his possession, but made
them available to the investigators. He is a first offender. He was
forced
resign from his employment as a result of the crimes. He now
works from home, managing a guest house for his wife and doing
drawings
on free-lance basis. He paid his full pension benefit of
R140 000,00 to Dihlase in order to help make good Eskom’s loss.
Eskom eventually did not suffer any financial loss. The main
motivation for the crimes was the serious illness of both the brother
and aunt of the first appellant and the resultant pressure on him to
assist them financially. The first appellant eventually also
gained
nothing from the crimes. An experienced social worker, who is a
correctional official, recommended a sentence of correctional
supervision in a well-motivated report. The recommendation was
supported by an experienced prosecutor. It has often been said
that
a sentence of correctional supervision on appropriate conditions, can
be a heavy sentence. Especially the elements of house
detention and
community service are not child’s play and at the same time
publicly convey the message that crime does not
pay.
[9] In the circumstances we are
persuaded that the first appellant’s effective sentence of five
years imprisonment was unreasonably
harsh. A sentence of correctional
supervision was particularly appropriate and should have been
imposed.
[10] The second appellant was 41 years
of age at the time. He is married with one minor child. He also
pleaded guilty and co-operated
with the investigation. He is a first
offender. He qualified as an electrical engineer despite a
challenging childhood. He is
no doubt capable of making a valuable
contribution to society. His moral blameworthiness is markedly less
than that of the first
appellant. He did not initiate the crimes.
Not only did he not derive any direct benefit from the crimes, but is
out of pocket
in the amount of R40 000,00 that he paid to ensure a
full refund to Eskom . This should be kept in mind when sentence is
imposed
afresh. Nevertheless a suspended sentence would in our
judgment not sufficiently reflect the seriousness of the crimes.
[11] Both the appellants should
therefore be sentenced to correctional supervision. Counsel were
agreed that in the event of this
finding, the matter should be
referred back to the trial court. After hearing the parties and such
evidence as may be appropriate,
the trial court must determine the
terms and conditions of the sentences of correctional supervision and
impose such sentences.
[12] In the result the following order
is made:
1. The appeals of the first appellant
and the second appellant are upheld and their sentences are set
aside.
2. The matter is referred back to the
trial court for imposition of sentences of correctional supervision
in respect of both appellants
in terms of
section 276(1)(h)
of the
Criminal Procedure Act 51 of 1977
.
C. H. G. VAN DER MERWE, J
S. CHESIWE, AJ
On behalf of the appellants: Adv. W.
J. Edeling
Instructed by: Lovius Block
BLOEMFONTEIN
On behalf of the respondent: Adv. M.
Strauss
Instructed by:The Director: Public
Prosecutions
BLOEMFONTEIN