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[2016] ZANCHC 90
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S v Scholtz (K/S 20/2013) [2016] ZANCHC 90 (6 December 2016)
Reportable
NO
Circulate to
Judges
NO
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE DIVISION, KIMBERLEY]
CASE NO: K/S 20/2013
In
the matter between:
THE
STATE
And
ALFEUS
CHRISTO
SCHOLTZ
ACCUSED NO 1
TRIFECTA
INVESTMENT HOLDINGS
(PTY)
ACCUSED NO 2
TRIFECTA
HOLDINGS (PTY)
LTD
ACCUSED NO 3
TRIFECTA
TRADING 434 PROPERTY 4 (PTY)
LTD
ACCUSED NO 4
TRIFECTA
TRADING 434 PROPERTY 5
(PTY)
ACCUSED NO 5
TRIFECTA
TRADING 434 PROPERTY 7 (PTY)
LTD
ACCUSED NO 6
TRIFECTA
TRADING 434 PROPERTY 11 (PTY)
LTD
ACCUSED NO 7
JOHN
FIKILE
BLOCK
ACCUSED NO 9
CHISANE
INVESTMENT (PTY)
LTD)
ACCUSED NO 10
Date of hearing: 29 September 2016
Date delivered: 06 December 2016
SENTENCE:
Phatshoane
J
[1]
On 13 October 2015 the nine accused, Mr Alfeus Christo Scholtz and
the six Trifecta Group of Companies
(the Trifecta GOC) together with
Mr John Fikile Block and Chisane Investment (Pty) Ltd, were convicted
on various counts of corruption
and money laundering as follows:
1.1
Mr Alfeus Christo Scholtz, Accused No 1, was found guilty on the
following Counts of corruption
and money laundering: Count 8; Count
16, Count 34 and count 35;
1.2
Trifecta Investment Holdings (Pty) Ltd, Accused No 2, was found
guilty on the following
Counts of corruption and money laundering:
Count 8 and Count 34;
1.3
Trifecta Holdings (Pty) Ltd, Accused No 3, was found guilty on the
following Counts corruption
and money laundering: Count 8, Count 16,
Count 34, and Count 35;
1.4
Trifecta Trading 434 Property 4 (Pty) Ltd, Accused No 4, was found
guilty on Count 8, corruption;
1.5
Trifecta Trading 434 property 5 (Pty) Ltd, Accused No 5, was found
guilty on Count 8, corruption;
1.6
Trifecta Trading 434 Property 7 (Pty) Ltd, Accused No 6, was found
guilty of corruption,
Count 8;
1.7
Trifecta Trading 434 Property 11 (Pty) Ltd, Accused No 7, was found
guilty on Count 8, corruption;
1.8
Mr John Fikile Block, Accused No 9, was found guilty on the following
Counts of corruption
and money laundering: Count 15 and Count 35; and
1.9
Chisane Investment (Pty) Ltd, Accused No 10, was found guilty on the
following Counts of
corruption and money laundering, Count 15 and
Count 35.
[2]
The circumstances under which the offences were perpetrated are dealt
with in the judgment and find
it unnecessary to repeat same except in
those instances where it has become essential to highlight certain
aspects of the evidence
for present purposes.
[3]
There had been some considerable delay in disposing of the sentencing
proceedings. Following the accused’s
conviction on 13 October
2015 the criminal trial was postponed to the week of 25 January 2016
for purposes of the sentencing proceedings.
At the commencement of
those proceedings the National Director of Public Prosecutions (NDPP)
brought a confiscation enquiry application
to be held in terms of s
18 of the Prevention of Organised Crime Act, 121 of 1998 (POCA). The
hearing in that application was only
concluded on 28 September 2016
due to the vexed nature of the issues involved and the dichotomous
positions adopted by the parties
or the unavailability of suitable
dates.
[4] In
considering an appropriate sentence the Court should have regard to
the crime, the offender, and the interest
of the society. It should
then impose a sentence which would attempt to balance the nature of
the offence and the circumstances
under which the offence was
committed, the character of the offender, his/her personal
circumstances and the impact of the crime
on the victim and the
community, its welfare and concern.
[1]
[5]
It is trite that the purpose of punishment includes individual
deterrence of the offender, general deterrence
of the other
like-minded members of society from committing similar offences,
retribution and, where necessary, rehabilitation.
However, the gradual and
justifiable aggravation of sentences in order to combat, by means of
deterrence, retribution and removal
of an offender from society in
the interests of society, the increasing prevalence of a particular
crime must not lead, in the
imposition of sentence, to an inevitable
negation of a particular accused's own personal circumstances which
could possibly lead
to mitigation of sentence. Each case must still
be weighed in the light of the person and particular circumstances of
the accused
[2]
.
[6]
Mr
Scholtz is 56 years old and a first offender. His wife died in 2013
after a long illness.
He has been involved in regenerative stem cell research since his
wife’s passing. His son was tragically killed in an accident
during the course of the trial. Mr Scholtz resigned as a director in
the Trifecta GOC following his conviction. Adv Van Zyl SC,
for Mr
Scholtz and the Trifecta GOC, submitted that Mr Scholtz’s
intention, with the establishment of the Trifecta GOC, had
always
been to benefit the previously disadvantaged persons. He further
submitted that through his various business enterprises
he added
value in the private sector. He contended that Mr Scholtz is the only
person with knowledge of all the facets of Trifecta
GOC, played a
pivotal role therein and took strategic decision in the day to day
running of the businesses. The various Trifecta
enterprises have a
relatively significant number of employees. He submitted that over
the years Mr Scholtz contributed to the skills
development of many
people and created a substantial business enterprise. He
contended that the State Departments still occupy
the buildings in
terms of the existing leases and that in all probability, absent the
corruption, the government would have still
leased the premises from
Trifecta.
[7]
Mr Van Zyl contended further that the following constitutes
substantial and compelling circumstances
justifying a departure from
the imposition of the prescribed sentences.
Mr
Scholtz was not the instigator of the corrupt relationship which the
Court found existed between the Trifecta GOC and the late
Ms Botha
and Mr Block. According to counsel
the
corrupt relationship that existed between the late Ms Botha and the
late Mr Breda occurred without the knowledge and participation
of Mr
Scholtz.
He
submitted that M
r
Scholtz was not involved in the preparation of the bid documents and
had no contact with the State officials prior to the adjudication
and/or the awarding of the tenders and that all the lease agreements
except in respect of Floors 9, 10, and 11 Du Toitspan, Kimberley,
were concluded before Mr Scholtz met Ms Botha. Counsel contended that
the transfer of the 10% shares to Jyba Trust, a Trust nominated
by Ms
Botha, took place after Mr Breda’s death by virtue of an
undertaking that was made by the latter to Ms Botha. He contended
further that Mr Scholtz only became aware of the R15 000 cash that
was paid to Ms Botha after the payment had been made.
[8]
Rehashing what was argued on the merits counsel submitted that the
renovation effected to Ms Botha’s
residence was done by
agreement and were done when Botha was in Parliament and no longer
the HOD for Social Development. He further
contended that Scholtz
refused to make the payments for the renovation to Mr Block’s
guesthouse. Except in respect of the
payment of an amount of R338
521.25 to the Duncan and Rothman Attorneys for the benefit of Mr
Block, all the payments of gratifications
to Mr Block were done on
the instructions of Mr Breda, he went on.
[9]
Counsel
submitted, with regard to the convictions of accused No 4 to 7, some
of the Trifecta GOC, that the late Mr Sarel Breda represented
those
accused and that Mr Scholtz did not participate in the conduct that
led to their convictions. He argued that any fines to
be imposed on
the Trifecta GOC will have a grave impact on Mr Scholtz who holds
substantial shareholding therein through his Casee
Trust.
He submitted that
the Financial Intelligence Centre has already flagged Mr Scholtz
nationally and internationality as a result of
his conviction for
money laundering with the result that he has been informed by some of
the Banks that his personal facilities
will be frozen. The Trifecta
GOC convicted of money laundering stands to suffer from the same
consequences.
[10]
Mr
Block is 48 years old, married with four dependent children, two of
whom are minors aged 9 and 11.
He maintains his elderly parents and extended family. His wife is
self-employed and assist him in the maintenance of the family.
He
partly lost use of his right arm as a result of a motor vehicle
accident and suffers from high blood pressure. He was detained
when
he was 18 years old for an unspecified short period of time.
Following his release during 1985/86 he left South Africa for
Namibia
as a result political instability and returned in 1987. He obtained
an Executive Development Certificate from the University
of Cape Town
in a year which he did not specify. He has been involved in community
development projects and politics for 31 years.
He served in various
capacities within the African National Congress (ANC). In 1991 he was
the chairperson of the Youth League
in the Northern Cape; in
1996-1998 its secretary in the Province. In 1998 he was elected the
Provincial Deputy Chairperson of the
ANC (Northern Cape). Between
2002-2003 he was its Acting Chairperson. He was elected the
Provincial Chairperson of the ANC in 2005.
Mr Block also held various
positions in the government.
He
was the Member of the Executive Council (MEC) for the Northern Cape
Department of Roads, Transport and Public Works from 01 March
2001 to
31 December 2003 and was elected as a member of the Provincial
Legislator on 01 October 2008. He became the MEC for the
Northern
Cape Department of Education from 02 December 2008 to 10 May 2009.
With effect from 11 May 2009 he was the MEC for the
Northern Cape
Department of Finance. He resigned following his conviction and is at
present not employed by the government.
[11] Mr Block
has one previous conviction for theft committed in November 1989,
almost 27 years ago. For that offence,
he was sentenced to four
months’ imprisonment wholly suspended for four years on certain
conditions. Mr Block still maintains
his innocence with regard to the
offences he has been convicted of in this case. Mr Tshavhungwa, for
Mr Block and Chisane Investment
(Pty) Ltd, submitted that Mr Block
finds himself in a precarious position to make submission on remorse
because the transgression
he has been found guilty of is not defined
in the
Prevention and Combating of Corrupt
Activities Act, 12 of 2004
. Instead of arguing in mitigation of
sentence counsel went about criticising what he termed “the
honourable court’s
so-called liberal interpretation of a penal
statute”. As counsel puts it “the jury is still out on
the correctness
of the honourable court’s liberal
interpretation of a penal statute”.
He submitted that Mr
Block has already been punished because he lost his job and is
unemployed as a result of his conviction; he
had to pay fees for
legal representation over a period of three years and that
approximately R2 million worth of his assets stood
to be confiscated
and forfeited to the State.
[12] There
can be no question that the offences on which the accused have been
convicted are of a serious nature. In
S v Shaik and Others
[2006] ZASCA 105
;
2007 (1) SACR 247
(SCA) at 319 para 223 the SCA pronounced as
follows:
“
[223] 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.”
[13] In
dealing with this pandemic Squires J in
S v Shaik and Others
2007 (1) SACR 142
(D) at 239 expressed his displeasure as follows:
“…
..(T)his
phenomenon can truly be likened to a cancer, eating away
remorselessly at the fabric of corporate probity and extending
its
baleful effect into all aspects of administrative functions, whether
State official or private- sector manager. If it is not
checked, it
becomes systemic and the after-effects of systemic corruption can
quite readily extend to the corrosion of any confidence
in the
integrity of anyone who has a duty to discharge, especially a duty to
discharge to the public, leading eventually, and unavoidably,
to a
disaffected populace. One can, hopefully, discount the prospect of it
happening in this country. But it is that sort of increasing
disaffection which leads, and has led in other parts of our continent
and elsewhere, to coups d'état or the rise of Populist
leaders
who, in turn, manipulate politics for even greater private benefit.”
[14] In the
main judgment I have alluded to the fact that t
he
preamble to Act, 12 of 2004, is premised on the Constitution and
stated amongst others that the Constitution enshrines the rights
of
all people in the Republic and affirms the democratic values of human
dignity, equality and freedom; it places a duty on the
State to
respect, protect, promote and fulfil all the rights as enshrined in
the Bill of Rights. It reminds us that corruption
and related corrupt
activities undermine the said rights, endanger the stability and
security of societies, undermine the institutions
and values of
democracy and ethical values and morality, jeopardise sustainable
development, the rule of law and the credibility
of governments, and
provide a breeding ground for organised crime; and that illicit
acquisition of personal wealth can be particularly
damaging to
democratic institutions, national economies, ethical values and the
rule of law.
[15]
Corruption amounts
to no more than an abuse of power for personal again. This covertly
operated criminal offence, no matter how
larger than life or minute
it can be, is utterly demoralising. While it might be difficult to
outroot this social ill completely
it cannot be allowed to deepen
unabatedly. Civil society looks up to the Criminal Justice System and
our Courts to fight this scourge
with iron fists and not with velvet
gloves. It behoves us to guard jealously against the threat of
corruption to our
democratic values of human dignity, equality and freedom. W
e
have a legal duty to act steadfastly and without flinching in this
regard.
[16]
Mr Van Zyl urged that in considering the sentence I must keep in mind
that there are fees of the appointed curator
in the mount of
approximately R14 million which the Trifecta accused would have to
pay.
He
contended that if the Court orders the confiscation of an amount of
R60 million to the State plus the curator’s fee and,
in
addition, the tax in the amount of approximately R5 million, Trifecta
stood to lose a total amount of about R79 million. He
contended that
if the Trifecta corporate accused have to, in addition to these
amounts, pay fines they will most probably be commercially
insolvent.
[17] The
various counsel proposed the following sentences:
17.1
Mr Van Zyl urged that Mr Scholtz be sentenced to a term of
imprisonment wholly suspended
on condition that the fines imposed on
the Trifecta GOC are paid or on such further conditions as the Court
deems meet. In the
alternative, he urged that on the two counts of
corruption correctional supervision be imposed and that for money
laundering Mr
Scholtz be sentenced to a fine of R5 million and for
the six Trifecta GOC, a fine of R200 000 each.
17.2
Mr Tshavhungwa pleaded that in a case of Mr Block a fine and a term
of imprisonment wholly
suspended together with community service
would be appropriate.
17.3
Mr Serunye, for the State, urged that on the counts of corruption the
minimum prescribed
sentence of 15 (fifteen) years imprisonment be
imposed whereas on the counts of money laundering 10 (ten) years
imprisonment would
be appropriate.
[18] It is
regarded as proper for a Court considering a sentence to have regard
to the legislative policy as expressed
in legislation dealing with
sentencing. If this were not so, legal and social confusion would
ensue, leading to a conflict between
the legislator and the
Courts.
[3]
[19] While
the sentence should be blended with a measure of mercy, maudlin
sympathy should not be allowed to override
common sense and the
social and legislative policy
[4]
.
Corruption is an offence referred to in Part 1 to 4 of Chapter 2 of
the Prevention and Combating of Corrupt Activities Act, 12
of 2004
(the Corruption Act). In this case the corruption involves amounts in
excess of R100 000. It therefore falls within
the purview of
s
51(2)(a)(i)
of the
Criminal Law Amendment Act, 105 of 1997
, which
provides that notwithstanding any other law but subject to
subsections (3) and (6), a Regional Court or a High Court shall
sentence a person who has been convicted of an offence referred to in
Part II
of Schedule 2, in the case of a first offender, to
imprisonment for a period not less than 15 years.
[5]
[20]
Section
26
of the corruption Act specifies certain penalties for offences in
contravention of the Act. It provides that any person who is
convicted of an offence referred to in Part 1, 2, 3 or 4, or section
18 of Chapter 2, is liable in the case of a sentence to be
imposed by
a High Court, to a fine or up to life imprisonment.
[6]
With regard to the offences committed in terms of the Prevention of
Organised Crime Act, 121 of 1998 (POCA), in this case money
laundering, s 8(1) of POCA provides that (1) Any person convicted of
an offence contemplated in section: 4, 5 or 6 shall be liable
to a
fine not exceeding R100 million, or to imprisonment for a period not
exceeding 30 years.
[21] It is
evident from the penal provision of the legislation discussed that
the legislature has ordained severe penalties
for corruption and
money laundering. At the end of his argument Mr Van Zyl made an
application that a Correctional Services
Report be obtained in line
with his submission that correctional supervision be considered as a
sentencing option. That application
was supported by Mr Tshavhungwa,
for Mr Block. I dismissed the application and informed counsel that
my reasons would be incorporated
in this judgment.
The
sentence of correctional supervision proposed by the defence is
fallacious and would make a mockery of our criminal justice
system.
There can be no question that the imposition of correctional
supervision in inappropriate circumstances can be incompetent
and
detrimental to the interests of justice
[7]
.
Recently in
DPP
Western Cape v Kock
2016 (1) SACR 539
(SCA) at 546-547 para 22 the Court warned against
the kid-glove treatment of white collar crime offenders as follows:
“
[22]
Even more worrisome is the trend by courts to impose lenient
sentences in cases of so-called 'white-collar' crime, despite
repeated warnings by this court that in suitable cases terms of
imprisonment ought to be imposed, even in cases of first offenders.
Thus in
S
v Brown
2015
(1) SACR 211
(SCA) involving such white-collar crime, this court
cautioned that, even though the court below was correct in its
conclusion that
the minimum sentence did not find application in that
case, it ought to have considered, given the objective gravity of the
offences,
whether a custodial sentence was nonetheless called for. In
Brown this court warned that courts should guard against creating the
impression that there are two streams of justice, one for the rich
and one for the poor. The court in
Olivier
[
Director
of Public Prosecutions v Olivier
2006 (1) SACR 380
(SCA)
]
expressed similar concerns. These are issues that courts should
give serious consideration to, lest the administration of
justice
fall into disrepute.”
[22] More
importantly,
s 276(3)(b)
of the
Criminal Procedure Act, 51 of 1977
,
makes it plain that correctional supervision may not be imposed in
any case where the Court is obliged to impose a sentence contemplated
in
section 51
(1) or (2), read with
section 52
, of the
Criminal Law
Amendment Act, 1997
. It is for these reasons that the application for
the provision of the correctional services report was refused.
[23]
As
alluded to in the judgment Mr Scholtz downplayed his interactions
with the late Mr Breda with regard to the procurement of the
leases.
For instance, on 15 March 2007 he signed an addendum to the
Summerdown Place Office Campus, the Kuruman lease, which sought
to
correct the amounts payable in respect of the packing space. Mr
Scholtz was the directing mind of the Trifecta GOC. He also
provided
the required capital injection to establish the business empire and
benefited from the corrupt activities.
[24] Trifecta
monopolised the procurement of office accommodation by design. The
process was grossly unfair towards the public, extremely unethical
and accompanied by malfeasance. What is even more aggravating in this
case is that the corrupt relationship that existed involved
a high-
ranking government official, the late Ms Botha, the HOD of a
government department and the most influential politician,
Mr Block,
the Provincial Chairperson of the ANC at the time. Ms Botha had the
onerous duty towards the society to act fairly, transparently
and
accountably in dealing with the State resources. She deplorably
failed on that score and went all out to benefit Trifecta and
herself
as already mentioned. Mr Block exerted his political influence upon
Mr Crouch to corruptly assist his friend Mr Breda to
secure leases in
the Department of Sports, Arts and Culture and the Department of
Agriculture and Rural Development for the benefit
of Trifecta and
others. He in return received gratifications from Trifecta in large
stated amounts.
[25] Nothing
presented by Scholtz and Mr Block in their mitigation and personal
circumstances constitute any substantial
and compelling circumstances
justifying a departure from the imposition of the prescribed minimum
sentences. It was held in
S
v Malgas
2001
(1) SACR 469
(SCA) at 481-482 para 25 that the Courts are required to
approach the imposition of sentence conscious that the Legislature
has
ordained life imprisonment (or the particular prescribed period
of imprisonment) as the sentence that should ordinarily and in the
absence of weighty justification be imposed for the listed crimes in
the specified circumstances. Unless there are, and can be
seen to be,
truly convincing reasons for a different response, the crimes in
question are therefore required to elicit a severe,
standardised and
consistent response from the courts. The specified sentences are not
to be departed from lightly and for flimsy
reasons. Speculative
hypotheses favourable to the offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts
as to the efficacy of
the policy underlying the legislation, and marginal differences in
personal circumstances or degrees of participation
between
co-offenders are to be excluded.
[26]
In
S
v Shaik and others
[2006] ZASCA 105
;
2007 (1) SACR 247
(SCA) a businessman, who had been convicted in the
High Court on two counts of corruption and one of fraud was sentenced
to an
effective 15 year term of imprisonment. The remaining ten
corporate accused associated with him, were convicted on various
counts
of corruption and fraud and sentenced to the payment of fines
in varying amounts. The SCA confirmed the sentence of 15 years’
imprisonment
[8]
imposed by the
trial Court. The application for leave to appeal against the
sentences was dismissed by the ConCourt .
[9]
In
S
v Selebi
(Judgment
on sentence) reported on line under case No: (25/2009) [2010] ZAGPJHC
58 (3 August 2010) the Accused was convicted in
the High Court of
corruption in contravention of
s 4(1)(a)
of the
Prevention and
Combating of Corrupt Activities Act, 12 of 2004
, and sentenced to 15
years imprisonment. I can conceive of no reason not to take cue from
the authorities cited.
[27] On the
above conspectus, in order to ameliorate the cumulative effect of the
sentences to be imposed and because
they originate from essentially
the same transactions I am of the view that they be served
concurrently. In the end, to borrow
the words of Holmes JA in
S
v V
1972 (3) SA 611
(A) at 614D – E '(t)he element of mercy, a
hallmark of civilised and enlightened administration, should not be
overlooked'
more so when one is dealing with multiple offences.
[28] With
regard to the corporate accused the only penalty that can be imposed
on them is a fine. As alluded to in my
main judgment, Trifecta
Investment Holdings (Pty) Ltd is an umbrella company which holds
shares in the Trifecta GOC, the subsidiary
companies. Mr Trevor Sean
White, a director in charge of the Forensic Services Department of
PricewaterhouseCoopers, attested to
a statement in terms of s
18(6)(iii) of the Prevention of Organised Crime Act, 121 of 1998
(POCA), in the confiscation enquiry
held terms of that Act. He
obtained a list of all the payments made to, amongst others, the
Trifecta GOC by,
inter
alia
,
the Northern Cape Department of Social Development, South African
Social Security Agency (SASSA), the Northern Cape Department
of
Agriculture and Land Reform and the Northern Cape Department of
Sports Arts and Culture, as recorded in the Government’s
Basic
Accounting System (BAS). Relevant to the leases in issue is that he
determined the total amount paid to Trifecta GOC in respect
of the
leases.
[28] In
respect of 14 Van Riebeek Street, Springbok, a total of 115 payments
in the amount of R16,579,117.68 were made
to Trifecta Trading 434
Property 5 (Pty) Ltd, Accused No 5, from 06 June 2007 to 30 April
2016. Concerning Summerdown Place,
Kuruman, a total of 111
payments in the amount of R16,094,494.34 were made to Trifecta
Trading 434 Property 7(Pty) Ltd, Accused
No 6, from 09 March 2007 to
30 April 2016. With regard to Keur and Geur Building, the Douglas
Lease, for the period 24 December
2008 to 02 March 2015 a total of 78
payments in the amount of R2,226,160.92. were made to Trifecta
Trading 434 Property 11,
Accused No 7. Concerning Floors 5,6 and part
of floor 7, Du Toitspan Building, Kimberley, a total of 79 payments
in the amount
of R10,963,981.38 were made to Trifecta Trading 434
Property 4, Accused No 4, from 14 December 2006 to 14 August 2013.
In
respect of Floors 9, 10 and 11 of the same building a total of 61
payment in the amount of R14,511,262.70 were made to the same
accused
from 16 September 2008 to 14 August 2013.
[29] With
regard to the Kimberlite Hotel, Kimberley, for the period 31 March
2006 to 26 September 2013, Accused No 3,
Trifecta Holdings (Pty) Ltd,
received 92 payments in the amount of R19,506,634.82. In respect of
the Northern Cape Training Centre,
Kimberley lease, the Department of
Agriculture made 95 payments in the amount of R34,349,031.15 to
Trifecta Holdings (Pty) Ltd,
Accused No 3, from 15 June 2006 to 20
February 2014. With regard to the Old Orange Hotel, Upington lease,
which was ceded by the
Department of Social Development to SASSA on
29 March 2006, for the period 17 July 2006 to 30 April 2016 a total
of 120 payments
in the amount of R37 687 849.29 were made to Accused
No 5, Trifecta Trading 434 Property 5 (Pty) Ltd.
[30] The
accused did not seriously contest receipt of the aforesaid rental
amounts. It suffices to mention that they
submitted that they were
entitled to receive the rental for the premises leased to the State.
Mr Shawn Williams, the
curator bonis
appointed in terms of s
28 (1) (a) of POCA filed an affidavit in the confiscation enquiry and
states at para 25 thereof:
“
I
submit that all the property disclosed and referred to in this
affidavit barring the cash under my control [which is approximately
R80 million rand] is in excess of the value of the realisable
property required and well in excess of R500 million.”
[31] The net
proceeds of the leases from the commencement date of the leases to
valuation or selling date including
the CPI as agreed to between the
NDPP, Mr
Scholtz and the Trifecta GOC is in the aggregate amount of
R6,043,960.15 calculated as follows:
18.1
Riebeeck Street, Springbok – R240 204.02
18.2
Summerdown Place, Kuruman – R681
469.09
18.3
Keur and Geur Building Douglas –
R99 998.49
18.4
Floors 9, 10 and 11 Du Toitspan –
R1 029 612.49
18.5
Kimberlite Hotel, Kimberley – R1 490 439.94
18.6
Northern Cape Training Centre – R2 502 245.23
[32] Having
sketched out the above, I am of the view that the Trifecta GOC are in
a position to pay the fines which
I would shortly impose on them.
[33] Chisane
Investment (Pty) (Ltd), Accused No 10, received one payment in the
amount of R228 000.00 inclusive of VAT
from Shosholoza Trust, a trust
belonging to Mr Breda, which held 45% shares in Trifecta Investment
Holdings, Accused No 2. The
amount was confiscated to the State. Mr
Williams ascertained from the other curator’s report that
Chisane Investment (Pty)
Ltd appeared to be dormant and has no
assets. It seems to me that any order against Chisane Investment to
pay a fine may be a brutum
fulmen. Therefore, it will be pointless to
levy a fine against it.
[34] In the
circumstances the following sentences are imposed:
Order:
1.
Mr
Alfeus Christo Scholtz, Accused No 1
,
is sentenced as follows:
1.1
In respect
of Count 8, corruption, the accused is sentenced to 15 (fifteen
years’ imprisonment;
1.2
In respect
of Count 16, corruption, the accused is sentenced to 15 (fifteen)
year’ imprisonment;
1.3
In respect
of Count 34, money laundering, the accused is sentenced to 12
(twelve) years imprisonment;
1.4
In respect
of Count 35, money laundering, the accused is sentenced to 12
(twelve) years imprisonment;
1.5
It is
ordered that the sentences in Counts 8, 16, 34 and 35 are to run
concurrently. The accused will serve an effective 15 (fifteen)years
imprisonment.
2.
Trifecta
Investment Holdings (Pty) Ltd, Accused No 2, is sentenced as follows:
2.1
In
respect of Count 8, corruption, the accused is sentenced to a fine of
R150 000.00 (one hundred and fifty thousand);
2.2
In
respect of Count 34, money laundering, the accused is sentenced to a
fine of R75 000.00 (seventy five thousand).
3.
Trifecta
Holdings (Pty) Ltd, Accused No 3, is sentenced as follows:
3.1
In respect
of Count 8, corruption, the accused is sentenced to a fine of R150
000.00 (one hundred and fifty thousand);
3.2
In respect
of Count 16, corruption, the accused is sentenced to a fine of R150
000.00 (one hundred and fifty thousand);
3.3
In respect
of Count 34, money laundering, the accused is sentenced to a fine of
R 75 000.00 (seventy five thousand);
3.4
In respect
of Count 35, money laundering, the accused is sentenced to a fine of
R75 000.00 (seventy five thousand);
4.
Trifecta
Trading 434 Property 4 (Pty) Ltd, Accused No 4, is sentenced as
follows:
4.1
In
respect of Count 8; corruption,
the
accused is sentenced to a fine of R 150
000.00 (hundred and fifty);
5.
Trifecta
Trading 434 property 5 (Pty), Accused No 5, is sentenced as follows:
5.1
In
respect of Count 8; corruption,
the
accused is sentenced to a fine of R150 000.00 (hundred and fifty);
6.
Trifecta
Trading 434 Property 7 (Pty) Ltd, Accused No 6, is sentenced as
follows:
6.1
In
respect of Count 8; corruption,
the
accused is sentenced to a fine of R150 000.00 (hundred and fifty);
7.
Trifecta
Trading 434 Property 11 (Pty) Ltd, Accused No 7, is sentenced as
follows:
7.1
In
respect of Count 8; corruption,
the
accused is sentenced to a fine of R150 000.00 (hundred and fifty);
8.
Mr
John Fikile Block, Accused No 9, is sentenced as follows:
8.1
In
respect of Count 15, corruption, the accused is sentenced to 15
(fifteen) years imprisonment;
8.2
In
respect of Count 35, money laundering, the accused is sentenced to 12
(twelve) years imprisonment.
8.3
It
is ordered that the sentences in Counts 15 and 35 are to run
concurrently. The accused will serve an effective 15 years’
imprisonment.
MV PHATSHOANE
JUDGE
NORTHERN
CAPE HIGH COURT
Appearance
for accused No 1-7 : Adv. J.G Cilliers SC assisted by Adv. MMW Van
Zyl SC
Instructed
by W.A Du Plessis Attorneys
Appearance
for accused No 9-10 : Adv. S Joubert SC assisted by Adv
Tshavhungwa
Instructed
by Mjila & Partners
Appearance
for the State: Adv. P Serunye assisted by Adv. B Mdlalose
Instructed
by The Director of Public Prosecutions
[1]
See
S v Zinn
1969 (2) SA 537
(A) at 540G and
S v Banda and
Others
1991 (2) SA 352
(B) at 355A –C.
[2]
See
S v Matoma
1981 (3) SA 838
(A) at 842H - 843A
[3]
S v Jiminez
2003 (1) SACR 507
(SCA)521 para 31
[4]
S v Jiminez
2003 (1) SACR 507
(SCA)521i-522b para 31-32
[5]
Part II of Schedule 2 list,
inter alia
, offence in Part 1 to
4, or section 17, 20 or 21 (in so far as it relates to the
aforementioned offences) of Chapter 2 of the
Prevention and
Combating of Corrupt Activities Act, 2004-
(a) involving
amounts
of more than R500 000,00;
(b) involving amounts
of more than R100 000,00, if it is proved that the offence
was
committed by a person, group of persons, syndicate or any enterprise
acting in the execution or furtherance of a common purpose
or
conspiracy; or
[6]
See s 26(1)(a)(i)
[7]
S v Farmer
[2002] 1 All SA 427
(SCA) par [11]
[8]
S v Shaik and Others
[2006] ZASCA 105
;
2007 (1) SACR 247
(SCA) at 320-321 paras
229-230.
[9]
S v Shaik and Others
[2007] ZACC 19
;
2008 (1) SACR 1
(CC) at 30-34 paras 69-82