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[2007] ZASCA 65
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Ramdeo v Director of Public Prosecutions (650/06) [2007] ZASCA 65; [2007] SCA 65 (RSA) (29 May 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not reportable
CASE
NO
: 650/06
In the
matter between :
ROYCHAND
RAMDEO ...............................
Appellant
and
DIRECTOR
OF PUBLIC PROSECUTIONS
...............................
Respondent
_____________________________________________________________________________
Before: NUGENT, JAFTA JJA & SNYDERS AJA
Heard: 21 MAY 2007
Delivered: 29 MAY 2007
Summary:
Sentence – fraud – issuing false roadworthy certificates.
Neutral citation: This judgment
may be referred to as
Ramdeo
v Director of Public Prosecutions
[2007]
SCA 65 (RSA)
______________________________________________________________________________
J U D G M E N T
______________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] The appellant and Mr Derrick Xulu were charged together and
convicted upon pleas of guilty on four counts of fraud in the
magistrate’s
court for the district of Pietermartizburg. The
magistrate took the offences together for purposes of sentence and
sentenced each
to 5 years’ imprisonment that was conditionally
suspended for 5 years. One of the conditions of suspension in each
case was
that the sum of R5 000 be paid to the South African
Revenue Service. The Director of Public Prosecutions appealed to the
High
Court at Pietermaritzburg against the sentence that was imposed
upon the appellant. On appeal the high court (Alkema AJ and Combrink
J) increased the sentence to 5 years’ imprisonment. The
appellant now appeals against that order.
[2] The
National Road Traffic Act 93 of 1996
prohibits a motor
vehicle from being operated on a public road unless it has met the
requirements for the issue of a roadworthy certificate.
Roadworthy
certificates may be issued by testing stations that have been
registered in terms of the Act. The appellant was employed
by such a
testing station as a motor vehicle examiner. On four occasions (on 5
November 2001, on 6 November 2001, on 17 April 2002,
and on 23 April
2002) the appellant held out that he had inspected a vehicle (the
same two vehicles, each on two occasions) and that
he had completed a
roadworthiness test sheet as a result of that inspection. On the
strength of the information contained in the
roadworthiness test
sheet on each occasion a roadworthy certificate was issued. In truth
the appellant had not inspected the relevant
vehicle at all and the
roadworthiness test sheet that he completed was false. On each
occasion Xulu facilitated the transaction,
for which Xulu received a
fee from the person for whom the roadworthy certificate was issued.
[3] It is well established that sentence is a matter for the
discretion of the sentencing court, and that a court of appeal may
not
interfere with the exercise of that discretion unless it is
satisfied that the discretion was not properly exercised. In
appropriate
circumstances the sentence itself might justify the
inference that the sentencing court did not properly exercise its
discretion,
either by giving undue weight to some factors at the
expense of others, or by not according sufficient weight to some of
them.
[4] In the present case the facts that I have outlined above were
supplemented by other evidence led by the state. The evidence of
a
senior traffic officer and examiner of vehicles was that at the time
the offences occurred the issue of fraudulent roadworthy certificates
was common, particularly in the public transport industry in the
Natal midlands. A research project had concluded that a substantial
number of vehicles that were involved in accidents were unroadworthy.
One of the problems that was identified was that certificates
of
roadworthiness were being fraudulently issued, without examination of
the vehicles concerned, and steps had been taken to apprehend
offenders.
[5] At the time of his conviction the appellant was 45 years old,
married with three children, employed as a cashier earning R2 000
per month, and was a first offender. His co-accused, Xulu, was in
substantially the same position.
[6] To facilitate the operation of unroadworthy vehicles on public
roads, as the appellant did, clearly creates the potential for
serious consequences to members of the public, and I agree with the
court below that the sentence that was imposed by the magistrate
was
altogether inappropriate. But it was submitted on behalf of the
appellant that the court below erred itself in imposing a sentence
that was excessively harsh.
[7] It was submitted on behalf of the appellant that it would be
offensive to ordinary notions of justice if the sentences received
by
the appellant and Xulu were materially disparate, bearing in mind
that they were both convicted of the same offences. Although
they
were both convicted of the same offences it does not follow that the
role that each played was equally culpable. It was the
responsibility
of the appellant to ensure that vehicles were roadworthy before a
certificate of roadworthiness was issued. That placed
him in a
position of trust that called upon him to resist being importuned by
people like Xulu. In my view the breach by the appellant
of his
responsibilities made him considerably more culpable than Xulu and I
see every reason to differentiate between them when it
comes to
sentence. Moreover, if the sentence that was imposed upon Xulu was
inappropriately light, I do not think the state can be
faulted for
having appealed only against the sentence that was imposed upon the
appellant, bearing in mind the greater culpability
of his actions. If
that means that Xulu escapes with an inappropriately light sentence I
do not think that is to be remedied by similarly
imposing an
inappropriate sentence on the appellant.
[8] Although the material that was placed before the magistrate in
that regard was scanty I accept that the appellant was an employee
and that his employer is likely to have been party to his conduct. It
was submitted in the circumstances that it was his employer
who was
the primary villain. Perhaps that is so but there is no evidence to
suggest that the appellant was not a willing participant
in his
employer’s conduct, as his counsel suggested. On the contrary,
the fact that the offences were committed some 5 months
apart
indicates, in the absence of any evidence to the contrary, that the
appellant was well aware of what he was doing, and was
a willing
participant in the fraud.
[9] The offences that were committed by the appellant were
undoubtedly serious, as the court below found, and demanded a
custodial
sentence. But in my view the appropriate sentence was one
of imprisonment for 3 years, which is sufficiently disparate from the
sentence
that was imposed as to warrant the inference that the court
below accorded excessive weight to the seriousness of the offence at
the expense of the circumstances of the appellant.
[10] Accordingly the appeal is upheld. The order of the court below
is set aside and the following is substituted:
‘The appeal is upheld. The sentence imposed by the magistrate
is set aside and substituted with a sentence of 3 (three) years’
imprisonment.’
______________________
RW NUGENT
JUDGE OF APPEAL
CONCUR
:
JAFTA JA)
SNYDERS AJA)