About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 37
|
|
Snyman and Another v S (A235/2013) [2014] ZAFSHC 37 (27 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A236/2013
In
the appeal between:
JACOBUS
JOHANNES
SNYMAN
....................................................................
First Appellant
E.
NIEUWENHUIZEN
.....................................................................................
Second
Appellant
and
THE
STATE
...............................................................................................................
Respondent
CORAM:
VAN ZYL, J
et
DAFFUE,
J
HEARD
ON:
17 MARCH 2014
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
27 MARCH 2014
INTRODUCTION
[1]
This is an appeal by two appellants, J.J. Snyman, the first appellant
and E. Nieuwenhuizen, the second appellant, against sentences
of four
years’ imprisonment imposed on both of them by the regional
court.
[2]
Both were initially charged together in respect of the contravention
of six counts of fraud, alternatively theft. After negotiations
with
the prosecutor, counts three and five were withdrawn against both
whilst counts one and six were withdrawn against first appellant
and
counts two and four withdrawn against second appellant.
[3]
On 17 May 2012 first appellant pleaded guilty of theft in respect of
the alternatives to counts two and four and second appellant
pleaded
guilty of theft on the alternatives to counts one and six. The
prosecutor accepted the pleas and they were duly convicted,
[4]
On 14 January 2013, eight months after their convictions, both
appellants were eventually sentenced to four years’
imprisonment
in terms of section 276(1)(b) of the Criminal Procedure
Act, 51 of 1977 (“the CPA”).
[5]
They successfully applied for leave to appeal against their
sentences. First appellant is out on warning and second appellant
is
on bail pending this appeal.
[6]
It is deemed necessary to state already at this stage that the first
appellant was convicted of stealing R100 000.00 and
R61 500.00
from two different complainants respectively whilst second appellant
was convicted of stealing R250 000.00
and R500 000.00 from
two other complainants respectively.
THE
GROUNDS OF APPEAL
[7]
First appellant’s grounds of appeal can be summarised as
follows, i.e. that the court
a quo
erred in the following
respects:
7.1 In not
individualising the sentences insofar as he stole much less than
second appellant and their personal circumstances are
materially
different.
7.2 In not accepting
the factual basis upon which first appellant pleaded guilty, but
instead finding that the crimes were planned
and formed part of an
overall scheme.
7.3 In neglecting to
allow the state and the defence an opportunity to address the court
before sentence.
7.4 In not accepting
that the state and defence agreed upon the basis of the pleas and a
possible sentence to be prayed for.
7.5 In not accepting
the first appellant’s remorse and his attempts to arrange funds
to settle the complainants’ claims.
7.6
In imposing direct imprisonment and concluding that it was the only
appropriate sentence and in so doing ignoring correctional
supervision as a sentencing option.
[8]
Second appellant’s grounds of appeal are the following:
8.1 The sentence is
shockingly excessive and the crimes were overemphasised.
8.2 The court failed
to properly take his personal circumstances and the fact that he was
a first offender into consideration.
8.3 He was not given
an opportunity to address the court before sentence.
8.4
That the state did not support the sentence.
THE
APPROACH ON APPEAL
[9]
The imposition of sentence is the prerogative of the trial court.
Appellate courts should not interfere with that exercise
of
discretion unless it is convincingly shown that the discretion has
not been properly exercised, either because the sentence
is so
disturbingly inappropriate or sufficiently disparate, or one or more
material misdirections have been committed in arriving
at the
sentence ultimately imposed.
THE
COURT
A QUO
’S
MISDIRECTIONS
[10]
Several misdirections have been committed by the court
a
quo,
some of which are dealt with in
the next paragraphs.
[11]
The court
a
quo
failed to allow the state
and the defence in particular an opportunity to address it prior to
sentence.
Mr Nel, on behalf of first
appellant, did not rely on any authority or any particular section of
the CPA for his submission, but
Mr Reinders, on behalf of second
appellant, relied on section 175 of the CPA without referring to
authority. Section 175 is irrelevant.
It deals with the process
before judgment is to be delivered on the merits. The applicable
section of the CPA is section 274. Subsection
(1) thereof deals with
the leading of evidence before sentence is passed, while section
274(2) reads as follows:
“
(2)
The accused may address the court on any evidence received under
subsection (1), as well as on the matter of the sentence,
and
thereafter the prosecution may likewise address the court.”
[12]
Although the word “may” is used in subsection 274(2) it
is generally accepted that both the accused and the state
have a
right to address the court regarding the appropriate sentence. In
S
v Mokela
2012 (1) SACR 431
(SCA)
the court opined as follows at para [14]:
“
Although
s 274
of the
Criminal Procedure Act uses
the word 'may', which may
suggest that a sentencing court has a discretion whether to afford
the parties the opportunity to address
it on an appropriate sentence,
a salutary judicial practice has developed over many years in terms
whereof courts have accepted
this to be a right which an accused can
insist on and must be allowed to exercise. This is in keeping with
the hallowed principle
that in order to arrive at a fair and balanced
sentence, it is essential that all facts relevant to the sentence be
put before
the sentencing court.”
[13]
It may be argued that fairness not always dictates that address
should be allowed, especially where the accused elected to
testify
under oath in mitigation of sentence and raised all relevant aspects
fully in order to present the trial court with the
full picture as
both appellants tried to do
in casu
.
The purpose of the evidence was to show that they may well succeed in
settling the claims of the complainants if given an
opportunity to do
so by means of a sentence of imprisonment suspended on condition that
they settle the claims. I have given ample
consideration to this
possibility, but am of the view that the court
a
quo
’s misdirection is fatal.
[14]
The court
a
quo
did not differentiate
between the two appellants.
The
amounts stolen by first appellant are much less than those stolen by
second appellant, i.e. R161 500,00 in total
as against
R750 000.00. Yet, the trial court found that both should
be sentenced exactly the same. The court
a
quo
, and incorrectly so, took into
consideration that first appellant was not a first offender, whilst
second appellant was.
Fact of the matter is that it should have
disregarded first appellant’s previous convictions totally.
The first previous
conviction of theft relates back to 1982, thirty
years ago, and the other in respect of the purchase of unpolished
diamonds occurred
in 1992, twenty years ago. First appellant
should have been considered a first offender. It is also
apparent from the
record that first appellant would have been in a
much better position to reimburse the complainants if the court
a
quo
considered a suspending sentence on
conditions as suggested under oath. He is in stable employment,
a breadwinner and father
with dependent children who partially rely
on him for their maintenance. Second appellant’s personal
circumstances,
the enormity of the amounts involved and his overall
attitude and lack of commitment evident from his testimony made his
case much
worse. The order that I have in mind will clearly
reflect the differentiation applied in imposing sentence afresh.
[15]
Pre-planning and the crimes being part
of a scheme.
No such evidence was
led. It is difficult to ascertain what factors the court
a
quo
took into consideration to come to
this conclusion. It made a material misdirection in doing so.
[16]
The sentence of second appellant was based on an incorrect assumption
that he was convicted of fraud in respect of count one.
It is evident
from the record that second appellant pleaded guilty on the
alternative to count one, being theft as opposed to fraud,
and that
the court
a quo
convicted
him on that basis. The long delay between conviction and sentence –
eight months – might be blamed for this
mistake, but again it
is a material misdirection.
[17]
Lack of individualisation between the
various counts for purposes of sentence.
The court
a quo
did not even attempt to explain why the counts were taken together
for the purpose of sentence. This error is not so material that
we
would be able to interfere with the sentences based on this aspect
only, but it is salutary practice to state why courts are
taking
counts together for purposes of sentence and if this is not done, to
sentence an accused separately in respect of each count.
Justice did
not demand that composite sentences be imposed in order to for
example avoid duplication or undue harshness. Separate
sentences
contribute to correct sentencing and avoid difficulties on appeal
when the appellate court sets aside one or more of
the convictions
taken together for sentencing.
[18]
The judgments relied upon are not on all
fours with the matters
in casu
.
I shall deal with the approach of our
Supreme Court of Appeal in respect of white collar crime
infra
,
but wish to state that the court
a quo
misdirected itself in relying on those judgments without recognising
that they are distinguishable insofar as the accused in all
those
matters were convicted of multiple crimes over extended periods of
time.
EVALUATION
OF THE COURT
A QUO
’S
SENTENCE, THE ARGUMENTS OF COUNSEL AND THE AUTHORITIES
[19]
In view of the serious misdirections by the court
a
quo
we are at liberty to reconsider the
matter and impose sentences afresh. The misdirections will not be
dealt with again, but the
reader is referred to what I stated
supra
.
[20]
Ms Thiart, the complainant in respect of the alternative to count
six, testified in the court
a quo
.
She is a pensioner who, during November 2007, lost R500 000.00 -
her pension money - which landed in the pockets of
second appellant
via her son-in-law. Second appellant made several promises to her
over a period of five years, since January 2008,
as to how he would
repay her. During this period he paid an amount of approximately
R25 000.00 to her to cover her medical
expenses and made some
unidentified smaller payments, but in essence nothing came from his
empty promises. She stated under oath
the following in reply to
inappropriate questions by second appellant’s attorney:
“
So
dit is vir u belangrik om die geld terug te kry?
(It should be
mentioned that she had nothing left of her pension and that her
children were supporting her.)
…
Dit
is reg.
En as ons ‘n
bedrag van sê byvoorbeeld R20 000.00 of R25 000.00
per maand aan u betaal, sal dit vir u aanvaarbaar
wees?
(It should be
mentioned that this question was posed as if it was certain that the
second appellant would be able to make these
payments.)
Dit
sal heeltemal aanvaarbaar wees.”
Prior
to this line of questioning the attorney also indicated that interest
would be added from date of conviction – 17 May
2012 - and paid
over and above the capital. No reasonable person in the shoes of the
complainant would reject such an offer, but
unfortunately, as can be
gleaned from second appellant’s version, no facts were placed
before the trial court to suggest
that there was a reasonable
probability or even a possibility that he would be in a position to
honour his undertaking. Ms Thiart’s
trust in society has been
damaged to such an extent that she testified that she could not trust
anybody anymore.
[21]
A letter of Mr van Rooyen, the complainant in respect of count one,
was handed in by agreement. He could not attend the proceedings,
but
indicated that he was prepared to accept payment of the amount of
R250 000.00 in one amount, alternatively in four instalments.
He
stated that if neither of the two options could be complied with, the
court should sentence second appellant appropriately.
This letter, as
is the case with the other complainants referred to
infra
,
was handed in by the prosecutor, indicating earlier communication
with the complainants in respect of their willingness to accept
payment as part of the sentences to be imposed.
[22]
A letter of Mr Liebenberg, the complainant in count two, was also
handed in as exhibit. He was also prepared to accept one
payment of
R100 000.00, alternatively the amount to be paid in four
instalments, failing which an appropriate sentence should
be imposed.
[23]
Mr Fourie, the complainant in count four, informed the court in
writing that if the full amount of R61 500,00 was not
settled by
14 January 2013, the court should proceed with sentence.
[24]
The theft of R250 000.00 (count one) took place in August 2008.
The theft of R500 000.00 (count six) took place in
November
2007. The theft of R100 000.00 (count two) took place in June
2008 and the theft of R61 500.00 (count four)
took place in
September 2008. The crimes were thus committed between four years and
four months and five years and two months prior
to the date of
sentence and save for a few thousand rand paid to Ms Thiart by second
appellant, the complainants were not reimbursed
at all by the time
that sentence was imposed.
[25]
First appellant is for all practical purposes a first offender. He is
48 years old, engaged in his second marriage and his
two children
from his first marriage, aged 22 and 18 years respectively, are both
students and partially dependent upon him for
their support. He is a
project manager and earns a salary of between R35 000.00 and
R40 000.00 per month.
[26]
First appellant applied for a home loan to enable him to settle his
debts towards the two complainants, but when he testified
under oath
the loan had not been granted yet. He was prepared to be sentenced to
imprisonment suspended on condition that the complainants
are paid
back. He testified that he could settle the R100 000.00 in four
instalments from February 2013 and the R61 500.00
in full by 1
March 2013. He could not settle the outstanding amounts earlier, but
was able to do so by the time of sentence as
he obtained stable
employment in the meantime. His home was worth about R600 000.00
and he applied for a loan of R160 000.00
only. He believed that
he would obtain the required finance.
[27]
Although we were strictly not entitled to rely on any evidence since
sentence or consider submissions from the Bar in respect
of factual
issues since sentence, Mr Nel was invited to inform us from the Bar
what his client’s financial situation was
at the time when the
appeal was heard. We were informed that an amount of R50 000.00
was paid into his attorney’s trust
account to be paid over to
the complainants if we would be prepared to interfere with the
sentence of the trial court and impose
a sentence which provides for
justice to be restored to the complainants. We were also informed
that first appellant would be in
a position to settle the outstanding
amounts of both complainants in not more than two instalments.
[28]
Second appellant testified as well. He is a 35 years old unmarried
male, but has a 6-year old child who stays with the mother.
He
practiced as an attorney at a stage, but started a diamond digging
business in 2012. Although it is not clear from the record
whether he
was struck off the roll or whether he voluntarily quitted the legal
profession, it was confirmed by his counsel, Mr
Reinders, during
argument before us that he was in fact struck off the roll in 2008.
Second appellant has not earned any
income from his diamond digging
operations yet. He admitted that the case was postponed several
times to allow him and his
co-accused an opportunity to settle the
complainants’ claims. Regarding his prospects he stated the
following:
“
Ek
is tans besig met die delwery soos ek sê, so ek hoop maar vir
die beste daarso… So die vooruitsigte is van so aard
dat ek
bedrae kan terugbetaal.”
He
vaguely testified about money that might accrue to him in respect of
a diamond digging site which he had to vacate earlier. He
also
mentioned that a machine belonging to him which was in possession of
a friend at the time might be sold for R500 000.00.
Why this has
not been sold earlier, is unknown, although he was positive that it
could be sold urgently. He furthermore testified
about his dealings
and transactions in commodities, but again in such vague terms that
nobody can accept a word of his evidence.
He promised under oath that
he would start paying back the R250 000.00 in four instalments
from February 2013, the month after
he gave his evidence. No
indication was given as to where he would get the finances from to
pay approximately R64 000.00 per
month in that regard.
[29]
The possible R500 000.00 refund to Ms Thiart, together with
interest thereon from 17 May 2012, was dealt with in the following
words:
“
Sy
het gesê sy is bereid om paaiemente van minstens R25 000.00
per maand te aanvaar? - Oorspronklik sal ek sê dit
sal my pas
so. Soos ek sê ek is besig met ‘n delwery, sou dit gebeur
dat daar ‘n steen (diamonds) wat genoegsame
waarde het dan kan
ek onmiddellik die hele bedrag betaal.”
This
appears to be nothing but a pie in the sky. This person is the only
one that might believe his own stories. It appears from
his
cross-examination that he was involved in diamond digging since
February 2012, but that his front-end-loader had broken down
and
consequently he was not successful in digging one diamond from the
soil ever since he started his business. He was living from
the
resources of a friend who paid him R8 000.00 per month at the
relevant time. He cannot even pay a fixed amount on a regular
basis
towards his 6-year old child’s maintenance. After his testimony
he, apparently to the surprise of his own attorney,
mero
motu
submitted to the court that he was
in a position to sell his diamond diggings’ equipment worth
approximately R2 million to
pay the complainants.
[30]
I have sympathy for first appellant, but none so for second
appellant. He appears to be a compulsive chancer, or at the very
best, an ingenuous entrepreneur who believes that his business deals
would come off good against all odds and expectations.
Ex
facie
the record he made a terrible
impression as a witness. He appears to be a manipulator of the first
degree.
[31]
Having expressed my sympathy towards first appellant I fail to
understand why he could not obtain finances earlier. Well knowing
that the shoe is pinching, he could have sold his house immediately
after he was convicted or applied then already for the necessary
finance. Instead he waited for several months in order to apply for a
home loan just before the 2012 Christmas season, which he
then blamed
for the delay. A year later his position has apparently not changed
as the full amount needed to settle the debts of
the complainants is
still not available.
[32]
There is no rule that a first offender may not be sentenced to direct
imprisonment. I quote the following from
S
v Kekana
2013
(1) SACR 101
(SCA) at 105d – i:
“
It
is true that the appellant has an unblemished record and that he was
a useful member of society in gainful employment at the
relevant
time. Those circumstances, however, have to be weighed against the
nature and severity of the offence and the requirements
of society.
Notwithstanding those mitigating factors being present, the
seriousness of the offence makes it necessary to send out
a clear
message that behaviour of the kind encountered in this case cannot be
countenanced. The natural indignation that the community
would feel
at conduct of this kind warrants recognition in the determination of
an appropriate sentence…Moreover, as the
version of the
appellant was found by the trial court to be false and in effect
contrived, it is difficult to conclude in his favour
that he has
demonstrated any remorse or contrition. In all of the
circumstances of the case, therefore, the moral reprehensibility
of
the appellant’s conduct remains undiminished.”
[33]
Thus even previously law-abiding citizens with good and stable family
relationships and fixed employment may be incarcerated
if the offence
committed is sufficiently serious and the interest of the community
demands it. An accused’s personal circumstances
must take a
backseat in the evaluation of what is an appropriate sentence in such
instance.
[34]
In
S v PRETORIUS
,
a judgment of the Free State High Court reported in SAFLII (25/2006)
[2007] ZAFSHC 39
, and confirmed on appeal by the SCA on 26 November
2008 under case no 145/2008 – neutral citation:
PRETORIUS
v THE STATE
(271/2008)[2008] ZASCA
132 (26 November 2008) - the court came out strongly in favour of
stricter sentences for white collar crimes
and quoted the following
from
S v SADLER
2000 (1) SACR 331
SCA at 335g – 336b:
“
[11]
So called ‘white-collar’ crime has, I regret to have to
say, often been visited in South African courts with penalties
which
are calculated to make the game seem worth the candle.
Justifications
often advanced for such inadequate penalties are the classification
of ‘white-collar’ crime as non-violent
crime and its
perpetrators (where they are first offenders) as not truly being
‘criminals’ or ‘prison material’
by reason of
their often ostensibly respectable histories and backgrounds.
Empty generalisations of that kind are of no help
in assessing
appropriate sentences for ‘white-collar’ crime.
Their premise is that prison is only a place for
those who commit
crimes of violence and that it is not a place for people from
‘respectable’ backgrounds even if their
dishonesty has
caused substantial loss, was resorted to for no other reason than
self-enrichment, and entailed gross breaches of
trust.
[12]
These are heresies. Nothing will be gained by lending credence to
them. Quite the contrary. The impression that crime
of that
kind is not regarded by the courts as seriously beyond the pale and
will probably not be visited with rigorous punishment
will be
fostered and more will be tempted to indulge in it.”
Particular
attention is directed to the approach of the SCA in paragraphs 4 to 7
and 9 of
PRETORIUS
loc cit
pertaining
to payment by an accused to a complainant to make good losses
suffered, correctional supervision and the approach of
a court of
appeal to a sentence imposed by the court of first instance.
The time has arrived to send white
collar criminals to jail. They cannot in all circumstances be
heard to say that they will
reimburse the complainants as this will
mean that the rich, or those with the ability to obtain money, would
always be entitled
to buy themselves out of prison.
[35]
Mr Nel has conceded that although he is of the personal view that
short-term imprisonment does not have any value insofar as
reform is
concerned, that two to three years imprisonment would be an
appropriate sentence in respect of his client, the first
appellant.
However he argued strenuously with reference to several passages in
Terblanche:
Guide to Sentencing in South
Africa
, 2
nd
ed, that correctional supervision was an appropriate sentence option
in casu
and that this aspect together with the element of restorative justice
was not considered at all by the court
a
quo
. He therefore argued that
such a sentence should have been imposed. I am of the view that
the crimes call for imprisonment
in light of the urge to make a stand
against white-collar crime for the reasons pronounced by the Supreme
Court of Appeal in
Sadler
and
Pretorius
supra
.
In any event, we cannot at this stage consider imposing a sentence of
correctional supervision even if we held that it was
an appropriate
sentence as in such instance we would have to refer the matter back
to the regional court for the required reports
to be obtained
whereafter a sentence of correctional supervision may, or may not be,
imposed. Bearing in mind the full diaries
of the legal
practitioners as well as the backlog in the regional courts, a delay
of anything between six to twelve months may
be caused. I am of
the view that there was so much delay in having finalised these
matters that further delay should not
be allowed. Justice must
now be seen to be done and finality is of the utmost importance,
especially insofar as the complainants
are concerned.
[36]
Second appellant’s personal circumstances are quite different
from that of first appellant. He not only stole much
more
money, but was an attorney at the time and his position as such
apparently caused the complainants to trust him. Mr
Reinders,
on his behalf, informed us during his argument that his attorney, Mr
Giorgi, who was present in court and who also conducted
the second
appellant’s defence in the court
a
quo
, had received clear and unambiguous
instructions to inform us that his client would be prepared to
reimburse the full amounts owing
to the complainants within thirty
days from the date of our judgment if we were prepared to interfere
with the sentence of the
trial court and impose imprisonment
suspended on condition that the complainants be reimbursed. Mr
Reinders conceded that,
bearing in mind the amounts involved, a
period of four years’ imprisonment as imposed by the trial
court, could be regarded
as rather lenient and that the second
appellant could count himself lucky to have received such a lenient
sentence. However
bearing in mind the availability of funds to
settle the debts of the complainants and particularly Ms Thiart, who
is a pensioner
and who is in dire financial straits according to the
evidence, it would be appropriate
in
casu
to impose a suspended sentence as
this will also ensure that justice is restored to the complainants.
[37]
Me Van Wyk, who appeared on behalf of the state and also represented
the state in the court
a quo
,
supported the sentences imposed by the trial court. She submitted
that appellants’ were in breach of their undertakings
to settle
the debts. She emphasised that the state was at all relevant times
prepared to accept sentences providing for orders
in terms whereof
the complainants be reimbursed and she particularly emphasised that
Ms Thiart was in urgent need of funds as she
was relying on the mercy
of her children. However she was of the view that the appellants had
sufficient time to get their finances
in order and their attitude
demonstrated a clear lack of understanding and appreciation for the
rights of the complainants in particular
and the legal system in
general. I tend to agree with these submissions and am of the view
that the appellants’ attitude
evidences a clear defiance of the
rights of the complainants and our legal system and is also
indicative of gross arrogance.
[38]
Although I am personally of the view that the crimes committed by the
appellants are so severe that the community at large
would feel that
they deserve incarceration, it cannot be disregarded that restorative
justice as an aim of punishment should not
be overlooked
in
casu
. The complainants and in
particular Ms Thiart, a pensioner, would welcome sentences which
might ensure that they be reimbursed.
I have considered an order in
terms whereof not only the capital, but also interest be payable at a
rate of 8%
per annum
,
the rate which the complainants would have obtained if the monies
were invested with a financial institution, but that would mean
a
further financial burden of several hundred thousand rand bearing in
mind the period of five to six years that has passed. The
effect of
not allowing interest to be paid to the complainants may be seen as
the court allowing appellants to pay back what could
be regarded as
interest free “loans” to the severe detriment of the
complainants. However, if repayment of the capital
could be achieved,
the complainants would be in a much better position than would be the
case if the sentences of the trial court
were confirmed on appeal.
[39]
As stated there should be a differentiation between the sentences to
be imposed on the two appellants. Also, the appellants
shall be
sentenced separately in respect of the different counts and there are
no valid reasons why their sentences should run
concurrently. The
orders are so structured merely to avoid having the effect of
increasing the sentences on appeal which we are
not at liberty to do.
The lenient nature of the sentences is clearly demonstrated in this
manner, but there is nothing that we
can do in this regard.
[40]
Consequently and with a great measure of reluctance I propose that
the following orders be made:
1.
The appeals of both appellants are upheld
and the sentences of the court
a quo
are set aside and replaced by the following.
2. Jacobus Johannes
Snyman is sentenced as follows:
2.1
On the alternative to count two: Eighteen (18) months’
imprisonment.
2.2 The sentence is
wholly suspended on the following conditions:
2.2.1 that the
accused reimburses the complainant, JJ Liebenberg, in full by
way of two instalments in the amounts of R50
000.00 each to be
payable not later than 30 April 2014 and 31 May 2014 respectively.
2.2.2
that he shall not be convicted of theft or any crime involving any
element of dishonesty for which he is sentenced to imprisonment
without the option of a fine during a period of five years from the
date hereof.
2.3
On the alternative to count four: Eighteen (18) months’
imprisonment.
2.4 The sentence is
wholly suspended on the following conditions:
2.4.1 that accused
reimburses the complainant, JM Fourie in full by way of two
instalments in the amounts of R30 750.00 each
to be payable not
later than 30 April 2014 and 31 May 2014 respectively.
2.4.2
that he shall not be convicted of theft or any crime involving any
element of dishonesty for which he is sentenced to imprisonment
without the option of a fine during a period of five years from the
date hereof.
3. Ebrahim
Nieuwenhuizen is sentenced as follows:
3.1
On the alternative to count one: Two (2) years’ imprisonment.
3.2 The sentence is
wholly suspended on the following conditions:
3.2.1 that accused
reimburses the complainant, JA van Rooyen, in full by way of two
instalments in the amounts of R125 000.00
each to be payable not
later than 30 April 2014 and 31 May 2014 respectively.
3.2.2
that he shall not be convicted of theft or any crime involving any
element of dishonesty for which he is sentenced to imprisonment
without the option of a fine during a period of five years from the
date hereof.
3.3
On the alternative to count six: Two (2) years’ imprisonment.
3.4 The sentence is
wholly suspended on the following conditions:
3.4.1 that accused
reimburses the complainant, Ms Thiart, in full by way of two
instalments in the amounts of R250 000.00 each
to be payable not
later than 30 April 2014 and 31 May 2014 respectively.
3.4.2
that he shall not be convicted of theft or any crime involving any
element of dishonesty for which he is sentenced to imprisonment
without the option of a fine during a period of five years from the
date hereof.
J.
P. DAFFUE, J
I
agree and it is so ordered.
C.
VAN ZYL. J
On
behalf of first appellant: Adv J Nel
Instructed
by:
Kramer
Weihmann & Joubert
BLOEMFONTEIN
On
behalf of second appellant: Adv S.J. Reinders
Instructed
by:
Giorgi
& Gerber Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv A van Wyk
Instructed
by:
Office
of the Director of Public Prosecutions
BLOEMFONTEIN