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[2012] ZAFSHC 172
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De Villiers v S (P130/2012) [2012] ZAFSHC 172 (14 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Application No. :
P130/2012
In
the application of:-
RAYMOND
DANIEL DE VILLIERS
...........................................
Applicant
(Accused in court
a
quo
)
and
THE
STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
DAFFUE, J
et
SNELLENBURG, AJ
_____________________________________________________
HEARD ON:
7
SEPTEMBER 2012
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
14 SEPTEMBER 2012
_____________________________________________________
[1]
On 11 August 2011 applicant was convicted by the Regional Court,
Bloemfontein on one count of theft in the amount of R950 000,00.
On
29 November 2011 he was sentenced to seven years’ imprisonment,
three years of which was suspended on certain conditions.
[2]
On 11 January 2012 he unsuccessfully applied for leave to appeal
against his
sentence only
. At that stage he was still
represented by Advocate J Nel of the local Bar, instructed by
attorney J Kramer.
[3]
Hereafter the applicant terminated the mandate of his attorney and
counsel and appointed a new legal team. On 5 April 2012 applicant’s
new team applied to the court
a quo
for leave to appeal
against both his conviction and sentence. As the application was
filed out of time, an application for condonation
was filed as well.
Having found no merits in the application for leave to appeal the
condonation application was refused.
[4]
A petition was addressed to the Judge President of this court who
referred it to Snellenburg AJ and myself for adjudication.
We
considered the petition and refused it on 23 May 2012.
[5]
In accordance with the principles laid down in
S v KHOASASA
2003 (1) SACR 123
(SCA) at para [26] applicant brought an application
seeking the following relief:
(a)
Leave to appeal against his conviction by the Regional Court
Magistrate D M Soomaroo on 11 August 2011;
(b)
Leave to appeal against the sentence imposed upon him by the said
Regional Court Magistrate;
(c)
That his bail be extended pending finalisation of the appeal,
alternatively and in the event of a refusal to grant leave to
appeal,
pending a petition to the Supreme Court of Appeal and the
finalisation of such appeal.
[6]
In the present application applicant relies on the same factual
averments and legal submissions relied upon in the petition
which we
have refused. These will be dealt with in due course.
[7]
The test to be applied in applications for leave to appeal has
recently been re-instated by the Supreme Court of Appeal in
S v
SMITH
2012 (1) SACR 567
(SCA) at para [7] as follows:
“
[7]
What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that
a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore,
the appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are
not remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility
of success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words,
be a sound, rational basis for
the conclusion that there are prospects of success on appeal. “
In
casu
applicant pleaded guilty in the court
a quo
. Adv.
Nel, who appeared for the applicant confirmed that the plea was in
accordance with instructions and he proceeded to read
out a statement
prepared for and on behalf of applicant in accordance with the
provisions of
section 112(2)
of the
Criminal Procedure Act, 51 of
1977
. On receipt of the statement, the court
a quo
questioned
applicant as follows:
“
COURT:
Accused your
attorney (sic) read this out to the court, do you confirm what is
included here is the truth, do you agree with it
and that you signed
it?
ACCUSED:
Yes I do.
COURT:
And you are aware that if this court now convicts you that you can
face the minimum of 15 years imprisonment?
ACCUSED:
I understand, Your Worship.”
The
state accepted the factual basis on which applicant presented his
plea and the court
a quo
convicted him accordingly.
[8]
Advocate Dörfling SC who appeared for applicant in this
application argued that the court
a quo
could not have been
satisfied that applicant was guilty of the offence to which he had
pleaded guilty and that there was no compliance
with the statutory
requirements of
section 112(2).
He submitted that applicant had not
admitted all the elements of the crime of theft and the court
a
quo
could not have been satisfied that the applicant was indeed
guilty. Mr Dörfling did not dispute that the first three
elements
of the crime of theft had been admitted, to wit (a) an act
of appropriation (b) in respect of money (c) which takes place
unlawfully.
He argued that the fourth element, intentionally,
(including the intention to appropriate) had not been dealt with in
the statement
at all and consequently applicant did not admit that he
intended to appropriate the money and thus to permanently deprive
complainant
thereof. He relied on several passages in C R Snyman,
Criminal Law, 5
th
ed,
R v SIBIYA
1955 (4) SA
247
AD at 257 B – C,
R v WESSELS
1933 TPD 313
at
314 and
S v VISAGIE
[1990] ZASCA 124
;
1991 (1) SA 177
AD at 183 in
support of his submission.
[9]
The admissions made by applicant in the
section 112(2)
statement can
be summarised as follows:
Mrs
Amanda Wiese, the widow of the deceased, Mr P J Wiese, was appointed
as executrix in his estate. She mandated applicant to act
as the
administrator of the estate on her behalf. On 25 May 2005 applicant
obtained an estate PJ Wiese cheque made out in favour
of The
Taakmeesters Trust which trust was his
alter ego
. His
instructions were to invest the money on the money market in favour
of the estate. He did not invest the money, but made ten
different
payments to several individuals, trusts and close corporations which
were not creditors of the estate and had nothing
to do with the
estate. In conclusion he admitted non-compliance with his
instructions and that he acted unlawfully whilst he had
at all
relevant times knowledge of the unlawfulness of his acts (“van
die wederregtelikheid daarvan bewus was”).
[10]
Mr Dörfling argued that applicant admitted one facet of the
element of intention, to wit knowledge of unlawfulness, but
the issue
of intention to appropriate in the manner that our law requires was
not addressed. When asked whether it would make a
difference if the
money was paid to applicant personally, in stead of the cheque having
been made out to his trust, he confirmed
that if the money was paid
out to applicant personally and given the admissions made by him, he
would have been properly found
guilty of theft. However, insofar as
the cheque was made out to his trust, the mere fact that applicant
did not comply with his
mandate could not be sufficient for the court
a quo
to find him guilty. Therefore he submitted that a
reasonable possibility exists that another court may come to a
different conclusion.
[11]
Mr Dörfling sought reliance in the
WESSELS
judgment
loc cit
and
SNYMAN
loc cit
insofar as the existence of a liquid fund can be a defence relied
upon by an agent holding money on behalf of his principal, the
argument being that if the actual money collected had been used for
the purposes of the agent, he could not be found guilty of
the
offence of theft so long as he had a liquid fund at his disposal on
which he could draw to pay his principal at all times.
The defence of
a liquid fund was never raised and the court
a quo
had to
adjudicate the plea and statement in terms of
section 112(2)
on the
facts presented to it. If
VISAGIE
loc cit
at 183
D-I is duly considered and especially the
dictum
of Schreiner
JA in
R v MILNE AND ERLEIGH (7)
1951 (1) SA 791
(AD) at
865H relied upon which has found approval numerous times, it is
evident that applicant made sufficient averments for the
court
a
quo
to have been satisfied of his guilt. The
dictum
reads
as follows:
“
Where,
therefore, a person takes another’s money without authority to
do so and intending to consume it (actual consumption
is, I think,
only important as evidence of intention) he commits theft, even if he
intends to return other money, if it is proved
that he did not, when
he took it, believe that he had the right to take it or that the
owner, had he been consulted, would have
consented to the taking.”
Refer
also to
SNYMAN
loc cit
at 504 and further. I am
of the view that no reasonable possibility exists that another court
may come to a different conclusion
as the court
a quo.
[12]
It was submitted by Mr Dörfling that the court
a quo
committed several misdirections and that the sentence was strikingly
inappropriate. The main submissions were that applicant, being
a
fifty year old male with four dependant sons, was regarded a suitable
candidate for correctional service, that he paid R50 000,00
to the
complainant, that he made an offer two and a half years earlier to
pay back the complainant and that during sentencing proceedings
he
again offered to reimburse complainant over a period of five years.
The court
a quo
is accused of not having considered
restorative justice properly and did not consider that applicant at
all times had the intention
to pay back to complainant what he had
taken.
[13]
It is apparent from the record that applicant has paid an amount of
R50 000.00 to complainant. However, over a period of 6
years, from
2005 to 2011 when he was ultimately sentenced, he has made no effort
to settle the claim. The interest factor alone
on an amount of R950
000.00 over this period is enormous. The impression is created that
applicant tried to utilise the court process
to get a sentence which
would suit him perfectly. Instead of settling the complainant’s
claim immediately, he tried to bargain
with the state in accordance
with the provisions of
section 105A
of the
Criminal Procedure Act
.
When this failed, he tried to bargain with the court
a quo
not
to sentence him to imprisonment. During the sentencing process the
complainant who was called to testify was asked whether
she would
accept payment of R209 302.95 to be made to her the next day together
with instalments over five years, but it was made
clear that the
offer was made on condition that imprisonment was not imposed.
[14]
I am of the view that there is no reasonable possibility that another
court might come to a different conclusion. The court
a quo
has dealt with all sentencing options properly, has considered all
relevant factors, but ultimately came to the conclusion that
imprisonment was the only appropriate sentence in
casu
.
Applicant made use of his friendship with the complainant and her
deceased husband and the trust relationship in which he found
himself
as administrator of the deceased estate to misappropriate the money
entrusted to him and thereby causing the widow severe
financial
difficulties. The money was earmarked to settle
inter alia
estate duty and other estate debts. Complainant had to borrow money
to settle the estate debts.
[15]
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.
[16]
Applicant is an accountant and businessman. He acted as administrator
of an estate and was in a position of trust. His position
is no
different to that of an attorney dealing with trust moneys and
misappropriating same. Our reported judgments are abound of
examples
where attorneys having been found guilty of theft of even lesser
amounts than applicable
in casu
, were sent to prison even
though they were first offenders.
[17]
There is no merit in the application for leave to appeal against
conviction and sentence.
[18]
The last aspect to be adjudicated is the application for extension of
bail pending a possible petition to the Supreme Court
of Appeal. Bail
was originally granted to applicant by the Magistrates’ Court
earlier and applicant at all times complied
with his bail conditions.
On 14 March 2012 Van Zyl J again granted bail to applicant once his
application for leave to appeal was
dismissed by the court
a quo.
His bail was extended by Lekale J on 28 May 2012 until
applicant’s application for leave to appeal against the
dismissal of
his petition has been decided. It is now necessary to
consider whether bail should be extended as requested by applicant.
[19]
I requested both counsel to indicate whether they were aware of any
case law to the effect that a lighter test should be applied
in
considering bail pending appeal than the test applicable to
applications for leave to appeal. They were unable to assist us.
[20]
The applicant’s prospects of success on appeal is a
consideration which together with other factors may lend to the
granting (or extension) of bail pending an appeal. There must at
least be a reasonable prospect of success on appeal. However in
S
v DE VILLIERS EN ‘N ANDER
1999 (1) SACR 297
(O) at
310c-e it was held that bail pending appeal ought not lightly to be
refused on the sole ground of absence of reasonable
prospects of
success. This judgment was delivered soon after the introduction of
an application for leave to appeal procedure in
the Magistrates’
Courts and must be seen in the appropriate context. The court found
that it might be in the interest of
justice rather to grant bail
pending an appeal - except in the clearest cases - if all the other
requirements for bail had been
satisfied. See also
S v
RICHARDSON
1992 (2) SACR 169
(E) at 171j and
S v HUDSON
1996 (1) SACR 431
(W) at 433 – 434.
[21]
In
casu
the court
a quo
has already refused leave to
appeal. We have earlier refused applicant’s petition and his
present application for leave to
appeal must fail as well. Although
the other factors to be considered in bail applications are in
applicant’s favour, I am
of the view that the further appeal
procedure available to applicant is doomed to fail. Consequently the
application for extension
of applicant’s bail should be
refused.
[22]
Consequently the following orders do issue:
22.1
Applicant’s application for leave to appeal against his
conviction and sentence in the Regional Court, Bloemfontein is
refused;
22.2
Applicant’s application for the extension of his bail pending
further appeal proceedings is refused.
______________
J. P. DAFFUE, J
I concur.
___________________
N. SNELLEBURG, AJ
On behalf of the
applicant: Adv. D Dörfling SC
Instructed by:
Martins Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. V de Bruyn
Instructed by:
The Director:
Public Prosecutions
BLOEMFONTEIN
/eb