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[2011] ZAFSHC 8
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Nieuwenhuizen v S (A40/10) [2011] ZAFSHC 8 (27 January 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A40/10
In the appeal between:-
ANTON GERHARD VAN
NIEUWENHUIZEN
….......................
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
EBRAHIM, J
_____________________________________________________
HEARD
ON:
6 DESEMBER 2010
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
27 JANUARY 2011
_____________________________________________________
[1] The appellant was
convicted of fraud in the Bloemfontein Regional Court on 17 September
2008 and sentenced to an effective jail-term
of five and a half years
imprisonment. Initially he came on appeal against the sentence only.
[2] On 29 October 2010 my
brother Cillié J sent an invitation to the Director of Public
Prosecutions. He expressed some reservations
in connection with the
appropriateness of certain convictions in respect of 15 of the
charges, as well as some reservations concerning
the correctness of
the written charge-sheet in the court
a quo
. He requested the
respondent to prepare argument in connection with two questions of
law.
[3] The appellant’s
appeal, as regards sentence, was on the roll of 1 November 2010. The
appeal was held back for the time
being and the points of law
apparently took the centre stage. At the end of the day the court
a
quo
(per Cillié J
et
Claasen AJ) postponed the
appeal
sine die
to afford the appellant an opportunity
approaching the trial court for leave to appeal his conviction as
well in respect of charge
3 and charges 5 to 18.
[4] The appellant
successfully launched such an application in the Bloemfontein
Regional Court on 3 November 2010 for leave to appeal
against such
convictions. He came before us on appeal against the specified 15
convictions and all the sentences with the leave
of the court
a
quo
.
[5] The appellant was
charged with 17 counts of fraud and 15 counts of uttering. He was
convicted as charged. He was sentenced to
nine years and nine months
imprisonment of which four years and nine months imprisonment were to
be served together with the four
year jail-term he was already
serving. Therefore, he was effectively sentenced to five years
imprisonment.
[6] As regards the merits
of the charge of fraud:
Count 3: The respondent
alleged in the charge-sheet that the appellant committed this
particular crime in Bloemfontein on 6 January
2006 by representing to
a certain Ms Vanessa Graham, an employee of a law-firm Krohn
Attorneys, that he had paid an amount of R3
000,00 into the bank
account of Krohn Attorneys by way of an internet transfer for the
credit of their client, Mr. G. Beukes, being
payment of the
instalment due on 7 December 2005. The respondent further alleged
that the appellant made the false representation
with intent to
deceive Ms Graham; that through the misrepresentation the appellant
induced Ms Graham or Krohn Attorneys or Mr.
Beukes to accept to their
loss or potential prejudice that he actually made such payment
whereas, in truth and in fact, he knew,
at the time he made the
internet slip, that it was fake and that he factually made no such
payment.
[7] I deem expedient to
give a concise background to the aforesaid charge of fraud for the
sake of clarity. Between 8 August 2004
and 18 September 2004 Mr.
Gerhard Beukes paid the sum of R171 500,00 to the appellant as the
purchase price of four motor vehicles,
namely 3 x Volkswagen Jetta,
plus 1 x Volkswagen Golf. Notwithstanding the payment the appellant,
as the seller, failed to deliver
the sedans to Mr. Beukes, as the
purchaser on 20 September 2004 in terms of the agreement.
[8] As a result of the
appellant’s breach of the contract, Mr. Beukes appointed Messrs
Krohn Attorneys to reclaim the sum
of money he paid to the appellant.
There the matter was handled by Ms Vanessa Graham, apparently an
attorney. She demanded the
repayment of the money. The appellant
admitted his indebtedness and signed an acknowledgement of debt to
that effect. However,
the appellant defaulted. Mr. Beukes’
attorney then took further legal steps against him. In due course
judgment was taken
against the appellant in favour of Mr. Beukes.
[9] The appellant again
made an undertaking to repay the debt. On this occasion he offered to
liquidate the debt at the rateof R3
000,00 per month as from 7
September 2005 and thereafter on or before the 7
th
day of
each succeeding month. He was obliged to make all the payments into
the trust account of Krohn Attorneys Incorporated for
the credit of
their client, Mr. Gerhard Beukes.
[10] Once again the
appellant defaulted. He neglected to make payment of R3 000,00, which
had become due and payable on 7 December
2005 at the very latest. Ms
Graham confronted him about the overdue instalment. Thereupon the
appellant, on 6 January 2006, produced
an internet slip to prove to
Ms Graham that he indeed paid the instalment for 7 December 2005. The
internet document in question
was falsified. It was that fake
document which gave rise to the criminal charge of fraud –
count 3.
[11] The point of law
pertaining to count 3 was formulated as follows:
“
Dit kom voor
asof dit reeds bestaande skulde was ten aansien waarvan die
beskuldigde later wanvoorstellings gemaak het dat dit betaal
is.
Kan dit ooit bedrog wees? Die posisie
is vergelykbaar met die betaling van ‘n reeds bestaande skuld
met ‘n waardelose
tjek. Die skuld word tog nie daardeur
uitgewis nie.”
[12]
On behalf of the appellant Mr Van der Merwe submitted that seeing
that the falsified internet payments’ slip was made
out in
respect of an existing debt, the appellant’s action of 6
January 2006 hardly induced the complainant to act to their
prejudice
or that they were, through such actions, placed in a weaker position
than they were before the appellant presented the
fake document -
S
v ELLIS
1969 (2) SA 622
(N).
Therefore
counsel urged us to decide the point of law in favour of the
appellant by setting aside the count 3 conviction.
[13]
On behalf of the respondent Mr. Swanepoel differed. He submitted that
the correct point of departure in a case of fraud was
the intention
of the fraudster –
R v DYONTA
AND ANOTHER
1935 AD 52.
Counsel
submitted that when the principle was applied to the instant case and
regard was had to the record as a whole, it became
very clear that
when the appellant sent the falsified internet document or payment
slip to Krohn Attorneys Incorporated, his intention
was not to defray
the existing debt, but rather to prevent, by deceptive actions, the
complainant from speedily exercising their
available rights by
issuing a writ of execution against him by virtue of the civil
judgment.
[14]
The appellant’s argument that because the existing debt was not
extinguished by his sending of the document he had falsified,
his
actions did not amount to fraud, seemingly has its origin in
R
v JONES AND MORE
1926 AD 350.
On p.
353 Solomon JA qualified his earlier decision in
R
v HERZFELDER
1907 TH 244
where he
said:
“
As a general
rule I think it may be said that where the design, if carried out,
does not cause prejudice, the perversion of the
truth cannot be said
to be calculated to cause prejudice.”
[15] In
S v ELLIS
1969 (2) SA 622
(N) at 623 D Miller J in pretty much a similar vein
said the following about the effects on the complainant’s
pre-existing
debt of a dishonoured cheque drawn by the accused:
“
The cheque
which the accused handed to the complainant was for arrear rental
which he owed her. He did not induce or intend or attempt
to induce
her to act to her prejudice nor did she in fact alter her position
for the worse or suffer any loss or prejudice as a
result of his
handing her the cheque. The debt in respect of which the cheque was
given was a pre-existing debt for which she had
and still has a claim
against the accused and she was in no better or worse position after
the accused had handed her the cheque
than she was before he handed
it to her.”
See
also
S v RAUTENBACH
1990 (2) SACR 195
(N);
S v CALITZ
1992 (2) SACR 66
(O);
S v LABUSCHAGNE
1997 (2) SACR 6
(NC)
[16] In the instant case
the pre-existing debt itself came about as a result of the
appellant’s fraudulent design. By means
of deception he induced
Mr. Beukes to hand in R175 500,00 under the false pretext that he
would reciprocate by delivering four
cars to him. When he made such
representation in 2004 he knew it was false, but made it with the
fraudulent intention of inducing
Mr. Beukes to act to his prejudice
and he did suffer actual prejudice – hence the civil judgment
and the criminal conviction
in respect of count 1
in casu
.
[17] Now in 2006 the
appellant was at it again. For a very nefarious purpose he went about
creating a fake document on a computer.
He falsified an internet
document. He gave a fake document with the appearance of a genuine
proof of payment. When he sent such
a fake document to the attorney
in 2006, he knew he had not paid the amount of R3 000,00, which had
become due and payable on 7
December 2005, as the internet slip
purported he did. Whereas on the previous occasion in 2004 the
appellant’s perversion
of the truth was fraudulently designed
to induce the victim to give away his money for the appellant’s
undue benefit. On
this occasion in 2006 the appellant’s
perversion of the truth was fraudulently designed to induce the
victim or her appointed
agent(s) to give him credit, which he knew at
the time he made such representation, that he did not deserve.
[18] By sending such
false document to the judgment creditor’s lawyers his intention
was to induce them to act on it, as if
its contents were true, to
their prejudice. In my view, it cannot be convincingly contended in
these circumstances that the appellant
did not induce or intend to
induce or attempted to induce the complainant to act to their
prejudice.
[19] The primary
objective of his pervasive design was to avoid paying the due
instalment for the particular month. He clearly intended
to deceive
and had the design been carried out the complainants would have
suffered prejudice. The deceitful design of the appellant
was
particularly prejudicial, because the false document was sent to the
attorneys. An unwary attorney could easily have accepted
the internet
slip as a true and a valid proof of payment. Had it not been for the
attorney’s vigilance, the appellant would
probably have, by
deception, received the credit of R3 000,00 at the expense of his
defrauded creditor or cheated agent(s).
[20] In
R v DYONTA
AND ANOTHER
1935 AD 52
on 57 the court held that in a case of
fraud:
“
The law
looks at the matter from the point of view of the deceiver. If he
intended to deceive, it is immaterial whether the person
to be
deceived is actually deceived or whether his prejudice is only
potential.”
per Wessels CJ.
[21]
In casu
the
appellant again intended to deceive. His intention (2006) was
something new. It was distinct and independent from his intention
(2004) when he defrauded Mr. Beukes. The argument that his recent
design (2006) with all its inherent hallmarks of deception and
prejudice did not legally constitute a crime of fraud since it
related to a pre-existing debt is unconvincing.
[22]
The notion that the pre-existing debt insulates a dishonest person
from future prosecution as long as his subsequent deceptive
design of
his actions can tenuously be linked to such a pre-existing debt is
something the law does not countenance. It will be
a sad state of
affairs if our law indemnifies fraudsters in this way. The one
instructive feature of the authoritative decision
in
R
v DYONTA
,
supra
,
is that in a case of fraud the law looks at the matter from the
deceiver’s mental perspective. It is his intention at the
time
he created the design, which is decisive. Anything else, before,
during or after such despatch of a false document, is immaterial.
[23] It was common cause
that before 6 January 2006 there was judgment taken against the
appellant; that the appellant offered to
repay the judgment debt by
way of fixed regular instalments; that he duly paid the instalments
for the first three months in accordance
with his offer; that he then
failed to pay the instalment for the fourth month; that he was
confronted by the attorneys during
January 2006 about his default;
that he falsely denied any arrears, created a false document as proof
of payment for 7 December
2005 and sent it to the attorney.
[24] The question is why
did the appellant do so? He intended to deceive. Firstly, he induced
the attorney to accept his false representation
so that he could
credit. Secondly, he induced the attorney to take no immediate legal
steps to have his property attached and sold
by way of public auction
to satisfy the judgment. Certainly the false document must have
retarded the execution process somehow.
The judgment creditor was
therefore worse off after than he was before the false
representation. The retardation or creation to
buy the deceitful
design delayed and thus frustrated the immediate steps that could
have been taken against the appellant.
[25] The attorney
probably had to verify the alleged internet payment before he could
decide his next line of action. It is not
unthinkable that he might
have given the appellant provisional credit pending receipt of the
relevant bank statement or he might
have contacted his bank for
confirmation before he gave credit to the appellant or she might even
have accepted the document as
true proof of payment and without more
accounted to his client and paid over the money to him at once. This
last instance, if carried
out, would have entailed an element of
actual prejudice. The first two instances would have involved an
element of potential prejudice.
However, it is immaterial what the
attorney was induced to do on account of the false representation or
whether there was a pre-existing
debt or not.
[26]
The crux of the matter, according to law, was the appellant’s
intention at the time he sent out the false document. He
intended to
deceive. See
S v CAMPBELL
1991 (1) SACR 503
(NM)
and
S v SWARTS EN ‘N ANDER
1961 (4) SA 589
(GW).
The first point of law reserved, must be answered in favour of the
state. Therefore the conviction stands to be confirmed.
[27] The second point of
law, pertinently raised, was whether the conviction in respect of
count 3 could legally follow seeing that
the element of potential
prejudice was missing from the charge sheet or from the questioning
in terms of section 112(1)(c), Act
No. 51 of 1977.
[28] Section 103,
Criminal Procedure Act 51 of 1977
provides:
“
103
Charge alleging intent to defraud need not allege or prove such
intent in respect of particular person or mention owner of property
or set forth details of deceit
In any charge in which it is necessary
to allege that the accused performed an act with an intent to
defraud, it shall be sufficient
to allege and to prove that the
accused performed the act with intent to defraud without alleging and
proving that it was the intention
of the accused to defraud any
particular person, and such a charge need not mention the owner of
any property involved or set forth
the details of any deceit.”
[29] The charge sheet
specifically alleged in count 3 the names of the particular persons
defrauded, namely Mr. G. Beukes, Ms V.
Graham and Krohn Attorneys
Incorporated. Moreover the element of prejudice (actual or potential)
was also specifically alleged.
The contention of the appellant, at
par. 205, appellant’s heads of argument as drawn by Mr. K.
Pretorius, that the charge
sheet contained no such allegation, is not
correct.
[30] The following
exchange in terms of
section 112(1)(c)
between the appellant and the
court
a quo
is relevant.
“
BESKULDIGDE
:
Ek het, ek was onder druk gewees om ‘n betalingsbewys te gee,
wat ek wel toe op ‘n latere stadium aan Kroon Prokureurs
se
kantore wel gemaak het en ek het op die 7de, ook op die 7de van
daardie maand dink ek van, ek dink dit was Januariemaand gewees
as ek
dit nie mis het nie, het ek ‘n vals internet dokument aan me
Venessa Graham by Kroon Prokureurs gestuur vir die betaling
daarvan.
HOF
: Erken u dat u vir Vanessa
Graham en/of Kroon Prokureurs benadeel het of potensieel benadeel het
deur u optrede?
BESKULDIGDE
: Dit is korrek.
HOF
: Het u geweet wat u doen
daardie tyd, is verkeerd, strafbaar ... (onduidelik) skuldig bevind?
BESKULDIGDE
: Dit is korrek.”
In my view the appellant
admitted that he knew at the time he made the false representation to
the attorney that such representation
was prejudicial and wrong.
[31] The authors Du Toit
et al
:
Commentary on the
Criminal Procedure Act
>, p. 14
– 44/5 comments appositely as follows on the section:
“
Because it
is often difficult to identify the person who has been prejudiced by
an accused’s fraudulent action, the State
is exempted from the
requirement of making such an indication. Although the State need not
indicate a specific person who has been
prejudiced, it is nonetheless
necessary that the charge contain an allegation that somebody has
been prejudiced or potentially
prejudiced. If the charge does not
contain such an allegation, it must at least be possible to infer
this from the charge (
R
v Jones & More
1926 AD 350 354).
Although an allegation of prejudice is
not a requirement for a valid charge of forgery (
R v Hymans
1927 AD 35 39), the position was qualified in
R v Adams
1948
(1) SA 1199 (N). An allegation of prejudice may only be omitted from
the charge of forgery if the forged document could have
caused
prejudice to the person who was acquainted with it and who dealt with
it.
If possible, in the interests of
efficiency and fairness towards the accused, the person who was
allegedly prejudiced should be
made known despite the exemption.
Because the State need not indicate the person who was prejudiced by
the fraudulent action, the
State is also not bound by an erroneous
indication that any particular person was the victim of the fraud (
S
v Avion Motor Enterprises (Pty) Ltd
1978 (4) SA 692 (T) 694G).”
[32] I am in respectful
agreement with the aforesaid opinions. The second point of law
reserved must also be answered in favour
of the respondent. I can
find no reason to interfere with the conviction on the ground that
the charge sheet was defective or the
questioning in terms of
section
112(1)(c)
was incomplete.
[33] I turn now to count
5. It was also a charge of fraud. Here the prosecution alleged that
the appellant defrauded Ms M.H. Massyn
or Department of Correctional
Services in Bloemfontein on 7 August 2007 in that he represented to
her by means of an internet payment
slip that he had paid an amount
of R523,00 to Ms M. Griesel on 7 August 2007 knowing at the time he
made the representation that
it was false.
[34] Some brief
background to this particular charge is necessary. The appellant
pleaded guilty to count 5 on 19 September 2008
under case number
17(183)2008 Bloemfontein Regional Court. About a year or so earlier,
on 27 July 2007 to be precise, the appellant
was convicted for fraud
in the Bloemfontein Regional Court under case number 17(116)2002. The
court made a compensation order against
the appellant in favour of
the victim, Ms M. Griesel. He was obliged in terms of the court order
to repay the amount of R31 380,00
to the victim at the rate of
R523,00 per month from 7 August 2007 until the date of final payment.
The appellant was then apparently
sentenced to four years
imprisonment which was wholly, but conditionally suspended for five
years. One of the conditions was that
he should make regular payments
to the victim in terms of the compensation order. Of course, another
condition of the suspension
was that he should not be found guilty
again of fraud committed during the period of suspension.
[35] The appellant did
not comply with the compensatory condition relating to his
suspension. Instead of paying the required instalment,
he sent a
false internet payment slip to Ms M.H. Massyn as proof that he had
paid such an instalment. Precisely the same
modus operandi
was
used by the appellant in respect of the same victim on four different
occasions afterwards.
See count 9 - fraud
committed on 10 September 2007;
Count 10 - fraud
committed on 22 October 2007;
Count 14 - fraud
committed on 7 December 2007; and
Count 17 - fraud
committed on 7 February 2008.
[36] It will be readily
appreciated that the appellant breached the terms of his suspended
sentence in two ways: firstly, he did
not make regular payments and
secondly, he committed fraud during the period of his suspension and
was accordingly convicted on
his plea, not only in respect of count
5, but all the aforesaid five counts.
[37] As a result of his
violation of the conditions of suspension, the four years suspended
sentence was put into operation on 15
April 2008.
[38]
It is my considered view that the appellant’s intention was to
deceive at the time he sent the false internet slip to
Ms M.H. Massyn
at the Department of Correctional Services. That is the essence of
fraud -
R v DYONTA
,
supra
. We
do not have to look beyond his intention to determine whether his
conviction was sound in law. Such a fraudulent intent cannot
simply
evaporate into thin air by virtue of the pre-existing debt which
itself was tainted by
ex turpi causa
.
He did not have any serious intention to compensate the victim for
the pre-existing debt. He was fully aware of the implication
of his
breach of an important condition of his suspended sentence. He then
created or uttered a pervasive design deliberately calculated
to
frustrate the putting into operation of the suspended sentence.
[39] At the time he sent
the relative document, he intended to induce the aforesaid official
or her department or any other unnamed
person with interest in the
matter, including but not limited to the public agencies, such as the
prosecuting authority and the
police, to act upon it and not to take
appropriate steps against him. The prejudice of his pervasive design
is self-evident. He
apparently managed to deceive all and sundry for
sometime which was why he repeatedly made a series of such false
representations.
His first court appearance was 29 January 2008.
Herein lies the obvious prejudice. Since his first deception was not
immediately
detected, he reckoned he could carry on deceiving the
complainants. He delayed paying the victim for a substantial period
of time.
He, in fact, altered the victim’s already bad position
for the worse. The victim financially suffered loss, call it
prejudice
if you will, as a result of the appellant’s sending
the false document.
[40]
In these circumstances, I have come to the conclusion that the first
point of law must be answered in favour of the respondent
in
connection with this count. That being the case, I am not persuaded
that the appellant’s conviction in respect of count
5 was
unsound or unsustainable in law. I am inclined to uphold his
conviction by the court
a quo
.
[41] As regards the
second point of law, I could find no fatal defect in the charge
sheet. The necessary averments were pertinently
made about all the
essential elements of fraud.
[42] As regards count 5
the questioning in terms of
section 112(1)(c)
was indeed materially
inadequate. The exchange between the magistrate and the appellant was
captured as follows:
“
BESKULDIGDE
:
Dit is korrek.
HOF
: Aanklagtes 5 ...
(onduidelik) 18 loop saam.
BESKULDIGDE
: Skuldig daarso.
Dit ... (tussenbei).
HOF
: ... (onduidelik) dit is
nou die hoof aanklagte van bedrog.
BESKULDIGDE
: Dit is korrek.
HOF
: ... (onduidelik) dit het
betrekking op verskeie persone en die datums is van 7 Augustus ...
(onduidelik) 7 Desember ... (onduidelik)
eers vir die hof vertel ...
(onduidelik) 7 Augustus ... (onduidelik) Griesel ... (onduidelik).
BESKULDIGDE
: Dit is dieselfde
soos in die vorige klagte verduidelik het, dit is vals internet
betalings wat ek gemaak het, wat ek wel op ‘n
stadium ...
(onduidelik) kleiner bedrae direk by mnr Arendse se kantore betaal
het, maar wat wel ... (onduidelik), ek het ook vals
internet
betalings op presies dieselfde wyse deurgegee.
HOF
: ... (onduidelik) wat u
vooruitgedateerde ... (tussenbei).
BESKULDIGDE
: Presies dieselfde.
HOF
: Strokie voltooi het, daar
is nie geld in die rekening ... (onduidelik).
BESKULDIGDE
: Dit is reg, dit is
van klag 5 tot 18, en dieselfde sal ook geld van 19 tot ...
(onduidelik). Dit is presies dieselfde.
HOF
: Aanklagte 5, erken u die
beweringe van die datum, 7 Augustus 2007, bedrag vyf honderd drie en
twintig rand en die persoon is mnr
M Griesel?
BESKULDIGDE
: Dit is korrek.”
There was no question
asked and thus no admission made as regards the element of prejudice.
If count 5, or the similar cluster of
counts, was the only charge or
were the only charges, I would have been inclined to interfere with
the conviction.
[43] But one must not
lose sight of the bigger picture. The appellant’s grand design
from count 5 to 18 was precisely the
same. He admitted that by
saying:
“
Ek het ook
vals internet betalings op presies dieselfde wyse deurgegee.”
He admitted he generated
such false slips when he had no money in his bank account. This is
what he said:
“
Dit is reg,
dit is van klag 5 tot 18, en dieselfde sal ook geld van 19 tot ...
(onduidelik). Dit is presies dieselfde.”
[44] The following
question was put to the appellant in connection with charge 15:
“
HOF
:
U het geweet dat die persone benadeel word?”
Now
charge 15 concerned one person only, namely Ms A.C. Griesel. However
from charge 15 – 32 three persons were involved,
namely: Ms M.
Griesel, Ms A.C. Griesel and Ms G. Scheepers. It is also very obvious
according to his last mentioned answer in the
previous paragraph that
the appellant preferred the fraud group of charges (count 5 –
18) to be treated together by the magistrate
because they were
precisely the same in the sense that he committed them in the same
manner. His attitude in respect of the corresponding
forgery group of
charges (count 19 – 32) was the same. It seemed to me that it
was precisely that wish of the appellant which
prompted the
magistrate to shorten a seemingly long and cumbersome story or
procedure in terms of
section 112(1)(c)
by asking the one
comprehensive question as to whether the appellant knew that the
persons concerned in these charges were prejudiced.
See also page 41,
8 – 9. It will serve no useful purpose to remit the matter to
the court
a quo
to
ascertain whether the appellant admits the element of prejudice in
respect of charge 5 and the rest of the fraud charges 6 –
18 -
S v VAN ASWEGEN
1992 (1) SACR 487
(O).
[45] When all these
aspects are objectively considered, together with the first four
charges, taking into account the admissions
there made by the
appellant, as well as the record as a whole, I am persuaded the
appellant indeed knew, at the time he made the
various false
representations in connection with all the fraud charges we were here
grappling with, that the misrepresentations
he made were prejudicial
to all concerned. The second point of law must, in my view, also be
answered in favour of the respondent
as regards charge 5. Naturally
the same applies to count 6 – 18 as well. All these charges
were precisely the same as charge
5. Therefore I deem it unnecessary
to deal with them individually. I would, therefore, uphold these
convictions. In respect of
each one of them, both points of law must
be answered in favour of the respondent.
[46]
As regards sentence, the salient principle is that a court with
appellate jurisdiction will only interfere with the sentence
imposed
on an offender only if it is satisfied that the trial court has not
properly exercised its sentencing discretion and that
the sentence so
imposed, is shockingly severe and inappropriate -
S
v PIETERS
1987 (3) SA 717
(A)
;
VERMAAK v S
[2005] JOL 15404
(E).
[47] The following were
the mitigating factors: The appellant was 47 years of age; he was a
divorced man; he was the father of two
minor children; he pleaded
guilty to the various charges; he expressed remorse and he repaid R50
000,00 to Mr. Beukes and he rendered
community service for nine
months as part of his sentence of correctional supervision.
[48] The following were
the aggravating factors: The appellant defrauded Mr. Beukes of R171
500,00 on 17 September 2004 and Mr.
Solomon Zweni of R7 000,00 on 6
July 2007; he had thoroughly planned these crimes. He had two
previous convictions of theft for
which he was sentenced to R180,00
or six months imprisonment and R2 000,00 or 18 months on 18 June 1982
and 27 October 1986 and
he had eleven convictions of fraud in respect
of which he was sentenced on 27 July 2007 to 36 months correctional
service in terms
of
section 276(1)
, Act No. 51 of 1977 plus a total
period of 578 hours community service and in addition to this he was
further sentenced to four
years imprisonment suspended for five years
on condition that he was not again convicted of fraud committed
during the period of
suspension.
[49] The historical
perspective of the appellant’s crime is important:
11 June 1982:
Committed
theft Sentenced 11.06.1982
22 September 1986:
Committed
theft Sentenced 27.10.1986
Between 1.11.1988 and
30.09.2000:
Committed
11 counts of fraud Sentenced 27.07.2007
19 September 2004:
Committed
fraud count 1 Sentenced 19.09.2008
6 January 2006:
Committed
uttering count 4 Sentenced 19.09.2008
7 July 2007:
Committed
fraud count 2 Sentenced 19.09.2008
7 August 2007:
Committed
fraud counts 5,6,7 Sentenced 19.09.2008
7 August 2007:
Committed
uttering counts 19,20,21 Sentenced 19.09.2008
10 September 2007:
Committed
fraud counts 8,9 Sentenced 19.09.2008
10 September 2007:
Committed
uttering counts 22,23 Sentenced 19.09.2008
22 October 2007:
Committed
fraud counts 10,11,12 Sentenced 19.09.2008
22 October 2007:
Committed
uttering counts 24,26 Sentenced 19.09.2008
7 December 2007:
Committed
fraud counts 13,14,15 Sentenced 19.09.2008
7 December 2007:
Committed
uttering counts 27,28,29 Sentenced 19.09.2008
18 January 2008:
Committed
fraud count 16 Sentenced 19.09.2008
18 January 2008:
Committed
uttering counts 18,31,32 Sentenced 19.09.2008
[50] The critical time
line was 27 July 2007. The analysis of the aforesaid crime record
reveals that before this particular date
there was a pending case
against the appellant. In that case eleven counts of fraud, the last
of which was committed in September
2000, were involved. While that
case was still pending, the appellant committed four more crimes of
dishonesty (
vide
count
1 – 4) between 16 September 2004 and 8 July 2007, both dates
inclusive.
[51] On 27 July 2007 he
was then sentenced in respect of the eleven counts of fraud. The
sentence of four years imprisonment was
conditionally suspended for
five years. Hardly two weeks after the five year suspension was
imposed on him, the appellant committed
three crimes of fraud (
vide
count 5 – 7) in one day on 7 August
2007. By 7 February 2008, approximately four years before the expiry
date of his conditional
suspension, the appellant had already
committed multiple crimes of fraud and uttering (
vide
count 8 – 32) while he was busy serving a sentence
of corrective supervision outside a correctional facility.
[52] The aforegoing crime
record is indicative of the appellant’s character. All this
portrays him as a person with a callous
propensity to defraud others.
He started cheating others back in 1982 when he was 21 years of age.
Since then he was never slowed
down. If the latest spate of his acts
of dishonesty is anything to judge him by, his disposition to defraud
has drastically worsened.
He is a cunning person. He meticulously
planned these crimes. He committed the crimes over and over again. He
seriously abused
the opportunity he was afforded in terms of section
271(1)(h) to honestly rehabilitate himself in the community.
[53] Mr. Van der Merwe
argued that the magistrate intended to sentence the appellant to five
and a half years imprisonment and to
direct that the appellant must
serve the four years thereof together with the four years
imprisonment, which he was already serving
after the suspension was
put into operation. Mr. Swanepoel conceded.
[54] The aforesaid
submissions were based on the exchange between the appellant and the
trial magistrate:
“
BESKULDIGDE
:
Vir my familie se doeleindes ... (onduidelik) hof, daar is baie gesê,
ek het ‘n vier jaar gevangenisstraf wat ek reeds
uitdien. Ek
wil net vra, die globale som, wat is ekstra by, as mens dit nou kan
vat ... (tussenbei).
HOF
: Ek dink dit sal seker so
een en ‘n half jaar wees.”
[55] It must be
appreciated that the discussion between the appellant and the
magistrate, concerning the effective sentence, took
place after he
had already sentenced the appellant. The remark is ambiguous. It can
be construed in the sense as Mr. Van der Merwe
contended it should.
In that sense it would mean that the five year effective sentence
actually imposed, was three and a half years
wrong or off the line,
but it can also be construed to mean that the magistrate wanted to
say that effectively the sentence he
imposed on the appellant was
more or less one and a half years longer as compared to the sentence
of four years he was already
serving. In the sense it would mean that
there was virtually no discrepancy between the five year effective
sentence, in other
words four plus one, actually imposed and the
remark or that such effective sentence was half a year less than the
four plus one
and a half years which is five and a half years. The
three and a half year margin of error is so big and remote from the
actual
effective sentence that I am not persuaded that the trial
magistrate could have intended to mean what counsel contended he did.
At any rate, the remark made as it were post the sentence, has no
legal status. Therefore it really serves no useful purpose
speculating
about what the true meaning of such a belated remark
could have been.
[56] In my view, the four
individual components of the sentence cannot, in them self, be fairly
criticised as it was done on behalf
of the appellant. However, the
direction as to how such sentences should be served may be fairly
criticised. I consider that an
effective sentence of two and a half
years imprisonment would have been an appropriate sentence in the
circumstances of this particular
case. The disparity between that and
the effective five year imprisonment is huge. I am of the firm view
the court
a quo
materially misdirected itself on that aspect.
I would therefore be inclined to interfere with such an improper
exercise of the
sentencing discretion.
[57] Accordingly I make
the following order:
57.1 The appeal fails as
regards conviction. The conviction is confirmed in respect of all the
charges.
57.2 The appeal succeeds
as regards sentence. The sentences are all set aside and substituted
with the sentence and direction as
set out below.
57.3 The appellant is
sentenced to:
five years imprisonment
in respect of count 1;
one year imprisonment in
respect of count 2;
nine months imprisonment
in respect of count 3;
four months imprisonment
in respect of each of counts 5 to 18; and
two months imprisonment
in respect of each of counts 19 to 32.
It is directed that the
appellant serve all these sentences save for two and a half years
in respect of count 1 together with
the four year jail-term he was
already serving as on 17 September 2008, the effective sentence
being two and half years imprisonment.
______________
M.H. RAMPAI, J
I concur.
_____________
S. EBRAHIM, J
On behalf of appellant:
Attorney P. van der Merwe Instructed by:
Legal Aid S A
BLOEMFONTEIN
On behalf of respondent:
Adv. J.B.K. Swanepoel
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp