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
>>
2011
>>
[2011] ZAFSHC 114
|
|
Tshopo and Others v S (A60/08) [2011] ZAFSHC 114; 2013 (1) SACR 127 (FB) (17 June 2011)
FREE
STATE HIGH COURT, BLOEMFONTE1N
REPUBLIC
OF SOUTH AFRICA
Review No. : A60/08
In the review between:
S. J
TSHOPO
….............................................................................
1
st
Appellant
N.
M NQULO
…............................................................................
2
nd
Appellant
N.
D MAKHATINI
…...................................................................
3
rd
Appellant
versus
THE STATE
….......................................................................................
Accused
CORAM:
CILLIe
et
MOLOI,
J
JUDGMENT
BY:
MOLOI,
J
DELIVERED
ON:
17
JUNE 2011
APPEAL
JUDGMENT
MOLOI, J
[1] The three appellants were
convicted and sentenced in the Regional Court, Bloemfontein on a
charge of fraud. The trial court
refused them leave to appeal both
the conviction and sentence imposed. They come before us on appeal
leave having been granted
by this court after successful petition was
lodged with the Judge President. The appellants were sentenced as
follows: The first
appellant was sentenced to four (4) years
imprisonment. The second appellant was sentenced to two (2) years
imprisonment wholly
suspended for five (5) years on certain
conditions. The third appellant was sentenced to four (4) years
imprisonment of which two
(2) years imprisonment was suspended for
four (4) years conditionally. The appeal is against both the
conviction and sentence.
[2] The
essence of the charge is that the accused secured a tender from the
provincial Department of Education to distribute books
and other
educational material to schools without disclosing that 1
st
appellant was
under an obligation as an official in the employ of the provincial
administration to disclose that relationship as
well as his
relationship with the Member of the Executive Council (MEC) of the
province for the Department of Health and later
for the Department of
Education, who was his wife; that the second appellant's name was
used as the tenderer holding a 50% interest
in a business known as
Abelusi in whose name the tender was submitted and that the third
appellant was the registered member of
Abelusi who permitted his
business to be used in securing the tender and also allowed his tax
certificate to be so used to validate
the tender as a pre-condition
thereof. It is also alleged that the Department of Education and/or
other tenderers suffered prejudice
or potential prejudice as a result
of their conduct.
[3] The facts
in this matter are largely common-course and reliance is placed on
documentary evidence in proof of the allegations.
Only the respondent
led evidence as all three appellants closed their case after an
application for discharge in terms of
section 174
of the
Criminal
Procedure Act 51 of 1977
, was dismissed at the close of the state
case. Though several grounds for appeal were advanced, at the hearing
there were actually
narrowed down to two issues,
ie
whether
there was misrepresentation leading to actual or potential prejudice
and whether it could be said the first appellant was
"connected"
with Abelusi as far as the first and second appellants were
concerned, and whether the third appellant knew
or ought to have
known that his business and tax certificates were to be used to
defraud..
[4] The evidence showed the
following:
(a) that Abelusi applied for a
tender to distribute school books and/or other educational materials
to certain schools;
(b) that Abelusi had the second
and third appellants as members each holding 50% of the interest;
(c) that Abelusi's tax clearance
certificate was used to secure the tender;
(d) that the tender application
was completed by the first appellant on behalf of the second
appellant who is his sister;
(e) that the first appellant was
handling the financial transactions of Abelusi and made payments from
its account;
(f) that the tender form
required a "Declaration of Interest" to be signed and that
required a tenderer to disclose relationship(s)
he/she had with any
person employed by the Provincial Administration or connected
therewith and to state the nature of the relationship/kinship
so as
to dispel the allegations of favouritism in awarding of tenders. The
first appellant was employed by the Traffic Department
of the
Provincial Administration and was married to the MEC for Health and
later for the Department of Education. They both failed
to disclose
their affinity and relationships;
(g) the third appellant provided
a tax certificate to the first appellant for purposes of submitting a
tender and allowed his business,
Abelusi, to be used for that
purpose;
[5] Mr Edeling for both the
first and the second appellants argued strongly that it was not
proved that the first appellant was
"connected" to Abelusi
more than he assisted his sister, the second appellant, to complete
the tender forms and handled
the financial affairs of Abelusi.
According to him to be connected the first appeiiant should have been
a "partner" of
the firm with a "financial interest".
The evidence of the State, however, proved that (a) the first
appellant personally
indicated to SARS that he traded as Abelusi (See
Exh H); (b) he personally obtained from Vermaas an address which he
used for Abelusi;
(c) he had signing powers of the account of Abelusi
with ABSA bank and later he personally opened a new account for
Abelulsi; (d)
he withdrew monies from the Abelusi account at will and
transferred monies to his wife's account and to one Segobo who was
incidentally
an employee of the Department of Education which called
for tenders, (e) the second appellant gave the cheques she received
on
behalf of Abelusi to the first appellant and she never knew what
happened to the money and (f) the second and third appellants,
the
declared partners in Abelusi, seem not to have received any cheques
from the first appellant;
[6] From the above, it seems,
the first appellant was more 'connected' to Abelusi than the second
and third appellants. The latter
seem to have merely been used by the
first appellant and that the first appellant's involvement with
Abelusi should have been revealed
in the tender documents to dispel
that notion of favoritism the department sought to counter by signing
the Declaration of Interest.
[7] It was
argued that the Department of Education has not suffered any
prejudice or potential prejudice as it paid monies for services
actually rendered and not more. The state has an interest in keeping
strict control over state tenders which are being unscrupulously
used
for self enrichment by the public servants. So does the general
public whose funds are used to finance such projects and also
other
tenderers. There is evidence that the members of the public complain
that the employees of the state misuse their position
to obtain
tenders. The failure to reveal in tender application the employment
relationship with the state and the relationship
with the MEC, the
first appellant's wife and the relationship between the first and
second appellants is prejudicial to other tenderers
and the community
at large and frustrate the state's efforts to eliminate the
favouritism the declaration of interest seek to combat:
The third
appellant knew or should have known what his business was involved
with. Failure to reveal the relationship with the
state is
prejudicial to other tenderers as weii and renders the state
incapable of administering public funds fairly and equitably.
Prejudice is not only proprietary: See
SNYMAN,
CRIMINAL
LAW
at
p 537-8 5
th
edition also
S
v HEYNE
1956
(3) SA 604
(A) 623-625,
S
v JASS
1965
(3) SA 248
(E) at 250,
S
v PELSER
1967
(1) PH H102 (O) and
S
v MACATLANE
1927
TPD 708.
[8] In
dealing with sentence the trial court took into consideration all the
relevant factors and balanced them all one against
the other as
required and imposed the sentence that was appropriate in the
circumstances. The trial court took note of the mitigating
and
aggravating circumstances and this court does not intend to repeat
those in this judgment. Suffice to say that the circumstances
in
which a court of appeal may interfere with the sentencing discretion
of the trial court are limited as mentioned in several
decisions
including.
S
v PILLAY
1977
(4) SA 551
(A)
S
v ANDERSON
1964
(3) SA 494
(A),
S
v ABELS
1948
(1) SA 706
(O)
S
v FRANCIS
1991
(2) SACR 198
(A).
This court cannot find fault
with the trial courts discretion in imposing the sentences it did.
[9] In the result the appeal of
all three appellants stands to be DISMISSED. The convictions and
sentences imposed by the trial
court are confirmed.
MOLOI,
J
I concur, and it is so ordered
CILLIe,
J
On
behalf of the 1
st
and 2
nd
Appellants:
Mr. H Venter
Lovius Block 31 First Avenue
Westdene BLOEMFONTEIN 9300
On behalf of
the 3
rd
Appellant:
Mr. N W
Phalatsi
Phalatsi & Partners
lustitia Building, Gr Floor BLOEMFONTEIN 9300
On behalf of
the Defendant:
Adv
Swanepoel
Director of Public Prosecutions
Waterfall Centre
Aliwal Street
BLOEMFONTEIN
9300