Ntaopane v S (A223/06) [2009] ZAFSHC 54 (30 April 2009)

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
>>
2009
>>
[2009] ZAFSHC 54
|

|

Ntaopane v S (A223/06) [2009] ZAFSHC 54 (30 April 2009)

FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A223/06
In
the appeal between:-
MAPASEKA
JEMINA NTAOPANE
Appellant
and
THE
STATE
Respondent
CORAM:
EBRAHIM,
J
et
JORDAAN,
J
HEARD
ON:
20
APRIL 2009
_____________________________________________________
JUDGMENT
BY:
EBRAHIM,
J
DELIVERED ON:
30
APRIL 2009
[1] The appellant was
convicted of fraud in the Regional Court sitting at Bloemfontein
pursuant to a misrepresentation she made
in submitting a tender in
response to an advertisement placed in the media by the Free State
Department of Education calling for
tenderers for the provisions of
books and stationary to various public schools in the Free State.
[2] The misrepresentation
consisted in her failure to disclose her marital relationship with a
teacher in the employ of the said
Department, well-knowing that she
was expected to do so on the prescribed “Declaration of Interest”
form. The appellant was
sentenced to pay a fine of R 8 000,00 or to
undergo one year’s imprisonment, half of which was conditionally
suspended for three
years.
[3] Paragraph 2 of the
form specifically poses the following question:
“
Are you or any person connected
with the tenderer, employed by the Province”
to which the appellant
responded in writing in the negative. The rationale underlying in
the disclosure is stated in the preamble
to the questionnaire as
follows:
“
Any legal person, including persons
employed by the Province, or persons who act on behalf of the
Province or persons having a kinship
with persons employed by the
Province, including a blood relationship may make an offer or offers
in terms of this tender invitation.
In view of possible allegations
of favouritism, should the resulting tender, or part thereof, be
awarded to persons employed by
the Province, it is required that the
tenderer ..... take an oath declaring his interest.”
It was common cause
between the appellant and the respondent during the trial in the
Court
a
quo
that neither employees of the said Department nor their relatives
were disqualified from applying for the tender, provided familial

connections were disclosed.
[4] With the leave of the
trial court the appellant noted an appeal against her conviction and
the sentence unopposed. It is not
clear from the record before us
whether there was any attempt at any stage by the appellant to
abandon the appeal against the conviction.
What is before us, are
written Heads of Argument from the respondent entitled “Respondent’s
Heads of Argument in the Appeal
on Sentence”. No Heads of Argument
have been filed by the appellant in support of the appeal on
sentence. Before us also is
an application by the respondent for an
increase in the sentence imposed. No leave of this Court to withdraw
the appeal on sentence
was sought by Mr. Majola. It was agreed
between the parties’ legal representatives Mr. Majola and Mr.
Swanepoel on behalf of
the State at the hearing, that the only issue
which this Court has to concern itself with is the application for
the increase in
sentence. The merits of the appeal against the
sentence imposed were not argued therefore. The parties proceeded to
argue the
merits of the application to increase the sentence
directly.
[5] The thrust of Mr.
Swanepoel’s submissions, on behalf of the respondent, was that the
appellant had profited substantially
in monetary terms from the
tender which the State found untenable because of the adage coined by
Mr. Swanepoel “Crime must not
pay”. He argued that in imposing
what he termed was a light sentence on the appellant, the Court
a
quo
had
undermined the deterrent aspect of punishment, the nature seriousness
and prevalence of the crime concerned and had underemphasized
the
moral reprehensibility of the participation by civil servants and
their family members in such crimes upon the State and State
owned
institutions such as the Free State Department of Education.
[6] Mr. Majola, for the
appellant, opposed the application for the increase on the basis that
the sentence was fair and appropriate
and that the appellant had
provided the services she had undertaken to provide in terms of her
successful tender.
[7] As authority for his
submissions Mr. Swanepoel referred us to a decision of the Lesotho
High Court, dealing with the common
law crime of bribery, in
R
v SOLE
2004 (2) SACR 599
(LesHC) at p. 701 and suggested that this Court
follow the example of the Supreme Court of Appeal in the unreported
case 62/06
of
SHAIK
v THE STATE
and the Constitutional Court in
SA
ASSOCIATION OF PERSONAL INJURY LAWYERS v HEATH AND OTHERS
[2000] ZACC 22
;
2001 (1) BCLR 77
(CC). In both decisions the court cited
SOLE
with approval. In the latter case the Constitutional Court at 80 E –
F stated:
“
Corruption and maladministration
are inconsistent with the rule of law and the fundamental values of
our Constitution. They undermine
the constitutional commitment to
human dignity, the achievement of equality and the advancement of
human rights and freedom. They
are the antithesis of the open,
accountable, democratic government required by the Constitution. If
allowed to go unchecked and
unpunished they will pose a serious
threat to our democratic state.”
[8] Mr. Swanepoel
conceded readily that the appellant’s conduct did not involve any
bribery or corruption or attempts thereto.
He also conceded the
State had not shown that the appellant’s non-disclosure had
contributed to any maladministration in the
said Department of
Education, nor had the tender process been tarnished in any way by
her failure to make the necessary disclosure.
[9] That the crime of
fraud in the circumstances of its commission in the present case is
very serious was not challenged by Mr.
Majola. This Court, however,
is unable to make any finding that the particular conduct complained
of in this case (that is the
non-disclosure in a tender application
and process), is prevalent. No statistics were provided by the State
in this regard, nor
was relevant case authorities cited by Mr.
Swanepoel. The highwatermark of his submission in support of his
application for an
increase in the sentence was that, according to
his mathematical calculations as set out in his Heads of Argument,
the appellant
had made a healthy profit from the award of the tender.
He was unable to make out, in my view, a convincing argument when it
was
pointed out to him that the amount was not profit, but was monies
legally earned by the appellant for the provision of books and

stationary in terms of her contract with the Department of Education.
He persisted in the argument that were it not for the
non-disclosure,
the appellant might not have been awarded the tender
and accordingly the monies paid to her by the Department was profit
fraudulently
obtained.
[10] I am not persuaded
by his submissions. In my view the appellant’s fraudulent
non-disclosure merely enabled her to be considered
as one falling
into a different category of persons tendering for the contract.
There is no evidence on record before us and Mr.
Swanepoel was unable
to point to any such evidence, that had the appellant disclosed that
she was married to any employee of the
Department, she would not have
been successful in her tender. That being the case I am unable to
conclude that the monies paid
to the appellant by the Department can
be regarded as monies fraudulently obtained by her.
[11] As with cases where
a reduction of sentence is requested in appeals against a sentence
imposed by a lower court, a Court of
Appeal has wide powers to
interfere on appeal where an increase in sentence is applied for but
will only do so if it is shown by
the State that the trial court
committed a misdirection in its assessment of the relevant and
material facts upon which it based
the sentence it imposed and/or if
it is shown that the trial court failed to act judicially. I have
not been persuaded by Mr.
Swanepoel that any of these two scenarios
occurred in the appellant’s case. This Court is therefore not at
large to interfere
with the sentence imposed.
[12] 1. The appeal is
accordingly dismissed.
The conviction and
sentence are confirmed.
_____________
S. EBRAHIM, J
I concur.
_______________
A.F. JORDAAN, J
On
behalf of appellant: Mr. M. Majola
Instructed by:
Majola Attorneys
BLOEMFONTEIN
On behalf of
respondent: Adv. J.B.K. Swanepoel
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/sp