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[2008] ZAWCHC 332
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Engelbrecht v S (A/608/06) [2008] ZAWCHC 332 (5 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A/608/06 Division: Second Division
Date:
5 September 2008
In
the matter between:
IZAK
JACOBUS NEL ENGELBRECHT
........................................................................
Appellant
and
THE
STATE
................................................................................................................
Respondent
JUDGMENT
LE
ROUX A.J AND OOSTHUIZEN A.J.
[1]
The appeal against conviction and sentence imposed on the Appellant
in respect of 157 charges of fraud in the Bellville Regional
Magistrate’s Court was dismissed by us on 19 June 2009. The
Appellant now seeks leave to appeal against our aforesaid order,
to
the Supreme Court of Appeal.
[2]
The application for leave to appeal against the conviction rests,
essentially, on four grounds. Two of them criticised the weight
attached to the evidence of Geldenhuys and Wiid. They were admittedly
accomplices in the tax evasion scheme which led to the criminal
proceedings against Appellant. This Court’s judgment of 19 June
2009, the evidence of Geldenhuys and Wiid as well as the
criticism
levelled at their testimony were fully analysed. We do not believe
that there are reasonable prospects that a court will,
on appeal,
differ from the conclusions we drew regarding the weight, cogency and
importance of the evidence of these two witnesses.
[3]
The third ground of appeal in relation to the conviction dealt with
the evidence of the state witness Riley. It was firstly
admitted that
she must have known of the irregularities being perpetrated and must,
to that extent, be regarded as an accomplice
and subjected to the
normal cautionary rule applicable to the evidence of an accomplice.
We find no merit in this contention. Riley’s
involvement was
limited to that of a bookkeeper who attended to certain of the
payments from time to time. It cannot realistically
be contended that
she was aware, in any realistic or meaningful sense, of the various
simulated transactions which had been devised
by the Appellant, Wiid
and Geldenhuys in order to evade customs and excise duties. No such
suggestion was made to her in cross-examination
and it is in our view
unrealistic to contend that any cautionary rule should be applied to
her evidence. The court of first instance
found Riley to be a good
witness and that finding appeared to us to be justified.
[4]
It was also suggested that Riley’s evidence was of limited
value, serving to corroborate only aspects which in any event
were
not disputed by Appellant. The most important aspect of Riley’s
evidence was her unequivocal testimony that Appellant
was aware of
the fact that vehicles purportedly sold to Namibian purchasers had in
actual fact been sold to Quattro. Her evidence
on this crucial issue
was given in an eminently satisfactory manner and substantially
detracts from the role which Appellant claimed
he played in the
scheme. We do not believe that another court would reach a different
conclusion as regards the evidence of Mrs
Riley.
[5]
Lastly, in regard to the conviction, it is submitted that there are
reasonable prospects that a court on appeal would interfere
with the
Magistrate and this Court’s rejection of Appellant’s
evidence as not raising a reasonable doubt as to the
State’s
case. In our judgment of 19 September 2009 we analysed the
Appellant’s evidence in detail, and gave close consideration
to
the various contradictions therein, and the important aspects of the
State’s case which were left unchallenged by him.
We do not
believe that a court of appeal will interfere with the finding that
the State proved its case beyond a reasonable doubt.
[6]
There is, in our view, no prospect of another court coming to a
different conclusion as regards the conviction, and leave to
appeal
against the conviction is refused.
[7]
We turn now to the application for leave to appeal against the
sentence. It is, in this regard, necessary to consider the fact
that
substantially lighter punishments were meted out to Geldenhuys and
Wiid. Such punishments were imposed in terms of Section
105(a) of the
Criminal Procedures Act after they had concluded sentencing
agreements with the prosecuting authorities.
[8]
The issue of whether a marked disparity in the sentences handed out
to participants in the same offence warrants interference
on appeal
was considered in
S v Giannoulis
1975 (4) SA 867
(A). After reviewing a number of authorities, Holmes
JA said the following at 873 E - H:
"Reviewing
all of the foregoing judicial pronouncements over the past 60 years,
there seems to me to be discernible a fairly
consistent thread
running in the same general direction. It may be expressed thus:
1.
In general, sentence is a matter for the discretion of the trial
court. Disparity in the sentences imposed on participants
in an
offence (whether tried together or in separate courts) will not
necessarily warrant interference on appeal. Uniformity
should not be
elevated to a principle, at variance both with a flexible discretion
in the trial court and with the accepted limitation
of appellate
interference therewith.
2.
Where, however, there is a disturbing disparity in such sentences,
and the degrees of participation are more or less equal,
and there
are not personal factors warranting such disparity, appellate
interference with the sentence may, depending on the
circumstances,
be warranted. The ground of interference would be that the sentence
is disturbingly inappropriate.
3.
In ameliorating the offending sentence on appeal, the Court does not
necessarily equate the sentences: it does what it considers
appropriate in the circumstances."
[9]
The circumstances under which disparate sentences warrant
interference on appeal were also pronounced in
S
v Marx
1989 (1) SA 222
(A) and, at
225 G - 226 B, the following was said:
“
Hieruit
blyk dit duidelik dat ‘n Hof van appel nie 'n onbelemmerde
diskresie het om in te meng met ongelyke vonnisse wat
ten opsigte
van gelyke deelname aan dieselfde misdaad opgele is nie. Inmenging
kan alleenlik geskied volgens die riglyne neergele
in
Giannoulis
se
saak. Soos blyk uit die tweede stelling, geskied inmenging waar die
opgelegde vonnis ontstellend onvanpas (‘disturbingly
inappropriate’) is. Uit die same hang blyk dit dat Holmes AR
nie hier in gedagte gehad het die geval van ‘n vonnis
wat
ontstellend onvanpas is geoordeel bloot aan die feite en
omstandighede van die betrokke misdaad nie. Die vraag of die vonnis
waarteen geappelleer is ontstellend onvanpas is, moet klaarblyklik
beantwoord word aan die hand van ‘n vergelyking tussen
daardie
vonnis en die minder vonnis wat opgele is op ‘n veroordeelde
met ‘n gelyke aandeel in die pleging van dieselfde
misdaad, en
met vergelykbare persoonlike omstandighede. Selfs al is daar 'n
treffende verskil tussen die twee vonnisse wanneer
hulle vergelyk
word, beteken dit nie noodwendig dat daar ingegryp sal word nie.
Daar is 'n verdere vereiste. Ingryping is alleenlik
geregverdig as
die ligter vonnis ‘n redelike of gangbare vonnis is. Slegs
dan, weens die wanverhouding in die vonnisse,
kan die swaarder
vonnis versag word as synde ontstellend onvanpas. ... Waar die
ligter vonnis egter as onredelik of duidelik
onvanpas aangemerk kan
word, en die swaarder vonnis in al die omstandighede ‘n
gepaste een is, sou ingryping met, en versagting
van, laasgenoemde
vonnis nie geoorloofd wees nie, desondanks die wanbalans wat die
vonnisse betref. Geregtigheid vereis dat gepaste
strawwe opgele moet
word. Die stelling in
S
v Moloi and Another
1987
(1) SA 196
(A) op 224A is onderhewig aan bogemelde kwalifikasie."
[10]
The fact that there is a disparity in the sentences imposed by
different courts on participants in the same crime is thus
not
per
se
a
ground upon which a court of appeal can interfere. The question
remains throughout whether the sentence imposed on the specific
appellant under consideration is disturbingly inappropriate and/or
whether the court of first instance misdirected itself in
relation
to the specific sentence under appeal. Lenient sentences imposed on
co-perpetrators do not in themselves constitute
such a misdirection,
especially where it appears as if the sentences imposed on such
co-perpetrators were startlingly or inappropriately
lenient. This,
we suggest, is also the position which prevails whenever
co-perpetrators are separately tried by different courts,
whether
such separation is attributable to the fact that certain of the
perpetrators pleaded guilty and were dealt with in terms
of Section
112, whether they entered into plea bargaining arrangements or
whether the trials were separated for other procedural
reasons.
[11]
In
Hansen v Regional Magistrate Cape
Town & Another
1999 (2) SACR
430
(C) the applicant had been declared a habitual criminal after
being found guilty of housebreaking with intent to steal. The
applicant
had exhausted his appeal remedies. Thereafter the
applicant’s brother, who had participated in the same offence,
was sentenced
to a far more lenient sentence, by another court.
Applicant brought review proceedings to set aside his own sentence
on the basis
of a new ground, namely the disparity of sentence
imposed upon him compared to that imposed on his brother. The
judgment dealt
primarily with a procedural question, namely whether
a court of review could still interfere where an accused had
exhausted his
various appeal remedies - that question is not
presently relevant. In delivering judgment Davis J did suggest
(albeit
obitei)
that the guarantee of equality before the law contained in Section
9(1) of the Constitution might, where there is an unjustified
disparity in the sentences handed out to coaccused, include the
right to have the heavier sentence suitably ameliorated.
As stated
above, a disparity
per se
does not constitute a ground for interfering on appeal, especially
where the more lenient sentence appears wholly inappropriate.
We do
not read the judgment in
Hansen v
Regional Magistrate Cape Town
as suggesting the contrary.
[12]
Different considerations obviously appear where co-accused are
sentenced by the same court, in the course of a single trial.
If, in
that situation, a heavier sentence were to be imposed by the same
court, in the same trial, on certain of the accused
and a far more
lenient sentence on others who participated to the same degree, then
that discrepancy would have to be justified.
If no justification can
be found in such a case, then the heavier sentence unjustifiably
imposed could, at least
prima facie,
warrant interference on appeal. Similar considerations do not,
however, apply where the more lenient sentence was imposed by
another court, especially where the more lenient sentence was the
result of a plea bargaining process which, in itself, would
frequently result in a more lenient sentence.
(S
v
Esterhuizen
& Others
2005 (1) SACR 490
(T);
S v Yenqeni
[2005] ZAGPHC 117
;
2006 (1) SACR 405
at 429 (B)
S v
Yenqeni
[2005] ZAGPHC 117
;
2006 (1) SACR 405
at 429
(B)).
[13]
In the present matter, we are not persuaded that the disparity that
exists between the sentence handed out to the Appellant
and that
imposed on his co-participants in the plea bargaining process is
per
se
a factor indicating that another
court might conclude that the Appellant’s sentence should have
been reduced. The key consideration
is whether the sentence imposed
by the court of first instance was disturbingly inappropriate or
constituted a misdirection.
We have once again considered the
judgment of the trial magistrate, the arguments advance on appeal
and when leave to appeal
was sought. We are not persuaded that there
is a reasonable chance that another court might find that the
sentence imposed was
disturbingly inappropriate or was the result of
any misdirection by the trial magistrate. We are thus of the view
that leave
to appeal against the sentence should not be granted.
[14]
An order granting the appellant bail pending the determination of
the application for leave to appeal is currently valid.
The state
indicated that it had no objection to such bail being further
extended until the finalisation of any application which
the
Appellant might now direct to the Supreme Court of Appeal, for leave
to appeal against our judgment.
[15]
The application for leave to appeal is refused. The Appellant’s
bail is extended until the expiry of the period within
which the
Appellant has to apply to the Supreme Court of Appeal for leave to
appeal. If such application is brought, bail is
extended until such
application for leave to appeal has been finally dealt with.
LE ROUX, AJ
OOSTHUIZEN,
AJ