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
>>
2024
>>
[2024] ZAFSHC 309
|
|
S v Serame and Others (A57/2022) [2024] ZAFSHC 309 (3 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no:
A57/2022
Regional
Court Case Number:
17/41/2014
In
the matter between:
THE
STATE
Applicant
And
NTHAPELENG
DAVID SERAME
1
st
Respondent
ICEBERG
TRADING 542 CC
2
nd
Respondent
SNOWLINE
TRADING 582 CC
3
rd
Respondent
KA
RONA TRADING 536 CC
4
th
Respondent
SEVENTH
AVENUE TRADING 560 CC
5
th
Respondent
SENTHATI
TRADING CC
6
th
Respondent
Neutral
citation:
The
State v Nthapeleng David Serame and five others (A57/2022)
Coram:
Daniso
J
Heard:
This
application was
determined
in chambers as provided for in
section 310
(A) (1) of the
Criminal
Procedure Act 51 of 1977
.
Delivered:
This
judgment was
handed
down electronically by circulation to the parties’ legal
representatives by email. The date and time for hand-down
is
deemed to be 12h00 on 03 October 2024.
ORDER
1.
The late filing of first the respondent’s written submissions
as contemplated in
section 310
(A) (4) of the
Criminal Procedure Act
51 of 1977
is condoned.
2.
Le
ave to
appeal against the sentences imposed by the Regional Magistrate
Nekosie against the first respondent on 26 April 2022 in
respect of
counts 1 to 330, 353 to 356 and 372 to 404 is granted
.
JUDGMENT
Daniso,
J
[1]
The State seeks leave to appeal sentences
imposed
by the Regional Magistrate Nekosie against the first respondent on 26
April 2022 pursuant t
o a conviction on 406 counts
involving:
1.1.
Fraud (counts 1 to 339) together with second alternative counts;
1.2.
Contravening the provisions of Section 235 (1) (a) of the Tax
Administration Act 28 of 2011 (counts 340 to
352);
1.3.
Contravening the provisions of Section 58C of the Value Added Tax Act
89 of 1991 (counts 353 to 356);
1.4.
Contravening Section 58F of the Value Added Tax Act 89 of 1991
(counts 357 to 361);
1.5.
Contravening Section 75 (1)(f) of the Income Tax Act (counts 362 to
366);
1.6.
Contravening Section 234(e) read with Sections 29 and 30 of the Tax
Administration Act 28 of 2011 (counts
367 to 371);
1.7.
Contravening Section 58 (d) read with Sections 14, 28 (1) of the
Value Added Tax
89 Act 1991
(counts 372 to 404);
1.8.
Contravening Section 4 read with Sections 1 and 8 of the Prevention
of Organized Crime Act 121 of 1998 (count
405); and
1.9.
Contravening Section 3 (b) read with Sections 1,2,24,26 of the
Prevention of Corrupt Activities 12 of 2004
(count 406).
[2]
The conviction arose after the first respondent, as
the
sole member and representative of the second to sixth
respondents, pleaded guilty to the counts relating to Tax evasion,
and not
guilty to the remaining charges. The second to sixth
respondents were respectively sentenced to fines ranging from
R100 000.00
to R1 million, wholly suspended for five years with
conditions. The first respondent was sentenced as follows:
2.1.
Counts 1 to 339 were taken together for the purposes of sentence with
the result that he was sentenced to
seven years’ imprisonment,
wholly suspended for a period of five years with conditions. He was
also sentenced 36 months’
correctional supervision as envisaged
in section 276 (1) (h) of the Criminal Procedure Act 51 of 1977 (the
Act).
2.2.
The second alternative counts 340 to 352 were also taken together for
the purposes of the sentence. The first
respondent was sentenced to
five years’ imprisonment, wholly suspended for a period of five
years with conditions which included
a payment of an amount of
R2 284 047.39 to SARS before 20 April 2027;
2.3.
Counts 353 to 356, were taken together for the purpose of sentence.
He was sentenced to three years’
imprisonment wholly suspended
for a period of five years with conditions;
2.4.
Counts 357 to 361, were taken together for the purpose of sentence,
he was sentenced to two years’
imprisonment wholly suspended
for a period of five years with conditions;
2.5.
Counts 362 to 366, were taken together for the purpose of sentence,
he was sentenced to two years’
imprisonment wholly suspended
for a period of five years with conditions;
2.6.
Counts 367 to 371, were taken together for the purpose of sentence,
he sentenced to one-year imprisonment
wholly suspended for a period
of five years with conditions;
2.7.
Counts 372 to 404, were taken together for the purpose of sentence.
He was sentenced to three years’
imprisonment wholly suspended
for a period of five years with conditions which include a payment of
an amount of R628 095.38
to SARS before 20 April 2027;
2.8. In
respect of count 405, he was sentenced to seven years’
imprisonment wholly suspended for a period
of five years with
conditions; and
2.9. As
for count 406, the first respondent was sentenced to ten years’
imprisonment wholly suspended for
five years with conditions.
2.10 In
terms of
section 18
of the
Prevention of Organized Crime Act No, 121
of 1998
, the respondents were found to have benefited from the
proceeds of the unlawful activities relating to the offences they
were convicted
of, in the amount of R9 678 617. 71. A
confiscation order in terms of which the respondents were ordered pay
the said
amount to the State was also made.
[3]
The application is directed at the sentences imposed in respect of
counts
1 to
330, 353 to 356 and 372 to 404.
On the facts germane to
this matter, the offences were perpetrated against the Mangaung Local
Municipality (the Municipality) and
the South African Revenue of
Services (SARS). In counts 1 to 339 the first respondent was accused
of having fraudulently issued
invoices to the Municipality claiming
for services or goods rendered whereas no such services or goods were
rendered. Counts 353
to 356 relate to the first respondent’s
failure to register his enterprises as vendors for Value Added Tax
whilst counts
372 to 404 pertain to failing to submit vendor tax
returns and to pay the taxes due in that regard to SARS.
[4]
Section 310A of the Criminal Procedure Act 51 of 1977 (The CPA) reads
as follows:
“
(1)
The
attorney-general may appeal against a sentence
imposed upon an accused in a criminal case in a lower court, to the
provincial or
local division having jurisdiction, provided that an
application for leave to appeal has been granted by a judge in
chambers.
(2)
(a)
A written notice of such an application
shall be lodged with the
registrar of the provincial or local division concerned by the
attorney-general, within a period of 30
days of the passing of
sentence or within such extended period as may on application on good
cause be allowed.
(b)
The notice shall state briefly the grounds for
the application.
(3)
The attorney-general shall, at least 14 days before the day appointed
for the hearing
of the application, cause to be served by the deputy
sheriff upon the accused in person a copy of the notice, together
with a written
statement of the rights of the accused in terms of
subsection (4): Provided that if the deputy sheriff is not able so to
serve
a copy of the notice, it may be served in any other manner that
may on application be allowed.
(4)
An accused may, within a period of 10 days of the serving of such a
notice upon him, lodge
a written submission with the registrar
concerned, and the registrar shall submit it to the judge who is to
hear the application,
and shall send a copy thereof to the
attorney-general.
(5)
Subject to the provisions of this section, section 309 shall
apply mutatis mutandis with
reference to an appeal in terms
of this section.
(6)
Upon an application for leave to appeal referred to in subsection (1)
or an appeal in terms
of this section, the judge or the court, as the
case may be, may order that the State pay the accused concerned the
whole or any
part of the costs to which the accused may have been put
in opposing the application or appeal, taxed according to the scale
in
civil cases of the provincial or local division concerned.”
[5]
It is the State’s case that the sentence imposed by the
magistrate in counts 1 to 339 is inappropriate and lenient
to the
extent that induces a sense of shock. In sentencing the first
respondent, the trial court erred in not taking into account
the
gravity of the offences and the real loss of the amount of
R9 678 617.71 sustained by the Municipality as a result
of
the first respondent’s fraudulent actions. The first respondent
also did not plead guilty in respect of these offences,
he was
convicted after trial. Furthermore, he did not offer or even show an
ability to compensate the Municipality for this loss.
The trial court
merely paid lip service to the interests of society, but such
interests were not considered at all. The suspended
sentences imposed
send out a message that it pays financially to commit crimes of this
nature.
[6]
In respect of counts 353 to 356 and 372 to 404, the State submits
that the trial court misdirected itself by taking all
the counts
together as one for the purpose of sentencing and thereafter imposed
a sentence of 3 years’ imprisonment with
conditions despite the
fact that the offences that the first respondent was convicted of
have their own penal limit which prescribes
a fine or imprisonment
not exceeding 24 months per count.
[7]
The application is opposed by the first respondent. His written
submissions incorporate a request for condonation as they
were
delivered extremely out of time.
According
to the return of service, the first respondent received the notice of
the application on 16 May 2022. His written
submissions were
only delivered on 16 July 2024, a
pproximately
two years late from the 10 days’ period prescribed by
section
310A (4) of the CPA.
[8]
Despite
the substantial ineptitude, the first respondent has simply
fleetingly
explained that the delay is attributable to having had to seek
alternative legal representation after his erstwhile legal
representative was suspended from practicing. There
are
no
specifics
in terms of the dates
on
which he discovered that his erstwhile legal representative was
suspended and when he subsequently embarked on his quest to secure
an
alternative legal representative. There
are
also no averments pertaining to the
prospects
of success on the merits of the application if any, including the
importance of the subject matter. A party who seeks
an indulgence of
the court to condone its ineptitude must show sufficient cause
entitling it to the court’s indulgence by
giving a full
explanation for the non-compliance with the court rules. The
Constitutional Court in
Grootboom
v National Prosecuting Authority and Another
[1]
long-established
that
all
these factors are of relevant consideration in condonation
applications.
This
condonation application dismally falls short of the requirements
contemplated in
Grootboom
however,
having regard to the
age
of the matter (the first respondent was sentenced on 26 April 2022),
and that no prejudice has been indicated by the State as
a result of
the late written submissions, I hold the view that it will be in the
interests of justice, including that of the State,
that this matter
progresses. Condonation is accordingly granted.
[9]
Turning to the merits of the application, it is a well-established
principle that that punishment is pre-eminently
a matter for the
discretion of the trial court. The court of appeal
should
be careful not to erode such discretion
and
tamper with the sentence
unless
it is vitiated by irregularity or misdirection or is disturbingly
inappropriate.
[2]
[10]
According to the first respondent, there is no basis for the State’s
contention that the sentence imposed in counts
1 to 339 is
inappropriate. It is argued that, in arriving at the sentence, the
trial court duly undertook the balancing exercise
of the basic triads
of sentencing by taking into consideration the first respondent’s
personal circumstances, the nature
and seriousness of the offences
and their effect on the community at large. The trial court also
considered the aims of punishment
namely, retribution and
restoration, and having regard to the correctional supervision
report, it concluded that a wholly suspended
sentence together with
correctional supervision which includes three years of house arrest
was appropriate. It will serve the purpose
of rehabilitating the
first respondent as opposed to direct imprisonment which will be
costly to the government and in any event
there is a likelihood of
the first respondent being released on parole if he were to be
sentenced to a lengthy prison sentence.
[11]
It is contended on behalf of the first respondent that there is no
merit to the State’s criticism of the first
respondent for not
pleading guilty because he did plead to the other offences and when
he took the stand pursuant to the not guilty
plea “he did not
materially dispute certain allegations against him” therefore
it cannot be said that he wasted the
court’s time.
[12] Regarding not
compensating the Municipality, it is argued that the State fails to
take into account that the court issued
a confiscation order against
the first respondent for R9 678 617.71, and that the trial
court was entitled to combine
all the counts in relation to counts
353 to 356 and 372 to 404 into a single sentence as the offences are
closely connected in
time, place and circumstances and all fall
within the same statutory structure to tamper with the cumulative
effect of sentencing
the accused on each count in terms of the penal
provision. Accordingly, the State has failed to show that there has
been an irregularity
in the sentencing that results in the failure of
justice. There are no reasonable prospects of appeal succeeding, the
application
must be dismissed and the State must be ordered to pay
the costs of the application as provided for in section 310A (6). I
disagree.
[13]
The nature and seriousness of
the offences the first respondent has been convicted of is
indisputable. With regard to counts 1 to
339, the first respondent
received a seven years wholly suspended sentence with conditions and
a sentence of 36 months’ correctional
supervision.
[14]
As correctly pointed by the State in aggravation of sentence,
paginated page 2956 of the record of the proceedings, line
17
onwards:
“
PROSECUTOR:
…if you look at the money of the Municipality one can say it
is an institutionalized institution, they steal much more money
but
the problem I am having with that type of argument and because that
is the argument that you will get from people, if you ask
people from
the street. It starts of and it has a cumulative effect. If you can
think of all the people that could have benefited
from this
R9million. I do not need to try and convince you of all the roads.
You can go outside here in this very road up the road
there are how
many potholes that we drive though. How many times a vehicle go
through it. I do not want to imagine thinks but I
think it is not
farfetched to tell you that some or other time people are going to
get killed. How many manholes are open that
people will get injured?
Because people like the accused are permitted to or not permitted but
they are contravening these kinds
of offences…”
[15]
It
has
also been pointed out in in
South
African Association of Personal Injury Lawyers v Heath and Others
[3]
that:
“
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 freedoms. 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.
There can be no quarrel with the purpose sought to be achieved
by the
Act or the importance of that purpose. That purpose must, however, be
pursued in accordance with the provisions of the Constitution.
The
appeal in the present case depends upon whether this has been done.”
[16]
In my view,
the above sums up
the issue regarding the nature and the gravity of the offences the
first respondent was convicted of. An offence
which undermines not
only the interests of the community but the constitutional commitment
to human dignity ought to be visited
with a sentence which speaks to
the plight of the community. The offender’s personal
circumstances must recede to the background.
[17]
A confiscation order is intended to deprive a “defendant”
of the benefits of criminal activities,
‘it is not itself a
punishment but an order made in addition to any punishment the court
may impose’.
[4]
[18]
As regards counts 353 to 356 and 372 to 404, all thirty- seven counts
were taken together as one for
the purpose of sentencing resulting in
the imposition of a globular sentence of three years’
imprisonment wholly suspended
conditions whereas the provisions of
section 58(1) and (2) of the Value Added Tax Act 89 of 1991 prescribe
a penalty of a fine
or 24 months’ imprisonment per count. That
aside, it has been found to be undesirable to group together all the
counts for
the purpose of sentencing where the counts are not part of
a single transaction or the elements of the crime to be proven by the
State by are not closely related, except of course in exceptional
circumstances.
[5]
[19]
Having regard to the facts of this matter, I am persuaded that there
is a reasonable possibility that another
court may come to a
different conclusion regarding the appropriate sentences. The State
has reasonable prospects of success on
appeal for that reason, the
application succeeds.
ORDER:
[20]
In the result, the following order is made:
1.
The late filing of first the respondent’s
written submissions as contemplated in
section 310
(A) (4) of the
Criminal Procedure Act 51 of 1977
is condoned.
2. L
eave
to appeal against the sentences imposed by the Regional Magistrate
Nekosie against the first respondent on 26 April 2022 in
respect of
counts 1 to 330, 353 to 356 and 372 to 404 is granted
.
NS
DANISO, J
On
behalf of the Applicant:
Adv.
N. Somaru
Instructed
by:
Director
of Public Prosecutor
BLOEMFONTEIN
On
behalf of the first Respondent:
Adv.
LBJ Moeng
Instructed
by:
Mopobole
& Ismail Attorneys
BLOEMFONTEIN
[1]
2014
(2) SA 68
(CC) para 50.
[2]
S
v Rabie
1975
(4) SA 855
(A)
at
857D-F;
S
v
Kgosimore
1999
(2) SACR 238
SCA.
[3]
[2000]
ZACC 22
;
2001
(1) SA 883
(CC)
para 4.
[4]
Albert
Kruger ‘
Organised
Crime and Proceeds of Crime Law in South Africa
3
rd
ed, at 104 para 5.3.1.
[5]
S v
Young
1977
(1) SA 605
(AD) at 610E;
S
v Mofokeng
1977
(2) SA 447
(O) at 448H;
S
v Swart
2000
(2) SACR 566
(SCA)
para
19 at 574.