About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1994
>>
[1994] ZASCA 115
|
|
S v Blank (23/93) [1994] ZASCA 115 (15 September 1994)
Case No 23/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
GREGORY LEX BLANK
Appellant
and
THE STATE
Respondent
CORAM
: E M GROSSKOPF, KUMLEBEN, F H GROSSKOPF,
JJA
HEARD:
23 August 1994
DELIVERED
: 15 September 1994
JUDGMENT E M GROSSKOPF, JA
2
The appellant pleaded guilty in the Witwatersrand Local Division on 48
counts of fraud and was found guilty in terms of his plea.
The trial judge
(Cloete J) took all counts together for purposes of sentence, and sentenced the
appellant to eight years' imprisonment.
The trial judge refused leave to appeal
against this sentence, but leave was granted pursuant to a petition to the Chief
Justice.
This appeal is now before us. In addition, by a late submission of
additional heads of argument, the appellant has taken the point
that a sentence
of imprisonment in this case offends against the constitution, and asks that, if
a custodial sentence were to be
imposed or confirmed by this court,
implementation of such a sentence be postponed to enable the appellant to
approach the constitutional
court for relief.
I deal first with the appellant's appeal against
3 his
sentence. It has repeatedly been emphasized by
this court that the imposition of sentence is pre-eminently a matter
falling within the discretion of the trial judge and that a court
of appeal can
interfere only where such discretion was not properly exercised. One of the ways
in which it may be shown that a trial
court's discretion was not properly
exercised is by pointing to a misdirection in the court's reasons for sentence.
The principle
in this regard is expressed as follows by Trollip JA in S v Pillay
1977 (4) SA 531
(A) at p 535 E-F:
"Now the word 'misdirection' in the present context simply means an error
committed by the Court in determining or applying the facts
for assessing the
appropriate sentence. As the essential inquiry in an appeal against sentence,
however, is not whether the sentence
was right or wrong, but whether the Court
in imposing it exercised its discretion properly and judicially, a mere
misdirection is
not by itself sufficient to entitle the Appeal Court to
interfere with the sentence; it must be of such a nature, degree, or seriousness
that it shows, directly or inferentially, that the Court did not
4
exercise its discretion at all or exercised it improperly or unreasonably.
Such a misdirection is usually and conveniently termed
one that vitiates the
Court's decision on sentence."
In the
present case the appellant contends that the trial judge was guilty of several
misdirections. To understand and assess this
submission it is necessary to have
regard to the learned judge's reasoning, and to this end I propose setting out a
conspectus of
his thorough judgment. I shall concentrate on those parts which
were criticized in argument before us.
The judgment commences with
an introduction in which the court set out the manner in which the matter came
before it and what factual
and other material was available to it. Included in
the latter was a document entitled " Agreed Factual Submissions in Mitigation".
The broad nature of the offences of which the appellant was convicted is
expressed in the judgment as follows:
5
"The accused was a stockbroker. He participated in two schemes with senior
employees of the Old Mutual to purchase shares, to sell
those shares to the Old
Mutual at a profit and to receive part of the proceeds.
As an agent of the Old Mutual, a member of the Johannesburg Stock Exchange
and a partner of Frankels, Max Pollock, Vinderine Incorporated
('Frankels') the
accused was under a duty to disclose his personal interest in these share
dealings to each of the aforesaid entities.
He failed to do so and foresaw that
his failure could prevent a fully informed judgment from being exercised
regarding the said sales."
Then follows a
section headed "The Crimes and the Accused's Participation". After stating that
fraud is a serious crime, the judgment
analyses the offences committed by the
appellant. Forty-eight fraudulent transactions took place. They spanned a period
of some 17
months. Some of the transactions were enormous. The total profits
exceeded R9,75 million. The appellant himself received nearly Rl,5
million. This
was in addition to the amounts which he legitimately earned as a stockbroker,
which, in the
6 year preceding his arrest, amounted to
approximately
Rl,5 million and averaged over a million rand a year
during
the last four years that he was with Frankels.
The appellant's participation in the scheme,
the
judgment continues, was prompted by no
laudable
purpose. In this regard particular attention is
given
to the submission that the appellant was, as it were,
blackmailed into participation by senior Old Mutual
employees. It was common cause that senior Old Mutual
employees, and, in particular messrs Celotti,
Schapiro and Harper, were already carrying on the
scheme before they invited the appellant to join it.
When first approached to join them, he refused. What
happened later is expressed as follows in the Agreed
Facts:
"In approximately August 1989, Blank was again approached to participate
in the scheme. This time, however, Schapiro was more insistent.
It was made
perfectly clear to Blank that should he decline to participate in the scheme the
Old Mutual would take much of its work
elsewhere.
7
Blank was aware that this was the course of conduct when another firm of
stockbrokers, A. Martin & Co, fell out of favour. A timeous
delegation from
Martins to Old Mutual at senior level, once the threat became known, averted
this consequence.
Since the Old Mutual was one of the biggest institutional clients of
Frankels, the impact of its loss would have been enormous. Brokerage
earned from
Old Mutual constituted approximately 10% of the firm's brokerage as well as a
significant commission for Blank. As the
overheads of the firm were substantial,
the loss of Old Mutual as a client would have had a greater impact on the firm
than on him
personally."
The trial court's comment on the submission that
the
appellant was "blackmailed" into joining the
unlawful scheme, is as
follows (Mr Cohen, to whom
reference is made in this passage, was
the
appellant's senior counsel in the trial court):
"But what should an honest person in the position of the accused have done
in the face of the threat from Schapiro? Surely he should
have reported this
threat to his partners to enable them to send a delegation to the senior
management of Old Mutual - the more so
as, to the accused's knowledge, such a
delegation had been sent previously and the threat had been
averted.
8
And what would Old Mutual have done? Surely it would not have held the
honesty and incorruptibility of its brokers against them. There
could have been
no prejudice to the accused: his untarnished image as the 'whizz kid' of the
Stock Exchange could only have benefitted;
the reputation of his firm could only
have increased; and the Old Mutual would have been able to eradicate the
dishonesty that was
present in the ranks of its employees.
I put this argument to Mr Cohen. His answer was that I would be speculating,
as no-one can now predict what would have happened had
the accused done what I
have suggested he ought to have done. That is so; but the likely consequences of
honesty, it aeems to me,
would have held little danger or disadvantage for the
accused and what danger or disadvantage they might have held, pales into
insignificance
when compared to the prejudice which dishonesty would entail to
Old Mutual and the accused's own firm. Even if the consequence to
the accused
were to have been that his firm lost the Old Mutual account altogether, that is
the course which he was obviously obliged
to
adopt."
It is then demonstrated in the
judgment that the appellant not only agreed to participate in the scheme but was
actively involved
in setting it up and operating it. It was the appellant
himself who
9 approached an innocent third party to open an
account
in the latter's name with a finance company, to
arrange a
R3,5 million revolving credit facility to
finance the purchase of
shares by the participants in
the scheme and to operate the account at Frankels
through which the shares were purchased and sold,
directly or
indirectly, to the Old Mutual.
Not content to participate in only one scheme,
the
appellant agreed to join a further scheme which
entailed operating through an off-shore account. This
enabled shares to be bought and sold through the
medium of the financial rand. The appellant himself
gave instructions to the persons who handled the
administration of the off-shore account. On four
occasions he instructed those persons to transfer to
an account in Switzerland his share of the profits,
which amounted to US $297 782. These funds have been
repatriated and the appellant fined by the Reserve
Bank for contravening the foreign exchange
10 provisions.
Although the appellant's contraventions
in this regard were not included in the charges
before the
court they do illustrate his active
involvement in the scheme.
After shares had been purchased for on-sale to the Old Mutual, it was the
appellant himself who ensured that there would be an increase
in their market
price by either manipulating the market price with the assistance of other
stockbrokers, or by aggressive buying
of the stock in the name of the account
opened at Frankels, or the off-shore account, or for friends or colleagues whom
he wished
to favour.
Finally, once profits had accrued to the participants in the illegal
scheme, it was the appellant himself who was responsible for
their distribution.
He did so by purchasing Kruger Rands. This meant that the flow of funds from one
account to another could not
be detected "and the accused's
11
obvious motive was concealment" (these quoted words
were the subject of criticism, as will be seen).
This part of the judgment concludes with
the
following paragraph:
"In short: although the accused did not join the scheme when first
approached, he did so subsequently and participated in that scheme
and later, in
another scheme as well; he did so over a prolonged period; he did so actively;
he took positive steps to conceal the
enormous frauds he was perpetrating on his
client, Old Mutual; and he was actuated by greed for money and a desire for
recognition."
The next section of the trial court's judgment is headed "The Accused's
Personal Circumstances". It mentions that the appellant is
34 years old and a
first offender. He is an educated man. He obtained a B Comm degree, and whilst
doing military service attained
the rank of full lieutenant. His rise as a
stockbroker was meteoric. At the age of 24 he was one of the youngest, if not
the youngest,
stockbroking member of the Johannesburg Stock Exchange. At the
age
12 of 25 he became a director of Frankels. Within a
very
short time he assumed responsibility for all that
firm's dealings on the floor of the stock exchange.
He became
responsible for the firm's institutional
clients. He worked enormously hard and was
responsible for facilitating a series of investment
decisions by the Old Mutual which resulted in
substantial benefits for the Old Mutual and his firm.
The court then considered, and dismissed, two
arguments in mitigation, viz, that the shares bought
for the Old Mutual were good shares which it may well
have wanted to purchase in any event, and that the
appellant enabled the Old Mutual to acquire large
blocks of shares.
Returning to a consideration of the appellant's
personal circumstances, the judgment mentions that he
is unmarried and contributes to the support of his
mother and sister. He has also supported numerous
charities. The court took into account the evidence
13 of Mr
Reynolds, a senior and well-respected attorney,
who gave evidence in mitigation. I need not repeat
the evidence herein - the judgment deals with it
extensively. In short Mr Reynolds had a high opinion
of the
appellant's character and expressed the view
that he was contrite. Imprisonment, Mr Reynolds
considered, would have a devastating effect on the
appellant.
The judgment then states that the appellant has disgorged the profits
that he made from the scheme, and that the Old Mutual will probably
not be out
of pocket in consequence of the frauds, as funds from the other participants in
the fraudulent schemes were also available
to compensate the Old
Mutual.
The appellant's career as a stockbroker has been ignominiously terminated
and he will never be able to practise as a stockbroker again.
The court took
into account the humiliation and stigma suffered by the appellant consequent
upon his conviction for fraud
14
and the wide publicity which the case has received.
The
judgment then deals with an argument relating to the manner in which other
persons have been dealt with for the same or similar
offences. Firstly, there
were the appellant's associates in the scheme. The senior Old Mutual employees
who participated in the schemes
were Celotti and Schapiro. Both fled the country
and were beyond the jurisdiction of South African courts. Other participants, in
particular Harper, Greyling and Rawson, were offered indemnities from
prosecution. The appellant, on the other hand, stayed in South
Africa despite
the obvious temptation to flee and utilise the substantial funds in the Swiss
bank account. He is the only participant
who has been prosecuted.
The trial court took note of the fact that the accused came before the
court and pleaded guilty. It also accepted, not without some
difficulty, that
the
15 plea of guilty was a sign of remorse, and referred
to
the evidence of Mr Reynolds in this regard. The court
pointed
out, however, that the appellant did not give
evidence to express
his remorse, and referred to a
passage from a MICRO report which was
before the
court and which may be thought to cast some doubt on
the extent of his remorse. I return to this passage
later.
Reverting to the participants who
escaped
prosecution, the court stated:
"The fact that other persons are not being prosecuted or cannot be
prosecuted does not redound to the accused's advantage. It is unfortunately
necessary for the State to offer indemnity from prosecution in certain cases to
ensure that not all criminals who together engage
in unlawful activities, go
unpunished. Those who have been offered indemnity did not have executive
positions at Old Mutual as did
Celotti and Schapiro, and they have disgorged
their profits. The fact that two of the senior participants in the fraudulent
scheme
are at present beyond the jurisdiction of the South African courts and
therefore cannot be punished, is in my view irrelevant.
16
It may well be, as argued by Mr Cohen, and it appears to be so from the
agreed facts, that Celotti and Schapiro, who invited the accused
to join the
scheme or insisted that he do so and who participated in similar schemes over a
longer period of time, are even more
deserving of censure than the accused. But
that is a reason (other factors being equal) for sentencing them more severely
than the
accused, if they are ever brought to justice. I shall accordingly be
careful not to impose a sentence upon the accused which, on
the facts presently
available, would be more appropriate for Celotti or
Schapiro."
The judgment then deals with the
cases of Coetzee and Fouche. They were also stockbrokers. The precis of material
facts relevant to
the charges against them and the indictment served upon them
were before the court. The Attorney-General of the Witwatersrand Local
Division
allowed them to pay admission of guilt fines of R1000 in respect of each of 200
counts of contravening sec 2(a) of the Financial
Institutions (Investment of
Funds) Act no 39 of 1984. These admission of guilt fines appear to be less than
the profits made by them
in the
17 transactions in question and this
aspect aroused the
ire of what the Agreed Facts calls "the financial
press". The
argument which the defence based upon the
cases of Coetzee and
Fouche is summed up as follows
in the judgment:
"Calling in aid a principle which he termed 'equality of justice', Mr
Cohen urged on me: firstly, that all of the considerations which
actuated the
Attorney-General to accept admission of guilt fines (as expressed in a press
interview by the Attorney-General, Annexure
B to the 'Agreed Factual Submissions
in Mitigation') apply in equal measure, if not to a greater degree, to the
accused before me;
secondly, that the offences which the indictment alleged
against Coetzee and Fouche were in numerous respects more serious that the
charges to which the accused pleaded guilty in this matter; and thirdly, that in
sentencing the accused, I should strive for equality
of treatment in the sense
that in sentencing the accused I should have particular regard to the fines
imposed on Coetzee and Fouche."
In considering these arguments, the trial court dealt fully with a number
of relevant authorities referred to it, or considered by
it mero motu. First
there were the cases of In Re Marechane (1882) 1 SAR
18 27 at 31 and
those collected in the argument in S v
Rudman and Another: S v. Mthwana
1992 (1) SA 343
(A)
at 347C-348D dealing with the proposition that
equality
before the law is a fundamental principle of
the South African common law. Then there were a
number of cases concerned with the extent to which a
court of appeal can interfere with a sentence imposed
on an appellant which differs from the sentence
imposed by another court on another accused who
participated in the same crime as the appellant.
These cases are S v Giannoulis
1975 (4) SA 867
(A); S
v Marx
1989 (1) SA 222
(A); S v Reddy 1975 (3) 757
(A); S v Goldman
1990 (1) SACR 1
(A) and S v Malepe
1991 (1) SACR 114
(A). The court's conclusion on this
aspect is the following:
"The principle of equality before the law does not necessarily entail the
consequence that equal punishment should be imposed for
the same, much less
similar, crimes. Uniformity of sentence is desirable only to the extent that the
sentence imposed by one court
for a particular type of offence
19
should not be strikingly disproportionate to the sentence imposed by
another court for the same type of offence, provided that the
circumstances of
the offences and the circumstances of the accused are similar. I stress the
qualification. The courts, and in particular
the Appellate Division, have
emphasised for decades the importance of individualisation of sentence to suit
particular offenders
and have further stressed that so-called standard sentences
for particular crimes are unacceptable. In addition to the remarks of
BOTHA JA
in the
Reddy
case,
supra
, ... I need refer in this regard only to
the following statement by SCHREINER JA in R_v
Karq
1961(1) SA 231 (A) at
236 G-H:
'It may be accepted that sometimes a succession of punishments imposed
for a particular type of crime provides useful guidance to
a court dealing with
such a crime. But each case should be dealt with upon its own facts, connected
with the crime and the criminal,
and no countenance should be given to any
suggestion that a rule may be built up out of a series of sentences which it
would be irregular
for a court to depart from.' I therefore derive no assistance
from
Marechane's
case or the cases referred to in argument in the
Rudman/Mthwane
case. My duty in terms of those cases goes no further than
this: I must treat the accused before me in the same way as I would treat
another person who has committed the same crime under the same circumstances and
who
20
has the same relevant personal circumstances as the accused. I must not
penalise, or prefer, the accused because of some attribute
which he has, or
lacks, that is not relevant to the crime which he has committed, or to the
sentence which I must impose.
In the decisions of the Appellate Division to which I have referred, that
court stressed that when the lighter sentence can be characterised
as being
unreasonable or clearly inappropriate, and the heavier sentence is in all the
circumstances appropriate, interference with
the heavier sentence would not be
proper, notwithstanding the fact that the sentences are disproportionate. As
SMALBERGER JA said
in the
Marx
case at 226 B:
'Geregtigheid vereis dat gepaste
strawwe opgelê moet word'; and as NIENABER JA said in
Malepe's
case at 119 e-f, with reference to the sentences imposed on
others (who had participated in the crime with the appellant) and which
were far
more lenient than the sentence which the Appellate Division considered
appropriate for the appellant:
'... dan lê die fout by die vonnisse
daar en nie hier nie.' I do not feel called upon to embark on an analysis
of the similarities and differences between the crimes in
which the accused
participated and the crimes with which Coetzee and Fouche were charged, or the
reasons given by the Attorney-General
as they appear in the newspaper
report
21
which is before me. I in no way wish to criticise the Attorney-General for
the course which he adopted. Not all of the factors which
motivated him to
exercise the discretion vested in him are relevant to the exercise of the
discretion vested in me. All I need say
for the purposes of this case is that
the fines to which the Attorney-General agreed were not imposed by a court; and
that if - and
I emphasise if -the allegations contained in the indictment had
been proved against Coetzee and Fouche, then (in the absence of compelling
personal circumstances) I would have been astonished had a court imposed such
apparently lenient sentences.
In the circumstances, I do not consider that my wide discretion to determine
a suitable sentence for the accused in this matter is
in any way affected by the
admission of guilt fines fixed by the Attorney-General in the Coetzee and Fouche
cases."
In concluding his analysis of the
appellant's personal circumstances, the trial judge took into account that the
appellant was in
a position of trust in regard both to the Old Mutual and his
own firm, as well as the Stock Exchange. Both the Old Mutual and his
partners
trusted him as they were entitled to do. He betrayed that trust repeatedly and
on a large
22
scale.
The next section of the judgment is headed
"The
Interests of Society". It commences with a
discussion
of various legislative enactments and common
law
rules pertaining to persons who perform financial
services for others and, more particularly, those
pertaining
to stockbrokers. The effect of these
provisions is summed up as
follows:
"There is therefore a formidable body of law, some statutory, some common
law and some made by regulation under Act of Parliament,
aimed at ensuring the
honesty of,
inter alios
, stockbrokers. Severe maximum penalties are
provided for statutory contraventions. The thrust of the rules of the
Johannesburg Stock
Exchange and the Act I have quoted is to prevent a
stockbroker acting in his own interests and against those of his client. This
principle is fundamental to any relationship of agency, but its enforcement on
the Stock Exchange is of particular importance because
of the opportunities that
exist there for easy concealment and for the defrauding of investors. An
investor has to trust his broker.
He can only invest on the Stock Exchange
through a broker. Absolute honesty, and nothing less, is required from a broker;
and if
a
23
broker falls short of this standard, he must expect the full rigor of a
severe sentence to be visited upon him both as a punishment
and to serve as a
deterrent to others."
The judgment then
turns to the questions of deterrence and retribution. This passage was much
criticized in argument before us and
I quote it in
full. It
reads:
"I am appalled to find the following statement in the facts agreed between
the defence and the prosecutor:
'Blank had reason to believe, as did or should most stockbrokers on the JSE,
that certain portfolio managers and dealers of financial
institutions, including
Old Mutual, dealt secretly for their own account on the JSE.' I take note of the
fact that Advocate Marais
(who led the prosecution team) is attached to the
Office for Serious Economic Offences and of the fact that Advocate Cohen (who
led
the defence team) is very experienced in financial matters that come before
the courts. I therefore have no hesitation in accepting
the accuracy of the
statement I have just quoted.
I am equally
appalled to read in the second passage which I quoted from the Nicro report
above that the accused views his offence
as 'part of the stock exchange culture,
a practice engaged in by many
24
others in similar positions to himself'. That such a practice is
prevalent, according to the accused, is confirmed by what the accused
told Mr
Reynolds as testified to by Mr Reynolds in cross-examination.
I am aware of the fact, and take judicial notice of it, that so-called
'white collar crime' is on the increase in South Africa; and
that it has taken
on such proportions that a special task force, the Office of Serious Economic
Offences, has been set up to combat
it.
So far as the Stock Exchange in particular is concerned, counsel were
agreed (and I was informed from the bar) that since the accused's
arrest, at
least two other stockbrokers have lost their licences for dishonest dealings
with their clients; and there are also the
cases of Coetzee and Fouche to which
I have already referred.
In view of all these facts, I feel fully justified in imposing a sentence
which will deter not only the accused and other stockbrokers
from committing
crimes similar to those of which the accused has been convicted, but also others
involved in business who may be
tempted to indulge in large-scale crimes of
dishonesty. The time has already arrived when the severity of punishments
imposed for
this sort of crime, while of course taking the personal
circumstances of a particular accused into account, should proclaim that
society
has
25
had enough and that the courts, who are the mouthpiece of society, will not
tolerate such crimes and will severely punish offenders:
cf
S v Zinn
1969(2) SA 837 (A) at 542 D-E.
In addition it is not wrong, as SCHREINER JA said in
R v Kara
1961(1)
SA 231 (A) at 236 B, that the natural indignation of interested persons and of
the community at large should receive some
recognition in the sentences which
the courts impose; and it is not irrelevant to bear in mind that if sentences
for serious crimes
are too lenient, the administration of justice may fall into
disrepute."
The last section of the judgment is headed
"The
Appropriate Sentence". This section commences
by
setting out the trial court's general approach as
follows:
"I now embark on the difficult task of considering what sentence would be
appropriate in this case. In so doing, I have attempted
to achieve a balance
between the interests of society and the interests of the accused; and I bear in
mind the purposes of judicial
punishment. In particular, as I have just
emphasised the seriousness and prevalence of the crimes of which the accused has
been convicted,
I must guard against the danger highlighted by MILLER JA in
S
v Maseko
1982(1) SA 99 (A) at 92 E-G and repeated recently in
S
v
26
Collett
1990(1) SACR 465 (A) at 471, namely, that an excessive
devotion to the furtherance of the course of deterrence may so obscure the
relevant considerations as to result in very severe punishment of a particular
offender which is grossly disproportionate to his
deserts.
In addition, in considering the deterrence and retributive aspects of
punishment in the sentence which I impose, I shall attempt not
to lose sight of
the caution sounded by HOLMES JA in
S v Rabie
1975(4) SA 855 (A) at 862
C-F, where the learned Judge said that whilst fair punishment may sometimes have
to be robust, an insensitively
censorious attitude is to be avoided. I shall
also bear in mind the guidelines laid down in the three judgments given in the
Rabie
case which set out my duty to have regard to the element of mercy
as that concept is judicially
defined."
The court then turned to consider in
considerable
detail the various sentencing options
available to it. The first was
a fine, with or
without an order of community service. The
court's
conclusions in this regard are set out as follows:
"A fine - particularly a fine of the magnitude suggested by Mr Cohen, or
even a fine substantially higher than the higher figure mentioned
by Mr Cohen
(which on Mr
27
Cohen's argument based on the accused's balance sheet would be well beyond
the accused's means), would not serve the interests of
society. In my view, if
the most that an offender (if caught) could face for defrauding a client of sums
approaching R10 million,
and personally pocketing Rl,4 million, was an order to
restore his share (plus interest) and a fine of R500 000,00, potential criminals
would be tempted to regard the fine as venture capital.
I go so far as to say that in the circumstances of this case a fine coupled
with community service, even if the rendering of such
community service were to
be made a condition of the suspension of a period of imprisonment, would not
only fail to serve the interest
of the community but would bring the system of
the administration of justice into disrepute. Such a sentence would be
unbalanced
and too lenient. The game would still be worth the
candle."
The judgment then deals with the
submissions of the prosecutor. The court's approach was that it is as little
bound by those submissions
as it is by the submissions on behalf of the accused,
although, it added, "as I trust will appear from this judgment, I have
considered
both carefully."
28 The submission of the prosecutor was, in
essence,
that the appellant should be sentenced to a
substantial fine, larger
than that suggested by the
defence, and to the maximum term of
correctional
supervision competent in terms of sec 276 (1) (h)
of
the Criminal Procedure Act, viz, 3 years.
This submission required a consideration of the
law
relating to correctional supervision. I do not
propose repeating the
careful analysis of the trial
court. For present purposes one legal issue only need
be considered. Sec 276 (1) of the Criminal Procedure
Act provides inter alia
"... the following sentences may be passed upon a person convicted of an
offence, namely -
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under
correctional supervision in his discretion by the Commissioner."
Like the trial court I propose referring to
these paragraphs simply as paragraphs (h) and (i).
A sentence of correctional supervision under
29
paragraph (h) "shall only be imposed ... for a fixed
period not exceeding three years" (sec 276A (1) (b)). Punishment under
paragraph (i), on the other hand, shall only be imposed
"(a) if the court is of the opinion that the offence justifies the imposing
of imprisonment, with or without the option of a fine,
for a period not
exceeding five years; and (b) for a fixed period not exceeding five years." (sec
276A (2)).
The question which arose was this: when the
section
speaks of an offence which justifies the
imposition of imprisonment for a period not exceeding
five years, does it contemplate
unsuspended
imprisonment, or would punishment under paragraph (i)
be excluded even where a wholly or partially
suspended sentence of imprisonment for more than five
years is considered appropriate? The trial court
adopted the latter construction. Its conclusion is
expressed as follows:
"If, therefore, I am satisfied that direct imprisonment should be
imposed, and if I am
30
further satisfied that the period of such imprisonment should be longer than
5 years, I cannot sentence the accused under paragraph
(i). This would be so
even were I to suspend a portion of the sentence so that the effective term of
imprisonment would be 5 years
..."
After
considering the relevant legislative provisions, the judgment proceeds to
analyse the evidence bearing on the suitability of
correctional supervision. It
discusses a report by NICRO to which it accords "considerable respect". It deals
with the evidence of
Lieut Serfontein, a correctional officer in the service of
the Department of Correctional Services, who interviewed the appellant
and
concluded that he was a suitable candidate for correctional supervision.
Finally, careful attention is given to the views of
Lieutenant-Colonel Smit, one
of the authors of the white paper that led to the introduction of the concept of
correctional supervision
in South Africa.
The judgment then reverts to the question: would
31 a
sentence under paragraph (h) or (i) be a suitable
sentence in this case? It mentions "the shift in
legislative policy enabling semi-custodial sentences
... to be imposed". It also refers to S v Van Vuuren
1992 (1) SACR 127
(A) in which it was suggested that
retribution, as a factor in punishment, would carry
less weight in cases where stolen money has been paid
back at the offender's expense, and that in
appropriate cases of that type, a sentence other than
one of imprisonment might have sufficient retributive
effect. The comment on Van Vuuren's case is as
follows:
"The effect of the introduction of types of sentence other than
imprisonment is simply to require a sentencing officer to consider
whether any
of these alternatives would be a suitable sentence in the particular case before
him. I understand the effect of the
Van Vuuren
judgment to be that these
alternative options will usually be appropriate in the type of case considered
in that matter, and that
they should accordingly be employed. But I have no
doubt that the Appellate Division did not by the
Van Vuuren
judgment
intend to
32
circumscribe the wide discretion vested in
the judicial officer who passes sentence by
excluding in every case the possibility of
imprisonment as a sentence for economic
crimes."
This then cleared the decks for the court's
final
conclusion, which I quote in full. It reads as
follows:
"I return to the question: is this an appropriate case for the imposition
of a sentence other than direct imprisonment?
In matters which come up on review and on appeal, these courts daily
confirm sentences of a fine plus several years imprisonment,
conditionally
suspended, for shoplifting, where items worth a few rand are involved; and also
sentences of unsuspended imprisonment,
frequently of four or five years, where a
motor vehicle has been stolen. The justification for the severity of sentences
such as
these is seen in the prevalence of the offences and the deterrent effect
which severe sentences are supposed to have. The crimes
of which the accused
stands convicted are far more serious than the types of crime I have just
mentioned and the increase in this
type of crime, as the experience in these
courts and the reports in the media show, has been alarming. In cases of this
type of crime
also, personal circumstances must yield in my judgment to the
requirements of deterrence; and whilst retribution does not
33
have to consist in imprisonment, and whilst the impact of the
availability of the options provided by sections 276(1) (h) and (i)
on the type
of sentence that will be imposed in future for shoplifting and motor vehicle
theft remains to be seen, there will be
cases - and this is one - where the
magnitude of the offence is so great that a sentence under either of those
paragraphs would simply
not be adequate.
The Legislature set limits of three and five years respectively in the
case of sentences under paragraphs (h) and (i). These cut-off
points are
significant. They give an idea of the seriousness of the crimes for which these
sentencing options would be appropriate.
But in the same way as the Appellate
Division emphasised in
Van Vuuren's
case that the options constituted by
those paragraphs should be used in appropriate cases, so a court should not be
seduced by the
availability of these new options to impose a sentence which
would be unbalanced and inappropriate when proper regard is had to the
(often
competing) purposes of judicial punishment. In serious crimes, including crimes
of the nature considered in
Van Vuuren's
case, imprisonment also falls to
be considered as an option and the more serious the crime, the greater the
possibility that imprisonment
will be the only suitable sentence.
So far as rehabilitation is concerned, Mr Cohen submitted that the
accused is a well-
34
rounded and responsible individual and that rehabilitation is not
necessary. The Nicro report supports this approach but Colonel Smit,
although
careful to emphasise that he had not personally interviewed the accused,
nevertheless disagreed that the accused did not
require to undergo a
rehabilitation programme and he based his option on certain passages in the
Nicro report. His evidence in this
regard was not challenged in
cross-examination and I accept it. In doing so, I do not wish to be understood
to be calling in question
the
bona fides
of Mr Reynolds, who said that in
his opinion the accused is very unlikely to commit a similar crime in the
future. I unhesitatingly
accept that Mr Reynolds genuinely has this view. But
even if the accused is not likely to commit a similar crime in the future, it
does not follow that he should not be subjected to, or would not benefit from, a
rehabilitation programme; and because Colonel Smit
is an expert in the field of
correctional punishment and Mr Reynolds is not, I shall be guided by the views
of Colonel Smit on this
aspect.
When considering the question of rehabilitation, I shall bear in mind the
evidence of Colonel Smit that although there are programmes
for the
rehabilitation of offenders in prison, similar programmes outside prison (to
which an offender can be compelled to submit)
are more effective, firstly
because they can be individualised and secondly because, in prison, there
is
35
little (if any) possibility of an offender being able to repeat a crime,
even should he wish to do so.
When I balance the interests of the accused against the interests of the
community and when I have regard to the factors and principles
I have mentioned
against the background of the purposes of judicial punishment, I am left in no
doubt that the only appropriate sentence
in this case is a long period of direct
imprisonment. A semi- custodial sentence of even five years in terms of section
276(1)(i)
of the Criminal Procedure Act (even if coupled with a fine) would, in
my view, both by reason of its nature and by reason of its
duration, be totally
inadequate to reflect the seriousness of the crimes committed by the accused. In
addition and for the same reasons,
such a sentence would fall far short of
providing the deterrence to others tempted to participate in the vast number of
white collar
crimes being committed in South Africa.
I have already dealt with the effect which imprisonment is likely to have
on the accused, but in my view he deserves to go to prison
and the requirements
of society demand it.
I have considered the possibility of suspending a portion of the sentence
for any of the purposes summarised in
S v Herold
[1992(2) SA CR 195 (W)]
at 197 d -198 a. I have, however, decided not to do
36 so.
I take all the counts together for the purposes of sentence.
THE ACCUSED
IS SENTENCED TO EIGHT (8) YEARS
IMPRISONMENT
."
The above summary of the
trial court's judgment gives some impression of the meticulous thoroughness with
which the learned judge
a quo dealt with the various issues before him.
I turn now to consider the various misdirections relied upon by the
appellant's counsel, Mr Burger. They were as follows:-
1.
The trial court
failed to give proper consideration to the possibility of imposing a sentence of
correctional
supervision;
2.
The trial
court improperly imposed an exemplary
sentence;
3.
The trial court
imposed a sentence which was disproportionate to the fines paid by Coetzee and
Fouche;
4.
The trial court
failed to give proper
37 attention to the submissions of the State.
For
convenience I shall refer to these alleged
misdirections as the
major misdirections. Counsel
contended, as I shall show, that the
major
misdirections contained within themselves
also
misdirections of detail.
I start with the first alleged major
misdirection - the
court's consideration of the
possibility of imposing correctional
supervision. At
the outset it must be emphasized that the court gave
the most painstaking consideration to this matter. It
considered the legislative provisions concerning
correctional supervision and their underlying
philosophy. It discussed relevant authorities and
analysed fully the evidence bearing on this subject.
And, save in one immaterial respect with which I deal
presently, there is no suggestion that the trial
judge committed any error of fact or law in deciding
that correctional supervision was not appropriate in
38 the
present case. Stripped to its essentials, the
appellant's case is not based on any misdirection,
but
amounts merely to a contention that the trial
judge should, on the evidence, have exercised his
discretion
in a different way: he should not have
held that this matter was so serious that corrective
supervision was an inadequate punishment. However, in
the absence of any misdirection, the assessment of
the seriousness of an offence and the determination
of an appropriate punishment are matters falling
squarely within a trial court's discretion. A court
of appeal can interfere only on the limited grounds
which I considered earlier. And the present is
clearly not a case in my view in which it can be said
that the sentence imposed is so inappropriate that it
shows, by itself, that the trial judge did not
exercise his discretion properly.
The one respect in which the trial judge was
said to have committed a misdirection in regard to
39
correctional supervision related to the
interpretation of sec 276A (2) (a) of the Criminal
Procedure
Act which, it will be recalled, provides
that punishment may only be
imposed under paragraph
(i) if the court is of opinion that the offence
justifies the imposing of imprisonment for a period
not
exceeding five years. The trial court interpreted
this provision to include suspended sentences of
imprisonment. A sentence under paragraph (i) would
therefore be precluded if the court considered that a
sentence of more than five years imprisonment was
justified, even if, in its view, the whole sentence
or a part thereof should be suspended. The
appellant's counsel contended that this
interpretation is wrong. "Imprisonment" in sec 276A
(2) (a) should be read as unsuspended imprisonment,
he said. Paragraph (i) would accordingly be available
for offences justifying, in the court's view, far
longer periods of imprisonment, provided that an
40
unsuspended portion of more than five years is not
considered justified.
It is true that, perhaps in an excess of thoroughness, the trial judge
did decide this matter, but the precise interpretation of the
section clearly
played no role in the imposition of sentence. The trial judge considered that an
unsuspended sentence of eight years'
imprisonment was justified in this case. On
any interpretation of sec 276A (2) (a) this fell outside the terms of the
section. But,
in any event, in coming to his final conclusion concerning
sentence, it was not sec 276A (2) (a) which influenced him but sec 276A
(2) (b),
which lays down that punishment under paragraph (i) may not exceed five years.
It was this provision inter alia which led
him to the view that a sentence in
terms of paragraph (i) would be totally inadequate to reflect the seriousness of
the crimes committed
by the
41 appellant. In these circumstances I
do not consider
it necessary to decide whether the trial court's
interpretation of sec 276 A (2)(a) was correct
or
not.
In argument counsel for the appellant referred
us to a number of recent authorities on the application of the provisions
relating
to corrective supervision. From these authorities it appears that
corrective supervision represents a new approach to the punishment
of criminal
offenders; that it is a form of sentencing which has a considerable deterrent
effect; that it may be imposed in suitable
cases for the punishment of any type
of offence, but that it is perhaps most suitable for non-violent crimes; that it
has considerable
advantages over other forms of punishment (and, in particular,
imprisonment) both for the offender and for society, and that courts
should not
allow the provisions concerning corrective supervision to become a dead letter.
These principles
42
must of course be borne in mind by a sentencing
officer. They
do not, however, entail that no nonviolent crime can ever be serious enough to
justify the imposition of imprisonment.
In the present case the trial judge was
fully aware of these principles, considered them carefully in the light of all
the evidence,
and concluded that correctional supervision would not be an
adequate punishment for this offence. In my view this was a perfectly
proper
exercise of his discretion.
The second major misdirection relied upon by the appellant was that the
trial court improperly imposed an exemplary sentence. Now
the court did not use
the expression "exemplary sentence" and in argument before us there was some
argument about its meaning. I
do not propose answering this semantic question.
The real point is that the court was influenced by what it considered the
prevalence
of this type of offence to impose a sentence that would have a
strong
43
deterrent effect. I have quoted the relevant part of
the court's judgment above. On behalf of the appellant it was contended
that this passage contains several misdirections.
Counsel firstly
objected to the court's statement that there has been an increase in "white
collar crime" because, counsel contended,
the term has no clear meaning. 1
should have thought its meaning was clear enough. Certainly, the type of white
collar crime committed
by the appellant, i e fraud or theft committed by a
person in a fiduciary position, has, as any judicial officer or even newspaper
reader knows, become increasingly and disturbingly common. I think the learned
trial judge was entitled to take judicial notice of
this feature and to have
regard to it in imposing sentence.
In addition to taking judicial notice of the increase in white collar
crime, the court referred to certain specific matters illustrating
this
increase.
44 The correctness or relevance of some of these
illustrations was impugned. Even if some of them
were
misplaced it does not in my view detract from
the
undoubted fact that there has been such an
increase.
However, I do not think they were misplaced. The
learned judge referred to the creation of the Office
for Serious Economic Offences. The reason for this
must be that the commission of serious economic
offences has become such an evil in our society as to
require special machinery to combat it, and the court
saw it in this light. Then the judge referred to two
stockbrokers who had been suspended since the
appellant's arrest. In argument before the trial
court there was some discussion about four
stockbrokers who allegedly got into trouble. To set
the record straight the appellant's counsel said
"that the information indicates that two stockbrokers who stole from
their clients, stole clients' money or stripped (scrip ?) away,
lost their
licences ...". For the rest counsel had no detailed information
45
and suggested that it would be unsafe to have regard
to the fate of the four stockbrokers to whom
earlier
reference had been made. The facts concerning
the
two, however, seem to be clear enough to
justify
passing reference.
Then counsel cavilled at the
use by the learned judge in aggravation of sentence, of a fact (the practice of
some stockbrokers to
deal secretly on the Johannesburg Stock Exchange) which had
been placed before the court as a mitigating circumstance in the "Agreed
Factual
Submissions in Mitigation". There is nothing in this point. If counsel place
information before the court which they consider
mitigating there is nothing to
prevent a court from giving such effect to it as it considers appropriate,
whether mitigating, aggravating
or a bit of both.
Finally, objection was made to the use by the court of a passage from a
NICRO report. The relevant part of the judgment is quoted
above, but
for
46
convenience I set out the full passage from the MICRO
report. It reads as follows:
"However, in detailing the offence and reasons for committing the offence,
it is apparent that the client (i e, the appellant) is
not particularly
remorseful about having transgressed the law in this manner. Whilst he feels
that he would avoid in every way coming
into conflict with the law again, he
views his offence as part of the stock exchange culture, a practise engaged in
by many others
in similar positions to himself. He expressed the feeling that
whilst he recognised the wrongness of his action, that he felt unduly
victimised".
This passage speaks for itself. The manner
in which it was used by the trial court appears from the summary of the judgment
set out
above. In my view the court was entitled to view the contents of this
passage as a part of the material which justified a sentence
with a strong
component of deterrence.
Then counsel complained that the trial judge did not warn the defence
that he was considering imposing an exemplary sentence. Now,
as I have already
said, there was some dispute before us whether the learned
47
judge did in fact impose an exemplary sentence. The
more
accurate way of phrasing counsel's complaint would be that the trial court did
not indicate that it was taking account of the
prevalence of this type of
offence and might impose a sentence with a strong deterrent flavour. Thus stated
the complaint has no
substance in my view. The appellant was represented by
senior and junior counsel. They could hardly have been unaware that deterrence
is one of the aims of punishment and that the prevalence of an offence is an
important factor in this regard. That this type of offence
has indeed become
prevalent can in my view not be disputed, as I have already said. And the judge
a quo made it clear during argument
(which was recorded in the appeal record)
that, in view of the seriousness of the case, he was considering imposing a
sentence of
imprisonment. What more did counsel need to enable them to present
their case?
Counsel also objected to the court's drawing
48 inferences
from facts set out in the "Agreed Factual
Submissions" because, so it was contended, these
facts were
placed before the court for a particular
purpose and were not
necessarily complete enough to
warrant their use for drawing
inferences of fact
unrelated to the purpose for which they were adduced.
It is of course correct that, in principle, a court
should not draw inferences of fact unless all
relevant primary facts are before it. The inferences
to which counsel objected in the present case were,
however, in my view, either properly drawn or
unimportant. Thus, counsel objected to the court's
finding that the appellant was not prompted by any
laudable purpose in committing the frauds in
question, but that he was "greedy for money" and
"burning with ambition". In my view this was a
perfectly reasonable and proper inference. The crimes
were certainly not induced by poverty or need. The
defence suggestion that the appellant was somehow
49
blackmailed into committing these offences was
rejected by
the trial court in the passage quoted above, and I entirely agree with it. What
possible motives remain in the circumstances
of this case other than greed and
ambition?
The next inference to which counsel objected related to the conversion of
profits into Kruger Rands. The court found that the "obvious
motive was
concealment". I suppose it might be possible that if the appellant's motive in
this regard had been placed in issue in
the trial court some further evidence
might have been adduced which might have suggested the possibility of some other
less damaging
motive. It is difficult, however, to imagine what further evidence
might have been led or what other motive might have been suggested.
It does not
seem likely that the appellant would have been induced by this limited dispute
to enter the witness box or that he would
have called any of his co-conspirators
as
50
witnesses, and it seems doubtful that Kruger Rands
were
selected purely for their investment value or for some other legitimate reason.
Be that as it may, however, even assuming that
the court's inference in this
regard may be open to some doubt, the effect in its overall reasoning is
insignificant.
The third major misdirection relied upon by the appellant turns on the
disproportion between the sentence imposed by the trial court
in the present
matter and the admission of guilt fines set by the Attorney-General in the
matters of Coetzee and Fouche. In my view
the trial court dealt with this matter
in a proper and correct manner. There are substantial differences between the
present case
and those of Coetzee and Fouche; we do not know the full reasons
for the apparently lenient fines set by the Attorney-General; the
Attorney-General is an official, albeit an important and powerful one, and not a
court of law, and his decisions do not have the
51
authority of court judgments; and if the similarities
between
this case and the Coetzee and Fourie matters are as striking as counsel
contends, and there is no significant difference in
the mitigating factors, the
possibility exists (I put it no higher) that Coetzee and Fourie were treated too
leniently. Consequently
the trial court did not err, in my view, in holding that
the Coetzee and Fouche matters did not prevent its imposing what it considered
a
proper sentence in the present case.
The final major misdirection alleged by the defence was that the trial
court failed to give proper attention to the submissions of
the State. It will
be recalled that the State had asked for the imposition of a large fine and a
sentence of corrective supervision.
In its judgment the trial court stated that
it had given careful consideration to the contentions advanced by the State, but
that
it was not bound by them, and, for reasons given in the
52
judgment, did not accept them. It was not contended
before us
that the court's expressed approach to the State's contentions was in any way
wrong. The argument was that the substance
of the court's judgment did not bear
out its averment that it had properly considered the State's contentions. This
is another way
of saying that the court did not properly consider the imposition
of a sentence of corrective supervision in conjunction with a fine.
I have
already considered and rejected this contention.
The appellant's counsel, however, went further and contended that
principles recognized in the United States of America and Great
Britain relating
to so-called plea bargaining should have been applied in the present case. At
the outset I should say something
about the manner in which this issue was
raised. By plea bargaining I understand a procedure in which the prosecution and
defence
(sometimes involving also the trial judge) agree about the plea
53
to be tendered by the accused and the sentence to be
asked
for by the prosecution. On the record of the present case there is no indication
that a plea bargaining in this sense took place.
There is no suggestion on the
record that the appellant's plea of guilty and the State's contentions
concerning sentence were the
subject of agreement between the parties, nor that
the trial judge was in any way involved in these matters. If the defence wanted
to take the point that there was some irregularity or illegality in the
proceedings before the trial court in that a plea bargaining
agreement had not
been dealt with properly by the court or the prosecution, it should have done so
by way of an application for a
special entry on the record in terms of sec 317
of the Criminal Procedure Act, duly supported by evidence, usually on affidavit,
setting out the relevant facts. See R v Nzimande
1957 (3) SA 772
(A) at 774B and
compare the procedure followed inter alia
54 in S v Alexander and Others
1965 (2) SA 796
(A) and S
v Mushimba en Andere
1977 (2) SA 829
(A). In fact the
matter
of a plea bargain was not raised before the
trial court at all, not even in the application for
leave to appeal. It was first raised in the petition
for leave to appeal to the Chief Justice. This
petition was submitted under cover of a letter from
the appellant's attorneys dated 4 November 1992.
Paragraph 2 of this letter reads:
"We would be grateful if you would draw to the attention of the Chief
Justice the fact that the matters contained in paragraphs 1.5
- 1.13 of the
Petition have been settled by Advocate C Z Cohen SC and Advocate G J Marcus who
appeared for the Petitioner, and by
Advocate P Marais who appeared for the State
and Advocate Henning, the Deputy Attorney General of the Witwatersrand Local
Division.
Counsel are agreed that the facts contained in these paragraphs are
correct."
Paragraphs 1.5 to 1.13 of the petition, to which
reference is made in the letter, are as follows:
"1.5 Approximately a month before the commencement of the trial, your
petitioner's legal representatives entered
55
into discussions with counsel for the State concerning your petitioner's
case. A Cape Town attorney representing Old Mutual managers
who had participated
in the syndicate (Celotti and Shapiro) informed your petitioner's legal
representatives that counsel for the
State would entertain discussions
concerning the 'settlement' of your petitioner's case. He further informed your
petitioner's legal
representatives that the Attorney-General for the
Witwatersrand had entered into an agreement with Fouche and Coetzee on the basis
set out hereafter.
1.6 There were protracted negotiations between counsel for the State and
your petitioner's legal representatives. At various discussions,
the auditors
advising the State were present as was the investigating officer.
1.7 During the period of these discussions it was announced in the press
that in the case involving Fouche and Coetzee, the Attorney-General
had accepted
admission of guilt fines of Rl 000,00 on each of 200 counts, reduced from the
570 counts which they originally faced.
1.8 These negotiations culminated in a meeting in the office of the
Attorney-General for the Witwatersrand, Mr Klaus von Lieres und
Wilkau S.C. at
which he had present, Mr Manning, the Deputy Attorney-General dealing with
commercial matters in the Witwatersrand
Local Division as well as counsel for
the State and your petitioner's counsel. At this meeting, an agreement was
reached, the material
terms of which
were
56
the following:
1.8.1 Your petitioner would plead guilty to 48 counts of fraud based upon a
failure to disclose his interests in the sale of the shares
to the Old Mutual.
The 49th count of fraud would be withdrawn.
1.8.2 The State would not seek a sentence involving any period of
imprisonment and would indicate its attitude on sentence to the
Court. This term
was considered by your petitioner to be fundamental since his standpoint was
consistently that no arrangement with
the State would be possible if it entailed
a term of direct imprisonment.
1.8.3 Full restitution to the Old Mutual would have to be made,
alternatively
, could be imposed as a condition of a suspended sentence.
At the time of meeting with the Attorney-General, negotiations were already
taking place in this regard.
1.8.4 The Reserve Bank would require a penalty of R250 000,00.
1.8.5 A substantial fine, within the financial capability of your petitioner
would also be called for by the State. There was to be
a full investigation by
the auditors acting on behalf of the State, and the
auditors
57
representing your petitioner, consequent upon which agreed financial
statements were to be prepared.
1.8.6 It was known that the new system of correctional supervision (more
fully dealt with below) would take effect on 1 October 1992
in the Witwatersrand
and the State would seek a period of correctional supervision in terms of
Section 276(1)
(h) of the
Criminal Procedure Act 51 of 1977
. Your petitioner's
legal representatives would be entitled to contend that no period of
correctional supervision was appropriate
but that either community service or no
further punishment (beyond restitution to the Old Mutual, a forfeiture to the
Reserve Bank
and a fine) would be appropriate.
1.8.7 A statement of agreed facts would be prepared incorporating the
summary of substantial facts to the indictment.
1.8.8 The fact of the agreement and its terms would be communicated to the
presiding Judge in chambers as soon as he was available
to see counsel for the
respective parties.
1.9 Approximately two weeks before the trial, your petitioner's legal
representatives, together with counsel for the State, informed
Mr Justice Cloete
at a meeting in
58
his chambers of the following:
1.9.1 The nature of the agreement between the State and your petitioner's
legal representatives and the terms thereof.
1.9.2 The only issues in dispute between your petitioner and the State were
whether or not a term of correctional supervision would
be appropriate having
regard to the fact that the Old Mutual would be fully compensated, the Reserve
Bank requirements satisfied
and that your petitioner would be in the position to
pay a fine which the Court considered appropriate, having regard to his
financial
capacity and secondly, the extent of the
fine.
1.10 The presiding Judge informed counsel that he would advise the Judge
President that the trial would now be shorter than the anticipated
duration of
several months for which provision had already been made on the roll.
1.11 Following upon the negotiations with the Attorney-General and the
reaching of the agreement as aforesaid, your petitioner reached
agreement with
the Old Mutual that the extent to which your petitioner personally profited from
the share transactions in question
was Rl 408 511,00. It was agreed that this
amount, together with an additional amount of R521 297,00, representing damages
and interest,
would be
59
paid to the Old Mutual. In addition, your petitioner agreed to meet the
Reserve Bank requirement of the imposition of a fine of R250
000,00 in terms of
the exchange control regulations. At the time of signing this petition, your
petitioner has complied with his
obligations to both the Old Mutual and the
Reserve Bank.
1.12 At no time prior to your petitioner's plea of guilty did the presiding
Judge (who three days before the trial had been furnished
with the agreed
factual submissions in mitigation, more fully discussed below) indicate any
disquiet or objection to the terms of
the agreement aforesaid.
1.13 The agreement reached with the Attorney-General as aforesaid and the
presiding Judge's reaction thereto were decisive in your
petitioner's plea of
guilty."
The trial judge and
attorney-general were quick to react. On 13 November 1992 the trial judge
submitted a report to this court in
which he said inter alia:
"2. The petition seeks to
suggest:
2.1
that
I was aware of, and privy to, an agreement arrived at between the State and the
defence regarding the penalty to be imposed on
the
petitioner;
2.2
that I
conveyed some impression of
my
60
attitude to that question to counsel for the defence; and
2.3 that I was under some duty to express or convey my concurrence or
otherwise with the dealings between the State and the
defence.
3. Counsel came to see me a week
or two before
the trial was due to commence. The meeting was at counsel's
request.
3.1 At the meeting I was informed by senior counsel representing the
petitioner
inter alia
that the accused was going to plead guilty; that
the State did not intend asking for imprisonment; and that an agreed statement
of
facts was going to be placed before me. This information was not presented to
me as the terms of a 'plea bargaining' agreement. On
the contrary, senior
counsel representing the petitioner emphasised that there could be no talk of a
'deal' because of the interest
the media and business circles were showing in
the trial.
I understood that the purpose of
counsel's visit was to inform me of the manner in which the trial would proceed
and of the contentions
which would be advanced in regard to sentence on the
basis
inter alia
of an agreed statement of facts which was not yet before
me.
61
3.2 I at no stage inferred, nor was it
either stated or
suggested to me, that
I was being asked to give
an
indication as to whether or not I
would consider
myself bound, in view
of the attitude of the State
on
sentence, not to impose imprisonment.
Had counsel
requested any such
indication I would have terminated
the
meeting forthwith.
I was careful not to say anything which could have led counsel for the State
or the petitioner to form the impression that I had a
view (or that I was
prepared to form a view) as to what I might regard as an appropriate or likely
sentence. I had at the time not
done more than peruse the charge-sheet, the list
of witnesses and the State's summary of substantial facts.
3.3 It was in no way indicated to me that
the petitioner might
decide to plead
guilty depending on my attitude as to
a
possible sentence of imprisonment.
The contrary was the position. I
was
expressly informed at the beginning of
the meeting
that the petitioner had
decided to plead guilty to the
main
charges.
3.4 I was not privy to any agreement which
would in any way have
fettered my
discretion to impose what I might
consider
to be an appropriate sentence
after I had been furnished with
the
62
agreed statement of facts, heard any evidence and listened to argument in
support of the sentences which were going to be proposed
on behalf of the
petitioner and by the prosecutor."
In a letter dated 18 November 1992 the attorney-general of the
Witwatersrand Local Division wrote inter alia as follows:
"Ad paragraph 1.5 of the petition:
The terminology used in the petition, more particularly the word
'settlement', incorrectly implies the taking place of negotiations,
more
specifically so called plea bargaining. Representations were made to me in
Johannesburg regarding the case against Messrs Fouche
and Coetzee. After
weighing all the facts, I decided to fix admission of guilt as appears from the
record. The determination of the
admissions of guilt was not the result of
negotiations, but was based on an independent exercise of my
discretion.
Ad paragraph 1.6 - 1.13
The terminology used in the petition, more particularly the word
'agreement', may be misconstrued to mean that my decision not to
request the
Court to impose a sentence of direct imprisonment, was arrived at as a result of
negotiations and/or plea bargaining
with the petitioner's
representatives.
63
During the introduction of the representations made to me at the meeting
referred to in paragraph 1.8 of the petition, I explicitly
informed the
petitioner's representatives that I had no intention whatsoever of entering the
plea bargaining arena. I did not accede
to the petitioner's representatives
request that I accept a plea on the first alternative in respect of all counts.
In view of the
Reserve Bank's administratively imposed 'fine' of R250
000 I decided not to pursue that count by
applying an
extended interpretation of the
nemo
debet bis vexari pro
una et eadem causa
rule to
Count 49.
My view that a court was unlikely to impose a sentence of direct
imprisonment in the light of all the relevant facts, was conveyed
to the
representatives of the petitioner at the onset of the meeting.
Regarding the question of sentence, I referred them to an unfortunate
episode in the past where the Court imposed a more severe sentence
than the one
agreed to by a former Attorney-General and the defence and stated unequivocally
that I am not prepared to enter into
any agreement in this respect, explicitly
rejecting a 'plea bargain' arrangement.
I had no intention whatsoever to interfere with
the Courts
discretion in respect of sentence and
made this quite clear to the
petitioner's
representatives. Any other impression is
not
correct. No agreement as implied in the
Petition was
ever entered into between the State
and the petitioner."
64
It was rightly not contended before us that
the
facts stated by the trial judge and the
attorney-general were open to any doubt.
The position then is that
the alleged irregularities relating to a plea bargain were not raised timeously
in the proper form in the
trial court, and moreover have no basis whatever. In
the pre-trial discussions the prosecution intimated that it would ask for a
particular form of punishment. If the appellant was induced by this intimation
to plead guilty he has no reason to complain. The
prosecution did what it said
it would. The trial judge was not bound by the attitude of the prosecutor, as
the appellant was no doubt
told by his counsel. In the course of the case the
trial judge in fact made it clear that he was considering imposing direct
imprisonment,
contrary to the submissions of the prosecutor, and there was no
suggestion by the defence that he was not entitled to do so. In these
65
circumstances there clearly was no irregularity
whatsoever
and it is not necessary for me to consider what recognition should in general be
accorded to plea bargaining agreements.
For the reasons I have given the trial judge has not been shown to have
committed any misdirection vitiating his sentence. It is not
contended that
there are any other grounds for attacking his exercise of discretion in
sentencing the appellant, nor can I find any.
It follows that the appeal against
sentence should be dismissed.
This brings me to the constitutional point. It will be recalled that in
his additional heads of argument the appellant requested inter
alia that, if his
appeal were to fail, the implementation of sentence be postponed to enable him
to approach the constitutional court
for relief. I am not aware of any rule that
entitles this court to dismiss an appeal but to order that implementation of
the
66 sentence be delayed pending some further event. What
we can do is to refrain from giving judgment at this
stage, and to postpone the appeal. This is what was
done in the death sentence cases, with which I deal
presently. In principle it is of course highly
undesirable that a case be postponed at this late
stage, i e, after the appellate division has heard
full argument and reached a conclusion. It is in the
interests of justice that finality should be
achieved, particularly in criminal matters. Of course
if there is a genuine constitutional point at issue a
postponement may be justified. Thus, in a number of
cases in which the death sentence had been imposed,
this court postponed the appeals to enable the
constitutional court to pronounce on the
constitutionality of
sec 277
of the Criminal
Procedure Act, which authorizes the death sentence
for certain offences. In this regard sec 9 or 11(2)
of the Constitution may well be interpreted as
67
rendering sec 277 unconstitutional, and pending
an
authoritative decision on this point it would be undesirable for
this court to continue confirming death sentences (see, for instance,
S v
Makwanyane en 'n Ander
1994 (2) SACR 158
(A)). The present is a different case.
The appellant has not suggested that the imposition of imprisonment is in itself
unlawful
in terms of the Constitution. What he has contended is that he did not
have a fair trial in terms of sec 25 (3) of the Constitution.
The respects in
which he submits that his trial was unfair correspond with some of the
misdirections on which he relied in his appeal
against sentence, namely that an
exemplary punishment was imposed, that the trial court did not give notice that
it was considering
the imposition of such a sentence, that the trial court did
not accept the evidence presented by the State in calling for a sentence
of
correctional supervision, and that the trial judge accepted the appellant's plea
of guilty
68
without telling him that the court might not follow
the
recommendation of the State as to sentence. The imposition of an exemplary
sentence was said also to be prohibited by sec 8(1)
of the Constitution, which
enshrines equality before the law.
I have dealt with all these complaints. The relevant facts are set out
above. They do not in my view give rise to any constitutional
principle which
would justify the attention of the constitutional court. I cannot imagine that
the constitutional court would hold
a court disentitled to have regard, in
imposing sentence, to the prevalence of the offence before it, or, in
appropriate circumstances,
to impose a sentence with a strong deterrent flavour;
or that the constitutional court would hold that the trial court, in the
circumstances
of this case, was under a constitutional duty to inform the
appellant to a greater extent than it did, of the nature of the punishment
which
it was considering; or that the
69
trial court was obliged under the constitution to
accept the
evidence adduced by the prosecution or the submissions advanced by it; or that
the trial court had to notify the appellant,
whether before or after his plea of
guilty, of something which the appellant and his legal advisers knew, namely
that the court might
not accept the prosecution's submissions. In short, I do
not think that, on the facts found, there is a genuine constitutional issue
between the parties.
Of course, it is possible that a litigant might wish to attack a trial
court's findings of fact before the constitutional court. I
cannot, however,
imagine that the constitutional court would enter into the minutiae of a case
like the present to determine whether
the evidence does not perhaps disclose
some unfairness or inequality in a constitutional sense, and if the
constitutional court did,
I do not think it would consider that the
70
appellant's constitutionnal rights have in fact
been
infringed. One should also bear in mind that the appellant's
complaints relate to proceedings which took place before the Constitution
even
came into force (cf sec 241(8) of the Constitution).
To sum up: I do
not think that there is any possibility that the appellant would be granted
relief by the constitutional court and
accordingly there are no sufficient
grounds for a postponement of this appeal.
The appeal is dismissed.
E M GROSSKOPF, JA
KUMLEBEN, JA
F H GROSSKOPF, JA
Concur