IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)
In the matter between:
GARY RULE
And
THE STATE
Coram: Pangarker J et Mgengwana, AJ
Hearing date: 16 March 2026
Judgment delivered: 23 March 2026
Case number: A256/2025
Appellant
Respondent
Summary: Appeal against sentence -Appellant convicted of five counts of fraud -
Whether Court a quo erred in failing to consider cumulative effect of sentence where
the accused was already serving a 15 year sentence at the time for theft - Concurrent
sentences - Whether commission of offences to save ailing business during COVID-
19 pandemic· is a mitigating factor - Whether sentence imposed by Court a quo
induces sense of outrage
1
ORDER
The appeal is dismissed.
JUDGMENT
PANGARKER J (MGENGWANA AJ concurring)
Introduction
[1] This appeal against sentence is with leave granted on petition by Le Grange J
and Mayosi AJ on 4 June 2025. On 21 August 2023, the Mossel Bay Regional Court
sentenced the appellant on five counts of fraud as follows (as summarized): 3 (three)
years' direct imprisonment on each of the five counts and in terms of section 280(2) of
the Criminal Procedure Act 51 of 1977 {CPA), 1 (one) year imprisonment of each count
was ordered to run concurrently witli the sentence which the appellant was serving at
the time, to wit, 15 (fifteen) years' imprisonment for theft in a Van der Bijl Park Regional
Court matter SH98/2021. The appellant was sentenced on 23 August 2022 in the Van
der Bijl Park Regional Court theft matter.
[2] This meant that in respect of the fraud convictions, the appellant was
sentenced to a total of 15 (fifteen) years' direct imprisonmen t of which 5 (five) years
would run concurrently with his current sentence for theft, with the result that the
appellant was required to serve 10 (ten) years' imprisonment which would commence
after he concluded the 15 years theft sentence.
2
[3] The appellant was legally represented during the Regional Court matter and
elected to plead guilty to all five counts of fraud, in terms of section 112(2) of the CPA.
The Regional magistrate summarily convicted him after the plea of guilty. It is noted
that the Criminal Law Amendment Act 105 of 1997 (CLA) did not apply to the fraud
charges.
The charges
[4] The appellant was arrested on 3 November 2022. The five charges against him
are summarized as follows:
Count 1 - During September 2020, the appellant trading as Gary Rule Motors,
a second-hand motor dealership in Mossel Bay, sold a Suzuki to the
complainant, Andre Groenewald, and/or his daughter Buelah Dryer for
R144,000. He also received another vehicle in lieu of payment valued at
R38,000 from the complainant. The agreement was that the appellant would
settle the outstanding balance with the banking institution and provide the
Suzuki's registration papers to the complainants. In truth and in fact, the
appellant failed to do so; instead, he used the money for his own personal or
business use and so caused both complainants direct prejudice in the amount
of R144,000.
Count 2 - The appellant was charged with fraud in that on 26 January 2021 and
at his motor dealership, he unlawfully and with the intention to defraud Nicolaas
Koen and/or Hendrik Schrader pretended that he would sell a Mercedes-Benz
motor vehicle on behalf of the complainant for an amount of R285 000 and on
receipt of the funds, would pay over the amount into the complainant's bank
account. The appellant sold the vehicle to Mr Schrader and received payment
of R290 000 from a banking institution on behalf of the former. The appellant
failed to pay the R285 000 over to Mr Koen and handed the registration papers
3
over to the bank. The appellant had no intention of paying Mr Koen and used
the money for his business.
Count 3 - The appellant represented to the complainants, namely Pieter
Rudolph Strydom, BAJ Auto Investments (Pty) Ltd, Chari Young and/or Myron
Bruinders that he was legally entitled to sell a VW Kombi motor vehicle to Mr.
Young, which had previously belonged to Mr. Bruinders. In truth and fact, the
VW Kombi was the property of BAJ Auto Investments and/o.r Mr Strydom, who
had settled Mr Bruinders' MFC finance account of R168 294, 80. By acting in
this fashion, the appellant caused Mr Strydom financial prejudice the tune of
R168 924,80. The appellant used the money for his motor dealer business 1•
Count 4 - On 25 October 2021 at the appellant's motor dealership, he unlawfully
and intentionally defrauded the complainant Nicolene Grobler by pretending
that he would sell her VW Golf and then use the proceeds of the sale as a
deposit for another vehicle that he would facilitate for her. In truth and fact, the
appellant never intended to pay over the proceeds of the sale of her vehicle
and instead used the money for his personal use and endeavours, causing her
to suffer an actual loss of R40 000.
Count 5 - On 24 November 2021, the appellant unlawfully, and with the intention
to defraud Marlene Roux, pretended that he would deliver a BMW X5 motor
vehicle upon payment of the purchase price of R185 000. The complainant paid
the amount into his bank account, and he unlawfully failed to source, purchase
and deliver the vehicle to her, and failed to refund the amount to the
complainant. The appellant used the money for his own endeavours and
purposes.
1 The plea sketches an elaborate scheme which also included another vehic le. For the sake of brevity,
the further detail regarding count 3 is not included in this judgment.
4
Previous convictions
[5] The State proved the following previous convictions against the appellant:
17 August 2014 - assault - sentenced to R1000 or 60 days' imprisonment;
23 August 2022 - two counts of theft - sentenced to 15 years' imprisonment by
the Van der Bijl Park Regional Court.2
Pre-sentencing report, appellant's apology and sentencing options
[6] A probation officer's report was obtained prior to sentencing and dealt in depth
with the appellant's personal circumstances, his attitude towards the offences, the
impact on the victims, sentencing options and a recommendation as to the most
suitable sentence. In order not to unnecessarily burden this judgment, I summarize
the salient aspects of the probation officer's report below.
[7] The appellant was born in 1980 and hails from Uitenhage in the Eastern Cape.
He is one of four siblings and completed his primary schooling in Uitenhage and
thereafter attended high school in Beaufort West. He moved to Mossel Bay during
201 O to start a second-hand car dealership business. He is married and has a son
aged 15 years at the time of his conviction. The appellant's family is Afrikaans middle
class. His monthly expenses were estimated at R35 000, but his wife informed the
probation officer that the family's monthly expenses totalled R25 000.
[8] The appellant was the sole breadwinner, the owner of Gary Rule Motors in
Mossel Bay and regarded as a good provider prior to his incarceration. As a result of
his imprisonment, the family suffered financially. It is noted that according to the record,
2 Count 1 -10 years· imprisonment; count 2 - 5 years' imprisonment
5
the appellant's wife was employed at the time of sentencing, but no details were
provided regarding such employment. The appellant was healthy, psychologically
sound and had no previous history of drug or alcohol abuse.
[9] As for his motor dealership, information provided to the probation officer
indicates that the business closed due to the challenges experienced during the
COVID-19 pandemic, which led to financial hardships, causing the appellant to commit
fraud. The appellant confirmed to the probation officer that he was aware that the
charges were serious, and that he was currently3 serving a sentence on a similar
offence.
[1 O] The appellant pleaded guilty because he knew that his actions were wrongful
but emphasised that the offences were committed to rescue his failing business, which
suffered financial losses during 2020-2021. The car dealership had to close for five
months, and he decided to take a chance to make extra cash by selling vehicles on
behalf of people who wanted their vehicles sold and used the proceeds of these sales
to pay the business debts. In addition, he took deposits from customers who
purchased vehicles and used the money to invest in his business.
[11] The probation officer's report indicates that the appellant expressed an apology
to the victims and asked for forgiveness for his actions. He wished the Court to impose
a sentence upon him which would run concurrently with the 15-year sentence for theft.
[12] As for the impact of the appellant's crimes on his victims, Mr Groenewald was
a pensioner whose only source of income was his pension. He had difficulty explaining
to his daughter how the R144 000 was "lost". He wished for the appellant to refund
him and to spend a long period in prison. Mr Strydom was severely affected by the
appellant's criminal conduct, to the extent that his family, business and employees
3 At the time of sentencing in the fraud matters
6
suffered. As a result of the appellant's actions, he lost over R1 million and his business,
BAJ Auto Investments had not recovered from the impact of such financial loss at the
time of his interview with the probation officer. He too called on a long period of
imprisonment as a sentence option for the appellant.
[13] Ms Grobler, the complainant in count 4, expressed that she felt very emotional
when she thought of the appellant's actions: because of his conduct, she was in
possession of a car that did not work and had to spend more money on trying to fix
the vehicle. She was single and unemployed and relied on her parents for financial
assistance. Her view was that the appellant deserved a lengthy period of
imprisonment.
[14] The probation officer's assessment indicates that the appellant was a good
provider for his family and portrayed himself as a responsible person with financial
responsibilities. The officer called on the Court a quo to be mindful that the appellant
was serving a long period of imprisonment for theft and therefore could not support his
family financially.
[15] According to the probation officer, the appellant appeared remorseful and took
responsibility for the crimes in that he had pleaded guilty. This demonstrated that he
was prepared to deal with the consequences of his actions. The officer's view was that
the reasons or motive for the fraud would provide closure to victims in the matter. The
Court was left to evaluate if the perceived remorse noted by the probation officer was
genuine, or whether the apology to the victims was as a result of the State's
overwhelming evidence against him that would have secured a conviction.
[16] The probation officer considered the principles of restorative justice and the
various sentencing options. A community-based sentence was ruled out because of
the seriousness of the crimes and because it would be inappropriate as the appellant
was serving a sentence. Similarly, a restorative justice sentence in the form of a group
7
confidence was also not recommended because the Court could decide on the
sentence and the victims had expressed views that they wished that the appellant
refunds them and receives a direct imprisonment sentence.
[17] Furthermore, a fine, suspended sentence and correctional supervision were
also not recommended because of the serious nature of the offences and the fact that
the appellant was already serving a sentence. To this end, the appellant's wife stated
that she was willing to co-operate with correctional services and be responsible for the
appellant when he was out on correctional supervision. Ultimately, the probation
officer's view was that direct imprisonment could be considered suitable as the
appellant was convicted of five offences of fraud.se which had a prescribed minimum
sentence, including direct imprisonment.4
Judgment of the Court a quo
[18] The Regional magistrate's judgment indicates that he paid due regard to the
content of the probation officer's report, the aims of sentence, the Zinn triad and the
need for sentencing to strike a balance in respect of the personal circumstances of the
appellant, the interests of society and the seriousness of the offences. The judgment
took account of the effect of the COVID-19 pandemic on the lives of citizens and the
economic crisis which ensued as many businesses, including that of the appellant,
suffered under the financial strain caused by the lockdown regulations.
[19) Furthermore, the Regional magistrate considered that the appellant was the
sole breadwinner, that his monthly household expenses were between R25 000 to
R35 000, that he was 42 years old, had pleaded guilty and had a minor son aged 15
years. Furthermore, the Court took note that the appellant was serving 15 years'
imprisonment for theft imposed by the Van der Bijl Park Regional Court in 2022. Th
Regional magistrate found that each complainant suffered actual financial loss
Regional magistrate found that each complainant suffered actual financial loss
4 There was a reference to the CLA and applicab ility of minimum sentences, but it was common cause
between the parties that section 51 (2) of the CLA was not applicab le to the five fraud charges.
8
because of the appellant's fraudulent conduct. In total, the actual loss suffered by the
five complainants was more than R800 000.
(20] The Court a quo emphasised the prevalence of fraud matters on its daily Court
roll and recognised that the provisions of section 51(2) of the CLA and minimum
sentences did not find application. Furthermore, the Court a quo was mindful that
sentencing should not be approached in anger. As for the complainants, the Regional
magistrate correctly held that while Mr Strydom informed the probation officer that his
business suffered a loss of R1 .3 million, the appellant was not charged with fraud to
the extent of an actual loss of R1 .3 million.
(21] In the process of striking a balance between the triad, the aggravating and
mitigating factors and the purpose of punishment, the Regional magistrate recognised
the appellant's role as breadwinner, but also that he was fully aware at the time of
embarking upon each action to defraud the complainants, that they would suffer
financial prejudice or loss were his plans to succeed. Accordingly, the Regional
magistrate questioned whether the appellant was truly remorseful and whether the
facts presented were clear enough as to his motive.
[22] The Court a quo found the appellant to be a first offender in respect of fraud
and that these offences were committed prior to the theft offences. The Court was of
the view that the fact that he pleaded guilty and showed remorse were considered as
mitigating factors. In weighing up sentence options, the Regional magistrate found that
in the circumstances, direct imprisonment was an appropriate sentence as the
appellant was in a position of trust: he was required to conduct business with the
complainants' money, honestly and the impact of the COVID-19 pandemic on the
appellant's' business did not justify his unlawful actions.
9
Grounds of appeal
(23] The grounds of appeal are summarised as follows: (i) the Regional Court failed
to have sufficient regard to the appellant's circumstances, especially that he was a first
offender for fraud and that the crimes were committed during the COVID-19 pandemic
in an attempt to save his business; (ii) the Regional Court over-emphasised the
interests of the community and the negative effecUimpact the crimes had on the
complainants; (iii) the mitigating factors that the offences were not for personal gain
and were committed to save the appellant's business were under-emphasised, and
(iv) in ordering that only 1 year of the 3 years' imprisonment on each count was to run
concurrently with the 15 years' currently being served by the appellant, it fTleant that
the Court a quo failed to take the cumulative effect of the sentence into account,
resulting in the 10 years imposed being shockingly severe and inducing a sense of
outrage.
Discussion and findings
[24] Holmes JA in S v Rabie5 provided a guideline to appeal Courts as to when
interference in the Court a quo's sentence is permissible:
"1. Jn every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal-
(a) should be guided by the principle that punishment is "pre
eminently a matter for the discretion of the trial Court"; and
(b) should be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the discretion
has not been 'Judicially and properly exercised".
2. The test under (b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate."
5 1975 (4) SA 855 (A) at 857D-F
10
[25] Further grounds justifying interference on appeal in the sentencing discretion
of the Court a quo have been described as a sentence so out of proportion to the
magnitude of the offence and a disparate sentence, meaning that no reasonable Court
would have imposed it6. Thus, the extent to which this Court may interfere in the
Regional Court's discretion in imposing sentence is circumscribed.
[26] While the appellant raised four grounds of appeal, at the hearing of the appeal,
the appellant's counsel's submissions were restricted to the cumulative effect of the
sentence. Notwithstanding this, none of the other grounds were formally abandoned,
hence they are discussed below.
[27] It is evident that the Regional magistrate took account that the appellant was
42, self-employed, married, a sole breadwinner, the father of a teenage son and that
his business, Gary Rule Motors, was in operation since 2010. In my view, the criticism
directed at the Court a quo that it failed to have sufficient regard to the appellant's
personal circumstances and that he was a first offender, is unwarranted and without
merit. To clarify, the Regional magistrate recognized that the fraud offences were
committed prior to the theft and treated the appellant as a first offender. It is evident
from the judgment that the appellant obtained the benefit of such approach by the
Court a quo.
[28] The appellant's further ground of appeal is that the commission of the fraud
offences occurred because the appellant wanted to save his financially strapped
business which suffered during the pandemic, and that this should have been viewed
as a mitigating factor7. This ground of appeal is wholly unconvincing for the reasons
which I set forth follow.
6 S v Romer 2011 (2) SACR 153 (SCA) par [22]
7 The Regional Magistrate, while questioning whether the appellant benefitted personally from the
crimes. nonetheless found that the crimes were comm itted during the pandemic to save his business.
11
[29] The appellant was the sole proprietor of a second-hand car dealership
established in 2010. It may thus be generally accepted that by 2020-2021, when he
committed the fraud, his business was well-established and operating for at least 1 O
or 11 years. It is therefore not unreasonable to conclude that Gary Rule Motors would
by then have established a fair reputation in the motor dealership arena in Mossel Bay.
There is certainly no evidence on record that there were issues with the dealership
prior to the onset of the pandemic.
[30] I shall accept, and it is a well-known fact that the COVID-19 pandemic and the
concomitant lockdown regulations imposed throughout the country in terms of the
Disaster Management Act 57 of 2002 affected all citizens and businesses in several
ways. Nobody was left unscathed by the consequences, including large and small
businesses, traders and commercial entities. As one came to discover daily in media
and news reports, the restrictions on businesses often had a long-term economic
impact with the result that many enterprises and small businesses suffered financially.
I shall accept that the appellant's plea and his statements to the probation officer
indicated that Gary Rule Motors also buckled under the impact and effect of the
COVID-19 pandemic and its lockdown regulations.
[31] However, committing fraud - a serious offence - and asking the Court a quo to
accept that such commission, motivated by the financial difficulties experienced due
to the pandemic, should be viewed as a mitigating factor, is a far stretch. The pandemic
and its effect on his motor dealership cannot, in my view, be considered as justification
or a mitigating factor to garner sympathy.
[32] On the contrary, the commission of five counts of fraud during the first year of
COVID-19, perpetrated against complainants who were also constrained by the
lockdown restrictions, is an aggravating factor. To elaborate, Mr Groenewald ( count 1)
lockdown restrictions, is an aggravating factor. To elaborate, Mr Groenewald ( count 1)
was a pensioner: an elderly person who is generally regarded as a vulnerable member
12
of society, deserving of its care and protection, and even more so during the
pandemic8.
[33] Yet the appellant preyed on this unsuspecting pensioner who had paid over
more than R140 000 to the appellant, only to be left empty handed as no vehicle was
handed over to him. Mr Groenewald received money from his daughter and because
of the appellant's deceitful and dishonest actions, he was severely financially
prejudiced as a result. Furthermore, the appellant offered neither a vehicle nor a refund
and it is clear from the record of proceedings and probation officer's report, that there
was no intention to ever refund Mr Groenewald.
[34] Similarly, the appellant's fraud perpetrated against Mr Strydom (count 3) had a
far-reaching effect, as it not only affected him, but also his business, BAJ Auto
Investments (Pty} Limited, his family and the lives of his employees. While no evidence
was led by the State of the R1 ,3 million alleged loss indicated to the probation officer,
all indications are that the appellant's conduct, by using his car dealership to perpetrate
the fraud, prejudiced Mr Strydom in that he suffered an actual financial loss of
R168 924,80. My view is that the appellant's conduct was indicative of someone who
had no regard for the complainants nor their livelihood.
[35] I consider the appellant's actions toward Ms Grobler (count 4} in a similar
serious light. She entrusted him to sell her VW Golf and then use the proceeds as a
deposit for the procurement of another vehicle which he would purchase for her.
Instead, she was left with a vehicle which did/does not work, causing her to borrow
money from her parents as she was single and unemployed. The effect of the
consequences of the fraud was clearly felt by Ms Grobler's parents as well.
8 It is common knowledge that prior to the COVID-19 immunity vaccines, in the early stages of the
pandemic , the very young , elderly and frail citizens were amongst those people more at risk of
contracting the COVID-19 virus
13
[36] The probation officer did not interview the complainants in counts 2 and 5, but
it is clear from the guilty plea and the Regional magistrate's findings that they were
equally victims of the appellant's dishonest scheme. In my view, the appellant's
conduct in relation to all the complainants is reprehensible and his moral blame
worthiness is on the upper scale.
[37] In a clearly orchestrated plan commencing in September 2020 and continuing
through to November 2021, which occurred during the first tumultuous one and a half
years of COVID-19, the appellant set about enriching himself and his business by
defrauding unsuspecting private clients and a business and using his car dealership
as the modus to succeed with his devious plan.
[38] I fully agree with the Regional magistrate and probation officer's views that the
appellant was in a position of trust: he was in possession of large sums of money
entrusted to him and was required to purchase vehicles, settle vehicle financing for
clients and attend to registration of the vehicles. Instead, he defrauded these innocent
victims who trusted him, pocketed their money and made no attempt at all to either
refund them and/or deliver vehicles and/or attend to providing Ms Grobler with a
roadworthy vehicle.
[39] As to whether he used the money personally, I do not agree with the
submission and the Regional magistrate's view that the appellant was not personally
enriched by the R800 000 he obtained from the complainants. He was the sole
proprietor/owner of Gary Rule Motors and through his fraudulent misdeeds and
dishonest conduct, investing in his business meant that as its sole proprietor and
owner, he also enriched himself at the expense of the complainants.
[40] It is notable that the appellant failed to disclose to the probation officer and the
Regional Court the extent of his business's financial difficulties, nor whom he had paid
with the money obtained through his misdeeds, whether a balance remained which
14
could be refunded and why such a large sum was defrauded. In this regard, and
notwithstanding his apology to the victims, the appellant was cagey and certainly did
not take the Court into his confidence. Thus, while he pleaded guilty and took
responsibility for his actions, my view is that genuine remorse was absent. There was
no expressed intention to make amends and repay the victims, and it is unclear why
he would go to such lengths to also prejudice a fellow auto business in the area,
financially.
[41] There is a further aggravating factor. The fraud was not a "once-off' incident.
Indeed, over a period of a year and three months, the appellant committed five
separate actions and in respect of each, had the intention to cause actual and/or
potential prejudice to his victims. The facts indicate that actual prejudice in the form of
substantial financial losses was suffered by the complainants. Simply put, the
appellant did not stop his dishonest conduct after the first crime in September 2020
but continued his duplicitous and cunning actions on four further occasions for more
than a year, unconcerned about the damage and financial prejudice these actions
would have for the complainants. For all of these reasons, his apology only after
conviction is a case of too little, too late.
[42] In my view, the commission of the offences during COVID-19 to ostensibly
save his car dealership is an aggravating factor for the following reasons: the extent
of the actual losses suffered by the complainants; the appellant's modus in that he
used his dealership to commit the fraud; he occupied a position of trust in relation to
his clients and was required to conduct business honestly; and, his failure to attempt
to refund the victims of his fraud.
[43] The only mitigating or positive factors are the appellant's personal
circumstances, his guilty plea and that he was regarded as a first offender. Where I
disagree with the Regional magistrate is that I do not equate his late apology with
disagree with the Regional magistrate is that I do not equate his late apology with
genuine remorse, especially as he failed to take the Court a quo fully into his
15
confidence, as explained above. For these reasons, this ground of appeal cannot
succeed.
[44] The other main ground of appeal is that the Regional Magistrate failed to
consider the cumulative effect of the 10-year sentence which he imposed. The
appellant's legal representative argued that the imposition of such sentence, when the
appellant was serving 15 years for theft, equates to a sentence of life imprisonment,
which is shockingly disproportionate. Counsel explained that the 10 years which he
would serve after the expiration of the 15 years would result cumulatively in 25 years
in prison.
[45] There is no doubt that the Regional Court took the probation officer's report,
sentencing options, the appellant's personal circumstances, and interest of society into
account. I fully agree with the respondent's submission that there is no bar on a Court
sentencing a first offender to direct imprisonment for a serious offence. In this instance,
the Regional Court studiously considered the sentence options and correctly
determined that direct imprisonment was the most suitable in the circumstances. The
Regional magistrate was correct that the interests of the. community and the
seriousness of the offences clearly trumped the appellant's personal circumstances.
[46]' I must point out that while the judgment does not specifically refer thereto, it is
evident that the Court a quo indeed had regard to the appellant's 15-year sentence
which he served for two counts of theft. The last fraud was committed in November
2021, and four months later the appellant was convicted of two counts of theft and
sentenced in the Van der Bijl Park Regional Court in August 2022.
[4 7] A Court must be mindful of the extent of the cumulative effect of the severity of
the sum or total of all its sentences, particularly when there are multiple offences, as
in this case. In S v Mui/ere, Leach JA stated as follows:
9 2012(2} SACR 545 (SCA) par [9]
16
"{9] When dealing with multiple offences. a sentencing court must have regard
to the totality of the offender 's criminal conduct and moral blameworthiness in
determining what effective sentence should be imposed, in order to ensure that
the aggregate penalty is not too severe. In doing so. while punishment and
deterrence indeed come to the fore when imposing sentences for armed
robbery, it must be remembered, as Holmes JA pointed out in his inimitable
style, that mercy, and not a sledgehammer, is the concomitant of iustice. And
while a iudicial officer must not hesitate to be firm when necessary. he should
approach his task with a humane and compassionate understanding of human
frailties and the pressures of society which contribute to criminality. In addition,
although it is in the interest of the general public that a sentence for armed
robbery should act as a deterrent to others, an offender should not be sacrificed
on that altar of deterrence. As Nicholas JA observed in S v Skenjana:
'~ sentence of 20 years' imprisonment is undoubtedly very severe ... My
personal view is that the public interest is not necessarily best served by
the imposition of very long sentences of imprisonment. So far as
deterrence is concerned there is no reason to believe that the deterrent
effect of a prison sentence is always proportionate to its length. Indeed,
it would seem to be likely that in this field there operates a law of
diminishing returns: a post is reached after which additions to the length
of a sentence produce progressively smaller increases in deterrent
effect, so that, for example, the marginal deterrent value of a sentence
of 20 years over one of say 15 years may not be significant.
Nor is it in the public interest that potentially valuable human material
should be seriously damaged by long incarceration. As I observed in S
v Khumalo and Another 1984(3) SA 327 (A) at 331, it is the experience
of prison administrators that unduly prolonged imprisonment brings
of prison administrators that unduly prolonged imprisonment brings
about the complete mental and physical deterioration of the prisoner.
Wrongdoers "must not be visited with punishments to the point of being
broken". (Per Holmes JA in S v Sparks and Another 1972(3) SA 396 (A)
at 410G)'
17
(footnotes omitted)
(my emphasis)
[48] In S v Kruger10, an earlier judgment of the Supreme Court of Appeal (SCA),
the Court held the view that the inappropriateness to order the sentences to run
concurrently because they were committed at different places and times, may be a
consideration, but it cannot justify a Court's failure to consider the cumulative effect of
the total number of years imposed on an accused. It is apparent from these cases that
a Court which imposes an imprisonment sentence should ameliorate the severity of
the sentence it intends imposing for multiple offences by considering the cumulative
effect of the number of years' imprisonment it intends to impose, so as to prevent an
accused from undergoing "an unjustifiably severe sentence. "11 in view of the judgment,
I am satisfied that the Regional magistrate indeed had regard to such principles when
he ordered that one year of each of the three years imposed on each of the five counts,
was to run concurrently with the 15 years' imprisonment which the appellant was
already serving.
[49] In doing so, the Regional magistrate reduced the total of 15 years for fraud to
an actual 10-year period of imprisonment. This indicates that he was mindful of the
appellant's circumstances and lengthy imprisonment term yet provided for retribution
and deterrence by imposing a sentence which also balances the seriousness of the
offences and the interests of the complainants and society .
[50] Furthermore, my view is that in the event that the Regional magistrate had
taken the offences together for purposes of sentencing and so potentially reduced the
punishment further, it would have amounted to an arbitrary and overly sympathetic
approach to the appellant, which would not have achieved the aims of sentencing and
10 2012 (1) SACR 369 para [9] - [10]
11 2022 ( 1) SACR 43 (WCC) para [26)- (28
18
would have relegated the seriousness of the offences to the sidelines. In my view, this
would have amounted to an unbalanced sentence.
[51) Furthermore , the submission that the Regional Court should have ordered the
entire 15 years for the fraud convictions to run concurrently with the 15 years for theft
is unsustainable , because such sentence would have been shockingly inappropriate
in the circumstances of the matter. In such event, the sentence for fraud would also
have elevated the appellant's personal circumstances above the remaining factors of
the triad and would have ignored the aggravating factors listed above in this judgment.
In addition, a concurrent sentence would certainly have sent out a wrong message
that fraud, totalling more than R800 00, only deserves a light rap on the knuckles.
[52] On the contrary, fraud is regarded as a serious offence , and dependent on the
circumstances of the case , warrants the imposition of direct imprisonment, as seen
from the findings by Marais JA in S v Sad/er12:
'111) I am satisfied that the circumstances of this case call for the imposition
of a period of direct imprisonment and that the interests of justice will not be
adequately served by leaving the sentence imposed by Squires J undisturbed.
So called 'white-collar ' crime has. I regret to have to say. often been visited in
South African courts with penalties which are calculated to make the g ame
seem worth the candle. Justifications often advanced for such inadequate
penalties are the classification of 'white-collar' crime as non-violent crime and
its perpetrators (where they are first offenders) as not truly being 'criminals' or
'prison material' bv reason of their often ostensibly respectable histories and
backgrounds. Empty generalisations of that kind are of no help in assessing
appropriate sentences for 'white-collar' crime. Their premise is that prison is
only a place for those who commit crimes of violence and that it is not a place
only a place for those who commit crimes of violence and that it is not a place
for people from 'respectable' backgrounds even if their dishonesty has caused
12 [2000) 2 All SA 121 (A)
19
substantial toss. was resorted to for no other reason than self-enrichment , and
entailed gross breaches of trust.
[12} These are heresies. Nothing will be gained by lending credence to them.
Quite the contrary. The impression that crime of that kind is not regarded by the
courts as seriously beyond the pale and will probabl y not be visited with
rigorous punishment will be fostered and more will be tempted to indulge in it.
[13} It is unnecessary to repeat vet again what this Court has had to sav in the
past about crimes like corruption, forgery and uttering, and fraud. It is sufficient
to say that they are serious crimes the corrosive impact of which upon societ y
is too obvious to require elaboration. In the present case we have a bank official
of some seniority. He was employed specifically to devise and implement a
system to enable the bank to evaluate the creditworthiness of applicants for
bank credit and to eliminate as far as possible the potential losses inherent in
extending credit to persons unlikely to be able to meet their obligations to the
bank. He was given authority by the bank to advance credit himself within given
parameters. "
(my emphasis)
[53] In view of the sentiments expressed in Sadler, it is evident that society calls out
that perpetrators such as the appellant, who breached the complainants' trust,
enriched himself and his business and made no attempt to remedy the financial harm
and prejudice which he caused, must be dealt with strictly and without undue
sympathy. Having regard to the record, the submissions, and the judgment, I am
satisfied that the Regional Court approached the sentencing task in a balanced and
fair manner, mindful of the cumulative effect of the sentence and the possibility of the
appellant's rehabilitation in future. On a conspectus of all these considerations, the
judgment of the Court a quo thus did not fall foul of the SCA's caution in Kruger
regarding the concurrency of a sentence.
regarding the concurrency of a sentence.
[54] Accordingly, I thus find in all the circumstances of the matter that the sentence
imposed on the appellant was neither vitiated by misdirection or irregularity, nor
20
startingly or disturbingly inappropriate, nor disparate. The judgment also does not
induce a sense of outrage. In the result, there is thus no room for this Court to interfere
with the Regional magistrate's exercise of his discretion in respect of sentencing, thus
the appeal should fail.
Post-hearing information
[55] The day after the appeal hearing, the State Advocate provided us with copies
of a judgment, Gary Rule v S, delivered by the Gauteng High Court, Pretoria, on 24
April 202413. This is the appeal judgment against the sentence on theft imposed by
the Van der Bijl Park Regional Court. The judgment indicates that the appellant stole
R835 000 and R230 000 from Mr PR Strydom, whom I presume is the same Mr PR
Strydom in the fraud count 3 in the Mossel Bay matter.
[56] The Gauteng High Court upheld the appeal against the theft sentence and
reduced the appellant's sentence to 6 years on count 1 and 3 years on count 2, which
sentences were to run concurrently and were ante-dated to 23 August 2023, the date
on which the appellant was sentenced by the Van der Bijl Park Regional Court.
(57) I note with respect that there may be an error in the order of the Gauteng High
Court as to the sentence date of the trial Court. According to the appellant's SAP 69s,
the appellant was sentenced in Van der Bijl Park on 23 August 2022, and not on 23
August 2023. In the Mossel Bay matter, the appellant was sentenced on 21 August
202314 .
[58] Regardless, the effect of the Gauteng High Court order is that the appellant's
theft sentence was reduced from 15 years' imprisonment to an effective 6 years'
imprisonment, with the sentences on the two counts to run concurrently. In addition, it
13 Appeal A 169/2023 - Judgment delivered by Khumalo J (Ntanga AJ concurring)
14 My emphasis
21
is antedated to 23 August 2023, meaning that as at even date, the appellant is
regarded as having served at least two years and seven months of the theft sentence.
This is to the benefit of the appellant.
[59] In conclusion, while I note the Gauteng High Court's judgment and order, in
respect of the appeal before us, that order neither influences my findings nor the order
below in respect of the appeal against sentence.
Order
[60] In the result, the following order is granted:
The appeal is dismissed.
JUDGE OF THE HIGH COURT
I agree.
ACTING JUDGE OF THE HIG COURT
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Appearances:
For Appellant:
Instructed by:
For Respondent:
Instructed by:
Ms PAndrews
Legal Aid
CAPE TOWN
Adv L H Ntshokoma
Director of Public Prosecutions
CAPE TOWN
23