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[2019] ZASCA 113
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Kwenda v S (682/2018) [2019] ZASCA 113 (17 September 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 682/2018
In
the matter between:
VICTOR
KWENDA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Victor Kwenda v The State
(682/2018)
[2019] ZASCA 113
(17 September 2019)
Coram:
Maya P, Zondi and Mokgohloa JJA and Dolamo
and Hughes AJJA
Heard:
16 August 2019
Delivered:
17
September
2019
Summary:
Criminal Procedure – Appeal against a refusal to
grant leave to appeal on petition –
Leave
to appeal to the high court was properly refused.
ORDER
On
appeal from:
Gauteng Division of the High
Court, Johannesburg (Mabesele J and Kolbe AJ sitting as a court of
appeal):
The
appeal is dismissed.
JUDGMENT
Hughes
AJA (Maya P, Zondi and Mokgohloa JJA and Dolamo AJA concurring):
[1]
The scourge of white
collar crime, especially fraud, is currently the order of the day in
our country. Fraud is a cancer that is
crippling our country from the
core and takes away from the poorest of the poor. In the case before
us, those severely affected
were about 200 youth from disadvantaged
backgrounds who were robbed of education and apprenticeship
opportunities which would have
enabled them to uplift themselves in
society. Ultimately, these apprenticeships would have enabled them to
attain jobs, which is
a scarce commodity in our country.
[2]
The appellant was
arraigned in the Specialised Commercial Crimes Court Johannesburg, in
the regional division of Gauteng (Regional
Magistrate Venter) on 26
counts of fraud totalling an amount of R4 898 158. 21. Pursuant to a
guilty plea in terms of s 112(2)
of the Criminal Procedure Act 51 of
1977 (the CPA), in respect of all 26 counts read with the provisions
of s 51(2) of the Criminal
Law Amendment Act 105 of 1997 (the CLAA),
he was convicted and sentenced to 20 years imprisonment.
[3]
The appellant
unsuccessfully applied for leave to appeal his sentence in terms of s
309B of the CPA. Subsequently, he petitioned
the Gauteng Division of
the High Court, Johannesburg (Mabesele J and Kolbe AJ) in terms of s
309C of the CPA. His bid was yet again
unsuccessful. Having failed in
both the trial court and the high court, he sought leave to appeal
against the dismissal of the
petition from this Court and, was
successful.
[4]
It
is imperative that from the outset I address the ambit of this
appeal. This Court in
Van
Wyk v S, Galela v S
[1]
endorsed the sentiments expressed in
S
v Matshona
[2]
and
S
v Khoasasa.
[3]
In those cases it was held that where an appellant had been refused
leave to appeal by the high court either on petition (as is
in this
case) or as a result of a decision of two judges presiding over an
appeal, the issue is not the merits of the appeal. It
is rather
whether the high court ought to have granted leave to appeal. In
addressing the issue at hand we are curtailed
to dealing with the
merits only to the extent that it establishes whether the appellant
has reasonable prospects of success to
be granted leave.
[4]
[5]
As regards what
constitutes ‘reasonable prospects of success’ Plasket AJA
in
S v
Smith
describes it concisely:
‘
What the
test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
court of appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.
[5]
’
[6]
It is necessary to
set out the facts of this case in a little more detail than it is
usual for cases of this nature, purely to highlight
the gravity of
the fraud committed by the appellant. The complainant was a Sector
Education and Training Authority in the Manufacturing,
Engineering
and Related Services sector, known as MERSETA. MERSETA was tasked
with the facilitation of skills development in four
industries,
namely; Metal and Engineering, Auto Manufacturing, Motor Retail and
Component Manufacturing,
Tyre
Manufacturing
and
Plastic Industries.
[7]
In terms of the
Skills Development Act 97 of 1998
, MERSETA’s function is to
promote economic and employment growth within the specified
industries set out above, redress inequalities
in education and
training and facilitate and advance employment equity in those
industries. This they achieve by establishing learnership
programmes
and approving workplace skills plans; allocating grants to employers,
education and training providers and employees;
and monitoring
education and training in those specific sectors.
[8]
The appellant
commenced his employment with MERSETA on 17 March 2008 and ascended
in the ranks within the agency. At the time of
his resignation, on 31
July 2010, he held the position of Grants and Levies Administrator,
earning a salary of R16 000 per month.
One of his duties was to
upload the banking details of beneficiaries of MERSETA onto its
payment system for payment to those beneficiaries.
[9]
During the course of
his employment he uploaded two fraudulent First National Bank (FNB)
account details and replaced the true account
details of the various
beneficiaries of the grants. This was achieved with the assistance of
his co-accused who had a contact person
that worked at FNB. This
contact facilitated the production of false letters purporting to be
from FNB advising MERSETA of the
amended banking details of the
various beneficiaries.
[10]
Thus, instead of the
beneficiaries receiving the grants due to them, these were
transferred into the two fraudulent FNB accounts.
The account holder
of these fraudulent accounts was, BIU Trading CC, an entity owned by
the appellant’s co-accused, which
was not a beneficiary of
MERSETA.
[11]
According to the
schedule depicting the fraudulent transactions, which was attached to
the charge sheet, nine of the 26 counts fell
within the purview of
s
51(2)
of the CLAA. Of the nine, three involved amounts exceeding R500
000 and one was a single fraudulent transaction in the sum of R1
364
070.64. The other 17 counts involved transactions which were under
R100 000.
[12]
As some of the
offences with which the appellant was charged were subject to the
provisions of
s 51(2)
of the CLAA the trial court was obliged upon
convicting the appellant to impose the minimum sentences prescribed
for those offences
unless it found there were substantial and
compelling circumstances justifying it to deviate from imposing the
prescribed sentences.
The trial court found no such circumstances.
[13]
The trial court
accordingly imposed the following sentences in respect of the 26
counts of fraud:
(i)
For counts
1,2,3,4,7,8,14,19 and 25, a sentence of 15 years imprisonment for
each count was imposed, in terms of
s 51(2)
;
(ii)
Counts
5,6,9-13,15,18,20-24, and 26 were taken together for purpose of
sentencing and a sentence of 15 years imprisonment was imposed;
(iii)
Considering the
cumulative effect of punishment in terms of
s 280(2)
of the CPA the
trial court ordered that all the sentences except for that of count
14 would run concurrently with the sentence
in count 1, being 15
years imprisonment;
(iv)
For count 14
the trial court ordered that only 10 years of the 15 years imposed
would run concurrently with the sentence imposed
in
count 1;
(v)
Thus, the sentence
to be served was 20 years imprisonment.
[14]
The question is
whether the trial court’s finding that the appellant’s
personal circumstances did not constitute substantial
and compelling
circumstances to justify it to deviate from imposing lesser
sentences, constituted a misdirection entitling this
court to
interfere in the exercise of its discretion. This court held in
S
v Malgas
:
‘
[14] When
applying the provisions of
s 51
a trial court is not in appellate
mode. It is not confronted by a prior exercise of judicial discretion
attuned to the particular
circumstances of the case and which is
prima
facie
to
be respected. Instead, it is faced with a generalised statutory
injunction to impose a particular sentence which injunction rests,
not upon all the circumstances of the case including the personal
circumstances of the offender, but simply upon whether or not
the
crime falls within the specific categories spelt out in Schedule 2.
Concomitantly, there is a provision which vests the sentencing
court
with the power, indeed the obligation, to consider whether the
particular circumstances of the case require a different sentence
to
be imposed. And a different sentence must be imposed if the court is
satisfied that substantial and compelling circumstances
exist which
‘
justify’
(my emphasis) it. In considering that question the trial court is
doing so for the first time. There has been no prior consideration
of
the particular circumstances of the case by either the Legislature or
another court. There is thus no justification for arbitrarily
importing into the exercise a test which was evolved in a very
different context and which was designed to serve a very different
purpose.’
[6]
[15]
On appeal before us,
counsel for the appellant, submitted that the trial court misdirected
itself as it failed to take cognisance
of the fact that the appellant
had pleaded guilty; had made an offer to repay the funds prior to the
matter going to court, which
offer was not accepted; presented a
payment plan at the sentencing stage and that appellant was a first
offender who was remorseful
for his actions. It was further submitted
that the trial court misdirected itself in applying the minimum
sentence and failed to
take into account the parity in sentences
imposed for this type of offence.
[16]
On the other hand,
counsel for the State, argued
that the trial court did
not commit a misdirection because the effective sentence was not
strikingly or shockingly inappropriate
and the prescribed minimum
sentence imposed was appropriate in the circumstances. He further
contended that the trial court
struck
a judicious counter-balance between the personal circumstances of the
appellant, the seriousness of the offence and the interest
of society
and did not overemphasise one at the expense of the other.
[17]
The
sentence imposed by the trial court is prescribed by
s 51(2)
of the
CLAA as the minimum sentence and to deviate therefrom would require
substantial and compelling circumstances.
[7]
The factors advanced in mitigation of sentence by the appellant were
general factors. As such, in my view, no substantial and compelling
circumstances were submitted to deviate from the imposition of the
prescribed minimum sentence. The payment plan offered by the
appellant was succinctly addressed by the trial court which rightly
concluded that its acceptance would have required a non-custodial
sentence to be imposed to operate optimally. The appellant having
resigned continued to benefit even though he was no longer in
the
employ of the complainant. Thus, in my view, he cannot cry foul with
regards to the finding that he did not show remorse. The
remorse
should have in fact set in at his resignation and not when he was
fortuitously caught, several months after leaving MERSETA.
[18]
I am not satisfied
therefore that the trial court misdirected itself in not finding that
the appellant’s personal circumstances
constituted substantial
and compelling circumstances which would have justified it to deviate
from imposing the prescribed minimum
sentence. The appeal must fail
as the appellant failed to show that there are reasonable prospects
of success on appeal.
[19]
In the result :
The
appeal is dismissed.
___________________
W
Hughes
Acting
Judge of Appeal
APPEARANCES
For
the Appellant: C De Beer
Instructed
by: Van Der Westhuizen & Associates, Johannesburg
Symington
De Kok, Bloemfontein
For
the Respondent: S J Bhengu
Instructed
by: The Director of Public Prosecution, Johannesburg
The
Director of Public Prosecutions, Bloemfontein
[1]
Van
Wyk v S, Galela v S
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA);
[2014] 4 All SA 708
(SCA)
para 13 – 14.
[2]
S
v Matshona
[2008] ZASCA 58
;
2013 (2) SACR 126
(SCA) para 5.
[3]
S
v Khoasasa
2003 (1) SACR 123
(SCA);
[2002] 4 All SA 635
(SCA) para 14.
[4]
S
v Smith
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) para 3.
[5]
Smith
para
7.
[6]
S
v Malgas
2001
(1) SACR 469
(SCA);
[2001] 3 All SA 220
(A) para 14.
[7]
Malgas
para 9.