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[2018] ZASCA 114
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Maleka v S (1209/2017) [2018] ZASCA 114 (18 September 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 1209/2017
In
the matter between:
KUTLUOANO
URIAH
MALEKA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Maleka v The State
(1209/2017) ZASCA 114 (18 September
2018)
Coram:
Ponnan, Tshiqi and Mbha JJA
Heard:
15 August 2018
Delivered:
18 September 2018
Summary
:
Criminal law and procedure – sentence – appellant
convicted on 29 counts of theft and sentenced to 15 years’
imprisonment – appeal against sentence – leave to appeal
refused by trial court – petition in terms of s 309
of the
Criminal Procedure Act refused by the high court – special
leave to appeal against the refusal of that petition.
ORDER
On
appeal from:
Gauteng Local Division of
the High Court, Johannesburg (Monama J and Petersen AJ) sitting as
court of appeal:
The
appeal is dismissed.
JUDGMENT
Mbha
JA (Ponnan and Tshiqi JJA concurring):
[1]
The appellant was arraigned before the Regional Court for the
Regional Division of Gauteng, held at the Specialised Commercial
Crimes Court, Johannesburg on 29 counts of fraud, alternatively
theft, further alternatively contravening ss 11(1) and 11(2) of
the
Banks Act 94 of 1990 and s 7(3) read with
ss 1
,
8
and
36
of the
Financial Advisory and Intermediary Services Act 37 of 2002
.
[2]
The appellant pleaded guilty and was duly convicted of the 29
alternative counts of theft. Those were taken together for the
purpose of sentence and the appellant was sentenced to 15 years’
imprisonment. The appellant’s application to the trial
court in
terms of s 309B of the Criminal Procedure Act 51 of 1977 (the CPA)
for leave to appeal against sentence was dismissed.
The appellant
then petitioned the Gauteng Local Division, Johannesburg, for leave
to appeal in terms of s 309C(2) of the CPA. His
petition was
dismissed.
[3]
The appellant thereupon petitioned this court in terms of s 16(1)
(b)
of the Superior Courts Act 10 of 2013 (the Act)
[1]
for special
leave to appeal the high court’s order dismissing his petition.
The two judges, who considered the appellant’s
petition in
chambers, granted the appellant special leave to appeal against the
dismissal of his petition.
[4]
Accordingly, what this court has to decide is whether or not the high
court was correct in dismissing the appellant’s
petition to it.
If that court erred, then this court must set aside the order of the
high court; grant the appellant leave to appeal
and refer the matter
back to that court to hear the appeal on its merits. That requires a
consideration of whether or not the appellant
enjoys reasonable
prospects in his proposed appeal to the high court against sentence.
[5]
The background facts are set out in the statement by the appellant in
terms of s 112(2) of the CPA.
[6]
The appellant incorporated a company, Titus Industries (Pty) Ltd,
with company registration number 2011/127978/07 of which he
was a
director. Thereafter the appellant approached members of the public,
to wit the persons listed in the charge sheet, and invited
them to
invest their moneys with him and his aforesaid company, with a
promise that such investments would yield guaranteed returns
at
specific times. After such invitation, the appellant furnished the
would-be investors with two account numbers, being a Standard
Bank
account number […] and a Nedbank account […], into
which their investments had to be deposited. The complainants
paid
various amounts into the appellant’s aforementioned bank
accounts on the dates reflected in the charge sheet. The total
amount
that was paid into the accused’s aforesaid accounts is R1 877
200. Of this amount, the appellant appropriated
approximately R280
000 as a deposit to purchase a luxury motor vehicle ie a Jaguar F
model, whilst the rest was spent on trips
and to purchase other
luxury items.
[7]
At the time when the appellant met with and invited the complainants
to invest their moneys with him and his company, he knew
that neither
he nor his company would invest the moneys on the complainants’
behalf and that the complainants would not receive
the returns as
promised. His intention was to permanently deprive the complainants
of their moneys in an unlawful manner in order
to utilise it for his
own needs.
[8]
In his statement in terms of s 112(2) of the Act, the appellant
admitted that the complainants suffered actual prejudice as
a result
of his unlawful and wrongful conduct. He expressed regret for his
conduct and that he was willing to repay the moneys
to the
complainants. He also said that he had deposited R80 000 into
his attorney’s trust account and undertook to make
available a
further R500 000 to reimburse the complainants.
[9]
Mr Van Schalkwyk, appearing for the appellant, submitted that the
regional magistrate exercised his discretion unreasonably
in imposing
a sentence of 15 years’ imprisonment and should have imposed a
community based sentence, alternatively should
have suspended part of
the sentence of imprisonment imposed. He further submitted that the
regional magistrate accorded undue weight
to the aspects of
deterrence and retribution, and failed to consider the appellant’s
relative youthfulness and prospects
of rehabilitation in light of the
fact that he was a first offender. In addition, the regional
magistrate ought to have considered
correctional supervision coupled
with restitution to the complainants as an alternative sentencing
option.
[10]
It is trite that the imposition of sentence is pre-eminently a matter
falling within the discretion of the trial court. This
principle was
aptly described by E M Grosskopf JA in
S v Blank
1995 (1) SACR
62
(A) as follows:
‘
It
has repeatedly been emphasised 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 553E-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 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”.’
[11]
I am not satisfied that the magistrate did not properly exercise the
sentencing discretion in this case. At the commencement
of his
judgment on sentencing, the regional magistrate asserted that he was
going to be guided by the well-known triad set out
in
S
v Zinn
[2]
namely, the
personal circumstances of the accused, the seriousness of the
offence, and the interests of society. He also precisely
set out the
purposes of punishment as being deterrence, preventative, reformative
and retributive. The regional magistrate then
took into consideration
the fact that the appellant was a young person and was 21 years old
when he committed the offences, that
he was a first offender, that he
pleaded guilty to the offences and that he was single with no
dependants.
[12]
The regional magistrate also took into account the following
pertinent facts namely, that the losses were substantial and in
fact
only a negligible amount had been repaid to each of the complainants,
that the offences were well planned amounting to what
the regional
magistrate appropriately identified as a pyramid scheme, that the
offences were committed over a protracted period
of time, that the
appellant at no stage considered stopping the commission of the
offences and that he had not displayed genuine
remorse for his
conduct. Furthermore, some of the persons the appellant had targeted
were vulnerable, elderly pensioners. To make
matters worse, some of
the complainants were related to him. What aggravates the matter is
that the offences, pre-meditated as
they were, were actuated by greed
and the illicit gains were used to buy a luxurious Jaguar motor
vehicle, other unspecified luxurious
items and were spent on trips.
[13]
The record shows that the regional magistrate also gave due
consideration to the undertaking the appellant had made to reimburse
the complainants. In this regard, one of the complainants Ms Theodora
Mtembu, who testified in aggravation of sentence, expressed
the wish
that the appellant should compensate her for her loss. It is common
cause that the matter was postponed on several occasions
to afford
the appellant an opportunity to repay the stolen money. However, all
promises to repay by the appellant amounted to nought
and in fact
proved him to be a pathetic and dishonest liar. On one occasion his
attorney informed the court that the appellant
told her that he had
deposited R1 million into her trust account but when she went to
check with her bank, she discovered this
was not true. On another
occasion the appellant deposited a cheque of R322 000 into her
trust account which was later dishonoured.
Small wonder that
ultimately the regional magistrate made the finding, in reference to
the appellant, that ‘… the
person standing in front of
this court, is a very, very dishonest person’.
[14]
It follows from what I have said that there are no reasonable
prospects of the proposed appeal against sentence succeeding.
The
appeal is accordingly dismissed.
_______________
B H Mbha
Judge
of Appeal
APPEARANCES:
For
Appellant: J O van Schalkwyk
Instructed
by: BDK Attorneys, Johannesburg
c/o
Symington de Kok, Bloemfontein
For
First Respondent: B C Chauke
Instructed
by: The Director of Public Prosecutions, Johannesburg
c/o
The Director of Public Prosecutions, Bloemfontein
[1]
‘Section 16 (1) Subject to section 1 (1), the Constitution and
any other law-
…
(b) an appeal against any decision of
a Division on appeal to it, lies to the Supreme Court of Appeal upon
special leave having
being granted by the Supreme Court of Appeal
….’
[2]
S v Zinn
1969 (2) SA 537
(A) at 540.