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[2013] ZAWCHC 134
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National Director of Public Prosecutions v Fielies (A338/12) [2013] ZAWCHC 134 (21 May 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Case No: A338/12
In the matter between:
THE DIRECTOR OF PUBLIC PROSECUTIONS
CAPE OF GOOD
HOPE
.................................................................................................
Appellant
and
DENVOR PAUL
FIELIES
...........................................................................................
Respondent
___________________________________________________________________
JUDGMENT delivered on
21 May 2013
BOQWANA AJ
Introduction
[1] The respondent was
charged with 39 counts of corruption in terms of section 4(1) of the
Prevention and Combating of Corrupt
Activities Act, Act No. 12 of
2004 (‘the POCCA Act’) . He pleaded guilty to all 39
charges in terms of Section 112
(2) of the Criminal Procedure Act,
Act 51 of 1977 (‘Criminal Procedure Act’) and was on 25
October 2010 sentenced to
a fine of R60 000, payment whereof was
deferred to 31 December 2010 in terms of section 297(5) of the
Criminal Procedure Act,
or two years imprisonment in default of
payment. He was sentenced to a further twelve months imprisonment
suspended for five years
on condition that the he was not convicted
of fraud, theft or any contravention of the POCCA Act during the
period of suspension.
[2] The Director of
Public Prosecutions (‘the appellant’) thereupon sought
and obtained leave from this Court in terms
of section 310A(1) of the
Criminal Procedure Act to appeal against the sentence.
[3] The brief facts of
this case are that, during the period of July 2005 and August 2007,
the respondent in his capacity as Head
of Streets, Storm Water, Parks
and Resorts at Hessequa Municipality (‘the municipality’)
awarded tenders to one Paul
Fischer (‘Fischer’) and/or
his company amounting to R649 827.50 over a period of 2 years
contrary to the municipality’s
procurement policy. He also
assisted Fischer in drawing up the quotations to ensure that his
company was the successful bidder.
The respondent admitted that he
was instrumental in the execution of this corrupt relationship
between himself and Fischer. For
awarding these irregular contracts
the respondent received kickbacks amounting to R350 000.00.
[4] The appellant’s
grounds for appeal are essentially that the magistrate misdirected
himself by imposing such a lenient
sentence. It is submitted on
behalf of the appellant that the magistrate failed to consider the
interests of the community, the
gravity of the offence and personal
circumstances in a balanced manner. The sentence he imposed according
to the appellant was
strikingly inappropriate and unduly lenient such
that it induces a sense of shock. Counsel for the appellant submits
further that
the magistrate misdirected himself in how he calculated
the fine that is payable.
[5] The crime committed
by the respondent falls under a category of white collar crimes. It
is therefore important to look at how
these types of crime are
generally viewed by the Courts. In
S v Sadler
2000 (1) SACR 331
(SCA) at 335G - 336B
, Marais JA said the following:
“
[11] ….
So-called 'white-collar' crime has, I regret to have to say, often
been visited in South African courts with
penalties that are
calculated to make the game 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' by 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 for people from
'respectable' backgrounds even if their
dishonesty has caused
substantial loss, 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 probably
not be visited with rigorous punishment
will be fostered and more
will be tempted to indulge in it.
[13]
It is unnecessary to repeat again what this Court has had to say in
the past about crimes like corruption,
forgery and uttering, and
fraud. It is sufficient to say that they are serious crimes the
corrosive effect of which upon society
is too obvious to require
elaboration...”
[6] In the
Sadler
case the respondent was a senior manager in NBS Corporate Bank. In
order to ensure that certain persons received advances from
the bank
he either deliberately concealed the true extent of the bank’s
exposure to those persons and falsely represented
it to be less than
what it was or placed false and misleading information before the
bank. In one instance he forged a signature
of one of the directors
of the bank upon a document in order to induce others in the bank to
sanction an advance which would otherwise
not have been made. As
quid
pro quo
he received luxury goods and a large loan worth
R400 000.00 on favourable terms. The trial court imposed
sentences in the range
of two to five years wholly suspended a fine
of R500 000.00 and 1000 hours worth of community service.
[7] The Court there
concluded that a case like that called for the imposition of a period
of direct imprisonment and that the trial
court’s sentence
could not be left undisturbed. Marais JA subsequently echoed these
sentiments in
S v Makhudu
2003 (1) SACR 500
(SCA)
where he
said (at paragraph 13):
‘
White collar
crime had become notoriously prevalent and Courts of high authority
had lamented a tendency on the part of some courts
to impose
sentences which were rightly generally regarded as being too lenient’
[8] In
S v Shaik
2007
(1) SA 247
(SCA)
the SCA stated at paragraph 223 that:
‘
The
seriousness of the offence of corruption cannot be overemphasised. .
. . It lowers the moral tone of a nation and negatively
affects
development and the promotion of human rights. As a country we have
travelled a long and tortuous road to achieve democracy.
Corruption
threatens our constitutional order. We must make every effort to
ensure that corruption with its putrefying effects
is haltered.
Courts must send out an unequivocal message that corruption will not
be tolerated and that punishment will be appropriately
severe.’
[9] Returning to this
case. The magistrate in his reasoning towards sentencing clearly
mentioned the seriousness of the offence
committed by the respondent
and how the conduct of the respondent being a person who held a
position of trust impacted on the community
and the country. In
deciding on a sentence to be imposed he however did not appropriately
balance all the factors taken together.
In my view he overemphasised
the respondent’s personal circumstances, the fact that he was a
first offender and the fact
that he pleaded guilty to all the
charges. The magistrate concluded that the respondent had a young
family to support and a term
of direct imprisonment was not the only
appropriate sentence that could be imposed. The court considered that
a fine with a suspended
sentence would be appropriate having,
inter
alia
, considered that the appellant had paid back the amount he
received as kickbacks to the municipality.
[10] In
S v Swart
2004
(2) SACR 370
(SCA)
at paragraph 12 the court held as follows:
‘
What appears
from those cases is that in our law retribution and deterrence are
proper purposes of punishment and they must be accorded
due weight in
any sentence that is imposed. Each of the elements of punishment is
not required to be accorded equal weight, but
instead proper weight
must be accorded to each according to the circumstances. Serious
crimes will usually require that retribution
and deterrence should
come to the fore and that the rehabilitation of the offender will
consequently play a relatively smaller
role.’
[11] The appellant
referred us to a number of decisions dealing with similar offences,
where the perpetrators were subjected to
direct imprisonment.
Although this Court is not bound by those decisions, they serve as a
guide on how our courts have treated
cases of corruption having
regard to the prevalence of white collar crime in society.
Perpetrators would in many instances be people
who are not destitute
but who are earning decent salaries or enjoying decent lifestyles.
They may be able to avoid terms of imprisonment
by simply paying back
the money owed to the complainant and fines imposed by the court.
Such an approach in sentencing lacks a
deterrent element and could
send a wrong message to society as it provides no disincentive to the
perpetrators of these crimes.
In this regard see
R v Mochebelele
and another
2010 (1) SACR 577
(LesA).
This is not to downplay the
other factors that have been taken into account in the respondent’s
favour that I have already
referred to.
[12] Counsel for the
respondent submitted that interference with sentence in this case
would result in disparity of sentences imposed
in respect of two
accused who participated in the same offence. In his view, this Court
is enjoined to have regard to the sentence
imposed by the same
magistrate in a separate trial involving Fischer, the respondent’s
co-accused, where Fischer was also
given a non-custodial sentence.
The approach advanced by Mr Swartz is not correct in my view for a
number of reasons. Firstly,
the fact that Fischer received a
non-custodial sentence cannot bar this Court from interfering with
the sentence imposed on the
respondent which the Court views to be
disturbingly inappropriate. In
S v Giannoulis 1975 (4) 867 AD
at 871A, the court stated as follows:
‘
The
mere fact that accused A may have been fortunate in getting off
lightly, will not necessarily mean that appellant B was unduly
punished’
[13] Secondly, the
personal factors of the two individuals and their level of
participation in the committal of the crime is not
the same. The
respondent held a position of a public officer who abused his
position of trust and authority. He admitted to being
the initiator
of this corrupt relationship and the executor of these unlawful
actions. The level of participation between the respondent
and
Fischer and the positions they held were clearly not the same.
Thirdly, their personal circumstances were different. The respondent
was 37 years old at the time of sentencing, younger than Fischer who
was 69 years old which is a factor that could also justify
imposition
of a different sentence in respect of Fischer. For these reasons the
respondent’s submission in relation to the
disparity of
sentences is rejected.
[14] In light of these
factors my view is that the sentencing magistrate erred by not
imposing an effective term of imprisonment
in these circumstances.
The sentence he imposed was too lenient and not in keeping with the
general sentencing approach followed
by the courts in white collar
crimes. My view is that the sentence is disturbingly inappropriate
warranting this Court’s
interference by substituting an
unsuspended period of imprisonment for the sentence imposed by the
magistrate. The fine that was
imposed could be repaid to the
respondent.
[15] In the circumstances
I propose an order in the following terms:
The appeal is upheld and
the sentence imposed by the magistrate is set aside and replaced with
the following:
The accused is sentenced
to 5 (five) years imprisonment of which 2 (two) years is suspended
for a period of 5 years on condition
that he is not convicted of
fraud, theft or any contravention of the Prevention and Combating of
Corrupt Activities Act, Act No.
12 of 2004 committed during the
period of suspension, all such counts being taken together for
purposes of sentence.
___________________________
N P BOQWANA
Acting Judge of the High
Court
I agree, and it is so
ordered
___________________________
B M GRIESEL
Judge of the High Court
Counsel
for the Applicant
:
Adv. J Agulhas
State
Advocate
Instructing
Attorneys
: (no instructing attorneys)
Counsel
for Respondent
:
Mr T Swartz
Attorney
Instructing
Attorneys
: T. Swartz Attorneys
Tygerberg
Centre
16
Voortrekker Road
Bellville,
7530
Dates
of hearing
: 12 April 2013
Date
of judgment
: 21 May 2013