S v Kok

• Jurisdiction: South Africa
• Judge: Henney J and Le Grange J
• Judgment Date: 02 July 2014
• Citation: 2015 (2) SACR 637 (WCC)
• Docket Number: WRC 85/2009
• Hearing Date: 02 July 2014
• Counsel: Information not supplied
• Court: Western Cape Division, Cape Town

Henney J (Le Grange J concurring):

Background C

[1] This is a special review in terms of the provisions of s 304(4) of the Criminal Procedure Act 51 of 1977 (the Act). This matter was referred to the High Court directly by the accused who was incarcerated in the Worcester Correctional Services Centre. He was convicted on a charge of theft of R98 668,98 [1] on 20 June 2012 D and was sentenced on 8 August 2012 to a period of five years' imprisonment that was suspended for a period of five years on condition that he was not convicted of an offence of theft or any offence involving an element of dishonesty during the period of suspension. The accused was furthermore ordered to pay the complainant the entire amount of R98 682,98 by 31 July 2013.

E [2] On 1 August 2013 the accused was arrested and brought before the regional court in Worcester due to his failure to adhere to the condition of suspension that he pay the amount of R98 682,98 by 31 July 2013. The state brought an application in terms of the provisions of s 297(9)(a) of the Act for the suspended sentence to be put into operation. This resulted in the court putting the suspended sentence into F operation, and the accused was sentenced to undergo a term of imprisonment of five years.

[3] The accused thereafter on 27 November 2013 applied for leave to appeal against the original sentence imposed to the court a quo, such leave being refused. On petition to this court leave was granted by G Goliath J and Schippers J on 25 February 2014. Before the matter was set down for the appeal to be heard, the accused, in a letter dated 23 May 2014 to the registrar, requested that this matter be placed for consideration on review on 29 May 2014.

[4] Attached to his review documents he filed an affidavit in which he H stated that during the sentencing proceedings in the regional court, after he pleaded guilty to theft, his attorney tendered a document on his behalf that he repay the amount stolen of R98 682,98 in instalments. According to the appellant, the regional magistrate interrupted his attorney and informed him that, in terms of the Public Finance Management Act 1 of I 1999 (PFMA), money due to the state must be paid within a year. This prompted the magistrate to impose, as a condition of his suspended sentence, that he repay this money within a year. The accused was unable to pay this amount within a year because of financial difficulties,

Henney J (Le Grange J concurring)

and this resulted in him being in breach of the conditions of suspension. A As a result of his failure to pay this amount the suspended sentence was imposed.

[5] After a perusal of the record, the allegation made by the accused proved to be correct. As a result of this, an order was issued on 13 June 2014 B by me that the accused be released forthwith, unless there were other reasons for his further incarceration. Upon a further perusal of the record of the proceedings in the regional court, I am of the view that the conviction of the accused by the regional magistrate on the charge of theft needs to be reconsidered.

The proceedings in the court a quo prior to conviction C

[6] The accused was charged in the regional court in Worcester on one count of fraud, in that during March 2008 in Adderley Street, Worcester, he unlawfully and falsely gave out to the Government Employees Pension Fund (GEPF), the South African Police Services (SAPS), and the High Court of South Africa, that he was entitled to receive an amount of D R98 682,98 from the GEPF or the SAPS and therefore, by means of the said false pretences, induced the GEPF and/or High Court of South Africa and the SAPS to pay out an amount of R98 682,98 — whereas, in fact, he knew that he was not entitled to receive the amount of R98 682,98 from the said GEPF or SAPS. The accused was not charged in the alternative of theft of the amount of R98 682,98. E

[7] The prosecutor, however, before the accused was asked to plead, requested the court to confirm with Mr Maritz, the attorney of the accused, whether the provisions of s 256 of the Act, in the words of the prosecutor at pp 51 – 52, where he said, 'Regarding the F competent verdict . . . as well as the common law offence of theft which is also a competent verdict', were explained to the accused, to which the magistrate reacted as follows, 'Mr Maritz, did you explain to your client that he can also be found, if not found on the main count, he can also be found guilty on the competent verdict?', to which Mr Maritz replied that he did. The accused pleaded not guilty to the charge and did not tender any explanation of plea. G

[8] The allegations upon which the fraud charge is based are that the accused, after he was dismissed from the SAPS, was indebted to the SAPS in an amount of R100 352,34. The SAPS requested the GEPF to deduct the amount of R100 352,34 indebted to it by the accused from his H pension benefit due to him. The accused launched an application to the High Court to interdict the GEPF and/or the SAPS from deducting the said amount from his pension. This application was dismissed. The...