S v Mtshabe

• Jurisdiction: South Africa
• Judge: Ebrahim J, Plasket J, (Jansen J dissenting)
• Judgment Date: 02 October 2008
• Docket Number: CA & R 122/07
• Court: Transkei Division
• Hearing Date: 23 September 2008
• Citation: 2008 JDR 1308 (Tk)

Jansen J:

This is an appeal with leave granted on petition against a sentence of 8 years imprisonment imposed upon the appellant having been convicted on a count of fraud. This is my minority judgment.

The appellant, an attorney, committed the crime of fraud during the period March to June 1998. During this period the appellant submitted fifteen statements of account to the State Attorney, Mthatha where payment of these statements of account was approved, whereafter these statements of account were presented to the Registrar of the High Court, Mthatha, who issued various vouchers which vouchers were then deposited into the bank account of the appellant. At the time the appellant submitted the statements of account, he pretended and gave out that he had performed the services as stipulated in the statements of account, that he was entitled to claim the amounts stipulated in each statement of account and that he performed

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professional services which entitled him to claim the amounts specified, well-knowing that these representations made by him were false. The total amount fraudulently claimed by the appellant was R458 406,75.

The trial commenced in the Transkei Division of the High Court on 18 April 2006. Judgment was delivered on 26 July 2006. Sentence was imposed on 4 December 2006 and leave to appeal was granted on 23 March 2007. The matter only now came before this Court as certain problems were experienced with the construction of the record. The appellant was released on bail pending the finalisation of the appeal.

A Court of Appeal does not readily interfere with a sentence imposed in the exercise of its discretion by the trial Court. Interference is only justified if the trial Court misdirected itself or if the sentence imposed is so shockingly inappropriate that no other reasonable court would have imposed it. Formulated differently, interference with a sentence imposed would be justified if there is a striking disparity between the sentence imposed and the sentence the Court of Appeal would have imposed had it been sitting as a court of first instance.

The appellant was admitted as an attorney during 1995. At the time when he committed the crimes he was practising for his own account as an attorney in Mthatha. At the date of sentence he was still practising as such. He was then 47 years of age, married and the father of four children. The eldest child was managing the appellant's guest house in Mthatha and also operated a tow

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truck business. The second child was a fourth year medical student at the University of the Witwatersrand. The youngest two children were still at school.

The appellant himself gave evidence in mitigation. Four witnesses were also called on his behalf to persuade the learned trial Judge not to impose a custodial sentence.

The first witness called on behalf of the appellant was Melamli Matyumza. He was an admitted advocate. He was also chairperson of the Transkei Society of Advocates. He has been engaged in the practise of law for approximately twenty years. In addition thereto he was the head of the Walter Sisulu University School of Law in Mthatha. He knew the appellant as a colleague at the University and as a practising attorney. He described the appellant as a dedicated lecturer. The appellant was the only member in the facility capable of teaching conveyancing and the law of negotiable instruments. The appellant had a number of staff members under his wing. Although the appellant was entitled to claim compensation for his overtime lectures, he never did it. He regarded the appellant as a good attorney. Mr Matyumza testified that the appellant was a member of the Southernwood Extension Men's Association, a community based organisation performing work of a charitable nature. He was highly respected by the community. In spite of the appellant's conviction of fraud Mr Matyumza was still prepared to allow him to continue with his lecturing at the University.

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The next witness in mitigation was Brenda Ann Beukman, who holds a PhD in Criminology which she obtained through the University of South Africa. In her work she mostly focuses on forensic work. She compiled a report and emphasised that the report's primary focus was on the appellant as a person. She conducted interviews with the appellant, family members and Mr Matyumza. She also received a report from a clinical psychologist, Dr Greeff, which was also handed in as an exhibit. She came to the conclusion that the most appropriate sentence for the appellant would be a non-custodial one. It was correctly pointed out by the learned Judge a quo that Dr Beukman's evidence was based on a false premise. Throughout her report and that of Dr Greeff the denial of the appellant that he drafted the various statements of account were repeated. The only mistake conveyed by the appellant to them was that he was negligent in failing to check the statements. Even after the findings of the Court on the merits were brought to her attention, in particular the fact the appellant intentionally defrauded the fiscus, she persisted in her view that a custodial sentence would be inappropriate for the appellant. It was quite correctly pointed out by the learned Judge a quo that objectivity, which is expected of a professional witness, was not Dr Beukman's forte. She stated categorically that no person who matches the appellant's profile should be sentenced to imprisonment for a crime of fraud.

George Winson Moolman, an admitted attorney who used to serve on the Disciplinary Committee of the Cape Law Society, was the next witness. His evidence amounted only to the fact that the appellant would in all probability be struck from the roll of attorneys upon his conviction.

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Reverend Ashlington Majija is an ordained Minister of Religion in the Anglican Church since 1967. He came to the St Andrews parish as a rector in 1974. The appellant was then 15 years old. The appellant became a member of St Andrews Youth Club. He also became a lay preacher. He is a committed church member. He is leading a Christian life. He got involved in community affairs. He gives a lot to the church. It was Reverend Majija's view that if the appellant be sent to prison the community and the congregation would be devastated if consideration is given to what the appellant had done in the community.

The appellant also gave evidence. He accepted that if he is struck from the roll of attorneys that he would have to earn his income from lecturing at the University. He also had other business interests such as a Bed and Breakfast with an average of 50% occupancy. Ten people are employed in that business. He also runs a cleaning service, a car wash and he owns immovable property worth ±R3 million. His income from his property is approximately R7 000 per month. He promised to help at the Law Clinic at the University if sentenced to community service. He promised to repay everything that he got from the State as a result of the submission of the various statements of account. His conviction had an adverse effect on his life as well as on the lives of his family members. He has already paid back an amount of R235 000 to the State. When questioned by counsel for the State he, in spite of the Court's finding, insisted that his conviction was only caused by his negligence.

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A reading of the judgment on sentence indicates that all the evidence tendered in mitigation of sentence was properly considered by the learned trial Judge. The personal circumstances of the appellant were carefully taken into account. When a sentence is considered the interests of society should also be taken into account. The learned Judge a quo did it. He clearly did not over-emphasise it.

The crime committed by the appellant was correctly described by the learned trial Judge as a serious crime. It was premeditated and committed over a period of time. He also involved a fellow attorney at the State Attorney's offices. The fact that the appellant was a practising attorney was correctly taken into account by the learned trial Judge as an aggravating feature. The position of an attorney demands inter alia an inflexible regard for the truth, a high sense of honour and incorruptible integrity. The appellant's conduct fell short of that. That factor was correctly in my view taken into account by the learned Judge a quo when he decided to impose direct imprisonment on the appellant.

Counsel for the State, in support of the sentence imposed, referred us to various decisions in various Divisions where imprisonment was imposed upon an accused convicted of a so-called "white collar" crime. The first was S v Price and Another 2003 (2) SACR 551 (SCA). The accused, who was a practising attorney, was convicted on two counts of fraud with a total amount of almost R2 million involved. A sentence of 15 years imprisonment imposed

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upon him in terms of the provisions of section 51 of Act No. 105 of 1997 was confirmed on appeal. In S v Kwatsha 2004 (2) SACR 564 (ECD) the accused, an employee of the Department of Home Affairs, was convicted of theft and conspiracy to commit fraud involving government cheques. The Department did not suffer any real loss as the accused was timeously arrested. An amount of almost R2 million was involved. The accused was sentenced to 7 years imprisonment of which 2 years were conditionally suspended. In S v Lando 2000 (2) SACR 673 (WLD) the accused was convicted on 48 counts of theft. The total amount of money was unknown. He was sentenced to undergo 5 years imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act. In S v Erasmus 1998 (2) SACR 466 (SE) the accused was convicted of theft in an amount of almost R2 million from his employer over a period of 2½ years. He was also sentenced to 5 years imprisonment in...