S v Rabie

JurisdictionSouth Africa
JudgeHolmes JA, Corbett JA and Kotzé AJA
Judgment Date23 September 1975
Citation1975 (4) SA 855 (A)
Hearing Date12 September 1975
CourtAppellate Division

Holmes, J.A.:

This is an appeal against sentence; and the substantial issue is whether the appellant should have to go to prison for 12 months, in addition to paying a fine of R5 000.

1.

D In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal -

(a)

should be guided by the principle that punishment is

"pre-eminently a matter for the discretion of the trial Court";

and

(b)

E should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been "judicially and properly exercised".

2.

The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate.

See, as to all of the foregoing, R. v Mapumulo and Others, 1920 AD 56 at p. 57; R. v Freedman, 1921 AD 603 at p. 604 in fin.; S. v Narker and Another, 1975 (1) SA 583 (AD) at p. 585C.

The appellant was convicted in the Cape Provincial Division on:

1.

Nineteen counts of fraud. These were taken together for the purposes of sentence, which was -

(a)

F a fine of R5 000; and

(b)

imprisonment for three years, of which two years were suspended on relevant condition.

2.

Three counts of contravening sec. 10 (1) (a) of the Rents Act. 43 of 1950 (overcharging). The sentence was a fine of R150 on each count - a total of R450.

G Leave to appeal against sentence was granted by the trial Judge, who observed, with intellectual humility.

"It is a comfort to know that there is another Court that is prepared to oversee the decisions of this Court."

The appeal is directed only against the sentence in respect of the 19 counts of fraud.

And so, as always, to the facts:

Holmes JA

(i)

Mount Isle (Pty.) Ltd. is a company which at all material times was the owner and lessor of certain controlled premises called Ajax Park. The Rabie family acquired control of the company in 1969 and the appellant became a shareholder. On 1 November 1969 he A was appointed as one of the two directors; and on 30 November 1971 he became the company secretary. At the date of the trial he was one of four shareholders in the company.

(ii)

The Cape Town Rent Board made an order determining a reasonable rental in respect of eight flats in Ajax B Park. A higher rental was therefore illegal in the absence of a further determination by the Board; see sec. 25 (2) bis (a) of the Rents Act. However, there is a proviso thereto. The effect of it in so far as relevant to this case) is that a lessee may temporarily sub-let, at a higher rental and for a period of not more than six months, a dwelling which is ordinarily occupied by him, and which is intended C to be and is re-occupied by him immediately after the expiration of the sub-lease.

(iii)

The appellant (and a subservient employee, Landau) decided to charge higher rentals than those determined by the Rent Board. Furthermore, doubtless with an eye to the proviso just mentioned, they bethought themselves of a fraudulent scheme to cover D up their offences of overcharging.

(iv)

The modus operandi of the scheme was ingenious and simple. An advertisement would usually be placed in a local newspaper advertising a furnished flat to let for six months. Sometimes it was for a shorter period. E A telephone number would be given. An enquirer would be falsely told by Landau (acting on the appellant's instructions) that the flat was available on the basis of a sub-letting for six months only, as the lessee was away for that period; and that Landau was authorised by the "lessee" (a fictitious name would be mentioned) to sub-let the flat and to collect the monthly rent on his behalf. In many cases the F potential tenant was also told, falsely, that the furniture in the flat belonged to the absent lessee. The amount of the rent would always be much higher than that determined by the Rent Board. At the end of the six months the tenant would move out, and a fresh pigeon would be found to pluck. Many of them were immigrants and foreigners, new to this country and with no knowledge of the rent-control legislation. G Others were sorely in need of accommodation. All were easy prey to the appellant.

(v)

This continual coming and going of short-term occupants rendered detection of the scheme difficult. The rents were paid into one or other of two related companies for the credit of Mount Isle (Pty.) Ltd.

(vi)

H The State prosecuted Mount Isle (Pty.) Ltd. (represented by the appellant as director); and the appellant in his personal capacity; and Landau, in his personal capacity. All three were convicted and sentenced, but we are here concerned only with the appeal of the appellant.

(vii)

The amount in excess of the determined rent extracted from 19 complainants over a period of 17 months, totalled R3 303.

(viii)

In addition to the 19 convictions for fraud, supra, there were three

Holmes JA

convictions for overcharging during the period October 1973 - May 1974. No question of fraud was involved. In respect of these, the amount of the illegal excess was, in all, R813.

(ix)

Thus the aggregate of ill-gotten gains in respect of all counts was R4 116.

(x)

A On the day before sentence was passed, the amount of the excess payments - more than R4 000 - was made available for refund to all of the complainants.

Three witnesses testified in mitigation. (The appellant did not give evidence). The first was Mr. Bloomberg, an attorney for B nearly 50 years, and a former Member of Parliament and Mayor of Cape Town. He has known the appellant since the latter was a boy. He spoke of the appellant's devotion to charitable causes, giving considerably of his time and money. He also said:

"(He) has opened up his heart to me as to how he felt over this... there is no doubt about it, Sir, he is broken in spirit. C He is very contrite over what has happened and he is humbly and thoroughly penitent over what has taken place in this matter... A prison sentence to my mind would destroy him completely. Through the years I have always found him to be a man of the highest integrity."

The second witness in mitigation was the appellant's medical practitioner. He has known him for 30 years, and been the family doctor for 20 years. He had always found him to be a D kind and excellent father and a man of integrity. For the past two to three years he has been suffering from peripheral neuritis. A prison sentence would have an aggravating effect on the psychological trauma.

The third witness was Mr. Powell, a retired chief magistrate of Cape Town, with a record of nearly 30 years on the criminal Bench, including two years as a regional magistrate. As a E former commissioner of Child Welfare he had met the appellant in 1958. He spoke of his active engagement in welfare organisations. He was generous, very charitable and extremely helpful. He concluded by saying:

"It is obvious, too, Sir, that whatever punishment My Lord you might feel you should impose on Mr. Rabie, in fact, knowing him F as a gentleman, of honourable standing, due regard to his reputation in the community here, that you will consider that he might be completely broken."

The learned Judge accepted the foregoing evidence to this extent: he said,

"I accept what whey said in regard to his good background, the charitable work that he has done, his social position, his regart over what has happened, the effect that his conviction will have on him and his family, and his state of health".

G In this Court no irregularity in the proceedings was contended for. But counsel for the appellant contended that the trial Court had misdirected itself. The argument took this form. With one possible exception, none of the complainants was induced by the fraudulent misrepresentation to pay rent in excess of the determined rent. Intrinsically, therefore, and in the context of blameworthiness, the offence was substantially H that of voercharging in contravention of sec. 10 (1) (a) of the Rents Act. Hence the Court should have used the fines prescribed therein as a guide, in which event it should have imposed fines not much higher than it did on the three counts...

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429 practice notes
  • S v Shaik and Others
    • South Africa
    • Invalid date
    ...1997 (10) BCLR 1348): referred to S v Louw 1990 (3) SA 116 (A): referred to S v Pillay 1977 (4) SA 531 (A): referred to S v Rabie 1975 (4) SA 855 (A): referred to J 2008 (1) SACR p8 S v Scholtz 1996 (2) SACR 426 (NmS) (1997 (1) BCLR 103): referred to A S v Shaik and Others 2007 (1) SACR 247......
  • S v Shaik and Others
    • South Africa
    • Invalid date
    ...(10) BCLR 1348): referred to S v Louw 1990 (3) SA 116 (A): referred to \20 B S v Pillay 1977 (4) SA 531 (A): referred to S v Rabie 1975 (4) SA 855 (A): referred to S v Scholtz 1996 (2) SACR 426 (NmS) (1997 (1) BCLR 103): referred to S v Shaik and Others 2007 (1) SA 240 (SCA) (2007 (1) SACR ......
  • S v Toms; S v Bruce
    • South Africa
    • Invalid date
    ...consideration of the individual circumstances of each accused person. This principle too is firmly entrenched in our law (S v Rabie 1975 (4) SA 855 (A) at 861D; S v Scheepers 1977 (2) SA 154 (A) at 158F - G). A mandatory sentence runs counter to these principles. (I use the term J 'mandator......
  • The Punishment must fit the Crime: Also when the Offender has Previous Convictions?
    • South Africa
    • Juta Stellenbosch Law Review No. , August 2019
    • 16 Agosto 2019
    ...Cf the magist rate in S v Mzazi 20 06 1 SACR 100 (E); the minor ity view in S v Stenge 20 08 2 SACR 27 (C) paras 61-6266 S v Rabie 1975 4 SA 855 (A) 863A-B; S v Holder 1979 2 SA 70 (A) 75A; S v De Kock 1997 2 SACR 171 (T) 197g-h; S v Banda 1991 2 SA 352 (B) 335A-B67 MA Rabie & MC Maré R abi......
  • Request a trial to view additional results
418 cases
  • S v Shaik and Others
    • South Africa
    • Invalid date
    ...1997 (10) BCLR 1348): referred to S v Louw 1990 (3) SA 116 (A): referred to S v Pillay 1977 (4) SA 531 (A): referred to S v Rabie 1975 (4) SA 855 (A): referred to J 2008 (1) SACR p8 S v Scholtz 1996 (2) SACR 426 (NmS) (1997 (1) BCLR 103): referred to A S v Shaik and Others 2007 (1) SACR 247......
  • S v Shaik and Others
    • South Africa
    • Invalid date
    ...(10) BCLR 1348): referred to S v Louw 1990 (3) SA 116 (A): referred to \20 B S v Pillay 1977 (4) SA 531 (A): referred to S v Rabie 1975 (4) SA 855 (A): referred to S v Scholtz 1996 (2) SACR 426 (NmS) (1997 (1) BCLR 103): referred to S v Shaik and Others 2007 (1) SA 240 (SCA) (2007 (1) SACR ......
  • S v Toms; S v Bruce
    • South Africa
    • Invalid date
    ...consideration of the individual circumstances of each accused person. This principle too is firmly entrenched in our law (S v Rabie 1975 (4) SA 855 (A) at 861D; S v Scheepers 1977 (2) SA 154 (A) at 158F - G). A mandatory sentence runs counter to these principles. (I use the term J 'mandator......
  • Attorney-General, Transvaal v Kader
    • South Africa
    • Invalid date
    ...225G-226B. As to the necessary compassionate understanding a judicial officer should display B in approaching his task, see S v Rabie 1975 (4) SA 855 (A) at 866A-C. As to the gravity of the respondent's refusal to testify, see Hiemstra Suid-Afrikaanse Strafprosesreg 4th ed 1987 at Cur adv v......
  • Request a trial to view additional results
11 books & journal articles
  • The Punishment must fit the Crime: Also when the Offender has Previous Convictions?
    • South Africa
    • Juta Stellenbosch Law Review No. , August 2019
    • 16 Agosto 2019
    ...Cf the magist rate in S v Mzazi 20 06 1 SACR 100 (E); the minor ity view in S v Stenge 20 08 2 SACR 27 (C) paras 61-6266 S v Rabie 1975 4 SA 855 (A) 863A-B; S v Holder 1979 2 SA 70 (A) 75A; S v De Kock 1997 2 SACR 171 (T) 197g-h; S v Banda 1991 2 SA 352 (B) 335A-B67 MA Rabie & MC Maré R abi......
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    • Juta South African Criminal Law Journal No. , August 2019
    • 16 Agosto 2019
    ...175S v Raath 2009 (2) SACR 46 (C) .......................................................... 352S v Rabie 1975 (4) SA 855 (A) ............................................................. 419S v Radebe 2013 (2) SACR 165 (SCA) ................................................. 418, 421S v Ram......
  • 2018 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 Agosto 2019
    ...263, 281S v Raath 2009 (2) SACR 46 (C) .......................................................... 431S v Rabie 1975 (4) SA 855 (A) ............................................................. 283S v Radebe 2017 (1) SACR 619 (SCA) ................................................. 266S v Ral......
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    • Juta South African Criminal Law Journal No. , August 2019
    • 16 Agosto 2019
    ...70S v QN 2012 (1) SACR 380 (KZP) ....................................................... 100S v Rabie 1975 (4) SA 855 (A) ............................................................. 240S v Radebe 2013 (2) SACR 165 (SCA) ................................................. 459S v Rautenbach 2......
  • Request a trial to view additional results

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