S v Yengeni

• Jurisdiction: South Africa
• Citation: 2006 (1) SACR 405 (T)

S v Yengeni
2006 (1) SACR 405 (T)

2006 (1) SACR p405

Citation	2006 (1) SACR 405 (T)
Case No	A1079/2003
Court	Transvaal Provincial Division
Judge	Bertelsmann J and Preller J
Heard	October 3, 2005
Judgment	November 11, 2005
Counsel	J L C J van Vuuren SC (with D J Combrinck) for the appellant/applicant.; R S du Toit for the State in the appeal.; M Chaskalson (with M Mphaga) for the respondent in the review application.

Flynote : Sleutelwoorde B

Sentence — Application for review of sentence — Accused alleging existence of prior agreement between himself, National Director of Public Prosecutions and Minister of Justice — Agreement purportedly guaranteeing that accused would not receive direct imprisonment — Accused raising point two years after imposition of sentence — Accused's version unsupported by C members of his legal team supposedly privy to terms of agreement — Only reasonable conclusion was that agreement, in terms alleged by accused, never entered into — Review application dismissed.

Sentence — Application for review of sentence — Accused alleging existence of prior agreement between himself, National Director of Public Prosecutions and Minister of Justice — Agreement D purportedly guaranteeing that accused would not receive direct imprisonment — Even if agreement in terms alleged by accused had been concluded, it was fundamentally incapable of performance — Purported agreement amounting to attempt to fetter court's sentencing discretion and therefore constitutionally invalid — Agreement to be distinguished from plea-bargain agreement since latter expressly subject to court's independent E finding that it was just.

Fraud — What constitutes — Appellant convicted of defrauding Parliament — Non-disclosure in face of duty to speak constituting criminal fraud even if failure to comply with duty to disclose not itself visited with criminal sanction — Clear that appellant intended to deceive Parliament and its members by his F deliberate failure to record benefit he had negotiated for himself — Whether or not Parliament had juristic personality, could be no doubt that, as assembly of natural persons acting together to perform tasks of national importance, it had vital interest in not being misled — Neither Parliament nor its individual members could function without correct G

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information and accurate knowledge of particular matter being considered at relevant A time — Mere fact that individual members, committees or assemblies of Parliament not individually mentioned in charge-sheet not altering position, since clear that they were, at all times, within range of appellant's misrepresentation — Appeal against conviction dismissed.

Fraud — Sentence — White-collar crime — Appellant convicted of defrauding Parliament — Crimes of dishonesty B on part of elected office-bearers and public officials a serious threat to country's well-being — So-called white-collar crimes to be regarded as being as serious as crimes of violence, and deserving of same penal sanctions — Serious aggravating circumstances present: appellant's crime one of greed, not need; gross abuse of position of trust; initiating dishonest deal himself; continuing deceit for almost two years; and, until changing plea, C showing no sign of remorse — Fact that appellant had resigned from Parliament not mitigating factor — Appeal against sentence dismissed.

Director of Public Prosecutions — Duties of — Both Constitution of Republic of South Africa, 1996 and National Prosecuting Authority Act 32 of 1998 providing for D professional independence of National Director of Public Prosecutions and staff, with aim of ensuring freedom from interference in their functions — Such independence vital to functioning of legal system — Unwise for National Director of Public Prosecutions to have met with appellant — Independence of his office and extensive powers it conferred incompatible with any hint that he might have lent an ear to politicians wishing to advance interests of a E crony — Unfortunately, terms of deal struck at meeting doing little to allay perception that they were dictated by considerations other than determination of appropriate sentence. F

Headnote : Kopnota

Initially charged with corruption and fraud, the appellant, a former chairperson of the Parliamentary Joint Standing Committee on Defence, after plea negotiations with the State, pleaded guilty to and was convicted of an alternative charge of fraud in connection with the purchase of arms from a German concern. He was sentenced to four years' imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977. He appealed against this sentence, G and later sought to file an amended notice of appeal against the conviction, on the grounds: that his deliberate breach of the parliamentary code of conduct did not amount to criminal conduct or constitute fraud; that he did not intend to commit a fraud; that Parliament was not a juristic person and therefore lacked the capacity to be defrauded; and that Parliament in any event had suffered no H prejudice or potential prejudice. In addition, he filed a further amendment of the appeal against sentence, as well as a review application against sentence on the basis that the National Director of Public Prosecutions and the Minister of Justice had agreed 'to see to it' that he would be sentenced to no more than a fine of R5 000 if he pleaded guilty to fraud. The State did not oppose the original appeal against sentence, but did oppose the further amendments and the review I application.

The review application

The first issue to be determined was whether the applicant had made out a prima facie case on the papers that an agreement, in the terms alleged, had in fact been entered into. Sentence had been passed in March 2003, but the first J

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time that the existence of the agreement, in the terms alleged, had been raised, was in February 2005. A

Held, that it was surprising that, if the applicant had believed that such an agreement had been entered into, he had not immediately objected when sentence was passed. Moreover, whereas the applicant stated that members of his then legal team were aware of the agreement, this assertion was not supported by an affidavit from any B member of that team. An earlier amendment of notice of appeal did allege the existence of an agreement relating to sentence, but this was an agreement - admitted by the State - that only a non-custodial sentence would be sought. The only reasonable conclusion was that the agreement alleged by the applicant had never been entered into. (Paragraphs [15], [17], [19], [20] and [22] at 418b - c, g - h, 419b - d and f.)

Held, further, that even if an agreement as alleged had been C concluded, it would have been fundamentally incapable of being performed. Any attempt to fetter the court's discretion on sentence would be in conflict with the fundamental constitutional principle of the independence of the Judiciary. It would also blur the clear distinction between a prosecutorial decision, which was part of the Executive's competence, and the sentencing power, which was a judicial power. The purported agreement was to be distinguished from a D plea-bargaining agreement, since the latter was expressly subject to the court's finding that the agreement was just - this decision was made by the court independently of the parties to the agreement. The review application was therefore to be dismissed with costs. (Paragraphs [23] - [25] at 419g - 420f.)

The appeal against conviction E

Held, that although the breach of the parliamentary code of conduct did not per se amount to fraud, this did not mean that the appellant's failure to speak when under a legal obligation to do so could not be categorised as a criminal offence if he had intended to mislead Parliament. Non-disclosure in the face of a duty to speak constituted a criminal fraud, even if the failure to comply with the duty to disclose was not itself visited with a criminal F sanction. In casu, it was clear that the appellant had intended to deceive Parliament and its members by his deliberate failure to record the benefit he had negotiated for himself. That he had harboured the intention to defraud was therefore established beyond a reasonable doubt. (Paragraphs [31] - [35] at 421f - 422h.)

Held, further, that even if it could be argued that Parliament did not have juristic personality - which it G was not necessary finally to determine - there could be no doubt that, as an assembly of natural persons acting together to perform tasks of national importance, it had a vital interest in not being misled. If Parliament or its individual members were misled, it stood to reason that they had been defrauded if the intention to mislead was present in the mind of the perpetrator. The prejudice or potential prejudice suffered by Parliament or its individual members H was self-evident: neither could function without correct information and accurate knowledge of the particular matter being considered at the relevant time. The mere fact that individual members, committees or assemblies of Parliament were not individually mentioned in the charge-sheet did not alter the position, since it was clear that they were at all times within the range of the appellant's I misrepresentation. The appeal against conviction was therefore doomed to failure. (Paragraphs [36] - [42] at 422h - 423j.)

The appeal against sentence

Held, that it was common cause that the appellant, the then Minister of Justice and Constitutional Development, and the then National Director of Public J

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Prosecutions had agreed that, should the appellant plead guilty to a 'watered-down' charge, the State would A not seek a custodial sentence. In this...