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S v Yengeni (A1079/03) [2005] ZAGPHC 117 (11 November 2005)

IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

                                                                        DATE: 11/11/2005

                                                                        CASE NO. A1079/03
REPORTABLE







In the matter between
TONY SITHEMBISO YENGENI APPELLANT
and
THE STATE RESPONDENT
_______________________________________________________________
JUDGMENT
_______________________________________________________________
BERTELSMANN ET PRELLER JJ

INTRODUCTION
1.       The appellant is a former member of Parliament. He was elected as chairman of the Parliamentary Joint Standing Committee on Defence on 9 September 1994 and held that position until the end of November 1998. In that capacity he was responsible, inter alia, to lead the said committee in its supervision of the process the Republic of South Africa followed to procure a wide-ranging array of new armaments, committing the public purse to the spending of many billions.

2.       While the process of identifying potential preferred tenderers for the supply of such new weapons followed its course, the appellant naturally came into contact with the representatives of prospective tenderers and their associates. One such person was a certain Woerfel who was in the employ of Daimler-Chrysler AG. This company or one of its subsidiaries manufactures Mercedes Benz motor vehicles. It is also a shareholder of one of the hopeful potential suppliers of weapons, namely ADS.

3.       Before any preferred tenderer had been identified, Woerfel and the appellant discussed a new Mercedes Benz 4x4 motor vehicle that the former’s company intended to introduce into the South African market.

4.       Appellant and the said Woerfel agreed that such a vehicle was to be supplied to the appellant at a discount of 47%. The documentation that evidenced the sale falsely stated that the vehicle had been acquired in terms of a car discount purchase scheme for companies associated with Daimler-Chrysler or their staff and had been damaged during transport to the dealer concerned. This was the ostensible reason why the vehicle was acquired at a discount of such magnitude.

5.       Word of the transaction leaked out. The appellant, who had failed to record the discount in the Parliamentary records of benefits received by its members over and above their emoluments, denied the rumours. A public debate arose over the issue. The appellant denied having received an extra-ordinary discount in newspaper advertisements he had placed in the print media at his expense. After the truth came out appellant resigned from Parliament and he and Woerfel were charged with fraud and corruption in the regional court in Pretoria.

6.       After having excepted unsuccessfully against the charge-sheet, and having failed in a bid to have the dismissal of his objections set aside on review, appellant changed his plea to one of guilty to the charge of fraud that had been preferred against him as an alternative to the principal count of corruption. This plea was accepted. The appellant was convicted of fraud and was acquitted on the two remaining counts against him. Woerfel's trial was separated from that of the appellant.

7.      
In spite of the prosecutor informing the court that the state was not pressing for a custodial sentence, the regional court sentenced appellant to four years’ imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977. Appellant launched an appeal against the sentence. The National Prosecuting Authority does not oppose this appeal. However, appellant seeks to file an amended notice of appeal against the conviction as having been bad in law in spite of his plea of guilty. This attempt to appeal against the conviction is opposed by the prosecution.

8.      
In addition, the appellant has filed a further amendment of his notice of appeal and a review application against the sentence on the basis that he and the then head of the National Prosecuting Authority and the then Minister of Justice and Constitutional Development had agreed that he would be sentenced to no more than a fine of R5 000,00 if he pleaded guilty to the alternative count of fraud. This application for review and the introduction of the new ground of appeal is also opposed.

THE CHARGE-SHEET
9.       After a lengthy preamble, part of which is summarised in the Introduction above, the relevant charges against the appellant who is referred to in the charge-sheet as accused 1, were formulated as follows:

“COUNT 1

NOW THEREFORE Accused 1 is guilty of the crime of corruption in contravention of section 1(1)(b)(i) of the Corruption Act, No 94 of 1992
IN THAT ... accused 1, upon whom the powers had been conferred and/or who had the duties set out in the preamble, unlawfully and corruptly received the said benefit, which was not legally due, from accused 2 with the intention that he should commit and/or omit any act in relation to his powers and/or duties to further the interests of accused 2 and/or Daimler-Benz Aerospace AG and/or Daimler-Benz Aerospace South Africa (Pty) Ltd.
ALTERNATIVELY
THAT accused 1 is guilty of the crime of fraud in that during or about the period October 1998 to December 1999 and at or near Cape Town in the Regional Division of the Cape, accused 1 unlawfully and with the intention to defraud, falsely and to the prejudice, either real or potential, of Parliament, representing the people of South Africa, failed to disclose to Parliament, in circumstances where there was a duty to disclose, that accused 2 gave accused 1 the said benefit and that accused 1 received the said benefit.

COUNT 2
...


COUNT 3
AND THEREFORE the accused are guilty of the crime of fraud in that during or about the period May to September 1999 and at or near Pretoria in the Regional Division of the Northern Transvaal, the accused unlawfully and with the intention to defraud, falsely and to the prejudice, either real or potential, of Daimler-Benz Aerospace AG and/or Daimler-Benz Aerospace South Africa (Pty) Ltd, gave out to the aforesaid companies that:

                 1        the vehicle was sold to accused 1 for the amount of R230 052 in terms of an agreement signed on 15 October 1998 and that accused 1 paid a deposit, and/or

                 2        the vehicle was damaged during transport and/or

                 3        the vehicle was sold without a warranty and/or

                 4        the vehicle was sold as a used vehicle, sold as seen and without further claims possible.”




CHRONOLOGY
10.      The matter has a long and protracted history. In order to properly understand the issues arising in this appeal and the review application, the following facts need to be recorded:

                  a.       Daimler-Benz AG, now known as Daimler-Chrysler AG, was during the period 1996–1998 the holding company of Daimler-Benz Aerospace AG and Daimler-Benz Aerospace South Africa (Pty) Ltd as well as Mercedes-Benz of South Africa (Pty) Ltd;

b.       Daimler-Benz Aerospace AG was at all relevant times engaged upon the manufacture and sale of military and civil aircraft and defence systems;

c.       Its South African counterpart was always a dormant company;

d.       Mercedes-Benz of South Africa (Pty) Ltd manufactures and sells inter alia the Mercedes-Benz range of motor vehicles;

e.       Woerfel was a representative of Daimler-Benz Aerospace AG and a director of its South African counterpart. He was tasked with the marketing of the Aerospace company and its products in South Africa;

f.       Appellant was elected as a member of Parliament in 1994 and became Chairperson of the Joint Standing Committee on Defence (JSCD);

g.       He held this position until November 1998 when he became Chief Whip of the ruling party in Parliament;

h.       The JSCD exercised supervision over the South African National Defence Force and the acquisition of armaments;

                 i.       Appellant was invited by Woerfel to attend an air show in Chile and to undertake a tour of the assembly plant of Daimler-Benz in Brazil. Here he learnt of the proposed introduction of a Mercedes-Benz 4x4 to South Africa;

j.       According to the written explanation signed and filed by the appellant when he changed his plea (exh.”BBB”), he persuaded Woerfel to arrange a discount for him of approximately 50% of the purchase price of such a vehicle;

k.       The vehicle was ordered, to the appellant’s knowledge, by Woerfel pretending that it was acquired in terms of a purchase discount scheme available to employees of companies in the Daimler-Benz group;

l.       Daimler-Benz Aerospace South Africa (Pty) Ltd paid R307 458,63 for the car in terms of the inter-group discount scheme;

m.       The vehicle was supplied to the appellant during October 1998 at R182 563,63;

n.      The purchase documentation falsely recorded that the vehicle had been damaged in transit and was sold without the usual guarantee;

o.       The appellant at no stage disclosed to Parliament or any of its committees, and in particular the committee he was chairing, that this extraordinary discount had been arranged for him by a company with an interest in the arms acquisition race;

p.       More particularly, the appellant deliberately and designedly failed to register the benefit he had received in this fashion;

q.       In failing to do so, the appellant knowingly and consciously transgressed the Parliamentary code of conduct which expressly required the disclosure of benefits of this nature;

r.       At all relevant times the appellant could not but have appreciated that the acquisition of this vehicle in the aforesaid manner constituted a conflict of interests that should have been disclosed to Parliament and in particular to the JSCD;

s.       When the matter became public knowledge, Woerfel and the appellant attempted to cover their tracks by preparing, during October 1999, a backdated agreement of sale falsely recording that the vehicle had been purchased by the appellant at a price of R230 052,00; and that appellant had paid a deposit of R50 000,00;

t.       During July 2001, appellant took out several advertisements in the national print media in which he launched a strongly-worded attack against the investigators who claimed that he had received an improper benefit and expressly denied having received an extra-ordinary discount. He falsely gave out that he had in fact paid R230 052,00 for a damaged car upon which he had received a discount of 26%;

u.       The appellant was charged with corruption and fraud. His first appearance in the regional court was on 3 October 2001;

v.       The case was remanded for trial from 9 to 26 July 2002;

w.       The appellant raised an objection to the charge-sheet, claiming that the charges, read with the further particulars thereto, did not disclose an offence;

x.       After argument on 9 July 2002, the objections were dismissed on 15 July 2002;

y.       An application for the postponement of the trial was refused on 16 July 2002;

z.       An urgent application was launched to this court to set aside the magistrate’s ruling on the objections;

aa.     
The urgent application was dismissed on 24 July 2002;

bb. A further application to the regional court for further and better particulars to the charge-sheet followed on 25 July 2002;

cc.      This application was refused on 26 July 2002;

dd. The appellant pleaded not guilty to the charges against him on the same date and the only witness ever to be called in the trial testified on that day;

ee. The matter was then postponed to 16 January 2003 for the continuation of the trial;

ff.      The appellant changed his legal team shortly before the resumption of the trial, which was postponed to 11 February 2003 to enable the new representatives to prepare;

gg. On a Sunday in January 2003, the appellant met at the home of the then Minister of Justice, the Hon Dr Penuell Maduna, with the latter and the then National Director of Public Prosecutions, Mr Bulelane Ngcuka;

hh. Mr Ngcuka indicated during the meeting that was called to discuss the appellant’s trial, that the state would abandon the main charge of corruption if the appellant would plead guilty to the alternative charge of fraud. This is common cause;

ii.      There is a serious dispute of fact on the papers filed in the review application that will be dealt with in more detail below. The appellant contends that Mr Ngcuka undertook to arrange that appellant would not receive a stiffe
r sentence than a fine of R000,00 if a plea of guilty were offered to the alternative charge of fraud. Mr Ngcuka answers that he only undertook that the prosecutors would in such event not seek a sentence of direct imprisonment;

jj.      On 5 February 2003, appellant’s new legal team approached the state with a proposal for the further conduct of the trial. This proposal was not acceptable to the state. The prosecution insisted that the trial should continue;

kk. A further proposal was presented to the state on 7 February 2003. This was also rejected;

ll.      The appellant’s legal team then indicated to the state that he was prepared to meet the state’s conditions and indicated that a signed document reflecting such acceptance would be presented to the state by not later than 10 February 2003. The document was not available on that day;

mm. On 11 February 2003, appellant’s counsel asked for a further postponement to facilitate another round of settlement negotiations. The state was not prepared to countenance another delay and opposed this application. The court allowed the matter to stand until 12 February 2003;

nn. No agreement was reached and on 12 February 2003 appellant’s then counsel withdrew as he had no instructions to proceed. (Appellant states in the review application that he did not have sufficient funds at his disposal to instruct his legal team to continue with the trial);

oo. Appellant sought a further postponement to instruct another legal team. This application was refused and the matter stood until 13 February 2003 so that the prosecution could supply the appellant with copies of all relevant documents;

pp. On 13 February 2003 appellant’s counsel appeared again armed with fresh instructions, and informed the court that the parties had now reached agreement on the terms upon which appellant was prepared to plead guilty to the alternative count of fraud. The appellant changed his plea of not guilty to the alternative to count 1, to a plea of guilty. The plea of not guilty to the other counts remained unchanged. The state accepted the amended plea. Exhibit “BBB” was read out to the court. It sets out the history which is to a large extent covered in this part of the judgment. The following parts thereof are relevant for present purposes:

                  4.14     My relationship with Parliament, representing the people of South Africa, was one of trust and I therefore had a duty to:

                  4.14.1   maintain the highest standards of propriety to ensure that my integrity, and that of the Joint Standing Committee on Defence and Parliament are beyond question;

                  4.14.2   as chairperson of the Joint Standing Committee on Defence to act without favour as an independent and impartial overseer of the acquisition of military equipment, and to establish and maintain the Joint Standing Committee on Defence as the impartial parliamentary overseer;

                  4.14.3   not to take any improper benefit or advantage given by virtue of the office that I held; and

                  4.14.4   to act in good faith and to make full disclosure to Parliament of any personal interests which could place me in a position where such interests conflict with my duties.

                  4.15     The discount that I received was not available to the public, or to dealers. I realised that it was highly unlikely that I would have received the benefit had I not been a high profile person and Chairperson of the Joint Standing Committee on defence.

                  4.16     The Code of Conduct in regard to financial interests of members of Parliament was adopted in Parliament on 21 May 1996.

                  4.17     The rationale for the Code is stated as follows:

                  'In order to achieve a political order in South Africa that is open and transparent and accountable as envisaged in the Constitution, it is essential that their integrity and that of the political institutions in which they serve are beyond question.'

                  4.18     The Code further states that in general no person bound by this code must place himself in a position which conflicts with his responsibilities as a public representative in Parliament, nor may he take any improper benefit, profits or advantage from the office of the member.

                  4.19     The discount that I received from accused no 2, who represented a supplier of military equipment, was an improper benefit and therefore constituted an infringement of my duties.

                  4.20     The Code stipulates that members of Parliament have to register certain interests. The benefit received by me was a registerable interest as envisaged in paragraph 4 of the Code of Conduct.

                  4.21     I failed to register the said benefit and failed to disclose the receipt of the benefit to Parliament in any other way.

                  4.22     My failure to disclose the benefit constituted a breach of my above duties and was potentially prejudicial to the integrity and reputation of, and trust in Parliament.

                  4.23     As a result of my failure to disclose, Parliament was misled or could have been misled to believe that I was exercising my powers and performing my duties in the manner required.

                  4.24     When information of the benefit became public knowledge, accused no 2 and myself made the following misrepresentations in an attempt to account for my improper conduct:

                           4.24.1   during or about the period May to September 1999, I signed a document dated 15 October 1998, an agreement of sale in respect of the said vehicle for the falsely inflated amount of R230 052.00.

                           4.24.2   falsely gave out that the vehicle was damaged during transport and that the vehicle was sold as a used vehicle without a warranty;

                           4.24.3   falsely gave out that I paid a deposit of R50 000;

                           4.24.4   falsely gave out that it was a proper sale transaction in the normal course of business, and

                           4.24.5   caused an advertisement to be published in the national press wherein I falsely attempted to give out that there was nothing improper about the benefit.

                  4.25     The above misrepresentations were made with the intent to defraud Parliament.

5.       I admit that I failed to disclose to Parliament, in circumstances where there was a duty to disclose that I received the benefit referred to above from accused no 2, and that I misrepresented the facts and events as set out in paragraph 4.24.”

qq. Appellant confirmed the plea on record in open court, was found guilty on the alternative count in accordance therewith and was acquitted on the other charges;

rr.      Argument on sentence was addressed to the court on 17 February 2003. The state stood by its undertaking not to ask for a custodial sentence, but did point out certain aggravating features of the case;

ss.      Sentence was passed on 19 March 2003, the court imposing the sentence that is now, inter alia, appealed against;

tt.      On 19 March 2003 a notice of appeal was filed. The grounds of appeal are in the following terms:

                  1.       The sentence imposed by the learned magistrate is harsh and severe, it raises the senses of shock (sic), it is bad in law.

                  2.       The learned magistrate failed to take into account or to take into account adequately that:

                          2.1      the appellant was a first offender;

                           2.2      there was no material loss to Parliament;

                          2.3      The appellant is presently unemployed;

                           2.4      the appellant was convicted of a less serious type of fraud, a fraud which does not include material deprivation;

                           2.5      the learned magistrate overemphasised the seriousness of the offence and the interest of society and thus sacrificed the appellant on the altar of deterrence.”

uu. Further grounds of appeal were added by way of a notice of amendment dated June 2003, but delivered only on 17 July 2003. Among the new grounds was the first reference to an agreement in respect of sentence having been entered into between the appellant and the state. The appellant confirms that the agreement that the state would not seek a custodial sentence in return for appellant’s plea of guilty was honoured by the respondent. This is used as a springboard for an attack upon the sentence in the following terms:

“2.6      the appellant pleaded guilty as a result of 'plea bargaining' between the appellant and the respondent. That in itself entailed that both parties have assessed the merits and the demerits of their cases, the length and expense of the trial for both parties, the host of particular and factual considerations to which the parties are privy by virtue of knowing their cases;

                  2.7      the parties agreed that the respondent would not urge, and indeed did not urge, the court to impose the custodial sentence;”

The other grounds of appeal added by this amendment of the notice of appeal are discussed later in this judgment.


vv. On 17 November 2003 appellant’s attorneys filed a notice objecting to a number of pages being included in the appeal record;

ww. The appeal was enrolled for 26 July 2004. It was postponed because the record of the proceedings was not before this court in full;

xx. On 22 July 2004 a second amendment of the notice of appeal was filed. It contains an attack upon the correctness of the conviction on the grounds that the charge-sheet did not disclose an offence as Parliament could not be cited as a complainant in law; and that the alleged prejudice was too remote and fanciful to fall within the definition of fraud. Therefore, so the notice reads, the plea of guilty was deficient in law as there were no factual allegations contained in the charge-sheet to cover the legal elements of the crime of fraud and that the plea therefore was of no force and effect;
yy. The introduction of this further amendment of the notice of appeal is opposed, as is the later application for condonation for the late filing of the appeal record;

zz.      On 4 February 2005 the application for review was launched. It seeks the setting aside of the proceedings before the regional court on the grounds that appellant and the former National Director of Public Prosecutions had agreed that the latter “… would see to it that (the appellant) receive a fine of not more than R5 000,00 …” once the appellant had pleaded guilty to the alternative charge;

aaa. This is the first time that an agreement containing a term that the NDPP would “… see to it …” that the appellant would receive a sentence not exceeding R5 000,00 is alleged. These allegations are in dispute.

11.      Against this background the various issues arising in the review application and the appeal can be considered. It is convenient to deal with the review application first.

THE REVIEW APPLICATION
12.      The regional court magistrate, the late W W P Moyses, is cited as the second respondent in the review application. He abided the court's decision. The first respondent, the former National Director of Public Prosecutions, opposes this application and the setting aside of the conviction and sentence.

13.      The opposition is advanced under three heads:
(a)      The applicant's version is so far-fetched and improbable that it can be rejected on the papers without referring it to oral evidence.

(b)      Even if such agreement was entered into, it would either be impossible to perform as the N
ational Director of Public Prosecutions could never lawfully undertake or "... see to it ..." that the applicant would receive a sentence no more severe than a R5 000,00 fine; alternatively it would amount to an undertaking that is fundamentally in conflict with the independence of the judiciary guaranteed in section 165 of the Constitution.

(c)      The delay in bringing the review is so unreasonable as to
per se justify the dismissal of the application.

14.      The applicant argues that the failure of the agreement to impose a R5 000,00 fine upon him constitutes an irregularity justifying the setting aside of the conviction and sentence.

15.      The first issue to be determined is whether the applicant has succeeded to make out a prima facie case on the papers that an agreement was entered into on these terms.

16.      In arguing that the averment that such an agreement exists is untrue, Mr Chaskalson on behalf of the first respondent, assisted by Mr Mphaga, stated the following at par 33 of his heads of argument:

The applicant’s version is raised for the first time more than two years after the event. It was not raised on eight separate previous occasions when one would have expected it to have been raised:

33.1     when the plea explanation was drawn up by his attorneys and settled by his counsel;

33.2     in the proceedings in court on 13 February 2003 when his counsel read (the plea explanation) into the record and clarified ambiguities in the document;

33.3     when he confirmed the contents of (the plea explanation) in open court on 13 February 2003,

33.4     when his counsel addressed the court on sentence on 17 February 2003;

33.5     when his attorney filed a notice of appeal on 19 March 2003;

33.6     when his previous attorney filed a notice to amend his notice of appeal on 17 July 2003;

33.7     when his previous attorney filed a notice on 17 November 2003 seeking to confine the record on appeal to the chargesheet, the statement changing the plea and the judgment on sentence, or

33.8    
when his current attorney deposed to an affidavit on 6 May 2004 in support of an application to postpone his appeal.”

17.      It is indeed surprising that the applicant, if he truly believed that the agreement had been entered into, and if he had indeed informed his legal team thereof, did not immediately object in no uncertain terms when sentence was passed upon him by the regional court. His case is in no way assisted by the fact that he and his legal team were in virtually continuous consultations concerning the amendment of his plea from 5 February 2003 onwards. If indeed there was an agreement in existence as alleged by the applicant, it is inconceivable that he would not have contacted the first respondent during the period 5 February 2003 to 13 February 2003.

18.      It is also inconceivable that the state’s legal team would not have been in contact with the first respondent if the existence of such an agreement had been conveyed to them during the negotiations, on the assumption that they had not been instructed to act in terms thereof by the NDPP. Applicant states that the members of his legal team were aware of the agreement. He goes so far as to allege that when, from the tenor of the state’s argument on sentence, he became concerned that the latter would not abide by the agreement with the NDPP, he sent a note to his legal representatives. He asserts that he was assured by them that he would receive only a fine.

19.      This latter allegation is crucial. It is not supported by an affidavit by any member of his then legal team. There is no explanation for this failure to obtain the most important corroborative evidence that ought to be readily available. Its absence, seen against the background of the above facts, allows only one reasonable conclusion: The allegation is untrue.

20.      This conclusion is supported by the first amendment of the notice of appeal, filed some three months after the imposition of sentence. It does allege an agreement having been reached with the state relating to sentence, but the agreement relied upon is the one that the first respondent has alleged and that the state adhered to: A non-custodial sentence would be sought by the state. The agreement now being relied upon was only raised for the first time almost two years after the sentencing process had been completed and the appellant and his several legal teams had had ample opportunity to consider their position and to consult in respect of the grounds of appeal and review.

21.      Applicant’s present attorney of record states in an affidavit supporting an application for condonation of the late filing of the record of appeal and the late filing of the amended notice of appeal that the delay was due to his inability to obtain a copy of the record in time. He had been instructed, however, in January 2004 that the applicant intended to rely on the agreement that he would only receive a fine. There is no explanation for the fact that this agreement was communicated to applicant’s legal advisors only at this very late stage.

22.      Coupled with the other considerations mentioned above the only reasonable conclusion is that such agreement was never entered into.

23.      Even if an agreement as alleged was entered into, it would be fundamentally incapable of being performed. Subject to statutory limitations, sentencing is the function of the presiding officer alone. Any attempt to fetter the court’s free discretion on sentence or to seek to subject the court’s sentencing function to a prior agreement by the prosecution and the defence would be in conflict with the fundamental constitutional principle of the independence of the judiciary. This principle is trite and hardly needs elaboration. An agreement as alleged by the applicant could never be lawfully enforced, even if the prosecution and the defence had struck such a bargain:

                “[25]     The separation of the Judiciary from the other branches of government is an important aspect of the separation of powers required by the Constitution and is essential to the role of the courts under the Constitution. Parliament and the provincial legislatures make the laws but do not implement them. The national and provincial executives prepare and initiate laws to be placed before the legislatures, implement the laws thus made, but have no law-making power other than that vested in them by the legislatures. Although Parliament has a wide power to delegate legislative authority to the Executive, there are limits to that power. Under our Constitution it is the duty of the courts to ensure that the limits to the exercise of public power are not transgressed. Crucial to the discharge of this duty is that the courts be and be seen to be independent.

                  [26]     The separation required by the Constitution between the Legislature and Executive, on the one hand, and the courts, on the other, must be upheld, otherwise the role of the courts as an independent arbiter of issues involving the division of powers between the various spheres of government, and the legality of the legislative and executive action measured against the Bill of Rights and other provisions of the Constitution, will be undermined. The Constitution recognizes this and imposes a positive obligation on the State to ensure that this is done. It provides that courts are independent and subject only to the Constitution and the law which they must apply impartially without fear, favour or prejudice. No organ of state or other person may interfere with the functioning of the courts......”

Per CHASKALSON P in: SA Association of Personal Injury Lawyers v Heath and others, 2001 1 SA 883 (CC).

See also: Van Rooyen and others v The State and others, 2002 5 SA 246 (CC) at [19].

24.      The purported agreement would seek to bind the court’s constitutional power to determine a suitable sentence, by a private treaty between the appellant and the prosecution and thereby subjugate the court’s independence to the views of an organ that forms part of the Executive. Such a bargain is clearly unconstitutional and unenforceable. It would blur the clear line of division between a prosecutorial (executive) decision and the sentencing power, which is a judicial power.

25.      It should be underlined that a plea-bargaining agreement in terms of section 105A of the Criminal Procedure Act, Act 51 of 1977, (called a “plea and sentence agreement” in the statute) is expressly subject to the court’s prior finding that the agreement is just, which decision is made by the court independently of the parties to such agreement.

26.      Lastly it is self-evident that the review application was launched after the expiry of an unreasonably long time. The explanation offered for the late raising of the ground upon which it is based, and for the time that elapsed since sentence was imposed before the review became reality is superficial and entirely unconvincing. It bears every hallmark of a desperate clutching at straws to escape the consequences of the applicant’s actions rather than the ring of truth.

See: Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 1 SA 13 (A).

The review application must therefore be dismissed with costs.

27.      The applicant filed a supplementary affidavit in which he launched a vitriolic attack on the first respondent’s character that had no bearing upon the issues in the application. It was clearly motivated by a desire to embarrass the first respondent on political grounds and to besmirch his integrity. Applicant’s counsel decried any reliance upon it. Respondent sought a special costs order covering the costs of the entire application.

28.      Although the applicant’s actions are deplorable, we are of the view that it will be a sufficient expression of the court’s disapproval of the supplementary affidavit if it is struck out with costs on the scale as between attorney and client. In the result, the review application is dismissed with costs, such costs to include the costs of two counsel, while the supplementary affidavit is struck out with costs on the scale as between attorney and client, such costs also to include the costs of two counsel.



THE APPEAL AGAINST THE CONVICTION
29.      Although the appellant pleaded guilty to the alternative charge of fraud upon which he was convicted, he now seeks to attack his conviction on grounds that are substantially the same as those he relied upon when he objected to the charge sheet prior to pleading, arguing that the said document did not disclose an offence.

30.      In essence, the appellant avers that:
(a)      The breach of the Parliamentary code of conduct by failing to disclose the benefit received from accused no 2 was not criminalized by statute,

(b)      Consequently, the deliberate breach of the code did not amount to criminal conduct and did not constitute fraud;

(c)      Although a failure to speak where a legal duty exists to do so does not necessarily constitute fraud, (particularly not if the representor does not intend to prejudice any party), failure to speak out when under a legal duty to do so may amount to fraud, but did not do so in the instant case as the appellant did not intend to commit a fraud;

(d)      Parliament is not a juristic person;

(e)      Parliament consequently lacks the capacity to be defrauded and can consequently not be a complainant;
                 
(f)      Parliament in any event suffered no prejudice or potential prejudice;

(g)      Appellant’s actions did not constitute a criminal fraud.

31.               Although it is correct that the breach of the Parliamentary code does not per se amount to fraud, this does not mean that the appellant’s failure to speak when under a legal obligation to do so cannot be categorized as a criminal offence if he intended to mislead Parliament. In S v Western Areas Ltd and others, 2004 4 SA 591 (W), LABUSCHAGNE J, said the following about a comparable problem that arose in regard to an alleged fraud arising from a failure to disclose information required to be disclosed by the Security Regulation Panel’s rules, by the Companies Act and the JSE listing requirements:

                  “[7] [7.1]        the crucial question for decision in this case is whether it is competent in law to found criminal liability for fraud based on a duty of disclosure flowing from the (SRP) rules and the Companies Act and the JSE listing requirements where neither the rules, the relevant provisions of the Companies Act nor the JSE listing requirements create criminal liability for their breach.

                           [7.2]    The argument of the state is that the accused failed to make any of the disclosures required by the applicable SRP rules with the intention to defraud the SRP, the JSE and the public. In these circumstances it was submitted that a proper case of criminal fraud by silence is made out in the indictment.

                                    ...


[25]     As pointed out in many of the reported cases a duty to disclose can arise or exist for many reasons and will depend on the peculiar facts and circumstances of each case. A statutory obligation is but one of them. It can of course also arise at common law as is expressly alleged in the amendment to the indictment.

[26]     ... In principle I can see no reason why the State cannot rely on the statutory provisions of the SRP Code and rules for the existence of the alleged duties to disclose in the context of a charge of fraud and against the background of the facts alleged in the preamble to the indictment. ... The accused are not charged with a contravention of any of the rules as such but with various counts of fraud. To my knowledge the courts have not held that it is a prerequisite for a crime of criminal fraud by silence that the duty to disclose should itself be criminalized. In all the cases the inquiry has rather been whether on the facts and circumstances of each case the non-disclosure (or fraudulent concealment) resulted in a misrepresentation which was perpetrated with a fraudulent intent.”

32.      The learned judge referred in his decision to several cases in which it was held that 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 by a criminal sanction, inter alia: S v Heller and another (2), 1964 1 SA 525 (W); S v Burstein 1978 4 SA 602 (T); S v Rosenthal 1980 1 SA 65 (A).

33.      Bearing in mind the express terms of the written explanation of plea, exhibit “BBB” as quoted above, there can be no doubt that the appellant intended to deceive Parliament and its members by the deliberate failure to record the benefit he had negotiated for himself. One needs only to imagine the chorus of protest that would have arisen from the opposition benches if these facts had become general knowledge at that stage.

34.      The fact that the appellant intended to deceive the members of Parliament and the public at large is established beyond doubt by the stubborn denials of the truth reiterated by him for almost two years after the first suggestions were made of the appellant being involved in an improper transaction and by the deliberately deceitful advertisements published by himself in order to cover his tracks and to launch an unbridled and dishonest attack upon his critics.

35.      It was never seriously contended on behalf of the appellant that he was not obliged to disclose the benefit he received and that his failure to do so was deliberate. That appellant harboured the intention to defraud has therefore been established beyond a reasonable doubt.

36.               The suggestion that Parliament cannot be defrauded because it is not a juristic person is decidedly not the strongest weapon in the appellant’s armoury. Parliament is an organ of state in terms of the Constitution: De Lille and another v <<Speaker>> of the National Assembly 1998 3 SA 430 (C) at [25] 449C–E. Even if it could be argued that it does not, as an organ of state, have juristic personality – which would be surprising, but does not have to be finally determined at this stage – there can be no doubt about the fact that as an assembly of natural persons who have to perform tasks of national importance acting together, it has a vital interest in not being misled. It hardly needs pointing out that Parliament cannot function if it does not have relevant information at its disposal. Such information, including information relating to the propriety or otherwise of its members, must be correct and accurate. If Parliament is misled, or if individual members thereof are misled, whether expressly or by the withholding of information that must be disclosed, it stands to reason that they have been defrauded if the intention to mislead was present in the mind of the perpetrator.

37.      Reference has been made above to the fact that, at the very least, the opposition members of Parliament had a vital interest in the disclosure of appellant’s improper behaviour. But the other members and functionaries of Parliament were at least as vitally interested in the same information, particularly those functionaries that were tasked to oversee the conduct of individual members of this organ of state, or tasked to oversee the arms acquisition process.

38.      There is therefore no basis upon which it could be argued that Parliament or its individual members could not be deceived or defrauded. By the same token, Parliament or any of its constituent assemblies, councils or committees can act as complainant in a criminal matter.

39.      The prejudice, or potential prejudice suffered by Parliament or any of its aforesaid bodies or individual members is self-evident, and in any event admitted in paragraph 4.22 of exhibit "BBB". Neither of these persons or entities can function without correct information and accurate knowledge of the particular matter being considered at the relevant time. This includes knowledge of any individual member’s failure to comply with the dictates of the Parliamentary code of conduct.

40.      The mere fact that the individual members, committees or assemblies were not mentioned individually in the charge-sheet does not alter the position. The definition of common-law criminal fraud is of necessity broad based. As CLOETE J, (as he then was) said in S v Friedman (1), 1996(1) SACR 181 (W) at 194h–195b:
         “I do not find the breadth of the common-law definition of fraud repugnant to the provisions of the Constitution to which counsel has referred. I find nothing objectionable in the approach which punishes fraud not because of the actual harm it causes, but because of the possibility of harm or prejudice inherent in the misrepresentation: in S v Kruger and Another 1961 4 SA 816 (A) WESSELS AJA (as he then was) said the following at 832D-E:

         ‘Indien ek die strekking van die gewysdes wat hierbo genoem is, en die van die gewysdes wat daarin bespreek word, reg begryp, blyk dit dat die bedrie r volgens ons geldende reg veroordeel word omdat sy wederregtelike en opsetlike misleiding van so ‘n aard is dat dit in die betrokke omstandighede, en volgens juridiese maatstawwe gemeet, moontlike skadelike gevolge inhou vir die persoon aan wie die wanvoorstelling gerig word en/of enige ander persoon wat “binne die trefgebied van daardie wanvoorstelling is.'"

41.      The individual members and other entities of Parliament certainly were at all relevant times within the range of the appellant’s misrepresentation.

42.      The appellant’s plea of guilty clearly and unequivocally admitted the above facts. He was correctly convicted. His appeal against the merits of this conviction is doomed to failure.


THE APPEAL AGAINST SENTENCE
43.               The appellant was sentenced to four years imprisonment in terms of section 276 (1) (i) of the Criminal Procedure Act 51 of 1977. This means that he could be released from imprisonment under correctional supervision by the Commissioner of Correctional Institutions. In practice, the conversion of such imprisonment to correctional supervision will take place only after the prisoner has served at least one sixth of the sentence imposed. (This sentencing option is not available if the sentence imposed exceeds five years.)

44.               This sentence was imposed by the learned trial magistrate in spite of the fact that the state, represented at that stage by Ms Gerda Ferreira, did not seek a custodial sentence, and that appellant’s counsel argued for a similar sentence.    It is common cause that the appellant discussed his potential sentence with the former Minister of Justice and Constitutional Development, Dr Penuell Maduna, and the then National Director of Public Prosecutions, Mr Bulelane Ngcuka, at a meeting at the minister’s home during January 2003.

45.               It is also common cause that the three persons agreed that, should the appellant plead guilty to a “watered–down” charge, the state would not seek a custodial sentence.

46.               As is evident from the foregoing, the appellant relied heavily upon this agreement in his argument that his sentence was too severe and induced a sense of shock, particularly in view of the fact that the NDPP did not seek his incarceration.

47.               Before considering the impact of this agreement, the role of the National Director of Public Prosecutions under the Constitution must be examined.

48.                        “... prosecutors have always owed a duty to carry out their public functions independently and in the interests of the public.”
Per ACKERMANN et GOLDSTONE JJ in Carmichele v Minister of Safety and Security and another (Centre for Applied Legal Studies Intervening) 2002(1) SACR 79 (CC) at [72] 105d–e.

49.               Section 179 of the Constitution of the Republic of South Africa, 108 of 1996, establishes the prosecuting authority in the following terms:

                  179. Prosecuting authority.
                  (1)               There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of –

                           (a)      a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and

         (b)      Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.

                  (2)      The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.

                  (3)     
National legislation must ensure that the Directors of Public Prosecutions-

                           (a)      are appropriately qualified; and
                           (b)      are responsible for prosecutions in specific jurisdictions, subject to sub-section (5).

                  (4)      National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. (0ur emphasis.)

                  (5)      The National Director of Public Prosecutions-
                           (a)      must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;

                          
(b)      must issue policy directives which must be observed in the prosecution process;

                          
(c)      may intervene in the prosecution process when policy directives are not complied with; and

                          
(d)      may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:
                  (i)      The accused person.
         (ii)     The complainant.
         (iii)    Any other person or party whom the National Director considers to be relevant.

                  (6)      The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.

                  (7)     
All other matters concerning the prosecuting authority must be determined by national legislation.”

50.               The national legislation envisaged by the Constitution is the National Prosecuting Authority Act 32 of 1998. It reiterates the provisions of section 179 of the Constitution both in its preamble and in several sections of the Act. Of particular importance is section 32 of Act 32 of 1998. It reads in part:

32. Impartiality of, and oath or affirmation by the members of prosecuting authority.- (1)(a) A Member of the prosecuting authority shall serve impartially, and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.”

51.               Every member of the authority is obliged to undertake on oath or affirmation prior to the commencement of their service to uphold this provision. The Constitution guarantees the professional independence of the National Director of Public Prosecutions and every professional member of his staff with the obvious aim of ensuring their freedom from any interference in their functions by the powerful, the well-connected, the rich and the peddlers of political influence.

52.               The untrammelled exercise of their powers in a spirit of professional independence is vital to the functioning of the legal system. The independence of the Judiciary is directly related to, and depends upon, the independence of the legal professions and of the National Director of Public Prosecutions. Undermining this freedom from outside influence would lead to the entire legal process, including the functioning of the Judiciary, being held hostage to those interests that might be threatened by a fearless, committed and independent search for the truth.

53.               Section 22(4)(f) of the Act obliges the National Director of Public Prosecutions to bring the provisions of the United Nations Guidelines on the Role of Prosecutors to the attention of every prosecutor and director of the authority and to promote respect for and compliance with its principles.

54.               ACKERMANN et GOLDSTONE JJ quote one of the duties determined in the guideline in Carmichele, supra:

                  In the performance of their duties prosecutors shall:
                  (b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect ...”
                  (at paragraph [73] p106d-e)

55.               When the meeting between the appellant, Mr Ngcuka and the former minister is viewed in the light of these principles and guidelines, it is clear that it was unwise for all three participants to engage in it. It was unwise for the appellant to seek the aid of the Minister, because the mere fact of doing so might create the impression that he was seeking the support of a politically powerful ally to influence the exercise of the National Director’s discretion in his favour on grounds that had more to do with political connectivity than with the merits of his case.

56.               By the same token, it was unwise for the minister to participate in these discussions at all, precisely because it might create the perception that he was exerting improper political pressure on the National Director in taking a decision that was in his exclusive discretion, or perhaps more properly, in that of the prosecutor concerned.

57.               And lastly, it was indubitably ill-advised for the former National Director of Public Prosecutions to be seen to participate in a discussion with the minister and the appellant. The independence of the office that he held, and the fearless and unfettered exercise of the extensive powers that this office confers, are incompatible with any hint or suggestion that he might have lent an ear to politicians who might wish to advance the best interests of a crony rather than the search for the truth and the proper functioning of the criminal and penal process.

58.               Unfortunately, the terms of the deal that was admittedly struck at this occasion do little to allay the perception that they were dictated by considerations other than the determination of an appropriate sentence for the crime the appellant would plead guilty to.

59.               Our country’s highest court has described this variation of so-called white collar crime in the following words:

         “[4] Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic State.”
Per CHASKALSON P (as he then was) in South African Association of Personal Injury Lawyers v Heath and others 2001 1 SA 883 (CC).

                  To state that corruption and other crimes of dishonesty on the part of elected office bearers and officials in the public service have become one of the most serious threats to our country’s well-being, is to state the obvious. Their incidence may well be characterized as a pandemic that needs to be recognised as such and requires concerted and drastic efforts to combat it.

60.               Our courts have repeatedly warned in their recent judgments that so-called “white-collar” crimes are to be regarded as being as serious as crimes of violence in every respect, and should be visited by the same penal sanctions, however reluctant one might be to add to the overcrowding of our correctional institutions. We quote only two of the various judicial pronouncements to this effect delivered during the past five years:

                           “[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.”
         Per MARAIS JA in S v Sadler 2000(1) SACR 331 (SCA) at 335g-336b.

61.               These remarks were quoted with approval in S v Kwatsha 2004(2) SACR 564 ECD at 570a-b. In the last-mentioned matter a government official stole several cheques with the intention to defraud the government of R2 million, which endeavour was unsuccessful. The regional court sentenced him, a first offender, to seven years imprisonment of which two were suspended upon suitable conditions. On appeal, the sentence was confirmed. The court of appeal underlined that corruption is endemic in the Eastern Cape government and added:

The fight against corruption is costly and ongoing and amounts to a substantial drain upon the State’s coffers. Notwithstanding the State’s attempts, it is unfortunately a fact of life that almost daily offences similar to the present come before the courts. Salutary sentences have been imposed in similar cases in the past and must continue to be imposed until this evil has been rooted out.”

See further: S v Blank 1995 (1) SACR 62 (A) and S v Williams 2000(2) SACR 396 (C).

62.      The former National Director was indubitably aware of these judgments. He should have appreciated the fact that the crimes of which appellant was accused, were in every respect as serious as those that attracted the lengthy prison sentences we have referred to. He should also have appreciated that there were very serious aggravating features in the appellant’s case that would call for severe punishment: The appellant’s crime was one of greed, not of need; the appellant occupied a position of trust that he grossly abused; the appellant was, on his own showing, the initiator of the dishonest deal; the appellant continued to weave his web of deceit in the face of mounting public disquiet for almost two years; the appellant defended his untenable position in private newspaper advertisements that were not only false in material respects, but also offensively disrespectful of his critics; until the day when he changed his plea the appellant had not shown any inkling of remorse.

63.      Although a court might still have come to the conclusion that appellant should be sentenced to a non-custodial sentence, depending on the view the trial court took of his personal circumstances, the former National Director should have been more watchful that his own position was not compromised in the eyes of the public. His agreement to seek a non-custodial sentence was therefore unfortunate.

64.      During argument, Mr Van Vuuren on behalf of the appellant drew our attention to the sentences that have so far been imposed upon the convicted criminals in the so-called “Travelgate” matters. It is common cause that not one of the Parliamentarians who was convicted of having participated in a fraudulent travel benefit scheme, has been incarcerated. This may or may not be significant in the light of section 47(1)(e) of the Constitution. This section provides that any person sentenced upon conviction of any crime to imprisonment for not less than twelve months without the option of a fine is unfit to become or remain a member of Parliament until five years after the sentence has been completed. We have no knowledge of the facts of any of these cases nor of the personal circumstances of the offenders concerned other than that they entered into plea and sentence agreements with the state in terms of section 105A of the Criminal Procedure Act, 51 of 1977. Our remarks must therefore not be interpreted as criticism of any individual “Travelgate” case, but rather as general observations.

65.      Plea bargaining was a well-known, if not officially recognised feature of the criminal process in South Africa prior to its formalization by the introduction into Act 51 of 1997 of section 105A by section 2 of Act 62 of 2001. It is a necessary alternative to a full-blown criminal trial, adding subtlety to the various measures designed to speed up criminal trials in a woefully congested criminal justice system: North Western Dense Concrete CC and another v Director of Public Prosecutions (Western Cape) 1999(2) SACR 669 (C). Once properly struck, both state and accused are bound by its terms: ibid.

66.      We are keenly aware of the fact that a presiding officer who must consider such an agreement, must be satisfied that the proposed sentence is just under the circumstances of the case as evidenced by the facts recorded by the state and the accused as part of the agreement. Circumstances may dictate the entering into of a plea and sentence agreement that may result in a sentence being imposed upon an accused pleading guilty in terms thereof, that may at first blush appear to be too lenient:

The court must take into account that the State properly represented by the prosecuting counsel or prosecutor, and that the accused (normally properly represented by an attorney or counsel) have assessed the merits and demerits of the State’s case and of the accused’s defence, the length and expense of the trial for both parties, the host of practical and factual considerations to which the defence and the State are privy by virtue of, on the one hand the accused’s knowledge of his own defence and on the other hand the State’s knowledge of the contents of its docket and the strength of its case.
Indeed it will often be so, once plea negotiations are entered into, that the accused’s def
ence will also be known to the State. The contents of the State’s dockets and the strength of the State’s case will be known to the accused.
It must be so that substantial room for an adjustment of the charges (including the withdrawal of certain charges and the possible acceptance of competent verdicts on
other charges) is open to the State. It must also be clear that in the give and take of negotiations, an accused person may tender in the negotiation to plead guilty to a charge of which that accused person is guilty, but in respect of which the State may have had considerable difficulty in achieving a conviction.
In return for the concession of a plea of guilty to a charge difficult to prove, it must be so that the Legislature has envisaged that the bargaining mechanism would bring home a result which satisfies the interests of justice. These would be that where a crime has been committed a conviction has been achieved. The price may be that the sentence which would normally flow from the commission of such a crime is lower than might otherwise have been imposed. This does not mean that justice has not been achieved.
As long as the sentence bears an adequate relationship to the crime and the moral blameworthiness content of the crime, given the aforesaid factors the sentence should be found
to be ‘just’ for the purpose of s 105A.
The function of the court in considering the justness or unjustness of a plea and sentence agreement made under s 105A encompass
es the following:

1.       The consideration of the well-known triad as set out in S v Zinn 1969 2 SA 537 (A).

2.       The taking of a broad overview of the facts admitted and the crimes admitted to having been committed together with the proposed sentence to be imposed, all with a view to establishing whether the sentence agreed upon and its effective content bear an adequate enough relationship to the crimes committed taking into account all of the agreed facts, both aggravating and mitigating, so that it can be said that justice has been served.”

Per ELS, J in S v Esterhuizen and others 2005(1) SACR 490 (T).

67.      While the safeguard of judicial oversight of a plea and sentence agreement does exist, the apparent pattern of agreed non-custodial sentences imposed upon dishonest politicians through the application of the procedure authorized by section 105A of the Criminal Procedure Act might create the public perception that the state appears to be comfortable with the thought that Parliamentarians who have abused an office of trust, are treated more leniently than other offenders. It would be more than unfortunate if such an impression were allowed to arise.

68.      Another matter that was referred to during argument was the unreported case heard on appeal in this court against Ms Winnie Madikizela Mandela, case no 1342/03 (T). As in the case of the appellant, she was tried in the regional court and convicted of inter alia fraud. As in this case, the state did not argue for a custodial sentence, but the court imposed the same sentence that was imposed upon the appellant. As in this case, she appealed. Again, the state did not support the sentence. Unlike the appellant, she had committed fraud not for personal gain, but because she was engaged in a Robin Hood - like scheme to help poor persons to obtain funds from a banking institution. Her appeal was partially successful on the merits and her sentence was altered to a non-custodial one. We have no doubt that, had there been evidence of personal enrichment on her part, she would have been incarcerated.

69.      Both in this matter and in that of Ms Madikizela Mandela, counsel for the state placed on record that they were acting on instructions in not seeking a custodial sentence, thereby very properly suggesting that their professional judgment was overridden by the instructions of their superiors.

70.      If these facts were to lead to the public perception that the National Prosecuting Authority was open to political deal-making and was inclined to grant preferential treatment to dishonest and corrupt politicians, it would have extremely grave consequences for the credibility of the entire legal system. Any suggestion of favouritism toward politically well-connected criminals on the part of the Authority should therefore be rooted out immediately.

71.      By the same token, courts that are confronted with a plea and sentence agreement in terms of section 105A of the Criminal Procedure Act, relating to crimes of dishonesty committed by elected office bearers and officials in a position of trust, should exercise vigilance in ensuring that appropriate retribution is exacted from the criminals concerned. 0bviously, imprisonment is not the only possible sentence and may be entirely inappropriate, depending upon the individual circumstances of each case. However, effective deterrence must feature and must be seen to feature in every such agreement by way of sentences of imprisonment, appropriate fines, reparation, compensation of the victims, community service and other measures to underline unambiguously that bribery, corruption, fraud and other instances of dishonesty will be regarded just as intolerable among this particular class of offenders as it is in respect of the rest of society.

72.      In terms of section 105A(7)(b)(i) the trial court has the power to enquire into all relevant circumstances relating to the sentence
proposed in the agreement. This power should be exercised whenever a proposed sentence appears to be too lenient in the light of the relevant offence the accused is convicted of.

73.      In the present case, a non-custodial sentence for the crime of which the appellant is guilty would be flagrantly inappropriate, given the aggravating features we have pointed out above. Certain misdirections are said to have occurred during the sentencing process in the regional court. Even if this were so, the imposition of an appropriate sentence was not affected thereby.

74.      It was urged upon us that the fact that the appellant had resigned from Parliament should be taken into account as a mitigating factor. This argument is a fallacy. The removal of a corrupt or dishonest official or elected office bearer from the position of trust occupied and abused by her or by him is not a punishment and it is inappropriate to take such removal from office into account as a mitigating circumstance. The removal from an office of trust of a person who has, by dishonesty and greed, demonstrated that she or he is unfit to hold such office, is a natural consequence of such unfitness. The immediate and permanent removal from an office of trust should follow in every case of a crime involving an element of dishonesty as a matter of law and of public policy. This principle has long been recognised in our law in the case of an attorney who has misappropriated trust funds and of a company director or a trustee who has been convicted of a crime of which dishonesty is an element.

75.      We are of the view that the sentence imposed upon the appellant by the regional court errs significantly on the side of leniency. A sentence such as imposed in the Kwatsha case would have been more appropriate. We considered giving notice of our intention to increase the sentence in the event of the appeal against the conviction being dismissed but were dissuaded from this course by the fact that the appeal would then have had to be postponed, delaying justice yet once more and increasing the burden of uncertainty resting on the appellant’s shoulders. Our inaction should not be regarded as an indication that a similar sentence will be endorsed by this Court in a comparable case in the future.

76.      The application for condonation cannot succeed as there is no reasonable prospect of success. Both the application and the appeal are dismissed.







                                                      E BERTELSMANN
                                                      JUDGE OF THE HIGH COURT

                                    and


                                                      F G PRELLER
                                                     
JUDGE OF THE HIGH COURT
A1079-03



HEARD ON: 3/10/2005
FOR THE APPELLANT:
ADV J L C J VAN VUUREN SC WITH
ADV D J COMBRINCK
INSTRUCTED BY: DU TOIT ATTORNEYS
FOR THE RESPONDENT: ADV M CHASKALSON WITH
ADV M MPHAGA
INSTRUCTED BY: STATE ATTORNEY PTA
FOR THE STATE: ADV R S DU TOIT
INSTRUCTED BY: DIRECTOR OF PUBLIC PROSECUTIONS, PTA

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