---

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA&R 171/2014

Date Heard: 13 May 2015

Date Delivered: 25 May 2015

In the matter between

DAVID RASEEMELA                                                                                                  Appellant

And

THE STATE                                                                                                            Respondent

Appeal against conviction for fraud – State conceding that conviction on charge of fraud constituting duplication of charges – Appellant also convicted of extortion and contravention of s 79(1)(e) of Customs and Excise Act – Conviction for fraud set aside.

Appeal against sentences imposed on charges of extortion, theft and contravention of s 79(1)(e) of Customs and Excise Act –  Sentences for theft and contravention of Customs and Excise Act being fines with alternative period of imprisonment wholly suspended on conditions – no basis for interference - Extortion a serious offence warranting direct imprisonment in circumstances - Sentence of seven years’ imprisonment for extortion not shocking or disproportionate – Appeal on sentence dismissed.

Appellant’s co-accused at trial not appealing conviction for fraud and not before court – State requesting court to invoke its inherent jurisdiction to set aside conviction for fraud in the interests of justice – Held that court entitled to exercise its inherent review jurisdiction – Order granted setting aside accused 2’s conviction for fraud on basis that it constituted a duplication of charges.

JUDGMENT

GOOSEN, J.

[1] The appellant was convicted in the Regional Court at East London of extortion; theft; contravening section 79 (1) (e) of the Customs and Excise Act 91 of 1964; and fraud. He was sentenced to 7 years imprisonment on the charge of extortion; a fine of R2500 or 6 months imprisonment conditionally suspended for five years on the charge of theft; a fine of R5000 or 12 months imprisonment conditionally suspended for five years on the statutory charge and 7 years imprisonment on the charge of fraud. It was ordered that the sentences on the extortion and fraud convictions run concurrently.

[2] This appeal, with leave of this court on petition, is against the conviction on the count of fraud and the sentences imposed in respect of each of the counts.

[3] The appeal against conviction is founded on the basis that it constitutes a duplication of charges. The State has conceded that the conviction on the fraud charge ought to be set aside on appeal. This concession is properly made. It is based on an assessment of the facts found to be established at trial. It is necessary briefly to set out those facts since they are relevant also to consideration of the appeal against the sentences imposed on the other counts.

[4] The appellant and his wife (who was accused 2 at trial) went to the business premises of Mojo Clothing, owned by the complainant Mr. Pitcher, on 4 February 2011. They represented that they were conducting inspections for counterfeit clothing. They identified themselves to Pitcher as employees of the South African Revenue Service and showed to him identification cards. The appellant inspected clothing items on sale at Mojo Clothing and identified nine lines of clothing as allegedly being counterfeit. The appellant informed Pitcher that each line of counterfeit clothing attracted a fine of R5000. The appellant then requested the complainant to accompany him to a police station where he was given an official warning document, which had been stamped by a police officer. When driving back to the complainant’s business premises the appellant informed the complainant that “he could make the whole story disappear for R15000.” He later agreed to accept R10 000. The complainant was only able to withdraw R1000 from an ATM which was given to the appellant. It was agreed that the balance would be paid later. Before leaving Mojo Clothing the appellant and his wife took four items of clothing without paying for them.

[5] The appellant returned to the shop on 7 February 2011 and demanded that the complainant pay to him the outstanding R9000. As a result of a complaint lodged with the police, the appellant and his wife were arrested. They told the arresting officer that they were working for SARS and produced identification documentation to support this. Subsequent to their arrest numerous documents and identification cards purporting to be those of SARS, SAPS and other entities were discovered on which the names or photographs of the appellant and his wife appeared. The evidence led at the trial established that neither the appellant nor his wife was a SARS official and that they were not authorised or employed to fulfil duties relating to customs and excise inspections.

[6] Counsel for the State conceded that, having regard to the established facts, and taking into account the elements of the respective offences, the fraud conviction amounts to a duplication of the combined counts of extortion and that of contravening section 79(1)(e) of the Customs and Exercise Act. I agree. It follows that the conviction on the count of fraud must be set aside as must the sentence imposed on that count.

[7] What remains to be considered are the sentences imposed on the remaining counts. The argument on appeal was confined to the sentence imposed in respect of the conviction for extortion. It was submitted that the trial court did not take into consideration the personal circumstances of the appellant and that he had been in custody awaiting trial for a period of 15 months prior to finalisation of the matter. A reading of the judgment on sentence however, indicates that the personal circumstances of the appellant were indeed taken into account by the magistrate. The magistrate did not however specifically refer to the period that the appellant had spent in custody awaiting trial.

[8] The period that an accused person is in custody awaiting trial is a factor which a sentencing court ordinarily takes into account. There is however no hard and fast rule which determines the extent to which a period spent awaiting trial is to be considered by the court imposing a sentence. It is but one factor to be considered (see S v Radebe 2013 (2) SACR 165 (SCA) at par [13] and [14]). It was argued on appeal that the period of 15 months is a significant period and that when consideration is given to that period, the sentence of seven years imposed in respect of count one is unduly harsh.

[9] I am unable to agree. In the first instance, it appears from the record that the trial, once it had commenced, extended over numerous days requiring several remands to enable a number of witnesses to be called. Following upon the conviction, the matter was again remanded to enable a pre-sentence report to be prepared in respect of the minor children affected by the conviction of the appellant and his wife, accused 2. The prosecution was required to call a number of witnesses in order to prove the case against the appellant. It appears also, from the proceedings in respect of sentence, that the appellant was facing similar charges in other magisterial jurisdictions. It is not apparent from the record whether the appellant was also in custody in respect of those matters which were pending against him. In the circumstances the period spent in custody was not unduly long.  It must be emphasised that there is no simple calculus to be applied when weighing the period spent in custody awaiting trial as a factor in determining an appropriate sentence.

[10] In this instance it was submitted that the sentence induces shock. In my view the sentence is not shockingly inappropriate or disproportionate. The magistrate correctly found that there were significant aggravating features present and that the crime of extortion is a very serious offence. The facts set out above indicate that the appellant went to great lengths to commit these offences. The offences were carefully planned and well executed. The appellant created a false persona by obtaining false identification documents. The owner of the business was carefully identified and the appellant then brazenly took the complainant to a police station in order to strengthen the impression that this was a legitimate and official investigation by members of the Department of Customs and Exercise. Having extorted money from the complainant, the appellant returned to collect still more money, all under the threat of a significant fine to be imposed for allegedly trading in a counterfeit products. The impact on the complainant’s business was devastating. The appellant’s conduct during the trial does not indicate that he accepts responsibility for his actions or that he is remorseful about his conduct.

[11] In these circumstances the sentence imposed by the magistrate cannot be criticised. It follows that the appeal against sentence must fail.

[12] It was argued on behalf of the state that this court ought to exercise its inherent common law review jurisdiction and set aside the conviction of accused 2 on the count of fraud, notwithstanding that she is not before this court as an appellant. It was submitted that the full record of the proceedings is before this court and that, as in the case of the appellant, the record discloses that the conviction on the count of fraud constitutes a duplication of charges. It was accordingly submitted that it would be in the interests of justice that the conviction and sentence should be set aside.

[13] This court is indeed vested with an inherent jurisdiction which entitles it to regulate its own procedure.  Section 173 of the Constitution provides that:

The Constitutional Court, Supreme Court of Appeal and High Court have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.

[14] That power is ordinarily exercised with caution. In Krygkor Pensioenfonds v Smith 1993(3) SA 456 (A) at 469H-I the approach was expressed in the following terms:

Wat duideik uit hierdie gewysdes blyk, is dat die Hof slegs in uitsonderlike gevalle sy inherente bevoegheid sa uitoefen on prosedures te volg waarvoor nie in die gewone prosesreg voorsiening gemaak word nie. Die uitsonderlike gevalle word op verskillende maniere omskryf in die besslissings wat hierbo aangehaal is. Vir hudige doeleindesis dit egter genoeg om te sê dat die Hofhierdie bevoegdheid sal uitoefen net wwaar geregtigheid vereis dat afgewyk word van die gewone procedure-reêls. En selfs waar ‘n afwyking nodig mag wees, sal die Hof natuurik altyd poog om so naby as moontlik aan die erkende praktyke te by.

[15] In this instance it is clearly in the interests of justice that this court should deal with the duplication of convictions of accused 2 at trial, notwithstanding that she has not prosecuted an appeal on that issue. The appellant was denied leave to appeal by the trial court and was granted leave on petition to this court. It appears from the record that accused 2 did not apply for leave to appeal from the trial court. To now require accused 2 to follow the procedure ordinarily prescribed to bring this matter on appeal to this court or to direct that the matter be referred on special review, would serve no purpose other than to delay the inevitable, namely the setting aside of the conviction and sentence for fraud. In my view that would not serve the interests of justice.

[16] In the light of this it is appropriate that an order be issued setting aside the conviction of the second accused on the charge of fraud and to direct the Director of Public Prosecutions to take the steps necessary to bring the order to the attention of the accused and the relevant authorities.

[17] In the circumstances the following order is made:

1.    The appeal against the conviction of appellant on count 4, namely fraud, succeeds and the conviction and sentence on that count are accordingly set aside.

2.    The appeal against the sentences imposed on counts 1, 2 and 3 is dismissed.

3.    The conviction and sentence of Khutsahalo Martha Malepa, accused 2 in case number RC4/61/11, on the charge of fraud is hereby set aside.

4.    The Director of Public Prosecutions is directed to bring the order set out in paragraph 3 above to the attention of the said accused and the Department of Correctional Services.

_________________________

G. GOOSEN

JUDGE OF THE HIGH COURT

 

MALUSI, AJ.

I agree.

 

T. MALUSI

ACTING JUDGE OF THE HIGH COURT

 

APPEARANCES:            For the Appellant

                                             Adv. D. Geldenhuys

                                             Grahamstown Justice Centre

 

                                             For the Respondent

                                             Adv. D. G. Robinson

                                             Director of Public Prosecutions

 

---