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S v Barnard (2) (469/2002) [2003] ZASCA 63 (30 May 2003)

.RTF of original document

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

Reportable

CASE NO: 469/2002

In the matter between :

WIMPIE BARNARD Appellant

and

THE STATE Respondent

___________________________________________________________________________

Coram: MARAIS, CAMERON JJA et MLAMBO AJA

Heard: 21 MAY 2003

Delivered: 30 MAY 2003

___________________________________________________________________________

J U D G M E N T

___________________________________________________________________________

MARAIS JA/

MARAIS JA:

[1] With some reluctance I concur in the judgment of Mlambo AJA. I am less inclined to accept that the appellant was and is genuinely remorseful. He is not of course being sentenced for seeking to cause his employer embarrassment and discomfiture by reporting alleged tax irregularities to SARS. Nor is he being sentenced for his insistence upon being paid his salary of R3 000,00 despite the fact that he had stolen from and therefore owed his employer over R30 000,00. But I find it very difficult to reconcile that behaviour, even if it was retaliatory, with a sense of genuine remorse for his misdeeds and to accept that he is entitled to be given the benefit of such a finding. The plea of guilty in the face of an open and shut case against him is, in my opinion, a neutral fact. That said, I agree with respect that there were other material misdirections by the trial court and that we are therefore at large in relation to sentence. I agree too that we may properly take the repayment of the money stolen into account. I myself would have been inclined to impose a sentence more severe than that which Mlambo AJA has imposed and which would have approximated more closely to the sentence which the trial court imposed, but I do not feel sufficiently strongly about the matter to warrant a positive dissent.

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R M MARAIS JUDGE OF APPEAL