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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)              

                                                                                    Case no: CA&R287/2014

                                                Date heard: 4 November 2015

                                                                                    Date delivered: 10 November 2015

In the matter between

ANTON FREDERICK JONKER                                                                                            Appellant

vs

THE STATE                                                                                                                            Respondent

JUDGMENT

PICKERING J:

1.            The appellant was charged in the Special Commercial Crimes Court, Port Elizabeth, with 5 counts of fraud.  He pleaded guilty as charged.  All five counts were taken together for purposes of sentence and appellant was sentenced to 12 years imprisonment.  He appeals now with the leave of the court a quo against the sentence.

2.            The five counts of fraud arose out of the appellant’s employment as a car salesman with CBF Motors in Humansdorp.  In his plea explanation appellant admitted having defrauded CBF Motors in respect of certain transactions involving the alleged sale of certain motor vehicles, thereby occasioning prejudice to the complainant in the sum of R1 321 596,00.

3.            Appellant’s modus operandi is revealed in the particulars of the charge sheet in respect of the five counts to which appellant pleaded guilty.  The relevant portions of the charge sheet read as follows:

“Count 1

That the accused is guilty of the crime of FRAUD

In that on or about 9 December 2008, and at or near Humansdorp in the Regional Division of the Eastern Cape, the accused unlawfully, falsely and with intent to defraud, gave out and pretended to Pieter Jacobus Nortje, expressly or by conduct, that:

·         A Mercedes Benz CLS 500 with registration number [....] belonged to CBF Motors; and/or

·         He was authorised to sell the said vehicle to the said Mr. Nortje on behalf of CBF Motors; and/or

·         CBF Motors held a bank account at First National Bank with account number [....]; and/or

·         Mr. Nortje could pay the purchase price of the said vehicle into the said bank account; and/or

·         He would deliver the vehicle to Mr. Nortje upon payment of the sum of R261 596,00 into the above bank account.

Which induced the said Mr. Nortje, to his prejudice or to the prejudice of CBF Motors, to pay the amount of R261 596,00 into the above-mentioned account as payment for the said vehicle, whereas in truth and in fact, the accused when he so gave out and pretended well knew that:

·         The Mercedes Benz CLS 500 with registration number [....] did not belong to CBF Motors but to Desert Charm (Pty) Ltd; and/or

·         He was therefore not authorised to sell the said vehicle to Pieter Jacobus Nortje on behalf of CBF Motors; and/or

·         The account at First National Bank with account number [....] did not belong to CBF Motors but to Desert Charm (Pty) Ltd; and/or

·         He had informed Desert Charm (Pty) Ltd or Eugene Van Heerden that this payment was in respect of the sale of a 2008 Colt Triton 4x4 belonging to Desert Charm (Pty) Ltd; and/or

·         He would not deliver the vehicle to Pieter Jacobus Nortje upon payment of the agreed purchase price.

 

Count 2

That the accused is guilty of the crime of FRAUD:

In that on or about 4 December 2008, and at or near Humansdorp in the Regional Division of the Eastern Cape, the accused unlawfully, falsely and with intent to defraud gave out and pretended to CBF Motors that:

·         He had sold a Mercedes Benz Vito with registration number [....] to a Mrs. H.L.C. Reyneke with contact numbers [....] for the amount of R280 000,00; and/or

·         The said Mrs. Reyneke would receive finance for the vehicle from Nedbank; and/or

·         Mr. Skinner at Nedbank was arranging the finance in respect of the above sale,

Which induced CBF Motors to its prejudice in the amount of R280 000,00, to accept that the above was true and that the above transaction was valid or authentic, whereas in truth and in fact, the accused when he so gave out and pretended well knew that:

·         He had not sold the Mercedes Benz Vito with registration number [....] to a Mrs. H.L.C. Reyneke for the amount of R280 000,00, but to Eugene Van Heerden or Desert Charm (Pty) Ltd for the amount of R110 000,00; and/or

·         The said Mrs. Reyneke would not receive vehicle finance from Nedbank; and/or

·         The contract numbers provided for the said Mrs. Reyneke were false; and/or

·         Mr. Skinner at Nedbank was not arranging vehicle finance for Mrs. Reyneke and knew nothing of the transaction; and/or

·         He had provided Eugene Van Heerden with a false invoice in respect of the above-mentioned sale; v

·         He had allocated the payment of R100 000,00 on CBF’s bank account as payment for a Toyota Corolla purchased by Eugene Van Heerden.

 

Count 3

That the accused is guilty of the crime of FRAUD

In that during the period of November 2008 to December 2008, and at or near Humansdorp in the Regional Division of the Eastern Cape, the accused unlawfully, falsely and with intend to defraud gave out and pretended to CBF Motors that:

·         He had negotiated the sale of two Nissan 1.6 Bakkies to Planet Fitness on behalf of CBF Motors; and/or

·         CBF Motors should purchase the above vehicles so that the same could be sold to Planet Fitness; and/or

·         CBF Motors should make arrangements for the said vehicles to be delivered to Planet Fitness,

Which induced the said CBF Motors to its prejudice to purchase the said vehicles from Atlantis Nissan in Pretoria for the total amount of R179 698,96, and to make arrangements for delivery of the same, whereas the accused, when he so gave out and pretended well knew that:

·         He had not negotiated the sale of two Nissan 1.6 Bakkies to Planet Fitness on behalf of CBF Motors but to Desert Charm (Pty) Ltd or Eugene van Heerden in his own capacity; and/or

·         CBF Motors need not purchase the said vehicles as such; and/or

·         He would intercept the arrangements made by CBF Motors for the delivery of the vehicles, and ensure that the same were delivered to Desert Charm (Pty) Ltd or Eugene Van Heerden; and/or

·         He would keep the amount paid by Eugene Van Heerden to him in respect of these vehicles for himself.

 

Count 4

That the accused is guilty of the crime of FRAUD

In that on or about 28 November 2008, and at or near Humansdorp in the Regional Division of the Eastern Cape, the accused unlawfully, falsely and with intent to defraud gave out and pretended to CBF Motors that:

·         The Toyota Hilux 3.0 Raider 4x4 purchased by CBF Motors from Humansdorp Toyota on 3 November 2008 had been sold to Desert Charm (Pty) Ltd for the amount of R320 000,00; and/or

·         Eugene Van Heerden of Desert Charm (Pty) Ltd would finance the vehicle through Rand Merchant Bank; and/or

·         He had not received any payment from Desert Charm (Pty) Ltd in respect of the said vehicle,

Which induced the said CBF Motors to its prejudice to accept that the above was true and that the above transaction was valid or authentic, whereas the accused, when he so gave out and pretended, well knew that:

·         The Toyota Hilux 3.0 Raider 4x4 purchased by CBF Motors from Humansdorp Toyota on 3 November 2008 had not been sold to Desert Charm (Pty) Ltd for the amount of R320 000,00, but for R160 000,00; and/or

·         Eugene van Heerden of Desert Charm (Pty) Ltd would not finance the vehicle through Rand Merchant Bank; and/or

·         He had received payment from Desert Charm (Pty) Ltd in the amount of R160 000,00 in respect of the said vehicle and had kept such payment for himself.

 

Count 5

That the accused is guilty of the crime of FRAUD

In that during the period October 2008 to November 2008 and at or near Humansdorp in the Regional Division of the Eastern Cape, unlawfully, falsely and with intent to defraud gave out and pretended to CBF Motors that:

·         Mr. Naude of Plumbflow CC was not satisfied with the Mercedes CLC 350 that he had bought from CBF Motors; and/or

·         CBF Motors could buy back the vehicle from Mr. Naude for the sum of R280 000,00,

Which induced the said CBF Motors to its prejudice to pay the amount of R280 000,00 into the bank account of Plumbflow CC as payment for the said vehicle, whereas the accused when he so gave out and pretended well knew that:

·         Mr. Naude of Plumbflow CC had not indicated that he was not satisfied with the Mercedes Benz CLC 350 that he had bought from CBF Motors; and/or

·         CBF Motors need not buy back the vehicle from Mr. Naude for the sum of R280 000,00; and/or

·         The accused had misled CBF Motors to believe that Mr. Naude wished to return the vehicle so that the said CBF would repay Mr. Naude, who in turn would pay the accused the sum of R280 000,00 as an advance on another vehicle.”

4.            In consequence of appellant’s fraudulent activities the complainant was obliged to institute action in the High Court, Port Elizabeth, in order to recover certain of the vehicles sold by appellant, judgment being eventually given in favour of the complainant on 29 March 2012, more than three years after appellant had concluded his fraudulent transactions.  In consequence thereof the complainant’s actual loss was reduced to R687 965,00 albeit that this reduction in the complainant’s loss was not due to any conduct on the part of appellant.

5.            Appellant was, at the time of his sentencing, 38 years of age.  His personal circumstances appear in particular from the “Kriminologiese Evalueringsverslag” and evidence of Dr. van der Hoven an “independent criminologist”.  The regional magistrate correctly summarised Dr van der Hoven’s evidence in this regard as follows:

“Hy het erg onbestendige kinderjare beleef.  Hy is in verskeie skole geplaas waartydens hy deur ander leerders afgeknou is.  Sy interpersoonlike verhoudings met sy ouers, om dit sagkens te stel, laat dit veel te wense oor en het Prof van der Hoven getuig dat beskuldigde as gevolg van sy traumatiese jeug sielkundige letsels oorgehou het en ook ly as gevolg van die gebrek aan liefde, sekuriteit, geborgenheid en aanvaarding en is hy soekend na erkenning en goedkeuring.  Sy het ook genoem dat sy swak selfbeheersing in konfliksituasies kan daartoe lei dat hy hom skuldig maak aan bedrog.  Ek mag in hierdie verband net noem dat by die aanhoor van hierdie verslag daar werklike simpatie by die Hof opgewek is.  Ek dink enige mens wat nie as hardvogtig bestempel wil word nie sou so gevoel het.  Die ander traumatiese gebeure waaronder beskuldigde gebuk gegaan het is die feit dat sy ma se vriend, ene Ernie, in 1992 oorlede is, sy moeder en vader se egskeiding in 1985, sy pa se bankrotskap in 1986, ‘n huis wat afgebrand het, sy broer was in 1997 weens ‘n motorongeluk oorlede is, die fratsongeluk in November 2010 waarin die kind wat in sy sorg geplaas was vir drie maande op daardie stadium oorlede is.”

6.            From 1994 until 2002 appellant was employed in his father’s business.  In 1997 he paid an admission of guilt fine of R500,00 in respect of the offence of defeating the ends of justice.  Because of his difficult personal relationship with his father he later left his father’s employ.  During 2003 to 2004 he was employed as a salesman at a motor dealer in Potchefstroom.  He left to take up a similar position with Volvo Motors in Pietersburg on being offered a better salary.  In 2005 he was transferred to the Volvo Motors branch in Pretoria.  Whilst employed there he committed an act of fraud involving the sale of a motor vehicle.  Although he allegedly repaid Volvo Motors within two weeks he was criminally charged and convicted in the Special Commercial Crimes Court, Pretoria.  He was sentenced on 10 January 2006 to undergo 2 years correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977 together with a suspended sentence of 5 years imprisonment.  The sentence of correctional supervision included house arrest between the hours of 19h00 and 07h00 and 16 hours of community service per month, performing cleaning duties at Pretoria zoo on Saturdays.

7.            The term of correctional supervision terminated in January 2008 and in April 2008 appellant obtained his employment with CBF Motors which eventually led to the fraudulent conduct committed by him a mere 8 months thereafter.   

8.            It is trite law that the court of appeal has no general powers to interfere with the sentence imposed by the trial court.  It may only do so if the trial court has not exercised its discretion on sentence properly in a judicial manner either because of a material misdirection of law or fact or because the sentence is out of proportion to the facts and circumstances of the case to the point that no reasonable court would have imposed it.

9.            Mr. Koekemoer, who appeared for the appellant, submitted that the regional magistrate had erred in not imposing a sentence of correctional supervision in terms of section 276(1)(h) of the Act on appellant. 

10.         In her judgment the regional magistrate stated in this regard that “daar ook twee korrektiewe toesig verslae opgestel is ... en ek mag net noem dat beskuldigde volgens hierdie verslae nie ‘n geskikte kandidaat was vir korrektiewe toesig ingevolge artikel 276(1)(h).”

11.         One of the reports in the record is that compiled by a certain Mr. Segale.  It is regrettable to have to state that that report is hardly worth the two pages upon which it is written.  It is of no assistance whatsoever.  Furthermore, nowhere in the report does it in fact state that correctional supervision is not an option. 

12.         Be that as it may, however, appellant’s then legal representative, Mr. du Toit, informed the regional magistrate that he had spoken telephonically to Mr. Segale who had told him that his recommendation was that a direct term of imprisonment be imposed and that “dit direk te wyte is aan ‘n beleid van die Department Korrektiewe Dienste dat as jy ‘n vorige veroordeling het jy nie meer korrektief mag kry nie.”  (sic).

13.         Mr. Koekemoer submitted, with reference, inter alia, to S v Croukamp 1993 (1) SACR 439 (T) and S v M (Centre for Child Law as amicus curiae) [2007] ZACC 18; 2007 (2) SACR 539 (CC) that the sentence to be imposed upon an accused is not determined by the correctional officer; that the presiding officer should exercise an independent discretion; and that persons should not be excluded from correctional supervision simply because they were repeat offenders. 

14.         He submitted accordingly that the regional magistrate had erred in allowing her discretion to be fettered and in merely following the opinion of the correctional officer.  In my view, however, she did not do so.  There is nothing on the record to indicate that she had any regard whatsoever to the alleged policy of the Department of Correctional Services concerning repeat offenders and that she considered herself bound thereby.  In this regard the regional magistrate stated as follows:

“Ek is gedagtig aan die doelstellings van so ‘n vonnis [correctional supervision] naamlik dat waar moontlik ‘n geskikte kandidaat se gesins struktuur behoue bly, hy kan voortgaan met sy werk en in hierdie verband sal u dan ook instrumenteel wees daarin dat 24 gesinne brood sal hê op hulle tafel.  Dit blyk egter dat u nie meer die primêre versorger is nie aangesien u eggenote verhuis het na Oos London en ek is ook gedagtig dat u reeds die voorreg van hierdie vonnis opsie tot u beskikking gehad het.  Na voltooiïng van die korrektiewe toesig terwyl u steeds gebuk gegaan het aan ‘n opgeskorte vonnis het u die huidige misdrywe gepleeg, so dit blyk nie dat daardie vonnis die gewenste uitwerking gehad het nie.  Ek is van oordeel dat ‘n boete vonnis of enige ander vonnis nie in hierdie omstandighede die gepaste vonnis sal wees nie.”

15.         What this passage from her judgment reveals is that she considered that correctional supervision was not a suitable sentence in all the circumstances where, despite having had the benefit of such a sentence, and whilst a suspended sentence was still hanging over his head, the appellant had nevertheless proceeded to commit the present offences, within a year of the previously imposed period of correctional supervision having come to an end.

16.       In my view therefore there is no merit to Mr. Koekemoer’s criticism of the regional magistrate in this regard.      

17.         The other report referred to by the regional magistrate is that by Dr. van den Hoven.  In her report and her evidence Dr. van den Hoven stated that the appellant’s circumstances were very different from what they were in 2006 in that he was no longer working as a salesman in circumstances which afforded him the opportunity to commit fraud.  The appellant also had a family which, according to Dr. van den Hoven, would make him more responsible.  His new responsibilities, coupled with a heavy suspended sentence of imprisonment, would, so Dr. van den Hoven opined, serve as a deterrent preventing him from committing fraud again.  It would also offer him the best opportunity to rehabilitate himself.  She stated further that such a sentence would enable the appellant to compensate the complainant for its financial loss.

18.         What is further of relevance from the evidence of Dr. van den Hoven is the statement that “hierdie vonnis van korrektiewe toesig vir hom ‘n swaar vonnis was en dat hy verneder was deur die feit dat hy dierehokke moes skoonmaak.”  Appellant had also complained to her that the hours of house arrest were extremely onerous.  This, in my view, far from providing support for yet another sentence of correctional supervision, is on the contrary, a clear indication that the appellant has failed entirely to appreciate the fact that he was spared a term of imprisonment and to take advantage thereof.  It appears that he spurned the opportunity afforded to him to rehabilitate himself outside of prison. 

19.         Furthermore, there is, in my view, no substance to Dr. van den Hoven’s opinion that appellant, if sentenced to correctional supervision, would be in a position to compensate the complainant.  As submitted by Ms. Pillay-Selahle, who appeared for the State, both at the trial and on appeal, a huge amount of money is involved which appellant was and is clearly not in a position to pay.  Furthermore, he made no attempt whatsoever to do so despite the fact that he was gainfully employed during the lengthy sentencing proceedings which dragged on for four and a half years.  

20.         Appellant was asked why he had not attempted to repay the complainant in the previous three years to which he replied:

“I wanted to pay him back but he said he wants collateral and I said I cannot give him collateral and that was the main reason and I wanted to give him some money and then I thought to be quite honest is that I thought that if I go to jail he was going to lose that money anyway and I did not think that my back is going to fail on me and I was going to sit in hospital half of the time and just come back to the hospitalisation stuff I was in hospital other times as well, not only to this.”

21.         With regard to appellant’s evidence the regional magistrate stated that “dit blyk hieruit dat u nooit regtig van plan was om die klaer vir sy skade en verlies te vergoed nie.  U het tydens getuienis aflegging en vonnis prossedures beweer dat u R25 000,00 per maand verdien en u het nogtans in die laaste vier en ‘n half jaar nie ‘n poging aangewend om klaer van ‘n gedeelte van sy skade te vergoed nie.” 

I agree with this statement.

22.         As I have said, appellant’s attitude towards his previous sentence of correctional supervision hardly creates confidence that a second sentence of correctional supervision would be appropriate.  Moreover, Dr van den Hoven’s opinion that appellant would be deterred by a fine coupled by a lengthy suspended term of imprisonment is, in my view, without merit. Far from being deterred appellant committed the present offences whilst a suspended term of imprisonment was hanging over his head. 

23.         Mr. Koekemoer submitted further that the regional magistrate had erred in finding that the factor of restorative justice had no application in this matter and that appellant had made no attempt to “rectify” the situation or to compensate the complainant for the loss suffered.  In this regard the regional magistrate referred to the evidence of Dr van den Hoven where, after an exposition of the principles underlining restorative justice, she stated that:

“Deur middel van ‘n proses van mediasie kan dialoog tussen die slagoffer en die oortreder bewerkstellig word.  Die oortreder kry die geleentheid om sy opregte berou uit te spreek teenoor die slagoffer vir die skade wat sy maatskappy gelei het as gevolg van die bedrog.  Die benadeelde party word nou deel gemaak van die rehabilitasie van die beskuldigde en die maatskappy word vergoed vir die finansiele skade wat gelei is.”

24.         The regional magistrate rejected this evidence.  She stated, that “behalwe dat die inligting wat u op twee geleenthede vir die klaer gegee het, u geensins ander pogings aangewend het om die leed wat u veroorsaak het te vergoed of te herstel nie.”

In my view the approach cannot be faulted.

25.         It is also of importance to bear in mind, as was submitted by Ms. Pillay-Selahle, that the present offences were committed repeatedly in a calculated and deliberate manner over a period of two months, whilst appellant had ample time for reflection.  Furthermore, the appellant was fully aware that the complainant trusted him implicitly yet he betrayed that trust in the worst manner possible.  As submitted by Ms. Pillay-Selahle, the appellant was clearly motivated by greed.  It was put by her to appellant under cross-examination that he was living beyond his means and that was why he succumbed to the temptation of committing the offences.  Appellant conceded that such was so although he stated that he was not acting “totally out of greed”. 

26.         Furthermore appellant was dishonest during the course of the sentencing proceedings, both with the witnesses who testified on his behalf as well as with the court.  In particular, with regard to the “fratsongeluk” in November 2010 which led to the death of a child who had been placed in his care, and to which the regional magistrate referred as set out above, he falsely informed both a psychologist, Mr. Breedt as well as Dr. van den hoven, that the child was his own, obviously in order to gain their sympathy.  He also did not divulge to them his previous conviction for defeating the ends of justice.  As submitted by Ms. Pillay-Selahle, with reference to S v Matyityi 2011 (1) SACR 40 (SCA), such conduct was hardly an indication of genuine remorse on his part.  Indeed, one looks in vain for any objective indication of remorse other than appellant’s own professions thereof.  It is so that he pleaded guilty but, in the circumstances of this case, he had very little option but to do so.

27.         In S v Sadler 2000 (1) SACR 331 (SCA) Marais JA stated as follows at paragraphs 11 – 13:

“[11]    So called ‘white-collar’ crime has, I regret to have to say, often been visited in South African courts with penalties which 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 yet 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 impact of which upon society is too obvious to require elaboration.”   

28.       In S v Brown 2015 (1) SACR 211 (SCA) it was stated at para 121 that “less privileged” people convicted of theft of items of minimal value have had custodial sentences imposed and that the courts “must guard against creating the impression that there are two streams of justice; one for the rich and one for the poor.”  

29.         In my view a non-custodial sentence would amount to “an undue relegation of the retributive and deterrent elements in sentencing in favour of the rehabilitative and reformative elements.”  See S v Nel 2007 (2) SACR 481 (SCA) at 486g, para 15.  In the present matter the nature of the crimes and the interests of society must, in my view, carry a substantial amount of weight. 

30.         In the circumstances it cannot be said, in my view, that in determining that a non-custodial sentence was the appropriate punishment the regional magistrate did not exercise her discretion judicially or properly. 

31.         Mr. Koekemoer submitted further, however, with reference to a number of cases, that in the event of a custodial sentence being imposed the sentence of twelve years imprisonment was shockingly inappropriate.  For her part Ms Pillay-Selahle, also with reference to a number of cases including S v Wiggel 2013 (2) SACR 246 (E), submitted that the sentence was entirely appropriate.   

32.         I have had regard to all the cases referred to.  It is so that sentences imposed on accused persons in so-called “white-collar crimes” differ widely.  Each case must, however, be decided on its own facts.

33.         Having regard to all the circumstances which are set out above I am of the view, with respect to the regional magistrate, that the sentence of 12 years imprisonment is indeed unduly severe.  In my view a sentence of 8 years imprisonment would have been appropriate and I would have sentenced the appellant accordingly. 

34.         This result, on the particular facts of this case, is sufficiently disproportionate from the actual sentence as to warrant interference on appeal.

35.         The appeal against sentence must accordingly succeed.

36.         The following order will issue:

(a)  The appeal against sentence succeeds.

(b)  The sentence of 12 years imprisonment is set aside and substituted by a sentence of 8 years imprisonment.

 

__________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

I agree,

___________________

T. MALUSI

ACTING JUDGE OF THE HIGH COURT

 

Appearing on behalf of Appellant: Adv. Koekemoer

Instructed by: Netteltons Attorneys, Mr. Marabini

 

Appearing on behalf of Respondent: Adv. Pillay-Selahle

Instructed by: National Director of Public Prosecutions

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