South Africa: North West High Court, Mafikeng

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S v Elliot (CC 51/02) [2002] ZANWHC 1 (1 January 2002)

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1. The accused, represented by Adv. Roux, is charged with fraud. Adv. Marais appears for the State. At the commencement of the proceedings counsel for the State and the accused approached the Court for indulgence (to stand the matter down) as some bargaining with regard to a plea and sentence agreement was in process. A plea and sentence agreement has indeed been agreed upon by the parties concerned. Mr Roux has confirmed the conclusion of such an agreement. I have perused the agreement and am satisfied that it complies with the requirements of s 105 A subsection (1)(b)(i) and (iii). The accused pleaded guilty to the first leg of the fraud, of non disclosure and/or non-compliance with the Rules of the Housing Corporation

2. I am satisfied that the accused admitted the allegations in the charge to which he has pleaded. Having so satisfied myself, I will now turn to proceed to consider the sentence agreement in terms of the provisions of subsection 7(a) and (b) (ii).

3. The offence/charge to which the accused has pleaded guilty does not fall within the ambit of the provisions of the Criminal Law Amendment Act 105 of 1997 (“the Act”) and the Schedule thereto. Section 51 (2) of the Act provides, inter alia, that:-

“(2)

4. In terms of Part 11 of Schedule 2 a sentence for a period of not less than 15 years imprisonment for a first offender may be imposed for offences of fraud and theft involving amounts of more than R500 000 unless the court is satisfied in terms of section 51 (3) (a) that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed.

5. I am, in terms of s 8 of the Criminal Code, as amended, satisfied that the sentence agreed upon is just. I have taken into consideration the following factors: (A) in mitigation that-

(1) the relevant statutory provisions in place;

(2) the objectives of the bargaining processes as envisaged in the Act;

(3) the personal circumstances of the accused;

(4) the fact that he is a first offender;

(5) the nature of the offence; and

(6) the fact that he pleaded guilty to a far lesser charge.

6. The fact that the complainant, the Department of Finance in the North West Province did not suffer any financial prejudice or loss as the work in respect of which payment was effect had indeed been performed.

7. It is also indicated in the agreement that the subcontractors have been paid fir the work performed.

(B) in aggravation-

8. That the accused, as a member of the Corporation, was required to display absolute honesty in his relationship and dealings with the Corporation. He/You fell short of the standard and character legitimately expected from you/him; In other words, you abused your position of trust vis a vis the Corporation.

Having taken the objectives of punishment and all these factors into consideration I am satisfied that the sentence agreed upon is just.

Accordingly, the accused is convicted of fraud is respect of the charge to which he has plead guilty in terms of the plea agreement.

0The sentence agreed upon and which I consider just in the circumstances is as follows:

“A fine of R10 000.00 (Ten Thousand Rand) or 2 (Two) years imprisonment and a further 5 (Five) years imprisonment suspended for 5 (Five) years on condition that the accused is not convicted of fraud and/or any offence involving dishonesty committed during the period of suspension in respect of which the accused is sentenced to imprisonment without the suspension or option of a fine”.”

B.E. NKABINDE

JUDGE OF THE HIGH COURT