IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

								CASE NO. : A414/10

In the matter between:

NKOSANA GARETH VAVEKI				APPELLANT

And

THE STATE							RESPONDENT

JUDGMENT

"1. To pay a fine of R100 000 - 00 (one hundred thousand rand) and in default of payment to undergo a period of 3 (three) years of imprisonment.

A further 5 (five) years imprisonment is suspended for a period of 5 (five) years on conditions that:
1.1. the accused is not again convicted of theft/fraud or an attempt to commit either of these offences, and in respect of which conviction the accused is sentenced to a term of imprisonment without the option of a fine, committed during the period of suspension.
1.2. The accused pays the sum of R656 500 - 00 (six hundred and fifty six thousand five hundred rand) to the Attorneys Fidelity Fund by no later than 31/12/2008.

2. In terms of Section 103(1) of the Firearms Control Act 60 of 2000 - Accused not declared unfit to possess a firearm."

[2] The payment of the fine was deferred and was subsequently paid by Appellant during 2008.

[3] Appellant did not comply with the condition of payment of the R656 500 - 00 and on 4 December 2009 the suspended sentence was put into operation and Appellant was committed to prison to serve the 5 year sentence.

[6] At his trial Appellant initially pleaded not guilty. He chose not to reveal the basis of his defence to the court. After two witnesses testified on behalf of the state, Appellant changed his plea and made admissions in terms of section 220 of the Act. In the admissions Appellant set out the circumstances of the theft of the trust money in the amount of R656 500 - 35. In essence Appellant admitted that during the period January 2003 to April 2005 he appropriated an amount of R656 500 - 35 from his Trust Account, money which had been entrusted to him by members of the public, pending the finalisation of their matters by his firm. These admissions were accepted by the state and Appellant was duly convicted as charged.

[7] The matter was postponed for a correctional supervision officer's report and thereafter Appellant was sentenced as set out above.

"... this court is of the view that what is important in this instance is that the monies that you have removed from the trust account and which then has been funded by the attorneys fidelity fund, need to be repaid by you... this court is going to give you the opportunity to stay out of jail because you have the means to earn sufficient to repay these monies and that is the only reason that you are being allowed to stay out of prison, but conditions are going to be imposed that will ensure you make the payment, because if you fail to do it, then the alternative is a term in prison.... This court is giving you the opportunity to stay out of jail and you need...to take this opportunity with both hands...."

[11] In essence the only reason forwarded by Appellant in seeking condonation for this long delay was that he "put all my efforts to ensuring that I place myself in a position (financially) to meet the conditions of sentence and was a month away at the time of the arrest of realising the fruits of my efforts."

[14] In my view Appellant has given no explanation whatsoever for the long delay in seeking leave to appeal.

[15] This raises the issue of whether or not in such a case a court should even consider the prospects of success of Appellant.

"[4] When an application for condonation is considered the court has to exercise a judicial discretion upon a consideration of all the relevant facts. Factors such as the degree of non-compliance, the explanation for the delay, the prospects of success, the importance of the case, the nature of the relief, the interests in finality, the convenience of the court, the avoidance of unnecessary delay in the administration of justice and the degree of negligence of the persons responsible for non-compliance are taken into account. These factors are interrelated, for example, good prospects of success on appeal may compensate for a bad explanation for the delay.

[5] This court is only entitled to interfere with the discretion exercised by the court a quo if it was done capriciously or upon a wrong principle, if it has not brought an unbiased judgment to bear on the question or has not acted for substantial reasons."

[17] In this matter Snyders JA found at page 355 paragraph [14] that "The Appellant's explanation for the non-compliance with the rules amounts to no explanation at all."

[18]  Having found this Snyders JA nevertheless proceeds to examine the prospects of success on appeal of the appellant in that matter. It is my respectful view that this approach of Snyders JA supports the conclusion that even where there is "no explanation at all" for non-compliance by an appellant, the facts and circumstances of a particular matter, not least of all the prospects of success on appeal, may still override this absence of an explanation.

[23] In my opinion these arguments have no merit. If anything, if one has regard to the nature of the crime, the various positions of trust and responsibility Appellant occupied at the time of the commission of the crime and the sentences imposed on other attorneys convicted of a similar crime, Appellant can count himself extremely fortunate that the magistrate decided to impose a sentence which in principle allowed him the option of serving no effective term of imprisonment.

[25]  In this regard the magistrate stated as follows:
" This court is going to give you the opportunity to stay out of jaii because you have the means to earn sufficient to repay these monies and that is the only reason that you are being allowed to stay out of prison, but conditions are going to be imposed that will ensure you make the payment, because if you fail to do it, then the alternative is a term in prison....This court is giving you the opportunity to stay out of jail and you need, Mr Vaveki, to take this opportunity with both hands and make sure that you comply with each and every condition of the conditions of suspension because the conditions (are) going to be stringent so that all of the (objectives) of sentencing that were outlined to you at the beginning must be ensured, and this court will seek to uphold those objectives."

[26] In his judgment in Appellant's condonation application the magistrate reasoned as follows:

" ...the Court considered the circumstances of Mr Vaveki, took particular cognisance of the plea by the defence at the time that a non-custodial sentence, or rather a sentence that gives the accused an option to stay out of jail, could possibly be exercised for the reason that payment, or rather that compensation to the victim was eminently possible. The court was informed at the time that the accused was in the process of selling a dwelling house that he owned and that the proceeds after the bond had been settled, would be more than sufficient to meet the amount of the compensatory order, and therefore the Court gave the accused the opportunity to stay out of jail by imposing a fine as an alternative to a term of imprisonment and a further suspended term of imprisonment on condition that compensation was paid to the complainant."

[28] Thus central to the conditions the magistrate imposed was his belief that according to Appellant himself, Appellant was able timeously to raise the two sums of money. In this regard the record does not support this view of the magistrate.

[30] These submissions are not sufficient to support the magistrate's view that it had been informed at the time of sentencing "that the accused was in the process of selling a dwelling house that he owned and that the proceeds after the bond had been settled, would be more than sufficient to meet the amount of the compensatory order."

[31] In any event the evidence of the claims director of the Attorneys Fidelity Fund, Mr du Plessis, clearly contradicts this conclusion of the magistrate. When asked by the state whether the Law Society had as yet initiated proceedings against Appellant to recover the stolen money he answered as follows:

"It was not done in this case your worship as funds indications were that it would not be worthwhile economically to act against Mr Vaveki. We became aware at a certain stage that he possessed a house, (immovable) property, but the property was bonded to such an extent that at the time it was decided not to take any action against Mr Vaveki for recovery."

"A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate'. It must be emphasised that in the latter situation the appellate Court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute a sentence which it thinks inappropriate merely because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation."

[33] In the present matter I am of the opinion that the incorrect interpretation of the evidence concerning whether or not Appellant reasonably could be expected to meet the conditions of the payment of the fine and the repayment of the money stolen by Appellant, was a material misdirection by the magistrate. I conclude this as his sentence was premised on this wrong interpretation.

"...it does seem that two principles at least should be observed in the imposition of the conditions. The first is that the condition imposed should bear at least some relationship to the circumstances of the crime which is being punished by the imposition of the suspended sentence. ...The second is that the condition be stated with such precision that the convicted person may understand the ambit of the condition."

"In addition to these two requirements, a third has developed over the years, namely that the suspending condition has to be reasonable. Thus where it was found that a condition was unduly onerous for the accused and it was not reasonably possible for the accused to comply therewith, such a condition was set aside."

[38]  I am in respectful agreement with these judgments.

[40] Accordingly this court would be entitled to consider the question of sentence afresh, if condonation was granted.

[43] I am of the opinion that in such circumstances it would be remiss of this court not to grant condonation to Appellant.

[44] Having found on the merits of the appeal that this court would be entitled to consider the question of sentence afresh, I now turn to the issue of an appropriate sentence.

[45] As is apparent from this judgment so far, I am of a view that the sentence imposed was not too severe and that Appellant can count himself very fortunate that the magistrate decided to try and keep him out of prison. However, although this court can consider the question of sentence afresh, in the absence of any notice to Appellant of a possible increase in his sentence, it would be improper for this court to impose a sentence more severe than that imposed by the magistrate. It also would be inappropriate for this Court to impose a suspended sentence with conditions which Appellant reasonably could not meet. The most obvious such condition being requiring Appellant to pay a fine and repay the money stolen within a certain time frame whilst this court is not in a position to decide on whether or not Appellant reasonably can be expected to meet such conditions.

[46] Another consideration of this Court must be the need to compensate the victim, quite correctly highlighted by the magistrate, in this regard, the victim must be placed in the same position it would have been was it not for the theft by Appellant. Consequently it would be appropriate if Appellant is held liable for the capital sum and any interest accrued on

[47] As is obvious from what already has been stated in this judgment, an important question is whether Appellant reasonably is in a position to pay a large fine and compensate the victim within a time period stipulated by this court. In this regard, as highlighted above, where a court has decided that it wants to give a person the opportunity to avoid effective imprisonment by ordering a fine and/or a compensation order as an alternative or as a condition, it must endeavour as best possible to establish whether such person is in fact in a position to pay such amounts at all and/or within the time frames stipulated.

[48] If this is not done there is the ever present danger of favouring the rich over the poor which will be in conflict at least with section 9 (1) of the Constitution. Thus for example in the present matter the indications are that Appellant's resources outside of his own immediate resources were either very limited or non existent. The realities of South Africa include that the probabilities are that had the same sentence been imposed on an attorney who for many years had been part of a privileged community,  such attorney would have been able to access the amount of money involved and so prevent an effective period of imprisonment.

[49] It is thus important, to give effect and real content to the equality provision in the Constitution, for a court to be aware of the immediate and wider financial circumstances and history of an accused person where it decides to impose a fine or make a compensation order in terms of section 297.

At paragraph [26] thereof Moseneke J (as he then was) states:

"The jurisprudence of this Court makes plain that the proper reach of the equality right must be determined by reference to our history and the underlying values of the Constitution. As we have seen a major constitutional object is the creation of a non-racial and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights. From there emerges a conception of equality that goes beyond  mere  formal  equality and   mere   non-discrimination which requires identical treatment, whatever the starting point or impact."

At paragraph [27] he continues:
"This substantive notion of equality recognises that besides uneven race, class and gender attributes of our society, there are other levels and forms of social differentiation and systematic under-privilege, which still persist. The Constitution enjoins us to dismantle them and to prevent the creation of new patterns of disadvantage. It is therefore incumbent on courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of our Constitution."

[51] There are obvious problems and dangers attached to applying such an approach to a practical situation such as the present one, not least of all trying to answer the question of how thorough an investigation into the personal and other financial resources of an accused must be to comply with the substantive approach to the equality provision. In my view the use of section 300 of the Act can go a long way to address these problems and dangers. Where a section 300 award has been made there are then other procedures which can be followed by the parties which allows for a thorough investigation into the wider financial circumstances of the accused, the obvious procedure being a section 65 investigation in terms of the Magistrates' Courts Act 32 of 1944. In the present matter, if an order is made in terms of section 300 of the Act, the Law Society and Appellant would have the civil mechanisms in place to ensure that their respective rights are protected. (In my view the approach to substantive equality set out by Moseneke J must impact on all procedures and practices in our courts, which obviously will include a process such as a section 65 investigation.)

[52] The section 300 route also is better suited to addressing the main mischief a sentencing officer is seeking to address with a compensation order, namely that the victim be compensated. If a compensation order is made in terms of section 297 and made a condition of suspension of a prison sentence, as in the present matter, and the accused cannot meet the condition timeously, by going to prison the chances of the accused ever compensating the victim become less than if the accused was kept out of prison and remained free to try and raise the money to pay the compensation awarded. The facts of the present matter clearly illustrate this.

[55] With this in mind, and accepting that on the issue of compensation section 300 of the Act would be a more appropriate vehicle in the present matter than using section 297 of the Act, I now turn to an appropriate sentence in the present matter.

[56] Section 300 states that after conviction of an offence which has caused damage to some person and "upon the application of the injured person or of the prosecutor acting on the instructions of the injured person" a court can make an award in terms of this section. Although not apparent in a single structured application in the record, I am satisfied that when the entire record is taken into account this requirement of section 300 of the Act is met. Similarly I am satisfied that all the other requirements of section 300 are also present in the record as a whole.

[57] Having made this finding in the present matter, I would emphasize that it is not ideal for a court to have to read a record as a whole to decide whether or not the various requirements of section 300 have been met. It would be prudent for presiding officers to be more structured and disciplined in their approach when a compensation order in terms of section 300 of the Act presents itself as an option for sentence.

"(11) Practical guidelines have been laid down:
a) The court must obtain all relevant facts before making an award and especially as far as the following aspects are concerned:

473 (T)475);
	it must be clear that the damages were caused by the offence...;
	it must be clear who the injured person is...;
	that a proper application has been lodged by the injured person (S v Sion 1975(2) SA 184 (NC) 186A-B);
	that the prosecutor, where he brings the application, received proper instructions from the injured person....

c) The court must give early notice to the parties that an award may be considered (S v Van Rensburg 1974(2) SA 243 (T) 244H-245; S v Baadjies 1977(3) SA 61 (E) 63; ...).
d) The accused must be afforded the opportunity to address the court on the matter and to lead evidence (S v Maelane 1978(3) SA 528 (T); S v Msiza (supra) 475F-G).
e) The attention of the injured person (complainant) should be drawn to this section....
f) The court may not lay down a date before which compensation should take place,...(...S v Tlame 1982(4) SA 319 (B)).

Whilst the said discussion is useful, the approach in certain of the pre 1994 authorities cited must be weighed against the approach required by the Constitution as already dealt with in this judgment.

[59] Furthermore, for reasons already expounded upon in this judgment, I would disagree with the reservation expressed therein at the foot of page 29-3 with reference to the view of the author Terblanche that "a criminal court is not an ideal forum to resolve private law issues and that 'courts should rather make use of the opportunities provided by s 297 [of the Act], namely to impose compensation as part of the punishment as a suspensive condition to the sentence' ".

[60] I am of the view that section 300 needs to be used far more often and creatively than it is being used at the moment. The underlying concern of the reservation of Terblanche can be dealt with by a more structured and disciplined approach by the courts.

[61] Returning to the matter at hand, the assessment of what a court considers an appropriate sentence is always a difficult matter and this particular case is no exception.

[62] I have weighed up the various factors pertinent to sentence and have had specific regard to the magistrate's view that in the present matter Appellant should be given an opportunity to avoid an effective term of imprisonment and compensate the victim of his crime. In this regard I once again emphasize that Appellant must count himself very fortunate that the magistrate adopted this view. It also must be emphasized that it would be disingenuous of any practitioner in the future to use the sentence I am going to impose on Appellant as a precedent for similar offences. Any reliance on this judgment must take cognisance of the full judgment. In this regard it must also be noted that in arriving at a sentence I have been mindful of the fact that Appellant has spent about 6 months in prison.

[63] Accordingly I would allow the appeal and make the following order:
1. The sentence imposed by the Magistrate on Appellant is set aside and substituted by the following:

e. In terms of Section 103(1) of the Firearms Control Act 60 of 2000 Appellant is not declared unfit to possess a firearm.

K MATTHEE

ACTING JUDGE OF THE HIGH COURT

ERASMUS, J

I agree, it is so ordered.

N ERASMUS

JUDGE OF THE HIGH COURT