Malherbe v S (829/18) [2019] ZASCA 120 (25 September 2019)

Malherbe v S (829/18) [2019] ZASCA 120 (25 September 2019)

The Supreme Court of Appeal held that the central issue was whether the appellant had reasonable prospects of success on appeal against his convictions and sentence. The evidence regarding the alleged misrepresentation of EUS's BEE status was contradictory, particularly in the cross-examination of Mr Machinjike, who conceded he was not misled and was aware of the BEE shareholding process. These contradictions were material and affected his credibility. The court concluded that another court may reasonably find that the state did not prove the appellant's guilt beyond reasonable doubt, especially regarding fraudulent intent. Furthermore, although the regional court found substantial and...

Citation
[2019] ZASCA 120
Parties
Appellant: Dawid Johannes Malherbe; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 September 2019
Case Number
829/18
Procedural Posture
Leave to Appeal / Appeal Against Refusal of Petition for Leave to Appeal Convictions and Sentence
Outcome
Appeal upheld; leave to appeal against convictions and sentence granted.
Judges
Tshiqi, Mbha, Van Der Merwe, Mocumie, Weiner
Legal Topics
Leave to Appeal, Fraud, Money Laundering, Minimum Sentences Act, Reasonable Prospects of Success
Criminal Law Civil Procedure Leave to Appeal Fraud Money Laundering Minimum Sentences Act Reasonable Prospects of Success

Case Brief

Summary, issues, holding and outcome

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Parties

Dawid Johannes Malherbe

Appellant

The State

Respondent

Procedural Posture

Leave to Appeal / Appeal Against Refusal of Petition for Leave to Appeal Convictions and Sentence

Legal Issues

  1. 1 Whether the appellant has reasonable prospects of success on appeal against convictions and sentence.
  2. 2 Whether the alleged misrepresentation regarding BEE status constituted fraud.
  3. 3 Whether the sentence imposed reflects substantial and compelling circumstances justifying deviation from the minimum sentence.

Ratio Decidendi

The Supreme Court of Appeal held that the central issue was whether the appellant had reasonable prospects of success on appeal against his convictions and sentence. The evidence regarding the alleged misrepresentation of EUS's BEE status was contradictory, particularly in the cross-examination of Mr Machinjike, who conceded he was not misled and was aware of the BEE shareholding process. These contradictions were material and affected his credibility. The court concluded that another court may reasonably find that the state did not prove the appellant's guilt beyond reasonable doubt, especially regarding fraudulent intent. Furthermore, although the regional court found substantial and...

Court Disposition

Appeal upheld; leave to appeal against convictions and sentence granted.

Orders

  • The appeal is upheld.
  • The order of the high court refusing the appellant’s petition for leave to appeal against his convictions and sentence is set aside.