Nyoka v S (CA&R 363/08) [2009] ZAECGHC 67 (28 October 2009)

FORM A

FILING SHEET FOR SOUTH EASTERN

CAPE LOCAL DIVISION JUDGMENT

PARTIES:

THE STATE AND MPUMELELO NYOKA

Case Number: CA&R 363/08

High Court: Eastern Cape – Grahamstown

Date Heard: 20 May 2009

Date Delivered: 28 October 2009

JUDGE(S): Nepgen J & Revelas J

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant(s): Adv van der Walt

for the Respondent(s): Adv Theron

Instructing attorneys:

Applicant(s): DPP, Grahamstown

Respondent(s): Legal Aid, Port Elizabeth

CASE INFORMATION – Criminal Appeal

Nature of proceedings:

Key Words:

Not reportable

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – GRAHAMSTOWN

Case No: CA&R 363/08

Date Heard: 20/05/09

Date Delivered: 28/10/09

In the matter between

THE STATE Appellant

and

MPUMELELO NYOKA Respondent

J U D G M E N T

Revelas J

[1] This is an appeal by the Director of Public Prosecutions (“the appellant” or “the State”) in terms of section 310A of the Criminal Procedure Act, 51 of 1977 as amended (“the Act”). The appeal is against the sentence passed on the respondent by a magistrate sitting in Port Elizabeth. The respondent, an attorney, was convicted of theft of trust funds in the amount of R461 731.25, having pleaded guilty to the charge of theft on 20 November 2007. Some nine months later, on 6 August 2008, the respondent was sentenced to three years’

correctional supervision in terms of section 276(i)(h) of the Act, as well as a term of five years’ imprisonment, wholly suspended for five years on certain conditions.

[2] The correctional supervision sentence included an order that the respondent be placed under daily house arrest from 06h00 to 20h00 for the duration of his correctional supervision sentence. He was also ordered to perform community service during the same period for 16 hours per month, which consisted of performing duties as a cleaner at the Elizabeth Donkin Hospital in Port Elizabeth. The respondent was further ordered to attend certain orientation and other programmes relevant to his offence, organized by the National Institute for Crime Prevention and Reintegration of Offenders, or NICRO, as it is more commonly known.

[3] The appellant applied for leave to appeal against the sentence which was granted by the Judge President on 6 November 2008. The late filing of the application was condoned in the same order. The appeal is based on the contention that a sentence of direct imprisonment would have been more in line with the majority of sentences imposed in cases involving theft by attorneys, and should have been imposed in this case.

[4] The factual background to the charge is briefly the following. The respondent was initially charged with theft of only R110 532.87

from the trust banking account he was obliged to keep in terms of the Attorneys Act, 53 of 1979. The amount was owed to various trust creditors or clients of the respondent. The theft occurred during the period May 2002 to July 2004. Having indicated his willingness to plead guilty to the charge of theft of this amount, new information came to light, revealing that the proceeds of a sale of certain properties in Colchester on auction in 1999, owing to the then Western District Council, and destined to be kept in trust by the respondent’s firm could not be accounted for. The amount involved was R299 842.42 and was payable by the respondent to the Nelson Mandela Municipality, which was later alerted by the Cacadu District Municipality in 2006, that the proceeds owing to it were never paid over by the respondent. It was moreover not paid into the respondent’s trust account. When confronted with the earlier offence, the respondent consented to the charge sheet being amended to include the amount of R229 842.42, resulting in the increase of the full amount stolen to R461 731.25. The period during which the theft occurred was amended to the period from October 1999 to July 2004. The respondent consequently pleaded guilty to the amended charge sheet.

[5] One previous conviction was proved against the respondent, which was a failure to pay Value Added Tax in the amount of R193 617.15 to the South African Revenue Services during the period March 2001 to March 2003. For that offence he was sentenced to a wholly suspended term of twenty months’ imprisonment.

[6] The respondent did not testify in mitigation of sentence. His relevant personal circumstances and the facts and circumstances that led to his conviction for theft were placed before the court a quo by other evidence. A summary thereof is the following:

[7] For purposes of assisting the magistrate in arriving at an appropriate sentence, two reports were prepared and handed in.

The first was an assessment report in terms of s 276(1)(a) of the Act, compiled by Ms Melany van Rooyen, the chief social worker

attached to the Department of Correctional Services in Port Elizabeth. In her report she extensively dealt with and considered

the respondent’s personal circumstances, as well as the earlier and present convictions. Her conclusion was that the respondent was considered a suitable candidate for a sentence of correctional supervision in terms of s 276(1)(h) of the Act.

[8] The second report was compiled by a senior social worker of the Child Welfare Society in Humansdorp, Ms Erna Vermaak. She is also a criminologist and a member of the Criminological Society of South Africa. In her comprehensive pre-sentencing report, she refers extensively to judgments on sentence in similar cases, as well as the sentencing principles applied and approach to sentences of direct imprisonment in other countries. She also assessed the applicant’s personal circumstances and the circumstances surrounding the offence. Her investigation included consultations with four persons who were closely associated with the respondent. Their views are summarised in the report. The four persons were a prominent rugby team manager, a well-known local businessman, a community leader, and a former magistrate.

Except for the magistrate, who only knew the respondent as an attorney since 1992, the respondent was well-known to them since

childhood. They all praised his good character and mentioned several of the good deeds performed by him in the past, such as sponsoring

needy children at school. It was also mentioned that the respondent was intensely humiliated by the turn of events and had become a broken man.

[9] When he was sentenced, the respondent was fifty years old and unemployed. His progress at school was average, but he steadily improved as a university student to such an extent that in 1985 he was the only law student to pass his exams and obtain an LLB degree. He qualified as an attorney in 1989 and started practising with a partner until 1993 when he commenced practicing for his own account. In 1996, he was enrolled as a conveyancer. He practiced as an attorney in New Brighton under the name and style of Mpulelelo Nyoka Attorneys Incorporated. On 30 June 2004, the Cape Law Society obtained an interdict against the respondent, prohibiting him from practicing as an attorney. Resulting from his present conviction his name will inevitably be struck from the roll of attorneys.

[10] The respondent conducted a busy practice and his clients included corporate entities such as Transnet. He also served indigent clients and participated in several human rights activities. He was engaged in several social, extra-mural and community activities and eventually became a prominent figure in society. However, for various reasons, many of the large income generating sources in his practice gradually diminished until he found himself in a financial crisis. As his financial situation worsened, his creditors, of which the South African Revenue Services was a major one, steadily increased in number. Eventually some of his moveable assets were attached, much to his humiliation, at his home and office in the presence of his children and staff. His loans were called up, his motor vehicle was repossessed and to add to his misery, all this received prominence in the newspapers next to his photograph. All of this led him to resort to using trust monies for payment of his creditors.

[11] Repayment of those monies was thwarted with the collapse of a mining deal which he had depended on to generate new profits. Expected profits from another black economic empowerment deal for the development of property in Bluewater Bay materialised far too late to solve his financial difficulties. When these proceeds eventually became available he used it to repay the entire amount specified in the amended charge sheet to the Attorneys Fidelity Fund (“the Fund”).

[12] In 2004, after thirteen years of marriage, the respondents’ wife left him as a result of the strain the respondents’ financial problems placed on their marriage. He, however, maintains a close relationship with his three children, aged twenty, fourteen and nine years. The house he lives in belongs to his wife and he is currently entirely dependant on the generosity of his friends and family.

[13] Ms Vermaak was of the firm opinion that direct imprisonment was not appropriate and her views undoubtedly impacted on the nature of the sentence eventually imposed by the magistrate.

[14] In mitigation of sentence in the court a quo, counsel for the respondent, Mr Hattingh, extensively dealt with the suitability of “a double barrel” (sic) sentence, meaning a lengthy, but wholly suspended sentence coupled with a term of correctional supervision in terms of section 276(1)(h) of the Act. He relied on the judgment in S v Kasselman and Another 1995 (1) SACR 429 (T) where, on appeal a sentence of imprisonment was substituted with correctional supervision. In Kasselman two policemen were convicted of theft and defeating the ends of justice. The amount of the theft was R400 000.00, which was

given to them for purposes of entrapment and they attempted to cover up their theft. Mr Hattingh submitted that the two policemen, insofar as the expectation of trust by the community was concerned, were no better or worse than an attorney in the position of the respondent. The magistrate was also referred to cases such as S v Ndlovu 2007 (1) SACR 535 (SCA) 538, where it was held that:

“We must guard against imposing uniform sentences that do not distinguish between the facts of cases and the personal circumstances of offenders”.

and the judgment in S v Sparks and Another 1972 (3) SA 396 (A), where the sentence imposed on an accountant and an attorney found guilty of theft was considered. As to the effects of the sentence on the appellants in that matter, Holmes JA expressed himself as follows (at 410F):

“The consequences of conviction and sentence will press very heavily on the appellants with some permanence. Each may be struck off his professional roll possibly permanently. These convictions will adversely affect their prospects of future employment”.

[15] In the same judgment the learned judge, recognising the deterrent aspect of a sentence, emphasized “lest others think the game is worth the gamble” that punishment must fit the criminal as well as the crime, be fair to the State and to the accused and be blended with a measure of mercy. In this regard Holmes JA (at 408 C-D) with approval quoted the following remarks of the court a quo:

“The sooner the commercial community learns that another man’s property – whether it be his money or his motor car – cannot be taken without his consent, the better it will be for all those concerned. This may sound like an oversimplification but in essence it is correct. Officers who administer other people’s money should know that they should not take advantage of their office”.

One of the factors considered on appeal was that the stolen monies had been repaid and the sentence of imprisonment imposed by the court a quo was altered to a fine.

[16] In a well-considered judgment, the magistrate was manifestly mindful of all the objectives of sentencing. Although he duly considered the seriousness of the offence, he nonetheless held that factors, such as the full repayment of the stolen money, justified a lesser sentence than direct imprisonment. The appellant submitted that the magistrate over-emphasized the fact of repayment of the money, leading to, what was referred to as a “warped sentence”. The appellant also attacked the magistrate’s finding that the thefts “were not committed out of innate dishonestly or criminal tendencies” but out of “frustrations”.

[17] Further criticism levelled at the judgment of the magistrate included that he over-emphasized the respondents’ personal circumstances, such as that he could no longer practice as an attorney, thereby failing to properly consider the seriousness of the respondent’s breach of trust given his position. It was argued that the magistrate “too lightly disregarded” the implications of the respondent in the position of an attorney requiring the adherence to the highest professional standards, and that his conduct had caused irretrievable

harm to the profession he practiced. In support of the submission the appellant relied on the dictum in S v van Rooyen 1979 (2) SA 1156 (N) where caution was expressed that (at 1159 B):

“… indien die Hof oortredings van hierdie aard nie in ‘n ernstige lig beskou nie, bestaan daar na my mening ‘n wesenlike gevaar dat die publiek se agting vir behoorlike regspleging ‘n knou sal kry”.

[18] The magistrate’s remark that the respondent’s actions were not committed out of “innate dishonesty” or “criminal tendencies”, but “out of frustrations” may appear to be somewhat unfortunate, but it does not, in my view, amount to a misdirection. There can be no question that the respondent acted dishonestly, but his financial predicament rather than avarice, seems to be behind his actions. In my view, this is what the magistrate was trying to convey with his remark.

[19] The appellant further submitted that the magistrate erred in finding that the “community has unconditionally forgiven” the respondent and that they are “ready to receive him back” based on the untested testimonials of the respondent’s associates contained in Ms Vermaak’s report, who it must be accepted were motivated to promote his case. It is true that the evidence concerning the

respondent’s character was hearsay and therefore not subjected to cross-examination, but the magistrate, in my view, was nonetheless

entitled to take it into account (see in this regard S v R 1993 (1) SACR 209 (A)). An accused in sentence proceedings is entitled to deviate from the strict rules of the law of evidence and may lead hearsay evidence.

[20] The appellant argued that restitution after detection of an offence does not diminish its seriousness, and insofar as the magistrate had in effect found that it indeed did, he misdirected himself and overlooked the fact that the respondent initially only repaid the amount mentioned in the first charge sheet, and at that stage failed to disclose his retention of the proceeds of the sale of the Colchester properties.

[21] In support of the contention that the principles of restorative justice were incorrectly applied by the magistrate in this matter, the appellant relied on the majority judgment in Mtshabe v The State CA&R 122/07 dated 2 October 2008, Transkei Division, where the majority of the court (Plasket and Ebrahim JJ), relying inter alia on the decision in S v Blank 1995 (1) SACR 62 SCA at 76 d-e, held that restorative justice finds no application in serious cases such as the present. In the case of Mtshabe one of the reasons for the majority of the court confirming the sentence of eight years imprisonment imposed where the accused (also an attorney), was convicted of fraud, was that the accused was a very wealthy man. In comparing the matter before them with the case of S v Vorster 2007 (2) SACR 283 (E), Plasket J observed as follows (para 8 of the majority judgment):

“To an extent at least, Vorster’s crime was the result of finding himself in a financial difficulty. A judgment of R500 000.00 was taken against him and the expected profits of a crap of maize did not materialize. The appellant [Mtshabe], on the other hand, was not in financial difficulties and was motivated by nothing but greed”.

[22] In Mtshabe, the appellant was convicted of submitting fifteen fraudulent statements for work he had never performed. Jansen J, in a dissenting

minority judgment held that had he been sitting as the count of first instance, he would not have imposed a sentence of direct

imprisonment, but a sentence of imprisonment in terms of s 276(1)(i) of the Act. That was also the sentence imposed in three judgments

referred to in argument in that matter. The first was S v Landau 2002 SACR 673 (W), where the accused was convicted of 48 counts of theft; the second S v Erasmus 1998 (2) SACR 466 (SE), where the accused had stolen almost R2 million from his employer over a period of more than two years and the third S v Kleynhans 2005 (2) SACR 582 (W) involving a theft by the accused of R198 00.00 from his employer. One of the factors which influenced the approach adopted by Jansen J was that the theft had been committed almost ten years before the appellant was sentenced.

[23] In the majority judgment in Mtshabe, the following comparisons were drawn between the appellant in the appeal before the court and the appellant in Vorster’s case:

“Both involve the dishonesty of an attorney and substantial amounts. However, the accused in Vorster reported the theft to the Law Society and when he was tried, pleaded guilty. The appellant [Mtshabe],on the other hand, when his wrong-doing began to surface, insisted that he had done nothing wrong and, far from owning up, fought tooth and nail to keep his ill-gotten gains. It is true that he paid back about half of what he had taken, but that was only when he was pushed in a corner and had no choice. Subsequently, and without just reason, he ceased payments. Vorster’s clients were reimbursed for their loss by the Attorney’s Fidelity Fund (“the Fund”) but he did not reimburse the fund”.

[24] The aforesaid comparisons highlight the differences in the facts in Vorster and Mtshabe from those in the present matter. In the present matter the respondent reimbursed the Fund in full. He, moreover, unlike Vorster and Mtshabe, did not blame staff members or others for his mistakes. The appellant’s point of departure is that the respondent should have

been sentenced to direct imprisonment simply because that is the only appropriate punishment for the type of offence in question, given the many other similar cases in which direct imprisonment was imposed. The notion is contradicted by the decisions referred to in this judgment, including the dissenting judgment in Mtshabe, where direct imprisonment was not deemed to be the only appropriate sentence. Although uniformity in sentencing for similar offences is desirable, the facts of each case, its merits and demerits, must be considered separately and on their own. That was also the approach adopted by the magistrate and in this regard he referred to the case of S v Maseko 1972 (3) SA 348 (T) where absolute adherence to uniformity in sentencing was criticized as:

“a dangerous and undesirable character to imprint on sentences in which the reasonable discretion of a judicial officer should be exercised”.

[25] The magistrate was alive to the seriousness of the offence. Reference was made to statistics regarding the prevalence of this type of offence, which he acknowledged is clearly on the increase. The repayment made by the respondent was not over-emphasized by the magistrate to the extent submitted by the appellant. Except in the case of S v Nathan 1992 (1) SACR 467 (N), none of the accused in the cases relied upon by the appellant, where direct imprisonment was imposed, made full restitution. Clearly

fairness and justice dictate that full repayment of stolen money must be of considerable mitigatory value. It might be cold comfort or of less value in a violent robbery matter, but not in this type of case. In S v Van Vuuren 1992 (1) SACR 129 (A) the following was said of the repayment of stolen moneys and its ameliorating effect on the retributive element of punishment:

“Neither offender nor society can as a result thereof labour under the misapprehension that crime pays or that courts regard crime as trivial, if offenders are appropriately punished otherwise than by imprisonment”.

The magistrate’s reliance on the principles of restorative justice in a case such as this is was not inappropriate. The reimbursement of the Fund was at least a form of restoration. The appellant’s submission in this regard appears to be unfounded.

[26] The appellant submitted that both Ms Vermaak and the magistrate “far too easily brushed aside” the respondent’s conviction for contravening the Value Added Tax Act, which was committed at the same time as the thefts of trust monies. During cross-examination, it was put to Ms Vermaak that there was a lack of factual material in her report pertaining to the offences. The validity of her report was attacked on other grounds as well. The aspect which rankled most with the trial prosecutor was that the respondent did not inform Ms Vermaak of the proceeds of sale of the Colchester properties which never found their way into his trust account and further that she did not consult with any of the victims of the offence. The prosecutor accused Ms Vermaak of lacking in objectivity and was also critical of a perceived lack of moral opprobrium on her part with regard to the appellant’s breaches of the VAT Act.

[27] During argument in the court a quo, the State submitted that minimal weight ought to be attributed to the report of Ms Vermaak in the absence of the respondent’s evidence to confirm the factual aspects mentioned in the report. Counsel for the respondent retorted that the correct approach to hearsay evidence at the pre-sentencing stage was to admit rather than to exclude such evidence. He also argued in favour of the approach taken by the courts that there was neither an onus on the State or the accused who is not required to “explain” himself. The State also criticized Ms Vermaak for relying on the hearsay testimonials of the respondent’s four acquaintances. In this regard the magistrate was referred to the decision in S v R supra (where the merits of correctional supervision as a sentence were fully dealt with). Kriegler AJA (as he then was) held:

“Daar word opvallend geen vereiste ten opsigte van bewys gestel nie. Daarmee is skynbaar erkenning gegee aan die gebruik om by vonnis-

verrigtinge ondanks die voorskrifte van artikel 274, na goeddenke en na gelang van besondere omstandighede af te sien van die streng reëls van bewysreg en van die strafproses wat tot op die stadium van uitspraak op die meriete geld”.

[28] In my view, the appellant’s criticism of Ms Vermaak’s report and her investigation is unwarranted. Ms Vermaak was asked to compile a report on the appellant and his personal circumstances in relation to the offence. The fact that she did not consult with the victims of the appellant’s thefts, should not be accorded the same censure as for instance a failure to consult with the victims of violent crimes. In this regard, the fact that the moneys were repaid obviated the need to consult with the victims.

[29] Finally, I turn to the appellant’s main ground of appeal, which is that the magistrate was too lenient in imposing a non-custodial sentence. Compared to other offenders in similar cases, it was submitted that the respondent received a strikingly disparate sentence which induced a sense of shock and constituted a misdirection which is of such a serious nature that it amounted to the magistrate not exercising his penal discretion properly or reasonably, thereby vitiating the exercise of his discretion. In support of this contention, the appellant relied on nine cases where custodial sentences ranging from three and a half years to eight years imprisonment were imposed. I do not consider it necessary to list all of them in this judgment. For purposes of comparison it is merely necessary to refer to the cases of S v Vorster supra; S v Mtshabe, supra; S v Peffer 2008 (2) SACR 605 (E); and S v Nathan, supra, which were heavily relied upon. In Vorster and Mtshabe a sentence of eight years’ imprisonment was imposed. In Peffer the accused was sentenced to six years’ imprisonment but on appeal it was set aside and substituted on 22 August 2008 with a sentence of correctional supervision.

[30] Counsel for the respondent in response, relied on similar cases where non-custodial sentences were imposed. Some of the six cases referred to did however not involve attorneys. Likewise I consider it necessary only to refer to some of them: S v Popo 1978 (1) 476 (A) at 481 A-E; S v Sparks and Another, supra; and S v Kasselman en ‘n Ander, supra.

[31] To succeed in this appeal, this court must be satisfied that the trial court exercised its penal discretion irregularly, unreasonably,

improperly, or in an unbalanced way, thereby vitiating the exercise of a discretion (Attorney-General, Venda v Maranga 1992 (2) SACR 594 (V) 605i – 609e, 607d). The powers of a court of appeal to interfere with a sentence on appeal are narrowly circumscribed. This trite principle was put as follows in S v Kgosimore 1999 (2) SACR 238 (SCA) per Scott JA at 241 (para 10):

“It is trite law that sentence is a matter for the discretion of the court burdened with the task of imposing the sentence. Various tests have been formulated as to when a Court of appeal may interfere. These include whether the reasoning of the trial court is vitiated by misdirection or whether the sentence imposed can be said to be startlingly inappropriate or to induce a sense of shock or whether there is a striking disparity between the sentence imposed and the sentence the Court of appeal would have imposed. All these formulations, however, are aimed at determining the same thing; viz whether there was a proper and reasonable exercise of the discretion bestowed upon the court imposing sentence. In the ultimate analysis this is the true inquiry …. Either the discretion was properly and reasonably exercised or it was not. If it was, a Court of appeal has no power to interfere; if it was not, it is free to do so”.

For all the reasons set out above, I am not persuaded that the magistrate fell foul of this test.

[32] There are factors in the present matter which, had I been sitting as the court of first instance, may have persuaded me to impose a term of direct imprisonment, although I should add not one as substantial as the sentences imposed in Vorster and Mtshabe. These factors include the respondent’s conviction for contravening the Value Added Tax Act and the later discovery of the theft of the proceeds of the sale of the Colchester properties. However, the imposition of a sentence is pre-eminently within the prerogative of the trial court and the exercise of its discretion should not be interfered with simply because the court of appeal would have imposed a different sentence (see S v Rabie 1975 (4) SA 855 (A) 857F; S v Shapiro 1994 (1) SACR 112 (A) 118j-120c; and S v Sadler 2000 (1) SACR 331 (A) 334i-j).

[33] My disinclination to increase the respondent’s sentence should not be construed to demean the seriousness of his offence. Attorneys, because they are held in high esteem by members of the public and the courts, should have a high regard for truthfulness, be incorruptable and have a high sense of honour and integrity. They are an integral part of the administration of justice and people should be able to trust them, especially where trust monies are involved.

[34] In the vast majority of cases where an appeal against sentence is considered, the court is tasked with considering whether or not the sentence imposed by the trial court is too harsh. Where interference is justified it would usually be to lessen the sentence.

[35] Without suggesting that the State has to satisfy a different test on appeal when challenging a sentence on the basis that it was too lenient, it should be borne in mind that additional considerations would invariably apply when the court of appeal has to consider an increase in sentence.

[36] It stands to reason that when a court of appeal has to consider whether or not to impose a term of direct imprisonment in circumstances where the trial court had imposed a non-custodial sentence, which the accused has already commenced serving, the court should exercise

great caution in substituting such a sentence with a term of imprisonment. A number of factors are relevant. One thereof is the

period that has elapsed since sentencing; another is the period already served by the accused. In casu a period in excess of one year has elapsed since sentencing and he has commenced performing the duties imposed on him by the sentence.

[37] All these considerations have led me to conclude that interference with the sentence imposed by the court a quo is not warranted.

[38] In the result the appeal is dismissed.

____

E REVELAS

JUDGE OF THE

HIGH COURT

I agree.

_____

JJ NEPGEN