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[2005] ZAGPHC 56
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S v Prinsloo and Another (A1011/02) [2005] ZAGPHC 56 (16 May 2005)
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IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) DATE: 16 MAY 2005
IN THE MATTER BETWEEN:
STEFANUS JOHANNES PRINSLOO FIRST APPELLANT CARMAINE MARTHA VAN DER MERWE SECOND APPELLANT AND THE STATE RESPONDENT
OMAR, J
The appellants were convicted in the Regional Court of Benoni on 28 January 2002 on six (6) charges of theft. The charges were taken together for the purposes of sentence and the appellants were each sentenced to a term of imprisonment of (15) fifteen years of which five (5) years was suspended for a period of (5) years on condition that appellants are not found guilty of fraud or theft committed during the period of suspension. During the proceedings in the court a quo the appellants were legally represented. They were initially represented by a local attorney, Mr Krause, who withdrew from the proceedings and then a Mr. Dorfling and thereafter they were represented by adv. Van der Westhuizen who also withdrew (due to personal reasons). Mr. West took over at a late stage in the proceedings. The appellants pleaded not guilty to the charges and no plea explanations were tendered. The appellants now appeal against both conviction and sentence and their respective grounds and amended grounds of appeal are set out in their notices of appeal (which forms part of the record). The appellants were initially charged together with Elsa van Vuuren. The charges against Elsa van Vuuren were withdrawn and she subsequently testified as a witness for the state in the court a quo. The first ground of appeal lodged by the second appellant relates to an alleged irregularity committed by the magistrate in the court a quo. The second appellant contends that the magistrate in the court a quo commented to her legal representative at the time, Mr Krause, just before the first adjournment on 2 February 2000 that: (I quote from the record at p22, line 20-22.)
“Ek weet dit is nog baie vroeg in die saak mnr. Krause, maar as dit so aangaan dan dink ek jy moet miskien gesels met jou kli
nte.”
The second appellant contends that this comment was indicative that the magistrate in the court a quo had already come to a decision regarding the guilt of, inter alia, the appellant with the result that:
“Die appellant nie ‘n billike en regverdige verhoor van ‘n onpartydige feitebeoordelaar gehad het nie.”
The matter was postponed for a special review but the review was withdrawn by the appellants. Mr Dorfling, who represented the appellants at the time, advised the court that he found nothing wrong with the remark and that it was not a problem. The appellants had no problem proceeding with the matter at that stage. I agree with the contention of Mr. Dorfling and I find no basis for this ground of appeal by the first appellant. It is noted that the second appellant does not raise this ground of appeal. Further, I find no indication in the record of proceedings that the magistrate in the court a quo prejudged any of the appellants. On the contrary, if the magistrate in the court a quo had any intention of pre-judging the second appellant or the first appellant he would not have made a finding that Elsa van Vuuren was also involved in the commission of the offences. Further, there is no clear or precise interpretation of what the magistrate meant when he made those remarks. The facts of the case are briefly that from November 1996 to approximately May 1997 aluminium sulphate was stolen from a company known as KYNOCHEM (PTY) LTD. The various tonnage and dates are contained in the relevant charge sheets. The further facts of the case are discussed in detail by the magistrate in the court a quo in his ex tempore judgment and I do not think it is necessary for me to deal with it here in detail. The state called (6) six witnesses to testify on its behalf, namely: 1.
Mr J. J. Greyling – a business accountant employed at KYNOCHEM (PTY) LTD.
2.
Mr M L C Van Wyk – an inspector in the SA Police Services and the investigating officer in this matter.
3.
Elsa van Vuuren – a business woman dealing in transport and a broker.
4.
Mark Rudolfs – a former employee of KYNOCHEM (PTY) LTD or, who had a close business relationship with the second appellant who was
employed at KYNOCHEM (PTY) LTD.
5.
Gavin Peter Laurenson – a business manager employed by MINEAG (PTY) LTD.
6.
Amanda Viljoen – a bookkeeper employed by GENVENT.
Mr. Greyling’s evidence was to the effect that an audit was done by the company regarding missing Aluminium sulphate and it was established that during November 1996 to May 1997 approximately
260 ton of aluminium sulphate was missing most of which was traced to GENVENT and MINEAG (PTY) LTD. The value of the aluminium sulphate
fluctuates from R1100,00 to R1200,00 per ton. Further there were no redundant products manufactured by the company through aluminium sulphate or that
that aluminium sulphate was sold as redundant product or that it existed.
During the investigations he became aware of a business known as C F Technologies, but according to him this was a fictitious business. He knew Mark Rudolfs and Charmaine Van der Merwe, the second appellant very well as they were employed by KYNOCHEM. Mark Rudolfs was in charge of the despatch of the product and Charmaine Van der Merwe, the second appellant was a sales consultant. Mr Van Wyk’s evidence was to the effect that the charges against Van Vuuren were withdrawn after she deposed to an affidavit denying her guilt by incriminating the second appellant. Rudolfs was charged with theft and pleaded guilty and was sentenced. This evidence does not take the matter further and it is not necessary to deal with it further. Van Vuuren’s evidence was to the effect that she was approached by the second appellant to act as her broker to sell certain chemicals (aluminium sulphate) to clients which the second appellant will identify. The client (GENVENT) was identified but she (Van Vuuren) telephoned them and offered the chemical. The payments were made into her (Van Vuuren’s) account because the first appellant did not have the necessary infrastructure and bank account. There were altogether (6) six transactions in which she was involved in. The first four transactions were 20 ton each and the monies were paid into her (Van Vuuren’s) bank account. She, Van Vuuren, withdrew the money (less her fees) and gave it to the second appellant. The money regarding the fifth transaction was paid directly into a bank account at Volkskas Bank with no 240155362. The monies for the sixth transaction was paid directly by GENVENT into the account of C F Technologies at Volkskas Bank Brakpan with number 240150891. The transactions took place between November 1996 and May 1997. She was introduced to the first appellant during 1997 and she also met Rudolfs once during the said period. After her arrest she deposed to an affidavit incriminating both appellants, paid the monies she received from their transactions to KYNOCHEM and offered to be a witness for the state. Rudolfs’s evidence was to the effect that he was approached by the second appellant and requested to allow chemicals to leave the business without the necessary documentation. The second appellant would then market it to clients and he would receive a commission as his share in this illegal scheme. Van Vuuren knew about this scheme and he received his commission in her presence. He met the first appellant when he delivered money to him at his house. A cheque from MINEAG was left by him for chemicals bought by the company. The first appellant’s brother picked up the cheque from him. He pleaded guilty to the charges of theft against him and he was sentenced to (3) three years correctional supervision. LAURENSON’S evidence was to the effect that he does not know Elsa Van Vuuren or that he did business with her. During May 1997 he received a call from a certain “Jan” who offered to sell him chemicals. He was requested to make out a cheque in favour of C F Technologies and gave it to Rudolfs at Aluminium Chemicals, which he did. He does not know the first appellant. A copy of the cheque forms part of the record marked as exhibit “K”. Mrs VILJOEN’S evidence was to the effect that her company (GENVENT) purchased chemicals by KYNOCHEM, Aluminium Chemicals and C F Technologies. She tendered a list containing the various payments made to Elsa Van Vuuren and C F Technologies which is referred to as exhibit “R” in the record. Further she does not know RUDOLFS or VAN VUUREN.
The evidence of Greyling, Van Wyk, Laurenson and Viljoen was formal in nature and the magistrate, correctly found the evidence of Greyling, Laurenson and Viljoen to be above suspicion and credible. This was also conceded by the first appellant’s counsel and I fully agree with him.
During the state’s case various exhibits were tendered in and it was listed until exhibit “R”. During the first appellant’s evidence exhibits “S” and “T” were allowed to be handed in, which forms part of the record. Save for the first ground of appeal submitted by the second appellant, relating to the alleged irregularity by the magistrate, the further grounds of appeal submitted by both appellants are similar and I will deal with them together. It was contended by counsel for appellants that the magistrate in the court a quo erred in accepting the evidence of RUDOLFS and VAN VUUREN without applying the cautionary rules to their evidence (being a single witnesses evidence and a co-accused’s evidence). It was contended further that the dangers attached to the two classes of evidence was not pointed out. I find that it is clear from the judgment of the magistrate in the court a quo that the cautionary rule was applied; and I quote from his judgment page 280, lines 11-13:
“Dit is so dat wat mnr. Rudolfs sowel as mev. Van Vuuren aanbetref, die hof hulle met versigtigheid moet benader, inderdaad soos wat daar deur mnr. West
genoem is.”
It is not necessary for the magistrate to discuss the dangers attached to the cautionary rules, as long as the cautionary rules have been applied correctly and properly. It was stated in S v Sauls 1981 (3) 172 (A) that:
“The cautionary rule referred to by De Villiers JP in 1932 may be a guide to a right decision but it does not mean “that the appeal must succeed if any criticism, however slender, of the witnesses evidence were well founded.”
And further it was stated that:
“The trial judge will weigh this evidence, will consider its merits and demerits and having done so, will decide whether it is trustworthy or whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told.” It was further contended by counsel for the appellant that the magistrate erred in accepting the evidence of the state witnesses, and particularly that of VAN VUUREN and RUDOLFS, as credible and truthful and that the magistrate should have rejected the evidence of VAN VUUREN and RUDOLFS as being unreliable and false. Further, they contend that the magistrate erred in finding corroboration between the evidence of the state witnesses or that there were sufficient guarantees for the reliability of their evidence partially that of RUDOLFS and VAN VUUREN. I do not agree with the contentions submitted by counsel for the appellants. I am of the opinion that the magistrate in the court a quo correctly found that the evidence of RUDOLFS and VAN VUUREN was corroborated in all material respects. Van Vuuren produced documentary evidence before the court, bank accounts, etc. which clearly indicates that funds were paid into the account and that that monies were received from GENVENT. Corroboration of this aspect of her evidence is found in the evidence of Mrs. VILJOEN as well as documentary evidence tendered by her in the form of exhibit “R” which indicates that monies were indeed paid into the account of ELSA VAN VUUREN as well as that of C F Technologies. RUDOLFS’S evidence was not based on documents. His evidence was based on his memory of events and as such his evidence regarding dates and quantities are based on estimates, whereas Elsa Van Vuuren and Mrs VILJOEN were in possession of documentary information regarding dates and quantities. It is clear that if the witnesses RUDOLFS and VAN VUUREN wanted to “fabricate” evidence against the appellants, they could have come together or conspired to build a very strong case against the appellants as VAN VUUREN had the information regarding dates and quantifies. I am also of the opinion that the evidence of RUDOLFS and VAN VUUREN regarding the “commissions” was correctly found to have been corroborated although there was found to be some immaterial discrepancies, which I will deal with later.
It was further contended by counsel for the appellants that there were material discrepancies in the evidence of VAN VUUREN and RUDOLFS
with regard to and particularly:
(i)
the tonnage of the aluminium sulphate and
(ii)
the meeting at the NORTHMEAD MALL where the “commission” were paid to RUDOLFS.
I am of the opinion that the magistrate in the court a quo correctly found the discrepancies between VAN VUUREN and RUDOLFS not to be of a material nature.
As previously indicated RUDOLFS evidence was based on his memory of events that occurred some four years ago and that it was an estimate.
It cannot be expected of him to give precise figures and dates after such a long period.
VAN VUUREN was in possession of information regarding the precise dates and figures and her evidence was corroborated by the evidence of Mr
VILJOEN.
As far as the aspect of the meeting at the Northmead Mall is concerned, it is my view that it does not matter who came first or who
came with whom. The fact of the matter is that there was a meeting, according to the evidence, and the commission was paid to RUDOLFS.
I do not deem it necessary to deal with the other discrepancies mentioned in the appellant’s heads of argument as I find them to be of a minor nature.
As indicated earlier the evidence of Greyling, Laurenson and Viljoen was found to be above suspicion and credible.
The magistrate in the court a quo correctly found that Viljoen and Laurenson were the only two objective and uninvolved witnesses.
As indicated, earlier, the magistrate in the court a quo correctly applied the cautionary rules to the evidence of Rudolfs and VAN VUUREN and accepted their evidence as being reliable and
truthful.
The first appellant’s evidence was to the effect that he had no knowledge of the matters and that his bank account was only used by VAN VUUREN to deposit
monies because she and her husband had marital problems. He would then pay the monies over to her or use other cash money which he
had on him to pay over to her. Van Vuuren also borrowed his VAT stamp and carried on her business under his business name. He confirms
that two amounts of R50 358-54 was deposited into his business account namely C F Technologies and which business was established
in or about March 1997.
The evidence, exhibit “S”, clearly indicates that the amounts were paid by GENVENT. The evidence, exhibit “Q”
also indicates that an amount of R36 480,00 was paid to the first appellant.
The first appellant testified that the monies which were paid into his account, namely C F Technologies by GENVENT were then withdrawn by him and given to VAN VUUREN.
He testified in particular that on 5 June 1997 an amount of R45 078,36 was withdrawn by him and given to VAN VUUREN. The balance of the deposit made by GENVENT, namely the amount
of R5000-00 according to him was given to VAN VUUREN in cash. On perusal of his accounts, exhibit “S”, there is no indication
of a withdrawal of the amount which he alleges was paid to VAN VUUREN.
The magistrate in his judgment (pages 285-288 of the record) clearly and correctly pointed out, the material discrepancies in the
evidence of the first appellant and correctly found his version not to be reasonably possibly true, and particularly with regard
to charges 5 and 6 , and correctly rejected it as false.
I agree with the findings of the magistrate in the court a quo that the version of the first appellant, particularly with regard to charges 5 and 6, is not reasonably possibly true, particularly
having regard to the bank statements, exhibit “S”, which were tendered by the first appellant, which does not support
his version or evidence.
The submissions made by counsel for the first appellant that the evidence against the first appellant is purely circumstantial is
rejected particularly with regards to charges 5 and 6, as it is clear from the evidence that the first appellant knew what was going
on and that his bank account was used for the commission of the offences.
However, I find no justification in the finding of the magistrate regarding the first appellant, particularly with regard to charges 1-4,
in judgment on page 293 of the record:
“Wat Mnr. Prinsloo aanbetref is dit duidelik dat hy, alhoewel hy nie aktief deelgeneem het nie, hy bewus was van hierdie feite,
en dat sy bankrekening vir die ontvangs van fondse gebruik is en bevind die hof dat jy himself skuldig gemaak het as medepligtige
tot diefstal in aanklagte 1 tot en met 6.”
As indicated earlier, I agree with the findings of the magistrate regarding charges 5 and 6.
However, as regards charges 1-4, the evidence linking the first appellant to those charges is that of RUDOLFS who testified that the
first appellant was with the second appellant during March 1997 when the second appellant made a payment to him and the evidence
of VAN VUUREN that the second appellant told her that the first appellant and she, the second appellant had started a business together.
From the evidence it is clear that the first appellant met the second appellant only in November 1996. Further, on or about the end
of January 1997 business relationship developed between them and the business known as C F Technologies was established probably
around February 1997.
No monies were received into the account of C F Technologies during November 1996 to march 1997, and there is also no evidence to
show that the first appellant benefited from the proceeds of the offences relating to charges 1 to 4, from November 1996 to March
1997.
Save for the evidence of VAN VUUREN and RUDOLFS as stated earlier herein, there is no other evidence that the first appellant was
aware of the commission of offences referred to in charges 1-4.
I find that the evidence of VAN VUUREN and RUDOLFS linking the first appellant to the commission at the offences referred to in charges
1-4 is insufficient for the magistrate to have made a finding that he was aware of the facts and therefore that he was guilty of
the offences committed.
Even if the first appellant was aware of the fact that theft had been committed there is no evidence, nor had the State proven that the first appellant associated himself or partook in the commission of the offences referred to in charges 1-4.
Knowledge of a crime being committed does not per se make a person liable as an accomplice for the crimes committed.
There must be an intention accompanied by some form of participation or association with the crime or proceeds thereof.
In view of the aforesaid, I am not convinced that the state had proved beyond a reasonable doubt that the first appellant is guilty of charges 1-4. I am of the view that the first appellant must be acquitted on charges 1-4.
The evidence of the second appellant was to the effect that she denied that she was involved in the commission of the offences. She
was a sales coordinator and a debtor’s clerk at KYNOCHEM (PTY) LTD. Her main job was to telephone clients, take orders and telephone RUDOLFS to ascertain whether there were products
available for orders. She confirmed that VAN VUUREN provided transport services for KYNOCHEM and that VAN VUUREN and RUDOLFS knew
each other well. She and RUDOLFS have never done business together. She and the first appellant concluded a business together known as C and F Technologies, from
her house.
The evidence implicating the second appellant in the commission of the offences was the evidence of VAN VUUREN and RUDOLFS who testified against her. The magistrate in the court a quo correctly found, that the second appellant, with the help of RUDOLFS, stole and sold aluminium sulphate for their own gain.
It is clear from the evidence, and in considering the evidence as a whole, that the second appellant was the brain behind this scheme for the commission of the offences and that she approached other persons to get involved in her scheme, including the first
appellant.
I find that it is clear from the evidence that the second appellant had direct contact with clients, in other words, that she had the “outlets” and she merely had to devise a scheme to sell the aluminium sulphate to the clients.
There is clear indication from the evidence and in particular exhibit “T” which is a VAT return, that the business CF
Technologies was established during or about February 1997.
There is also clear evidence by the second appellant that she was involved in the conduct of this business. She testifies that “ek het die bedryf van die huis af”, which is a clear indication that she knew what the situation was with regard to C F Technologies and that she indeed conducted
the business.
This also ties in with the evidence of VAN VUUREN who testified that the second appellant initially approached her and told her that
she wanted to start her own business but that she did not have the infrastructure, bank account, etc. This also accounts for one
of the guarantees for the reliability of the evidence of VAN VUUREN.
I find that the second appellant’s contention that she knew nothing about the situation and that she was unaware that the first appellants account was being used, is improbable, and that her version cannot be reasonably possibly true.
I agree with of the magistrates observation that the second appellant is a very intelligent person and that she planned the whole scheme to commit
the offences in such a way that no fingers should be pointed at her.
I am also of the view that the inferences made by the magistrate in the court a quo, linking the second appellant to the commission of the offences, are correct.
The second appellants contention that she was implicated by VAN VUUREN and RUDOLFS because of jealousy or that she was an easy target is totally without any basis and cannot reasonably possibly be true under these
circumstances.
The contention by the appellants that the main state witnesses had a motive to incriminate them also cannot be reasonably possibly
true as VAN VUUREN was not prosecuted and RUDOLFS was already found guilty of the commission of the offences and sentenced.
The trial court correctly accepted the evidence of the main state witness as being credible and reliable and that their evidence was
corroborated in all material respects.
In my view the State proved its case beyond a reasonable doubt against the second appellant on all six charges.
Thus the appeal by the second appellant against her conviction on all the charges are dismissed.
SENTENCE
With regard to sentence the court must consider the nature and seriousness of the crime, the interest of the community and the personal
circumstances of the appellants.
“Punishment should fit the criminal and the crime, be fair to society and be blended with a measure of mercy according to circumstances.”
The court must also take into account factors relating to prevention, deterrence, retribution and reformation and then impose an appropriate
sentence.”
A court of appeal will only interfere with the sentence imposed by the court a quo if it is shockingly inappropriate or where there has been a misdirection by the court a quo. It was stated in S v Glannouks 1975 (4) SA 868:
“It is a fact that a court of appeal has a right to intervene in a sentence imposed by a lower court. However, it is respectfully
submitted that a court will only intervene if the sentence is shockingly inappropriate or if the discretion of the lower court was
not properly and judicially exercised.”
SENTENCE WITH REGARD TO FIRST APPELLANT
First appellant’s counsel suggested that a sentence of correctional supervision coupled with a suspended sentence would be an
appropriate sentence, taking into account the facts and circumstances of the case.
Counsel for the state conceded that at first glance, the sentence appears to be shockingly inappropriate, the deterrent element having been possibly over emphasized.
It was stated by MILLER AR in S v MASEKO 1982 (1) Sa 99 (A) at 192E-G:
“What has to be guarded about when exemplary sentences are imposed is the danger that excessive devotion by a judicial officer to furtherance
of the cause of deterrence may so abscure other relevant considerations as to result in severe punishment of a particular offender
which is grossly disproportionate to his deserts.”
I am of the view that the court a quo correctly found that the only suitable sentence under the circumstances was direct imprisonment.
I am further of the view, taking into account that the first appellant has now been acquitted on charges 1-4, and further taking into
account the facts, and circumstances of the case the seriousness of the crime, the interests of the community as well as the personal
circumstances of the first appellant, that an appropriate sentence would be a term of imprisonment for (5) five years of which 2
(two) years is suspended for (5) five years on condition that the first appellant is not found guilty of fraud or theft committed during the period of suspension.
SENTENCE WITH REGARD TO SECOND APPELLANT
It was submitted by the second appellant’s counsel that the sentence imposed by the court a quo was shockingly inappropriate and heavy despite the aggravating factors.
It was further submitted by second appellant’s counsel that the value of the aluminium sulphate was not determined beyond a reasonable doubt and that the security measures by
the manufacturer was weak or non existent. Further, the deterrent element was over emphasized.
As indicated earlier, counsel for the state conceded that, at first glance, the sentence imposed by the magistrate appears to be shockingly inappropriate.
As indicated earlier, I agree with the finding of the magistrate that the only suitable sentence under the circumstances was direct
imprisonment.
However, I am of the opinion, taking into account the facts and circumstances of the case, the seriousness of the crime, the interests
of the community as well as the personal circumstances of the second appellant, that an appropriate sentence would be a term of imprisonment
for (8) (eight) years.
Thus, I make the following order:
A.
WITH REGARD TO THE FIRST APPELLANT:
1)
The conviction by the court a quo of the first appellant on charges 1-4 is set aside.
2)
The conviction by the court a quo of the first appellant on charges 5 and 6 is confirmed.
3)
The sentence by the court a quo is set aside and substituted with the following:
“The first appellant is sentenced to a term of imprisonment of five (5) years, of which two (2) years is suspended for five
(5) years on condition that the first appellant is not found guilty of fraud or theft committed during the period of suspension.”
4)
The sentence is effective from 28 February 2002.
B. WITH REGARD TO THE SECOND APPELLANT: 1)
The conviction by the court a quo second appellant on all the charges is confirmed.
2)
The sentence of the court a quo is set aside and substituted with the following:
“The second appellant is sentenced to a term of imprisonment of 8 (eight) years.”
3)
The sentence is effective from 28 January 2002.
S S OMAR ACTING JUDGE OF THE HIGH COURT I agree D BASSON JUDGE OF THE HIGH COURT FOR THE APPLICANT: ADV INSTRUCTED BY: FOR THE RESPONDENT: ADV INSTRUCTED BY: DATE OF JUDGMENT: HEARD ON: |