THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 479/08

GERHARD VAN DER WESTHUIZEN
Appellant

and

THE STATE
Respondent

Neutral citation:
Van der Westhuizen v The State  (479/08) [2009] ZASCA 48
(22 MAY 2009)

Coram:
CLOETE, SNYDERS JJA and GRIESEL AJA

Heard:
06 MAY 2009

Delivered:
22 MAY 2009

Summary:
Condonation – failure to prosecute appeal in compliance
with the rules – explanation for delay and prospects of
success evaluated

ORDER

On appeal from: High Court, Pretoria (Claassen and Basson JJ sitting as
court of appeal from a regional court):
The appeal against the refusal of the application for condonation is dismissed.
The order by the court a quo dismissing the appeal is set aside.
JUDGMENT

SNYDERS JA: (CLOETE JA and GRIESEL AJA concurring)
[1] This is an appeal against the refusal of condonation by the High Court
in Pretoria (Claassen and Basson JJ). The appellant applied for condonation
as he had failed to comply with several rules of court in the prosecution of his
appeal. The matter is before this court as the appellant exercised his
automatic right of appeal that arises from s 21(1)1 of the Supreme Court Act
59 of 1959 (despite the provisions of s 20(4)2) as explained in S v Gopal 1993
(2) SACR 584 (A) at 585c-d:3
‘. . . indien ‘n persoon in die landdroshof aan ‘n misdryf skuldig bevind en gevonnis word en
sy appèl na die Provinsiale (of, indien van toepassing, die Plaaslike) Afdeling van die
Hooggeregshof misluk, mag hy alleen met die nodige verlof na hierdie Hof appelleer. As hy
egter sou nalaat om sy eerste appèl na behore voort te sit en dit nodig is om kondonasie te
verkry (soos bv vir die laat aantekening van appèl) en dié aansoek misluk, het hy ‘n
outomatiese reg van appèl teen die afwys van sy aansoek na hierdie Hof.’

[2] The appeal that the appellant sought to pursue in the court a quo was
from the Special Commercial Crimes Court for the Regional Division of the
Northern Transvaal in Pretoria, where he was convicted of fraud and

1 Section 21(1): ‘In addition to any jurisdiction conferred upon it by this Act or any other law,
the appellate division shall, subject to the provisions of this section and any other law, have
jurisdiction to hear and determine an appeal from any decision of the court of a provincial or
local division.’
2 Section 20(4): ‘No appeal shall lie against a judgment or order of the court of a provincial or
local division in any civil proceedings or against any judgment or order of that court given on
appeal to it except – (a) in the case of a judgment or order given in any civil proceedings by
the full court of such a division on appeal to it in terms of subsection (3), with the special leave
of the appellate division; (b) in any other case, with the leave of the court against whose
judgment or order the appeal is to be made or, where such leave has been refused, with the
leave of the appellate division.’
3 See also S v Moosajee 2000 (1) SACR 615 (SCA) at 615i-j and 618d-h; S v Farmer 2001
(2) SACR 103 (SCA) at 104d-i.

sentenced to five years’ imprisonment in terms of s 276(1)(i) of the Criminal
Procedure Act 51 of 1977 (CPA). The appellant appealed against his
conviction and sentence. His appeal was enrolled in the court a quo on 30
January 2006. On that day it was struck off the roll due to the fact that no
heads of argument were filed and there was no appearance by the appellant,
or on his behalf.

[3] On 14 June 2006 the appellant launched an application for
condonation. In that application he sought the re-instatement and enrolment
of his appeal, condonation for the failure to appear in his appeal on 30
January 2006 and condonation for the lateness of the application for
condonation. This application was heard and dismissed on 13 August 2007.

[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.4

[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.5

[6] The appellant was obliged to file heads of argument in his appeal
before the end of December 2005.6 He failed to do so.  There was no

4 S v Mohlathe 2000 (2) SACR 530 (SCA) at 535g-536a; S v Leon 1995 (2) SACR 594 (C) at
595 e-h; Harms Civil Procedure in the Supreme Court at B-182.
5 S v Leon 1996 (1) SACR 671 (A) at 672j-673h.
6 One month prior to 30 January 2006 in terms of Transvaal Rule 8(1) read with rule 51(4) of
the Uniform Rules of Court.

appearance on his behalf on 30 January 2006. To have his appeal re-instated
and re-enrolled those failures had to be condoned.7 He waited until 14 June
2006 to lodge an application for condonation.

[7] The appellant explains that the reason for these failures is that there
was ‘an innocent misunderstanding’ between him and his attorney which
caused him not to contact his attorney, not to place his attorney in funds and
caused his attorney to assume that he was not interested in prosecuting his
appeal.

[8] As a consequence of his appeal having been struck off the roll, the
appellant was contacted during March 2006 and instructed to hand himself
over in order to start serving his sentence. This prompted him to contact his
attorney for the first time since his conviction and sentence in December
2002. He also suggests that he had been unable to make contact with a
certain Erasmus, whose existence he claims to be vital to his appeal, until two
months prior to the application for condonation when he ‘serendipitously’
came upon Erasmus’ business card, which enabled him to make contact.

[9] In the appellant’s own words he explains the misunderstanding as
follows:
’8
Immediately following my conviction, I discussed the matter with my attorney and
instructed him regarding my appeal.
As I recall, part of the reason for the appeal inter alia concerned the magistrate’s
finding that a certain person whom I referred to in my evidence did not exist. This person is a
Mr. Pieter Erasmus (“Mr. Erasmus”), who is more commonly known as Rassie Erasmus, and
who is employed by the National Intelligence Service.
It was necessary and of utmost and crucial importance for the purposes of my appeal
that I furnish further instructions to my legal representatives regarding the existence of Mr.
Erasmus. It has always been my contention that I was the victim of an elaborate “sting”,
orchestrated by Boer Barnard during which I was convinced that I needed to open an account
for the entity known as “Proliferation Intelligence Services”. At the time I verily believed that
Proliferation Intelligence Services was a part of the South African Intelligence Services in the
general sense. It was also my version before the court a quo that Mr. Erasmus was a member

7 Uniform Rules of Court, rule 27.

of the National Intelligence Service and that I had first met him when approached to open the
account. This was material in my recommendation to Dunlop to open the account against
which the first accused perpetrated the fraud.
When the presiding officer had found that Mr. Erasmus did not exist, he had done so
on the basis of the evidence of an official of the National Intelligence Service who indicated
that no such person was employed by the National Intelligence Service. I wish at this early
juncture to humbly submit that this finding of the court a quo was, inter alia, a material
misdirection.
As such, an adverse (and I humbly submit wrong) finding in respect of my credibility
had been made, and I submit that this had played a significant role in my conviction in the
matter.
I had advised my attorney that Mr. Erasmus does exist, contrary to the evidence of
the official from the National Intelligence Service (and as will become apparent during the
course of this affidavit, my attorney, Mr. Wayne Venter from Lindsay Keller & Partners, has
indeed spoken to Mr. Erasmus).
As such, it was necessary for me to consult with both my attorney and counsel
regarding this issue and to amend the Notice of Appeal and acquire the necessary affidavits
relating to the actual existence of Mr. Erasmus of the National Intelligence Service.
The period during which these events transpired was shortly before Christmas, and I
was scheduled to go on annual leave with my family. I did not believe that there was any
necessity to consult with my legal representative over Christmas and New Year, when they in
any event would not have been available, in particular Mr. Van der Sandt, who had been
involved in the matter from the outset.
I therefore advised my attorney that I would contact him, only in the event of it being
necessary, at a stage subsequent to my return from holiday.
Upon my return from holiday, and in the mistaken belief that the matter was being
dealt with by my legal representatives, I did not deem it necessary to contact my attorney.
My attorney was however labouring under the impression that I had specifically
undertaken to contact him subsequent to my return from holiday.
In the premises, and in the light of the facts as set forth hereinabove, it is my humble
submission that, already at that early juncture, an innocent misunderstanding had prevailed
between myself and my attorney, which ultimately led to the matter being struck off the roll.’

[10] The explanation carries the seeds of its own destruction. The
appellant’s subjective belief that it was ‘necessary and of utmost and crucial
importance’ that he furnish instructions to his attorney for the purpose of his
appeal (para 10) belies his allegation that he did not deem it necessary to
contact him (para 17).

[11] From December 2002 until March 2006 the appellant, on his own
version, did absolutely nothing to pursue his appeal: he did not contact his
attorney, he did not place his attorney in funds, he did not attempt to find
Erasmus and he did not enquire about the progress of his appeal. His
attorney reasonably inferred that the appellant was no longer interested in
pursuing his appeal and took no further action on his behalf. The inertia by the
appellant ultimately led to the failure to file heads of argument and the failure
to appear in the appeal.

[12] The appellant alleges that the magistrate found that Erasmus does not
exist and that he believed it crucial to his appeal to show that Erasmus does
in fact exist. Yet he did nothing, from the time of his conviction on 2 December
2002 until two months before his application for condonation, April 2006,
when he ‘serendipitously’ came upon Erasmus’ contact details. This is yet
another example of the appellant’s inaction.

[13] It was necessary for the appellant to explain not only why heads of
argument were not filed and why there was no appearance, but also the delay
in bringing an application for condonation.8 There is no attempt by the
appellant to explain why it took him until 14 June 2006 to bring an application
for condonation when he was alerted to all the problems surrounding his
appeal during March 2006.

[14] The appellant’s explanation for the non-compliance with the rules
amounts to no explanation at all. In addition, there are no prospects of
success on appeal.

[15] On the merits of his appeal the appellant contends that he should not
have been convicted, but that even if he was rightly convicted the magistrate
should not have made a distinction between his sentence and that of his co-
accused, Barnard, and given him (the appellant) a heavier sentence.

8 Darries v Sheriff, Magistrate’s Court, Wynberg 1998 (3) SA 34 (SCA) at 40I-41A.

[16] The following common cause facts gave rise to the appellant’s
conviction: He was the National Contracts Manager for Dunlop Tyres (Pty) Ltd
(Dunlop) when he opened a so-called secret account with Dunlop for a secret
customer, connected to the National Intelligence Service of South Africa (NI)
for the sale of tyres to this customer at the usual 45% discount available to
government departments. He specifically instructed the staff at Dunlop that
queries on the account were not to be dealt with in the ordinary course but
only by him. He instructed the Senior Clearance Clerk of Dunlop, Ms
Scheepers, not to try and make contact with anybody in relation to the
account by using the contact telephone number supplied by him. When she
ultimately did try the contact number provided by the appellant, she
discovered that it did not exist. He also instructed staff to ignore the usual
procedures that require an official order form from government departments
but to accept oral and informal orders by him and Barnard on this account.
The appellant placed orders and furnished different delivery addresses for the
orders. Numerous of the delivery addresses supplied by the appellant was the
address of a private individual, Ms Kruger, also a state witness, who did
business for her own account. She started buying tyres from Condor
Enterprises, a business that Barnard, a buyer of tyres from Dunlop for the
South African Police Services (SAPS), set up in order to do private business.
Kruger placed her orders and made payments through an intermediary,
Mulder. Invoices and delivery notes handed in at the trial corroborated
Kruger’s evidence that purchases made by her were on this secret account
and were delivered to her business address. At least one cheque payment for
these purchases was handed by Mulder to Barnard in the presence of the
appellant. The accused even assisted an employee of Dunlop, Mr Bali, to
purchase tyres for his personal use from Kruger at a reduced price.

[17] The facts summarised in the previous paragraph are common cause as
the appellant’s legal representative at the trial did not challenge the state
witnesses on their evidence during cross examination. The cross examination
was of an exploratory nature and the appellant’s version was not put to the
state witnesses.

[18] During his evidence the appellant tried to meet the state’s version by
explaining that he was approached by three men, Stefan Terblanche, Pieter
Erasmus and an unknown black person, who identified themselves as
employees of NI. They wanted to open an official account with Dunlop for the
division of NI that they allegedly worked for. It was to be a highly secret
account. The appellant took their details which included copies of their identity
documents. A few days later they urgently wanted tyres which were then
supplied on the instructions of the appellant on the account of another state
department, delivered and paid. The appellant even visited their premises on
their invitation to make an assessment of their likely need for tyres. He had no
suspicion that they were not from NI, nor that the account that they opened
were not for a government department. In terms of s 220 of the CPA the
appellant ultimately admitted that the account was not opened for a
department of NI. He received orders telephonically from Mulder and Barnard
on this account, which he instructed members of Dunlop’s staff to process. He
knew that Barnard made purchases on that account for his private business.
He was aware that Barnard received cheques in payment for tyres ordered on
that account from Kruger through Mulder.

[19] Significantly, he did not testify that he ever received any orders on this
account from any of the three men that initially approached him to open this
account. He only went so far as to say that Terblanche asked him for a
reference to a person with experience in the handling of a tyre account with
Dunlop. He referred Terblance to Barnard. The appellant did not testify that
Barnard was operating this account for the three men that opened the
account, nor was any of this evidence put to Barnard.

[20] This summary of the appellant’s evidence shows that he did not
address the case against him. The only piece of evidence that has
exculpatory potential is that he did not know that the three men did not in truth
and reality represent a government institution.

[21] The uncontested evidence of the state witnesses gives rise to only one
reasonable inference: that the appellant opened this account with the intention

to defraud Dunlop by allowing purchases on that account at the usual 45%
discount to government departments, by persons and businesses that were
not entitled to such discount from Dunlop. His attempt to hide behind the
alleged secrecy of the account serves only to illustrate a false gullibility on his
part and extraordinary improbabilities. It is simply unbelievable that as the
National Contracts Manager of Dunlop he was so gullible that he believed that
to open a highly secretive account for NI without any official documentation, to
allow that account to be conducted informally and with the complete absence
of any official documentation, and to allow individuals and businesses
unconnected to NI - or to the individuals who opened the account - to make
purchases on that account, did not amount to fraud.

[22] Insofar as the appellant suggests in his application for condonation, for
the first time, that his true defence is that he has been the victim of the deceit
of Barnard, this was never put to Barnard and is contrary to his own evidence
insofar as he allowed people to purchase on that account for their own
benefit.

[23] The appellant challenges the magistrate’s finding that the failure to put
his version to the state witnesses indicates that his version was a recent
fabrication. He explains that it would have been senseless to put his version
to the state witnesses as they would have been unable to comment on it. This
is desperate and unfounded speculation by the appellant. The answers of the
state witnesses to the appellant’s version do not lie in the mouth of the
appellant and, at the very least, a finding of recent fabrication would not have
been possible if his version was put, even if it was not answered.

[24] Another alleged material misdirection that the appellant relies upon in
his application for condonation is that the magistrate found that Erasmus does
not exist. He alleges that Erasmus does indeed exist, that he has managed to
make contact with him again and that his attorney has spoken to Erasmus
over the telephone (this latter fact is confirmed by the attorney). But the
magistrate did not find that Erasmus does not exist. Insofar as the appellant
understood that he did, he fails to say how proof of the mere existence of

Erasmus would change the facts relied upon for conviction, or whether leave
would be sought to introduce evidence that Erasmus did exist. In my view, the
summary of the uncontested evidence above clearly shows that a finding of
fact that Erasmus exists, would not change the inevitable conclusion that the
appellant committed fraud.

[25] In relation to sentence the appellant relies on three alleged
misdirections by the magistrate: that his admission to the probation officer,
that the account that was opened was fictitious, was taken out of context to be
an admission of knowledge that he was committing fraud; that the disparity in
the sentence imposed on him and that imposed on Barnard is unsubstantiated
(Barnard was sentenced to three years’ imprisonment in terms of s 276(1)(h)
of the CPA); and that the sentence imposed on him is shockingly
inappropriate. (The latter alleged misdirection was not pursued in the heads of
argument or during argument.)

[26] The first misdirection was not material. The magistrate used the finding
only to find that the appellant had no remorse – and that fact was established
independently of the misdirection.

[27] I turn to consider the argument based on the disparity of the sentences.
The appellant defrauded his employer. The extent of Dunlop’s loss as a result
of this fraud is uncertain. It is common cause that an amount of approximately
R165 000 remained outstanding on the account and was ultimately written off.
The total amount of sales on that account, at an unjustified discount of 45%,
was put by Scheepers as having been more than R300 000. The nature of the
fraud is serious and the potential loss to Dunlop was huge.

[28] The magistrate distinguished between Barnard and the appellant
because, unlike Barnard, the appellant defrauded his employer and made it
possible for Barnard also to defraud Dunlop. The breach of a relationship of
trust through the commission of fraud or theft is generally regarded as an
aggravating factor, but a consideration of all other relevant factors still

remains essential in arriving at an appropriate sentence.9 This the magistrate
did. He individualised the sentences in express terms by taking the personal
circumstances of the appellant and Barnard into account. (There was no
intimation in this court that there was any failure by the magistrate to take the
appellant’s personal circumstances into account.)

[29] That the appellant perpetrated the fraud on his employer was not the
only basis for the distinction drawn by the magistrate between Barnard and
the appellant. Barnard’s personal circumstances were vastly different to the
appellant’s: he had lost a young child; his financial circumstances were trying;
he showed remorse; he was a soft hearted person who could easily be taken
advantage of; and he suffered from depression which resulted from post
traumatic stress disorder that arose from his active service in the South
African Police Services. Similar mitigating factors are not evident from the
appellant’s circumstances.  The magistrate’s attempts to individualise the
sentences, are sound and reflect that Barnard was given a lighter sentence
rather than the appellant having been given a heavier sentence.

[30] Considering a fraud of this nature, committed by a person in the
circumstances of the appellant, the sentence imposed does not induce a
sense of shock.10

[31] There are no prospects of success on appeal in relation to conviction
or sentence. No other factors relevant to condonation were raised or argued
by any of the parties.

[32] Condonation was therefore rightly refused.  The order dismissing the
appeal that followed the order by the court a quo refusing condonation was

9 S v Kunene 2001 (1) SACR 199 (W) at 200d.
10 To compare sentences in different matters is not a reliable guide to sentencing, but
provides only a broad and general perspective. For that purpose reference is made to S v
Sindhi 1993 (2) SACR 371 (A); S v Howells 1999 (1) SACR 675 (C); S v Landau 2000 (2)
SACR 673 (W); S v Kwatsha 2004 (2) SACR 564 (E). See also S v Blank 1995 (1) SACR 62
(A) at 70b-71g and 81e-h.

however not a competent one as the appeal was not heard, and that order
has to be set aside.

[33] The following order is made:
The appeal against the refusal of the application for condonation is dismissed.
The order by the court a quo dismissing the appeal is set aside.

_______________________
S SNYDERS
Judge of Appeal

APPEARANCES:

For appellant:
JLCJ van Vuuren SC

G H Ferrar

Instructed by:
JDC Attorneys, Pretoria

Correspondent:
Symington & De Kok, Bloemfontein

For respondent:
FW van der Merwe

Instructed by:
Director of Public Prosecutions, Pretoria

Correspondent:
Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

* * *
The Supreme Court of Appeal today refused an appellant the opportunity to pursue an appeal
from the magistrate’s court in the high court. The appellant was convicted of fraud in the
magistrate’s court. It was found that he defrauded his employer, Dunlop Tyres (Pty) Ltd. He
allowed individuals and private businesses to make purchases on an unauthorised account
with Dunlop at a 45% discount usually allowed government departments whilst they were
not entitled to purchase directly from Dunlop at all. He was sentenced to five years’
imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act, which implies that he
has to serve a minimum of 10 months’ imprisonment whereafter the Commissioner of
Correctional Services may, in his discretion, place him under correctional supervision. Early
in December 2002, just after his conviction and sentence, the appellant instructed his attorney
to lodge an appeal on his behalf and undertook to contact his attorney in regard to the appeal
after the holiday season. However, he did not do so.

His attorney did file a notice of appeal on his behalf but thereafter received no further
instructions and lost contact with the appellant. Because of the notice of appeal that was filed
the appellant’s appeal was placed on the roll of the high court for hearing during January
2006. Because of the appellant’s failure to give his attorney instructions nothing was done to
pursue the appeal and his appeal was struck off the roll. The appellant was then contacted
during March 2006 to hand himself over in order to start serving his sentence. This jolted
him to contact his attorney but he still took until June 2006 to bring an application to the high
court to condone his earlier failures in relation to his appeal and to re-instate his appeal.

The high court found that the appellant’s appeal was not to be re-instated primarily because
of two reasons: his explanations for his failure to properly pursue his appeal and for the delay
in bringing the application for condonation was very poor; and his prospects of success on
appeal in relation to his conviction and sentence were equally poor. In his appeal to the
Supreme Court of Appeal it was found that the high court was not wrong in its conclusion.
Hence the appellant was refused the opportunity to pursue his appeal.