THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 682/2018
In the matter between:

VICTOR KWENDA

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Victor Kwenda v The State (682/2018) [2019] ZASCA 113
(17 September 2019)
Coram:
Maya P, Zondi and Mokgohloa JJA and Dolamo and Hughes AJJA
Heard:
16 August 2019
Delivered:  17 September 2019
Summary: Criminal Procedure – Appeal against a refusal to grant leave to appeal on
petition – Leave to appeal to the high court was properly refused.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Mabesele J and
Kolbe AJ sitting as a court of appeal):

The appeal is dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Hughes AJA (Maya P, Zondi and Mokgohloa JJA and Dolamo AJA concurring):

[1] The scourge of white collar crime, especially fraud, is currently the order of the
day in our country. Fraud is a cancer that is crippling our country from the core and
takes away from the poorest of the poor. In the case before us, those severely affected
were about 200 youth from disadvantaged backgrounds who were robbed of education
and apprenticeship opportunities which would have enabled them to uplift themselves
in society. Ultimately, these apprenticeships would have enabled them to attain jobs,
which is a scarce commodity in our country.

[2] The appellant was arraigned in the Specialised Commercial Crimes Court
Johannesburg, in the regional division of Gauteng (Regional Magistrate Venter) on 26
counts of fraud totalling an amount of R4 898 158. 21. Pursuant to a guilty plea in terms
of s 112(2) of the Criminal Procedure Act 51 of 1977 (the CPA), in respect of all 26
counts read with the provisions of s 51(2) of the Criminal Law Amendment Act 105 of
1997 (the CLAA), he was convicted and sentenced to 20 years imprisonment.

[3] The appellant unsuccessfully applied for leave to appeal his sentence in terms
of s 309B of the CPA. Subsequently, he petitioned the Gauteng Division of the High
Court, Johannesburg (Mabesele J and Kolbe AJ) in terms of s 309C of the CPA. His
bid was yet again unsuccessful. Having failed in both the trial court and the high court,
he sought leave to appeal against the dismissal of the petition from this Court and, was
successful.

[4] It is imperative that from the outset I address the ambit of this appeal. This Court
in Van Wyk v S, Galela v S1 endorsed the sentiments expressed in S v Matshona2 and
S v Khoasasa.3 In those cases it was held that where an appellant had been refused
leave to appeal by the high court either on petition (as is in this case) or as a result of
a decision of two judges presiding over an appeal, the issue is not the merits of the
appeal. It is rather whether the high court ought to have granted leave to appeal.  In
addressing the issue at hand we are curtailed to dealing with the merits only to the
extent that it establishes whether the appellant has reasonable prospects of success
to be granted leave.4

[5] As regards what constitutes ‘reasonable prospects of success’ Plasket AJA in
S v Smith describes it concisely:
‘What the test of reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In order to succeed, therefore, the appellant must convince
this court on proper grounds that he has prospects of success on appeal and that those
prospects are not remote but have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility of success, that the case is arguable on appeal
or that the case cannot be categorised as hopeless. There must, in other words, be a sound,
rational basis for the conclusion that there are prospects of success on appeal.5’

[6] It is necessary to set out the facts of this case in a little more detail than it is
usual for cases of this nature, purely to highlight the gravity of the fraud committed by
the appellant. The complainant was a Sector Education and Training Authority in the
Manufacturing, Engineering and Related Services sector, known as MERSETA.
MERSETA was tasked with the facilitation of skills development in four industries,
namely; Metal and Engineering, Auto Manufacturing, Motor Retail and Component
Manufacturing, Tyre Manufacturing and Plastic Industries.

[7] In terms of the Skills Development Act 97 of 1998, MERSETA’s function is to
promote economic and employment growth within the specified industries set out

1 Van Wyk v S, Galela v S [2014] ZASCA 152; 2015 (1) SACR 584 (SCA); [2014] 4 All SA 708 (SCA) para 13 – 14.
2 S v Matshona [2008] ZASCA 58; 2013 (2) SACR 126 (SCA) para 5.
3 S v Khoasasa 2003 (1) SACR 123 (SCA); [2002] 4 All SA 635 (SCA) para 14.
4 S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) para 3.
5 Smith para 7.

above, redress inequalities in education and training and facilitate and advance
employment equity in those industries. This they achieve by establishing learnership
programmes and approving workplace skills plans; allocating grants to employers,
education and training providers and employees; and monitoring education and
training in those specific sectors.

[8] The appellant commenced his employment with MERSETA on 17 March 2008
and ascended in the ranks within the agency. At the time of his resignation, on 31 July
2010, he held the position of Grants and Levies Administrator, earning a salary of R16
000 per month. One of his duties was to upload the banking details of beneficiaries of
MERSETA onto its payment system for payment to those beneficiaries.

[9] During the course of his employment he uploaded two fraudulent First National
Bank (FNB) account details and replaced the true account details of the various
beneficiaries of the grants. This was achieved with the assistance of his co-accused
who had a contact person that worked at FNB. This contact facilitated the production
of false letters purporting to be from FNB advising MERSETA of the amended banking
details of the various beneficiaries.

[10] Thus, instead of the beneficiaries receiving the grants due to them, these were
transferred into the two fraudulent FNB accounts. The account holder of these
fraudulent accounts was, BIU Trading CC, an entity owned by the appellant’s co-
accused, which was not a beneficiary of MERSETA.

[11] According to the schedule depicting the fraudulent transactions, which was
attached to the charge sheet, nine of the 26 counts fell within the purview of s 51(2) of
the CLAA. Of the nine, three involved amounts exceeding R500 000 and one was a
single fraudulent transaction in the sum of R1 364 070.64. The other 17 counts involved
transactions which were under R100 000.

[12] As some of the offences with which the appellant was charged were subject to
the provisions of s 51(2) of the CLAA the trial court was obliged upon convicting the
appellant to impose the minimum sentences prescribed for those offences unless it

found there were substantial and compelling circumstances justifying it to deviate from
imposing the prescribed sentences. The trial court found no such circumstances.

[13] The trial court accordingly imposed the following sentences in respect of the 26
counts of fraud:
(i)
For counts 1,2,3,4,7,8,14,19 and 25, a sentence of 15 years imprisonment
for each count was imposed, in terms of s 51(2);
(ii)
Counts 5,6,9-13,15,18,20-24, and 26 were taken together for purpose of
sentencing and a sentence of 15 years imprisonment was imposed;
(iii)
Considering the cumulative effect of punishment in terms of s 280(2) of the
CPA the trial court ordered that all the sentences except for that of count 14
would run concurrently with the sentence in count 1, being 15 years
imprisonment;
(iv)
For count 14  the trial court ordered that only 10 years of the 15 years imposed
would run concurrently with the sentence imposed in count 1;
(v)
Thus, the sentence to be served was 20 years imprisonment.

[14] The question is whether the trial court’s finding that the appellant’s personal
circumstances did not constitute substantial and compelling circumstances to justify it
to deviate from imposing lesser sentences, constituted a misdirection entitling this
court to interfere in the exercise of its discretion. This court held in S v Malgas:
‘[14] When applying the provisions of s 51 a trial court is not in appellate mode. It is not
confronted by a prior exercise of judicial discretion attuned to the particular circumstances of
the case and which is prima facie to be respected. Instead, it is faced with a generalised
statutory injunction to impose a particular sentence which injunction rests, not upon all the
circumstances of the case including the personal circumstances of the offender, but simply
upon whether or not the crime falls within the specific categories spelt out in Schedule 2.
Concomitantly, there is a provision which vests the sentencing court with the power, indeed
the obligation, to consider whether the particular circumstances of the case require a different
sentence to be imposed. And a different sentence must be imposed if the court is satisfied that
substantial and compelling circumstances exist which ‘justify’ (my emphasis) it. In considering
that question the trial court is doing so for the first time. There has been no prior consideration
of the particular circumstances of the case by either the Legislature or another court. There is

thus no justification for arbitrarily importing into the exercise a test which was evolved in a very
different context and which was designed to serve a very different purpose.’6

[15] On appeal before us, counsel for the appellant, submitted that the trial court
misdirected itself as it failed to take cognisance of the fact that the appellant had
pleaded guilty; had made an offer to repay the funds prior to the matter going to court,
which offer was not accepted; presented a payment plan at the sentencing stage and
that appellant was a first offender who was remorseful for his actions. It was further
submitted that the trial court misdirected itself in applying the minimum sentence and
failed to take into account the parity in sentences imposed for this type of offence.

[16] On the other hand, counsel for the State, argued that the trial court did not
commit a misdirection because the effective sentence was not strikingly or shockingly
inappropriate and the prescribed minimum sentence imposed was appropriate in the
circumstances. He further contended that the trial court struck a judicious counter-
balance between the personal circumstances of the appellant, the seriousness of the
offence and the interest of society and did not overemphasise one at the expense of
the other.

[17] The sentence imposed by the trial court is prescribed by s 51(2) of the CLAA as
the minimum sentence and to deviate therefrom would require substantial and
compelling circumstances.7 The factors advanced in mitigation of sentence by the
appellant were general factors. As such, in my view, no substantial and compelling
circumstances were submitted to deviate from the imposition of the prescribed
minimum sentence. The payment plan offered by the appellant was succinctly
addressed by the trial court which rightly concluded that its acceptance would have
required a non-custodial sentence to be imposed to operate optimally. The appellant
having resigned continued to benefit even though he was no longer in the employ of
the complainant. Thus, in my view, he cannot cry foul with regards to the finding that
he did not show remorse. The remorse should have in fact set in at his resignation and
not when he was fortuitously caught, several months after leaving MERSETA.

6 S v Malgas 2001 (1) SACR 469 (SCA); [2001] 3 All SA 220 (A) para 14.
7 Malgas para 9.

[18] I am not satisfied therefore that the trial court misdirected itself in not finding that
the appellant’s personal circumstances constituted substantial and compelling
circumstances which would have justified it to deviate from imposing the prescribed
minimum sentence. The appeal must fail as the appellant failed to show that there are
reasonable prospects of success on appeal.

[19] In the result :
The appeal is dismissed.

___________________
W Hughes
Acting Judge of Appeal

APPEARANCES

For the Appellant:
C De Beer
Instructed by:
Van Der Westhuizen & Associates, Johannesburg

Symington De Kok, Bloemfontein

For the Respondent:
S J Bhengu
Instructed by:
The Director of Public Prosecution, Johannesburg
The Director of Public Prosecutions, Bloemfontein