THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 1209/2017

In the matter between:

KUTLUOANO URIAH MALEKA
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Maleka v The State (1209/2017) ZASCA 114 (18 September 2018)

Coram:
Ponnan, Tshiqi and Mbha JJA

Heard:

15 August 2018

Delivered:

18 September 2018

Summary:
Criminal law and procedure – sentence – appellant convicted on 29
counts of theft and sentenced to 15 years’ imprisonment – appeal against
sentence – leave to appeal refused by trial court – petition in terms of s
309 of the Criminal Procedure Act refused by the high court – special
leave to appeal against the refusal of that petition.

______________________________________________________________________

ORDER
______________________________________________________________________
On appeal from: Gauteng Local Division of the High Court, Johannesburg (Monama J
and Petersen AJ) sitting as court of appeal:
The appeal is dismissed.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Mbha JA (Ponnan and Tshiqi JJA concurring):

[1] The appellant was arraigned before the Regional Court for the Regional Division
of Gauteng, held at the Specialised Commercial Crimes Court, Johannesburg on 29
counts of fraud, alternatively theft, further alternatively contravening ss 11(1) and 11(2)
of the Banks Act 94 of 1990 and s 7(3) read with ss 1, 8 and 36 of the Financial
Advisory and Intermediary Services Act 37 of 2002.

[2] The appellant pleaded guilty and was duly convicted of the 29 alternative counts
of theft. Those were taken together for the purpose of sentence and the appellant was
sentenced to 15 years’ imprisonment. The appellant’s application to the trial court in
terms of s 309B of the Criminal Procedure Act 51 of 1977 (the CPA) for leave to appeal
against sentence was dismissed. The appellant then petitioned the Gauteng Local

Division, Johannesburg, for leave to appeal in terms of s 309C(2) of the CPA. His
petition was dismissed.

[3] The appellant thereupon petitioned this court in terms of s 16(1)(b) of the
Superior Courts Act 10 of 2013 (the Act)1 for special leave to appeal the high court’s
order dismissing his petition. The two judges, who considered the appellant’s petition in
chambers, granted the appellant special leave to appeal against the dismissal of his
petition.

[4] Accordingly, what this court has to decide is whether or not the high court was
correct in dismissing the appellant’s petition to it. If that court erred, then this court must
set aside the order of the high court; grant the appellant leave to appeal and refer the
matter back to that court to hear the appeal on its merits. That requires a consideration
of whether or not the appellant enjoys reasonable prospects in his proposed appeal to
the high court against sentence.

[5] The background facts are set out in the statement by the appellant in terms of s
112(2) of the CPA.

[6] The appellant incorporated a company, Titus Industries (Pty) Ltd, with company
registration number 2011/127978/07 of which he was a director. Thereafter the

1 ‘Section 16 (1) Subject to section 1 (1), the Constitution and any other law-
…
(b) an appeal against any decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon
special leave having being granted by the Supreme Court of Appeal ….’

appellant approached members of the public, to wit the persons listed in the charge
sheet, and invited them to invest their moneys with him and his aforesaid company, with
a promise that such investments would yield guaranteed returns at specific times. After
such invitation, the appellant furnished the would-be investors with two account
numbers, being a Standard Bank account number 021552231 and a Nedbank account
1045146331, into which their investments had to be deposited. The complainants paid
various amounts into the appellant’s aforementioned bank accounts on the dates
reflected in the charge sheet. The total amount that was paid into the accused’s
aforesaid accounts is R1 877 200. Of this amount, the appellant appropriated
approximately R280 000 as a deposit to purchase a luxury motor vehicle ie a Jaguar F
model, whilst the rest was spent on trips and to purchase other luxury items.

[7] At the time when the appellant met with and invited the complainants to invest
their moneys with him and his company, he knew that neither he nor his company would
invest the moneys on the complainants’ behalf and that the complainants would not
receive the returns as promised. His intention was to permanently deprive the
complainants of their moneys in an unlawful manner in order to utilise it for his own
needs.

[8] In his statement in terms of s 112(2) of the Act, the appellant admitted that the
complainants suffered actual prejudice as a result of his unlawful and wrongful conduct.
He expressed regret for his conduct and that he was willing to repay the moneys to the
complainants. He also said that he had deposited R80 000 into his attorney’s trust

account and undertook to make available a further R500 000 to reimburse the
complainants.

[9] Mr Van Schalkwyk, appearing for the appellant, submitted that the regional
magistrate exercised his discretion unreasonably in imposing a sentence of 15 years’
imprisonment and should have imposed a community based sentence, alternatively
should have suspended part of the sentence of imprisonment imposed. He further
submitted that the regional magistrate accorded undue weight to the aspects of
deterrence and retribution, and failed to consider the appellant’s relative youthfulness
and prospects of rehabilitation in light of the fact that he was a first offender. In addition,
the regional magistrate ought to have considered correctional supervision coupled with
restitution to the complainants as an alternative sentencing option.

[10] It is trite that the imposition of sentence is pre-eminently a matter falling within
the discretion of the trial court. This principle was aptly described by E M Grosskopf JA
in S v Blank 1995 (1) SACR 62 (A) as follows:
‘It has repeatedly been emphasised by this Court that the imposition of sentence is pre-
eminently a matter falling within the discretion of the trial Judge and that a Court of appeal can
interfere only where such discretion was not properly exercised. One of the ways in which it may
be shown that a trial court’s discretion was not properly exercised is by pointing to a
misdirection in the court’s reasons for sentence. The principle in this regard is expressed as
follows by Trollip JA in S v Pillay 1977 (4) SA 531 (A) at 553E-F:
“Now the word ‘misdirection’ in the present context simply means an error committed by the
Court in determining or applying the facts for assessing the appropriate sentence. As the

essential inquiry in an appeal against sentence, however, is not whether the sentence was right
or wrong, but whether the Court in imposing it exercised its discretion properly and judicially, a
mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the
sentence, it must be of such a nature, degree, or seriousness that it shows, directly or
inferentially, that the Court did not exercise its discretion at all or exercised it improperly or
unreasonably. Such a misdirection is usually and conveniently termed one that vitiates the
Court’s decision on sentence”.’

[11] I am not satisfied that the magistrate did not properly exercise the sentencing
discretion in this case. At the commencement of his judgment on sentencing, the
regional magistrate asserted that he was going to be guided by the well-known triad set
out in S v Zinn2 namely, the personal circumstances of the accused, the seriousness of
the offence, and the interests of society. He also precisely set out the purposes of
punishment as being deterrence, preventative, reformative and retributive. The regional
magistrate then took into consideration the fact that the appellant was a young person
and was 21 years old when he committed the offences, that he was a first offender, that
he pleaded guilty to the offences and that he was single with no dependants.

[12] The regional magistrate also took into account the following pertinent facts
namely, that the losses were substantial and in fact only a negligible amount had been
repaid to each of the complainants, that the offences were well planned amounting to
what the regional magistrate appropriately identified as a pyramid scheme, that the
offences were committed over a protracted period of time, that the appellant at no stage

2 S v Zinn 1969 (2) SA 537 (A) at 540.

considered stopping the commission of the offences and that he had not displayed
genuine remorse for his conduct. Furthermore, some of the persons the appellant had
targeted were vulnerable, elderly pensioners. To make matters worse, some of the
complainants were related to him. What aggravates the matter is that the offences, pre-
meditated as they were, were actuated by greed and the illicit gains were used to buy a
luxurious Jaguar motor vehicle, other unspecified luxurious items and were spent on
trips.

[13] The record shows that the regional magistrate also gave due consideration to the
undertaking the appellant had made to reimburse the complainants. In this regard, one
of the complainants Ms Theodora Mtembu, who testified in aggravation of sentence,
expressed the wish that the appellant should compensate her for her loss. It is common
cause that the matter was postponed on several occasions to afford the appellant an
opportunity to repay the stolen money. However, all promises to repay by the appellant
amounted to nought and in fact proved him to be a pathetic and dishonest liar. On one
occasion his attorney informed the court that the appellant told her that he had
deposited R1 million into her trust account but when she went to check with her bank,
she discovered this was not true. On another occasion the appellant deposited a
cheque of R322 000 into her trust account which was later dishonoured. Small wonder
that ultimately the regional magistrate made the finding, in reference to the appellant,
that ‘… the person standing in front of this court, is a very, very dishonest person’.

[14] It follows from what I have said that there are no reasonable prospects of the
proposed appeal against sentence succeeding. The appeal is accordingly dismissed.

_______________
B H Mbha
Judge of Appeal

APPEARANCES:

For Appellant:

J O van Schalkwyk
Instructed by:

BDK Attorneys, Johannesburg

c/o Symington de Kok, Bloemfontein

For First Respondent:

B C Chauke
Instructed by:

The Director of Public Prosecutions, Johannesburg

c/o The Director of Public Prosecutions, Bloemfontein