The Pretoria High Court dismissed an application on Friday by former African National Congress Women’s League (ANCWL) president Winnie Madikizela-Mandela and broker Addy Moolman for leave to appeal against dozens of fraud convictions.
Moolman sought leave to approach the Supreme Court of Appeal in Bloemfontein to challenge his 58 fraud convictions and four-year prison sentence, and Madikizela-Mandela her conviction on 43 counts.
Judge Eberhardt Bertelsmann ruled that another court was unlikely to come to a different conclusion.
The pair was initially also found guilty of 25 charges of theft but these counts were dropped on appeal to the Pretoria High Court last July. Moolman’s sentence was then reduced from five years’ imprisonment and Madikizela-Mandela’s from an effective eight-month jail term to a wholly suspended one.
The fraud relates to loans obtained on behalf of non-existent ANCWL employees from Saambou Bank through brokerage firm Imstadt.
The loans were approved on the basis of letters on ANCWL letterheads signed by Madikizela-Mandela, falsely stating that the applicants were employed by the league.
Bertelsmann said it was improbable that Madikizela-Mandela would have signed the 43 letters, as she claimed, without knowing their contents.
The letters were written pursuant to negotiations between Madikizela-Mandela, Saambou and Imstadt on the issuing of loans to league staff. Madikizela-Mandela had viewed the negotiations as so important that she took her legal adviser to a meeting where the agreement was finalised, the judge said.
”Part of the agreement required (Madikizela-Mandela) to confirm that the applicants for Saambou loans were indeed employed by the ANCWL.
”The suggestion that under these circumstances (Madikizela-Mandela) would have signed 43 letters without once considering the content thereof is so far-fetched that the trial court correctly rejected it as untrue.”
Bertelsmann described Moolman as a discredited witness and dismissed his pleas of innocence.
”The probabilities of his version being true are so slim that it is unlikely in the extreme that another court would come to a different conclusion from the trial court on this issue,” he said.
The judge said it was clear that Moolman had played a bigger role in the fraud than Madikizela-Mandela and that the discrepancy in their sentences was therefore justified.
Moolman, he said, had been driven by personal interest and greed.
Madikizela-Mandela’s role was much more passive and she did not gain any personal advantage from the crimes.
”Indeed, account must be taken of the fact that she did help poor people to obtain loans, however misguided and dishonest that action may have been,” Bertelsmann said.
Regarding Madikizela-Mandela’s sentence, the judge commented on the State’s decision not to ask for her direct imprisonment, meaning that no aggravating or extenuating circumstances were put before the court.
”This approach runs counter to pronouncements that there is a duty upon the State to assist the court in determining a just sentence,” he said.
”The court is obviously aware of the fact that (Madikizela-Mandela) is regarded by many as a controversial personality. That fact is, however, irrelevant.
”In the absence of any evidence on sentence, positive or negative, only the nature and gravity of the offences of which (she) has been convicted and her personal circumstances could be taken into account.”
Bertelsmann pointed out that Madikizela-Mandela’s social standing and reputation had been irreparably damaged by her conviction, and her political and social influence impaired.
”This constitutes severe punishment in itself.” Madikizela-Mandela has, since her conviction, resigned from the ANCWL, and as MP and member of the ANC’s national executive committee.
Moolman’s bail was extended for him to lodge a petition directly to the Supreme Court of Appeal within 21 days. If the petition failed, he would have to report within seven days to the clerk of the Pretoria High Court to start serving his sentence.
Madikizela-Mandela’s advocate, Ishmael Semenya, said he had not yet received instructions whether or not to lodge a petition on her behalf.
In his judgement, Bertelsmann rejected as irrelevant arguments that there was no proof Saambou or Imstadt had in fact been misled by the misrepresentations made by Moolman and Madikizela-Mandela.
The fraud was committed the moment the false representation was made, he said. ”Whether the fraudulent misrepresentation did induce the representee to act thereupon or not, is immaterial for a conviction of fraud.”
Bertelsmann also dismissed arguments on Madikizela-Mandela’s behalf that her right to a fair trial had been compromised because she was not granted access to certain documents in the State’s possession.
Madikizela-Mandela was not at court for the judgement. – Sapa