The state was in the dock on Monday for not seeking a prison sentence for convicted fraudster Tony Yengeni and other corrupt public officials.
Pointing out that public corruption has become rife, two Pretoria High Court judges said it might be time to start imposing deterrent sentences.
”[It is] the type of crime that at the moment constitutes a veritable cancer in our society,” Judge Eberhard Bertelsmann said while hearing Yengeni’s challenge against a fraud conviction and four-year sentence.
His colleague, Judge Ferdi Preller, said the effects of public corruption are devastating for the country and its system of democracy.
”This is not only an economic crime, but undermines the faith the public has in the government. That can eventually lead to anarchy.”
The judges grilled prosecutor Riegal du Toit on the state’s decision to contest the trial magistrate’s imposition of a four-year sentence on Yengeni — of which at least eight months had to be served.
The state is seeking an 18-month suspended jail term.
”Who are you going deter?” Preller asked.
They also questioned Du Toit on recent non-custodial sentences imposed on MPs, in terms of plea deals with the state, found guilty of fraud in the so-called Travelgate scam.
An MP has to abandon his or her seat if sentenced to more than 12 months in jail without the option of a fine.
‘Does this feel right to you?’
The judges wanted to know from Du Toit whether corrupt public officials should be given sentences allowing them to retain their seats.
”Do you honestly think that these kinds of sentences send out the message that the administration of justice serves to deter elected officials caught with their fingers in the till from doing so again?” Preller asked.
”You are a criminal lawyer of considerable experience. Does this feel right to you?” he questioned Du Toit — referring to the Travelgate and Yengeni cases. The advocate declined to express a personal view.
An 18-month suspended sentence for Yengeni would allow him to return to Parliament immediately.
Preller pointed to President Thabo Mbeki’s repeated statements about the need to eradicate government corruption. Deterring would-be fraudsters is the only way of achieving that, he added.
Bertelsmann said the higher the office held by an offender, the harsher the crime ought to be judged.
But Du Toit asked why a distinction should be made between fraud committed by public officials and other citizens.
”There is a fundamental difference,” Bertelsmann replied. ”They are empowered to deal with public money. It is a position of public trust. Every time a public official commits an offence of dishonesty, that trust is abused.”
Not an ‘exemplary’ sentence
The four-year sentence imposed on Yengeni, the judge added, might appear to be comparatively severe, but was not exemplary. The appeal court might impose an even harsher penalty.
Yengeni was convicted in 2003 of defrauding Parliament after failing to disclose a near-50% discount on a luxury 4X4 Mercedes Benz.
The car deal was arranged by a representative of a bidder in the government’s arms-acquisition process. Yengeni was then chairperson of Parliament’s joint standing committee on defence, which oversaw the arms deal.
Asked Bertelsmann: ”In principle … is a person who has abused the trust placed in him or her by an election into public office fit to continue holding public office once that trust has been abused?”
Du Toit agreed the answer should be no, but asked the court to keep in mind the personal circumstances of each offender.
Bertelsmann said that before pleading guilty, Yengeni maintained for two years that he had done nothing wrong, even taking newspaper advertisements proclaiming his innocence.
Preller said no one wants to live in a country where every public official gets one shot at committing a hefty crime without going to jail.
Credibility of claim questioned
The judges questioned the credibility of Yengeni’s claim that former prosecutions head Bulelani Ngcuka had promised him a R5 000 fine in exchange for pleading guilty to a lesser charge of fraud.
Maintaining his innocence, Yengeni said he only agreed to avoid a protracted and expensive trial.
Matthew Chaskalson, for the national director of public prosecutions, described Yengeni’s version as fanciful and questioned why he only raised it two years after the fact.
Had such a deal existed, it would in any event have been unlawful, unconstitutional and unenforceable.
The judges reserved judgement in Yengeni’s separate applications for a review of the criminal trial and an appeal against his conviction and sentence. — Sapa