A four-year jail term imposed on fraudster politician Tony Yengeni ”errs significantly on the side of leniency”, the Pretoria High Court found on Friday in dismissing his appeal against conviction and sentence.
An effective five-year sentence would have been more appropriate, judges Eberhard Bertelsmann and Ferdi Preller said.
In terms of Yengeni’s sentencing conditions, he could be released into correctional supervision after eight months in prison.
Yengeni remains out on bail pending his decision on a future course of action. He did not attend Friday’s proceedings.
The judges said they had considered giving notice of their intention to increase the penalty at the time of hearing Yengeni’s appeal.
”But [we] were dissuaded from this course by the fact that the appeal would then have had to be postponed, delaying justice yet once more.
”Our inaction should not be regarded as an indication that a similar sentence will be endorsed by this court in a comparable case in future.”
The judges dismissed the former African National Congress chief whip’s appeal against a fraud conviction and four-year jail sentence.
They found he had been correctly convicted of defrauding Parliament by failing to disclose a near-50% discount he received on a 4×4 Mercedes Benz.
He had lied about it for more than two years, the judges said.
They dismissed as a fabrication the politician’s contention that he had been promised a fine not exceeding R5 000 by former prosecution head Bulelani Ngcuka if he pleaded guilty.
‘Not the end of the road’
Yengeni’s lawyer, Marius du Toit, said they will probably challenge the judgement in the Supreme Court of Appeal, but the options have yet to be discussed.
”We are disappointed but it is not the end of the road yet,” he said outside the court.
The judges said a non-custodial sentence, as sought by the state and the defence in Yengeni’s case, would be ”flagrantly inappropriate”.
To raise his resignation from Parliament as a mitigating factor was a fallacy.
”The removal from an office of trust by a person who has, by dishonesty and greed, demonstrated that she or he is unfit to hold such office, is a natural consequence of such unfitness.
”The immediate and permanent removal from an office of trust should follow in every case of a crime involving an element of dishonesty as a matter of law and public policy.”
Initially charged with corruption and fraud, Yengeni was convicted in 2003 of an alternative count of fraud following plea negotiations with the state.
The car deal was arranged by a representative of a bidder in the government’s arms-acquisition process, at a time when Yengeni was chairperson of Parliament’s joint standing committee on defence.
The judges said Yengeni had initiated the fraudulent deal, and then helped prepare a backdated agreement of sale falsely stating the car had been purchased at a price of R230 052, and that he had paid a R50 000 deposit.
He in fact paid R182 563 in total. The purchase document also falsely stated the vehicle had been damaged in transit and was sold without the usual guarantee.
Yengeni paid for newspaper advertisements proclaiming his innocence, and attacking his accusers and investigators, the judges said.
There could be no doubt that he intended to deceive Parliament and the public at large.
He knowingly and consciously transgressed a parliamentary code of conduct requiring the disclosure of benefits.
”The appellant could not but have appreciated that the acquisition of this vehicle … constituted a conflict of interests that should have been disclosed.”
The court rejected Yengeni’s argument that Parliament could not be cited as a complainant in law, and could not be defrauded.
Ngcuka claim ‘desperate clutching at straws’
Regarding his claim that Ngcuka had promised him a non-custodial sentence in exchange for a guilty plea on a ”watered-down” charge, the judges said: ”it bears every hallmark of a desperate clutching at straws to escape the consequences of [his] actions rather than the ring of truth”.
”It is indeed surprising that [Yengeni] … did not immediately object in no uncertain terms when sentence was passed upon him,” they said.
Instead, he waited more than two years to raise the issue.
”The only reasonable conclusion is that such agreement was never entered into.”
Even if a deal had been struck, it could never have been honoured. It would have amounted to an attempt to fetter the trial court’s free discretion on sentence, and would have been in conflict with the fundamental constitutional principle of independence of the judiciary.
The judges dismissed with costs Yengeni’s application for a review of his trial on the basis of the alleged deal with Ngcuka, and his appeal against conviction and sentence.
They also struck out, with costs, a supplementary affidavit filed by Yengeni, in which he launched a ”vitriolic attack” on Ngcuka’s character ”clearly motivated by a desire to embarrass [Ngcuka] on political grounds and to besmirch his integrity”. — Sapa