Hattingh v The State

The appellant, a practising attorney and conveyancer in Bloemfontein, pleaded guilty in the regional court to 64 counts of fraud, one count of theft, and one count of money laundering under the Prevention of Organised Crime Act 121 of 1998. Over a period of approximately four years, he abused his position of trust with major banks by issuing false guarantees, misappropriating funds, registering double mortgage bonds, and misrepresenting the registration of bonds, thereby defrauding the banks and related entities. Although the charge sheet alleged that 32 of the fraud counts involved amounts exceeding R500 000, the appellant’s s 112(2) Criminal Procedure Act statement admitted the elements of fraud but did not admit that the amounts involved met the statutory threshold for the application of the minimum sentencing regime. The regional court nonetheless applied s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997 and imposed an effective sentence of 20 years’ imprisonment. An appeal to the Free State Division of the High Court was dismissed, after which the appellant sought special leave to appeal to the Supreme Court of Appeal.

Special leave to appeal was granted. The appeal against sentence was upheld. The sentence imposed by the High Court was set aside and replaced with an order sentencing the appellant to 12 years’ imprisonment on counts 1 to 64 (fraud), with the six-year sentence on the theft count ordered to run concurrently, and the sentence ante-dated to 23 May 2011.

The case is significant for clarifying that minimum sentencing provisions under the Criminal Law Amendment Act apply only if all elements of the scheduled offence, including jurisdictional facts such as monetary thresholds, are proved or admitted before conviction. It reinforces the distinction between the conviction and sentencing stages of a criminal trial and confirms that evidence led in aggravation of sentence cannot be used to retrospectively trigger minimum sentences. The judgment is also important in sentencing jurisprudence involving white-collar crime and professional misconduct by attorneys.