Gerhard van der Westhuizen v The State

The appellant was convicted of fraud and sentenced to five years' imprisonment in the Special Commercial Crimes Court for the Regional Division of the Northern Transvaal in Pretoria. He was the National Contracts Manager for Dunlop Tyres (Pty) Ltd when he opened a secret account purportedly for a customer connected to the National Intelligence Service of South Africa (NI). The appellant allowed purchases on this account at a 45% government discount to individuals and businesses not entitled to such discount. He specifically instructed staff to bypass usual procedures, ignore normal documentation requirements, and only deal with queries through him. Evidence showed tyres were delivered to private individuals, including Ms Kruger who bought from Condor Enterprises, a business set up by his co-accused Barnard. At least one cheque payment was handed to Barnard in the appellant's presence. The appellant appealed his conviction and sentence, but the appeal was struck off the roll on 30 January 2006 due to failure to file heads of argument and non-appearance. He applied for condonation on 14 June 2006, which was dismissed by the High Court on 13 August 2007. He then exercised his automatic right of appeal to the Supreme Court of Appeal against the refusal of condonation.

• Whether condonation should be granted for failure to comply with the rules of court in prosecuting an appeal
• Whether the appellant's explanation for delay in prosecuting his appeal was adequate
• Whether there were prospects of success on appeal against conviction
• Whether there were prospects of success on appeal against sentence based on alleged disparity with co-accused's sentence
• Whether the magistrate materially misdirected himself in convicting the appellant
• Whether the sentence imposed was shockingly inappropriate

The appeal against the refusal of the application for condonation was dismissed. The order by the court a quo dismissing the appeal was set aside (as the appeal had never been heard on the merits, that order was incompetent).

When considering an application for condonation for failure to comply with court rules in prosecuting an appeal, the court must exercise a judicial discretion considering all relevant factors including the degree of non-compliance, explanation for delay, prospects of success, importance of the case, nature of relief sought, interests in finality, convenience of the court, avoidance of unnecessary delay in administration of justice, and degree of negligence of the persons responsible. These factors are interrelated, and good prospects of success may compensate for a poor explanation for delay. An explanation that amounts to no explanation at all, coupled with no prospects of success on appeal, justifies refusal of condonation. In fraud cases, breach of a relationship of trust with an employer is an aggravating factor in sentencing, but all other relevant factors must still be considered in individualizing sentence. Proper individualization of sentences based on materially different personal circumstances can justify disparities between co-accused without rendering a sentence inappropriate.

The Court confirmed the principle established in S v Gopal 1993 (2) SACR 584 (A) that where a person convicted in a magistrate's court fails to properly prosecute an appeal to the High Court and an application for condonation is refused, there is an automatic right of appeal to the Supreme Court of Appeal against the refusal of condonation under s 21(1) of the Supreme Court Act, despite the provisions of s 20(4) which would normally require leave. The Court also noted that comparing sentences in different matters is not a reliable guide to sentencing, providing only a broad and general perspective, citing S v Blank and other authorities.

This case illustrates the strict approach South African courts take to condonation applications where there has been non-compliance with court rules in prosecuting appeals. It reinforces that applicants must provide adequate explanations for delays and demonstrate prospects of success. The case also demonstrates the principle that breach of a relationship of trust (defrauding one's employer) is a significant aggravating factor in sentencing for fraud, and that proper individualization of sentences can justify disparities between co-accused. The judgment also clarifies the automatic right of appeal to the Supreme Court of Appeal that arises from s 21(1) of the Supreme Court Act when a condonation application is refused by the High Court, even in circumstances where leave would normally be required under s 20(4).