Prosecutors listed at least eight "misdirections" the judge made in former Fidentia boss J Arthur Brown's case.
|||Cape Town - Prosecutors in the Western Cape have hit back at Western Cape High Court Judge Anton Veldhuizen’s comment that they mismanaged the case against former Fidentia boss J Arthur Brown and have listed at least eight “misdirections” they believe he made, in court papers filed on Friday.
In addition, they object to the R150 000 fine imposed on Brown as “startlingly and inappropriately lenient”.
“The case was not mismanaged. Inasmuch as the court found to the contrary, the court’s conclusion is coloured by the misdirections that reasonably fall to be corrected by another court,” they stated.
The document, submitted as part of the State’s application for leave to appeal against the sentence, also states that the “wholly disproportionate” fine was bad for South Africa’s economy. The State wants a term of imprisonment to be imposed instead.
Earlier this month Brown, who initially faced 192 charges, was fined R150 000 or three years in jail after being convicted of two counts of fraud, related to his dealings with the Training and Education Training Authority (Teta) and the Mantadia Asset Trust Company (Matco), now known as the Living Hands Umbrella Trust.
He pleaded guilty to the two charges after the State had already led evidence.
However, the sentence imposed may not be the end of the saga for Brown in the event that the State succeeds in obtaining leave to appeal the sentence to the Supreme Court of Appeal.
In the document, the State alleges that Judge Veldhuizen erred in:
* Finding that the fraud Brown was convicted of did not fall within the ambit of minimum sentence legislation.
* Imposing a sentence that was startlingly and inappropriately lenient.
* Finding that the State had accepted Brown’s plea to the exclusion of other evidence led in the trial.
* Holding that the court was bound to base the sentence on “the narrow description of the offences in the admissions (Brown had made) alone and completely ignoring the evidence that was already on record as part of the State’s case, much of which had not been challenged by (Brown)”.
* Disregarding the evidence of five State witnesses without giving reasons for doing so.
* Limiting the State during cross-examination of Brown,
* Limiting and then disregarding the evidence of State witnesses who testified in aggravation of sentence.
* Finding, without good reason, that the State had mismanaged the case.
* Failing to consider indemnity for State witness Graham Maddock.
It is the State’s argument that a minimum sentence of 15 years was applicable to each count of fraud of which Brown was convicted.
It submitted that there was a “striking disparity” between the sentence imposed and the sentence that another court would have imposed, because the evidence indicated that Brown acted “merely out of greed”, and showed no remorse.
“His decision to make admissions and plead guilty at the very latest stage of the proceedings, having for years made no admissions and having proclaimed widely his innocence, does not display true remorse.
“He was concerned with his image and rapidly acquired status which control over a multi-million rand group brought.
“It is clear from his evidence that he does not have a true appreciation of the consequences of his fraudulent actions in describing them as mere breaches of contract, even if only potential prejudice is accepted.
“This exculpatory version, tendered after admitting guilt, flies in the face of true remorse. (Brown) contended that he committed the frauds because of ‘bad cash flow planning’.
“This action and motive can hardly mitigate the severity and seriousness of these two crimes.”
In addition, the State alleges that the fine imposed was wholly disproportionate, and that the court over-emphasised Brown’s personal interests over the seriousness and prevalence of the offences, and the interests of society.
“It is submitted that it remains trite that investor confidence plays a major part in our economy, which is regarded as a developing economy and in constant need of new investments.
“The influx of foreign investments is especially important, with investors looking for stability and expecting to see major commercial criminality firmly dealt with.”
Weekend Argus