Secondary

Justice delayed…

The Fidentia saga first came to light in March 2007 when J Arthur Brown and Graham Maddock were arrested. In February 2008, Maddock entered into a plea bargain and was sentenced to seven years in prison. In April 2009, Steven Goodwin followed suit, pleading guilty to 36 charges of fraud, corruption and money laundering. A media release, at the time, by the National Prosecuting Authority read:

Goodwin will serve a minimum of 10 years. The sentences are structured as follows:

    • One count of fraud: 20 years imprisonment of which 10 years is suspended on certain conditions. These conditions include that he fully discloses information and assist the state in the investigation and prosecution of the case.
    • Two counts of corruption: 15 years imprisonment of which five years is suspension (sic).
    • 33 counts of money laundering: 15 years imprisonment of which seven years is suspension (sic).

An article in Die Burger on Thursday provided a brief synopsis of events which eventually led to last week’s sentencing of Brown. It states that the NPA refused to accept a plea bargain in March 2009 in which Brown offered to pay a fine of R30 million, and serve a ten year sentence. Three of these years would be served under corrective supervision, and the rest would be suspended. Brown denied making such an offer, accusing the authorities of trying to put him in a bad light, and creating the impression that he did commit the alleged crimes.

Then followed a series of court appearances, all of which led to postponements until, eventually, Judge President John Hlophe threatened to withdraw Brown’s bail of R1 million. The case before judge Anton Velthuizen started on 26 November 2012, and on 18 April 2013, Brown admitted guilt on two counts, and was found not guilty on the remaining seven.

One has to read the full sentence to understand exactly why the judge appears to have been very lenient. He actually elaborates on issues which he could not take into account, stating that he could only sentence Brown on matters on which he was found guilty. It seems both the public and the NPA were expecting the Court to take into account factors which by law he was clearly precluded from doing.

There followed, understandably, a huge uproar from the public and a wide variety of institutions to the eventual sentence of R75 000 per count, and a suspended jail sentence. To understand why this happened, one has to consider a number of issues which have come to light, following the actual sentencing.

The crux of the matter lies in the following statement by the judge:

“I cannot overemphasize that the two counts of fraud that you have been convicted of are an extremely diluted version of the fraud that the indictment alleges. The second count of fraud relates only to fraud against the shareholders of MATCO, not against widows and orphans. These two counts of fraud pale when compared to the charges in the indictment. But it has been accepted by the prosecution that you never had the intention to cause actual prejudice or damage. You have only admitted and been found to have intended potential prejudice and your moral blameworthiness must accordingly be judged in the light thereof.”

One has to ask whether, and if so, why, the prosecution did not realise just how “diluted” the two counts were to which Brown pleaded guilty?

The judge also found it “astounding” that the evidence of the FSB’s accountant, Mr. Seedat, who conducted the initial investigation of Fidentia’s books, did not feature more prominently in the State’s case. The alleged shortfall of R406 million caused the judge to say:

“…I find it astounding that you have been brought to court on only the nine counts listed in the indictment. I find it even more astounding that the state saw fit to accept your pleas of guilty on the facts set out in the admissions you made in terms of section 220 of the Criminal Procedure Act, 51 of 1977. If the facts related by this witness (Seedat) are correct then something is sorely wrong and I can only think the prosecution case has been poorly handled.”

Then there is the matter of the legal stipulation that the fraud committed should involve amounts in excess of R500 000 for the minimum sentence of 15 years to be applicable which to have been misread by the prosecution.

It is almost as if, after six years, the state resigned itself to accept a fifteen year sentence to end the whole sorry saga. Could it be that there was agreement to Brown’s offer to plead guilty, based on an erroneous interpretation of the minimum sentence?

The saddest part of the whole drama is that the victims of what happened at Fidentia still remain exactly that – victims. Ironically, they now look to Brown to help them.

This case is, unfortunately, not a unique occurrence. There is also badly written legislation which fails to achieve its noble intentions, while others are produced, not to expose the wrong, but to hide it. Add to this incompetent people who have to apply such legislation, and you end up with a recipe for disaster.

As if this is not enough, legislators appear to think that legislation itself will prevent crime. A classic example concerns the suggestion that the alcohol limit for drinking and driving should be zero. How many people who currently drink and drive will stop because of such legislation? My conservative guess is zero.

It is not legislation that deters potential perpetrators; it is the correct and timely application of such legislation that is needed to stop the crying in our beloved country.

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