Fidentia judge slipped up, says NPA

2013-05-26 14:00

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The National Prosecuting Authority (NPA) has applied for leave to appeal the sentence that was handed to Fidentia boss J Arthur Brown, arguing that it was “startlingly and inappropriately lenient”.

The Western Cape’s Director of Public Prosecutions, Rodney de Kock, says – “respectfully” – in court papers that trial Judge Anton Veldhuizen “erred” and “misdirected himself” in delivering sentence.

The NPA quotes statements by Veldhuizen like, “I don’t care what he (Brown) testified”, in their papers.

Brown was last week given a R150 000 fine after being convicted on two counts of fraud related to Fidentia’s dealings with the Transport Education and Training Authority (Teta), and Mantadia Asset Trust Company (Matco)

He was also handed a suspended three-year jail sentence, which will only come into effect if he is again found guilty of fraud within four years.

The judgment sparked outrage among South Africans, many of whom believe Brown got off lightly.

De Kock has harsh words for Brown too in the papers filed before the Western Cape High Court on Friday.

“(Brown) showed no remorse. His decision to make admissions and plead guilty at the very latest stage of the proceedings, having delayed the trial for years, having for years made no admissions and having proclaimed widely his total innocence, does not display true remorse,” argues De Kock.

In his judgment last week, Veldhuizen criticised the state’s handling of the case, saying the offence Brown was convicted of was an “extremely diluted version of fraud” and that no monetary value could be attached to the potential prejudice he caused to investments.

This meant, he ruled, that minimum sentencing provisions of 15 years for fraud involving amounts of more than R500 000 did not apply.

But in his affidavit, De Kock says there was “no good reason” for a finding that the prosecution had mismanaged the case.

“Had the court duly considered all the evidence and imposed appropriate sentences, the convictions and sentences would adequately have reflected the overarching gravity of (Brown’s) criminal management of Fidentia,” says De Kock.

He has argued that Veldhuizen was incorrect when he found that he was bound to sentence Brown strictly within the parameters of the admissions he made about the two sole charges he was convicted on.

The charges involve misrepresentations made in dealings with Teta and Matco, which the NPA argues resulted in the actual loss of R185 million at Teta and the actual loss of R56 million at Matco.

De Kock has argued it was “obvious” from Brown’s conduct that he “opted first to test the state’s case and only thereafter changed his plea on counts two and six from not guilty to guilty”.

“The trial had already commenced in November 2012 and the evidence of five witnesses had been led before the respondent decided to change his plea from not guilty to one of guilty,” argues De Kock in court papers.

He points out that Fidentia’s financial director, Graham Maddock, who entered into a plea bargain agreement and received seven years in prison, testified about the fraud comprehensively.

Maddock, argues De Kock, “described the pervasive manner in which the millions of rands of investors’ funds were spent recklessly”.

Maddock was never cross-examined by Brown’s legal team.

An attorney, Miltiadis Koumbatis, and former Teta CEO Dalpat Naran also testified and neither was cross-examined.

“In the result, the essence of the state’s case on counts two and six remained uncontested,” argues De Kock.

He says that Brown’s admissions in relation to charges two and six were made separately to his decision to change his plea from not guilty to guilty.

De Kock argues that this means the state’s other evidence, already led, was still applicable and that Veldhuizen was mistaken not to consider it.

De Kock also argues that there were no “compelling and substantial” circumstances that justified Veldhuizen’s decision not to impose the minimum of 15 years on Brown.

Fidentia judge erred, says NPA

In his judgment last week, Veldhuizen criticised the state’s handling of the case, saying the offence Brown was convicted of was an “extremely diluted version of fraud” and that no monetary value could be attached to the potential prejudice he caused to investments.

This meant, he ruled, that minimum sentencing provisions of 15 years for fraud involving amounts of more than R500 000 did not apply.

But in his affidavit, De Kock says there was “no good reason” for a finding that the prosecution had mismanaged the case.

“Had the court duly considered all the evidence and imposed appropriate sentences, the convictions and sentences would adequately have reflected the overarching gravity of (Brown’s) criminal management of Fidentia,” says De Kock.

He has argued that Veldhuizen was incorrect when he found that he was bound to sentence Brown strictly within the parameters of the admissions he made about the two sole charges he was convicted on.

The charges involve misrepresentations made in dealings with Teta and Matco, which the NPA argues resulted in the actual loss of R185 million at Teta and the actual loss of R56 million at Matco.

De Kock has argued it was “obvious” from Brown’s conduct that he “opted first to test the state’s case and only thereafter changed his plea on counts two and six from not guilty to guilty”.

“The trial had already commenced in November 2012 and the evidence of five witnesses had been led before the respondent decided to change his plea from not guilty to one of guilty,” argues De Kock in court papers.

He points out that Fidentia’s financial director, Graham Maddock, who entered into a plea bargain agreement and received seven years in prison, testified about the fraud comprehensively.

Maddock, argues De Kock, “described the pervasive manner in which the millions of rands of investors’ funds were spent recklessly”.

Maddock was never cross-examined by Brown’s legal team.

An attorney, Miltiadis Koumbatis, and former Teta CEO Dalpat Naran also testified and neither was cross-examined.

“In the result, the essence of the state’s case on counts two and six remained uncontested,” argues De Kock.

He says that Brown’s admissions in relation to charges two and six were made separately to his decision to change his plea from not guilty to guilty.

De Kock argues that this means the state’s other evidence, already led, was still applicable and that Veldhuizen was mistaken not to consider it.

De Kock also argues that there were no “compelling and substantial” circumstances that justified Veldhuizen’s decision not to impose the minimum of 15 years on Brown.

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