The appeal of the state, against Brown’s sentence of a R150 000 fine on two counts of fraud imposed by the Western Cape High Court more than a year ago, has yet to be heard.
Arguing that the sentence was too lenient, the Supreme Court of Appeal (SCA) granted the Director of Public Prosecutions (DPP) leave to appeal. In November last year, the DPP filed its heads of argument with the SCA. Two months later, Brown filed his heads.
In February, the state asked the SCA registrar to consider enrolling the appeal urgently during the court’s first term. The registrar responded that this was not possible. At the registrar’s request, in May the DPP filed abbreviated heads.
Since then, two key figures in the Fidentia matter have not seen their credibility enhanced. Dawood Seedat resigned as chief financial officer of the Financial Services Board (FSB) on being charged with corruption, and Dines Gihwala resigned as a Fidentia joint curator on being found to be a delinquent director.
The reports of the FSB inspectorate, headed at the time by Seedat, and of Fidentia joint curators Gihwala and George Papadakis would have been inextricably linked. In the Brown trial, the curators weren’t called as witnesses, to be examined on their reports, while Seedat gave evidence only in aggravation of sentence after the state had accepted Brown’s guilty plea on two fraud counts and had closed its case.
Seedat was responsible for the initial FSB investigation into the affairs of Fidentia. The investigations of the curators were ongoing, yet the court referred only to the Seedat report having been handed to the DPP.
If Seedat’s report was factually correct, that about R406m had gone missing from Fidentia, then Justice Veldhuizen found it “astounding” that Brown had been brought to court only on the nine counts listed in the indictment and “even more astounding” that the state had accepted Brown’s plea bargain for guilt on two of them.
Seedat should have been the first witness, the judge said earlier, in which case he might not have accepted Brown’s plea and forced the state to proceed with prosecution on all nine counts. The court could not sentence Brown for crimes of which he had not been convicted.
These two crimes involved potential prejudice, not actual prejudice, the judge noted. They “certainly do not involve amounts of more than R500 000? where a minimum prescribed sentence of 15 years’ imprisonment would have kicked in.
The FSB had hoped for this minimum to “reflect the seriousness of the crimes that (Brown) has admitted to committing”, and continues to hope that the state’s appeal will succeed. Brown will doubtless have different ideas where the revelations concerning Seedat and Gihwala are grist to his mill.
A date for the SCA hearing has still to be allocated.
v Allan Greenblo is editorial director of Today’s Trustee (www.totrust.co.za), a quarterly magazine mainly for principal officers and trustees of retirement funds.
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Article source: http://citizen.co.za/203914/slow-justice-for-fidentia/