IN THE HIGH COURT OF SWAZILAND
CASE NO. 234/2002
HELD AT MBABANE
THEMBELA ANDREW SIMELANE
(OPERATING AS BHEKI G. SIMELANE & CO.)
CORAM AGYEMANG J
FOR THE CROWN: M. DLAMINI (MS)
(DIRECTOR OF PUBLIC PROSECUTIONS)
FOR THE ACCUSED PERSON: B. SIGWANE ESQ.
DATED THE 2NDDAY OF JULY 2010
SENTENCING PART I
The accused person was convicted of six counts of theft on January 19, 2010. Due to administrative problems that resulted in the matter of sentencing being sent up to the Supreme Court as a case stated, the sentencing of the accused person has been delayed.
At the sentencing stage, the accused person opted to give evidence under oath and to also have submissions made on his behalf by counsel.
The evidence led at trial portrayed the accused person as one who, finding himself in an unfortunate position regarding his firms’ trust account, tried to solve his problems by placing monies due to the complainants herein in the deficient trust account, in a bid to rob Peter to pay Paul. Indeed he referred to it as a pack of cards that collapsed.
Although I found the accused person to be a de facto partner in the firm of Bheki G. Simelane and Co, there was ample evidence that his partner and elder brother Bheki G. Simelane had a major role in decision-making in the firm. The part played in the unfortunate saga by the accused person was to try to solve the problem of a deficient trust account by appropriating the said monies belonging to the six complainants while concealing from them that such monies due them had in fact been received by his firm.
The accused person’s conduct from the time he was arrested until he was granted permission by the trustee to seek employment (according to his unchallenged evidence duly corroborated by the trustee’s evidence), has been indicative of a desire to see the complainants compensated.
I also note that in spite of the sword of Damocles hanging over his head, the accused person faithfully submitted himself before the court and never once absented himself from a court hearing.
Having regard to all these, I am minded to permit the accused person to pay the sum due to the complainants within a period of six months.
The accused person having satisfied the court regarding arrangements he intends to make to so compensate the complainants, I have in the exercise of my discretion, had regard to the matters brought to the attention of the court during the mitigation hearing and submissions including the fact of the accused person having lost his immovable property and having been suspended from legal practice by his peers. The last no doubt, had its attendant opprobrium and loss of income. I believe that the society’s and the complainant’s interest will be better served if the accused person is made to pay what he stole and applied for his firm’s benefit, and in the process, gets rehabilitated, than if he is subjected to other forms of punishment.
It is for these reasons that the accused person is ordered to pay the total sum of E686,377.80 in the manner he has undertaken under oath to pay to the trustee;
The sum of E30,000 paid by the accused person for his bail (if such was paid in cash), should be delivered up by the Registrar to the trustee Mr. Howe who must then add it to the E42,875.05 standing over for distribution.
The sums found to be due to the complainants should then be paid to the six complainants herein.
At the end of six months ending January 2, 2011, the entire amount appropriated by the accused person should be paid up and duly paid to the complainants.
After the said amount is paid in accordance with the accused person’s arrangements as well as the application of funds under the control of the trustee, the accused person will then be sentenced which sentence on all six counts of theft, will take into account the cumulative period spent by the accused person on remand both in January 2010 and June 2010;
The accused person meanwhile, is released on his own recognisance. He is to present himself before the court on the first day of court sitting in the 2011 legal year;
Mr. Howe, trustee is to take steps to realise the monies due to Bheki G. Simelane and Co. from its debtors;
Mr. Lucky Howe and Mr. Kobla Quashie, trustee and curator respectively, are to submit their bills for work done as persons appointed by this court to work in the said capacities. The sums owing to them as contained in their billing are to be paid to them once the debts are realised; they are to be preferred creditors of the estate.
The matter is postponed to the first court sitting of the 2011 legal year for sentencing.
HIGH COURT JUDGE