ƒŠ—„— ƒ’’‡ƒŽ• •‡–‡…‡
MBABANE – Former Mhlatane High School Head teacher Simeon Makhubu is appealing his sentence.
Makhubu, who was found guilty of defrauding the school a sum of E E1 745 250, was sentenced to 19 years and nine months imprisonment by Judge Mbutfo Mamba after finding him guilty on 80 counts. The sentence was issued in August 2018. He had served 30 years in the civil service and had never been found guilty of any crime.
During sentencing, Judge Mamba ordered Makhubu to pay a fine of E474 000 in instalments of E79 000, payable over a period of six months. He paid two instalments amounting to E158 000 and a further E17 000. When the order to pay the fine instalments was issued, Makhubu was released from prison to be able to raise the money. When he failed to pay the total of E474 000 by the end of September 2019, he was taken back to prison to continue serving his sentence. The former head teacher has been behind bars at Sidwashini Correctional Services ever since.
In his notice of appeal, which he filed on Monday, Makhubu submitted that the court erred in law and fact in ordering that the sentence must run consecutively, accumulating to a period of 19 years and nine months. Makhubu is represented by Mxolisi Dlamini of Dynasty Inc Attorneys for free. He based his argument on the fact that the sentence induces a sense of shock as it is too excessive, especially for a person who is of his age and health status. In addition, according to Makhubu, Judge Mamba leaned more on retribution and the gravity of the offences.
He said his personal circumstances were allegedly not taken into consideration, hence the sentence was more punitive than corrective. The former head teacher told the Supreme Court that he was a first-time offender and the High Court ought to have exercised its discretion judiciously and ordered that the sentence should run concurrently regardless of the fact that the offences were conducted at different times.
He submitted that the sentence was inconsistent with previous sentences imposed by the superior courts of the land, hence it had to be set aside as it introduced uncertainty which was contrary to the law on sentencing. Makhubu wants the court to set aside the judgment of the High Court in its entirety and substitute it with a more reasonable and fair sentence. He also prayed that the sentence of the court be ordered to operate and deemed to have commence on January 31, 2018.
Condonation
Makhubu also filed an application for condonation for filing the notice of appeal out of time limits permitted by the Rule of Court. In the condonation application, Makhubu told the court that he and six others were originally arrested by the police through the Anti-Corruption Commission (ACC) and Fraud Department in 2012. He said he was charged with 87 counts of contravening Section 24 (1) and (2) of the Prevention of Corruption Act No.3 of 2006.
During the trial, the Crown paraded 16 witnesses, while Makhubu led two witnesses, Makhubu was the only one, among the others who were also arrested, who was convicted of all counts. He said this was despite that six people were arrested and charged by the police. When he was sentenced on August 30, 2018, on counts one to 80, bar count 45, he was ordered to pay the sum of E6 000, failing which to serve a term of imprisonment of three months on each count. The sentences were made to run consecutively. This translated to a total fine of E474 000 or 237 months (19 years and 9 months) of imprisonment;
On count 87, Makhubu was sentenced to a straight custodial term of 37 days. “Inasmuch as I was shocked by the huge sentence, I received some comfort from various members of the family and various members of the public that perhaps
I can utilise the opportunity that was afforded by the learned judge to try and raise the amount of money and repay it back to the State in order to make good the loss I had caused to the school and to the society of the Kingdom of Eswatini at large. I then embarked on this very coarse journey of trying to work as hard as I could and use even my pension benefits to try and vindicate myself from this untenable situation which had been caused by other people who had misled. In relation to the judgment, the court will note that I ended up being the only one who was found guilty of all counts and I was the only one who was subsequently sentenced by the honourable court, despite the fact that at the time of arrest, there were about six accused persons who were arrested and subsequently charged by the police,” Makhubu said.
In the first month after passing of the sentence, according to Makhubu, he was able to raise and repay back to the State a sum of E79 000. He said he proceeded with this endeavour and in the second month he was also able, but very barely, to raise another sum of E79 000.
The former head teacher informed the court that things became very difficult and impossible and his family members could not assist him any longer. During the third month, he submitted, he was only able to pay a sum of E17 000 instead of E79 000. “From the sum of E1 745 000, I was only able to raise a sum of E175 000, leaving an outstanding balance of E1 570 250. I wish to state that it was my intention to repay the full amount. However, I could not fulfil that intention under the circumstances that were prevalent at that time.
“With respect, I further wish to indicate that I was committed to repay this amount in full but due to my old age, coupled with my medical condition, I could only go no more further than that which I paid. I was not employed and the payment terms were rather too harsh for me to actually be in a position to honour that which had been imposed by the court,” Makhubu said.
Harshness
He submitted that he was giving the court this information because he was taken aback by the harshness of the sentence but, through counsel, he was of the view that he would raise the amount and repay it back to the State. He stated that evidently, the latter did not happen and hence he had to be apprehended and sent to the Correctional Services to serve for the duration of the imposed sentence as he was currently doing.
Makhubu said he enquired from his erstwhile attorney if he still had a legal opportunity available to appeal the sentence, at the very least. He alleged that the explanation he got was that due to his conduct of trying to repay the money, he had already acquiesced to the sentence and hence he could not turn around and also seek to appeal it. “While attending some of the social welfare classes which are occasionally conducted at the Correctional facility, I learnt that actually, even after the conduct of trying to repay back the money, I could still lodge an appeal at least against the sentence. On further enquiry, the social worker even started considering my medical condition, being incarcerated is not in my best interest and my health is now deteriorating at an accelerated rate. “I then started enquiring if there are any legal attorneys that could assist me in this regard. My current legal team was contacted by the personnel at the Correctional Services and out of their benevolence and generosity, they agreed to assist me on a pro bono basis since I do not have the funds to afford legal representation, yet, the way my matter appears, it would not serve me any form of justice if I used the structures available at the Correctional facility,” he submitted.
Makhubu stated that a condonation application had to be moved and ‘apparently such application require legal diligence and skill to be applied for in court and subsequently argued before the court can grant same’. The matter is pending in court.