High Court reserves Mhlauli ruling

ISAIAH MOREWAGAE
Staff Writer | Thursday April 30, 2009 00:00

 

Mhlauli is appealing against conviction and subsequent sentence on charges of abuse of office and giving false information to a Commissioner of Oaths.

He was given the maximum sentence of two years for the abuse of office and seven years for giving false information to a Commissioner of Oaths.

Mhlauli's legal team contends that the court that convicted and sentenced Mhlauli erred and misdirected itself in finding him guilty. Advocate Francois Van Zyl submitted that the court should uphold the appeal against both convictions and set aside the convictions and sentences on both counts.

Van Zyl submitted that the expression 'arbitrary act' as used in the context of section 104 (1) similarly means an act done for no reason at all or for a reason that is so patently absurd as to show that it was mere pretext.

He further submitted that even if the court may not agree with the reasons advanced for a particular decision by an official, or be of the view that the official should have taken into consideration other facts and circumstances as well, that in itself will not make a decision or act arbitrary.

He urged that in the context of section 104 (1), it can only be said that the official did, or directed an arbitrary act to be done, if he acted without any reason so patently absurd that it was a mere pretext for acting.

Van Zyl, in support of his view on the arbitrary act, cited a South African case. In the case of Beckingham v Boksburg Licensing Board, Tindall J. dealt with the meaning of the word 'arbitrary'.

The applicant, the proprietor of the hotel, sought to review the decision of the Liquor Licensing Board in refusing to renew his licence. It was argued on his behalf that the refusal was arbitrary.

It was argued on behalf of the applicant that 'to make a decision arbitrary, it is not necessary to go to the length of showing that it was not based on any reason at all. Even if it is based on some reason, and the reason was insufficient, the decision may be considered arbitrary'.

However, the court differed with the argument advanced on behalf of the applicant and stated that the mere fact the court may disagree with the board on the merits of its decision does not mean it acted arbitrary.

It went on to state on page 283: 'Of course, a reason might be so patently absurd as to show that it was a mere pretext; in such a case the court might interfere, on the ground that the Board acted arbitrarily. But that would be not on the ground that the reason was inadequate, but because it was so flimsy as to indicate that the Board was not guided by any reason at all but by shear caprice. This court cannot say that the Board acted in an arbitrary manner in holding that there were too many licenses in the area, the Board had reasons for its decisions'.

Van Zyl concluded that on account of the evidence of the state witnesses, Victor Rantshabeng, who is the then Director in the Department of Lands, Malidzani Majingo, as well as Mhlauli's testimony, the court should have found that faced with two competing claims for a large plot at Riverwalk, Mhlauli as the senior official took a rational decision to accord KOVK, a company owned by Oremeng at Block 5, land for which they had already applied in 1995 and allocate the land at Riverwalk to Norman.

'In so doing, Oremeng would not benefit twice,' Van Zyl said.
On the count where he was charged with the contravention of Section 5 of the Commissioners of Oaths Act, he knowingly made a statement in an affidavit confirming the false contents of the affidavit of Oremeng to the effect that Oremeng and Norman had agreed to form a joint venture for the acquisition and development of Plot 54520.

On the other hand, the state contends that the conviction of Mhlauli on both counts was proper. The state counsel, Bafi Nlanda, submitted that Mhlauli held one of the highest offices in the government and that it had bestowed a lot of trust in him. 'We submit that land issue is one of the most valuable and sensitive issues in the country,' Nlanda submitted.

Nlanda told the court that had the fake confirmatory affidavit succeeded at the High Court, that would have certainly brought the Administration of Justice into disrepute.

'For those reasons we submit that Mhlauli deserves a sentence that will send a clear message to would be offenders out there, particularly those who hold senior government offices, that crime does not pay,' Nlanda submitted.

However, Nlanda also agreed that the maximum penalty that was handed to Mhlauli was inappropriate for a first offender in the circumstances of the case. 'We submit that the appellant deserves a short and sharp sentence given the trust than the government had bestowed in him to run the day to day activities on land matters, which, as already stated, is a very sensitive issue,' Nlanda argued.