CAPE TOWN, November 9 (ANA) – Former Eskom executive Dawid Johannes Malherbe, should be handed down two prescribed minimum sentences of 15 years, for embezzling the State-owned enterprise to the tune of R10,2 million, a court in Cape Town heard on Wednesday.
Malherbe, 63, is to be sentenced on December 2, on charges of fraud and money laundering.
On Wednesday, he appeared in the Specialised Commercial Crime Court in Bellville, Cape Town, before magistrate Sabrina Sonnenberg.
For two days, the court has heard testimony led by prosecutor Derik Vogel and the defence team comprising advocate Reuben Liddell and attorney Keith Gess.
In contrast with the prosecution suggestion of a double minimum sentence of 15 years (30 years), the defence urged the court to impose a non-custodial sentence of house arrest.
Malherbe was not “jail material”, and a prison sentence would amount to punishing him with a sledge hammer, Liddell said.
In order for Malherbe to avoid the minimum sentence prescribed for a first-time offender found guilty of fraud or money laundering involving R500 000 or more, the defence has to persuade the court that there are substantial and compelling reasons that justify a less severe sentence.
The defence said there were such reasons, while the prosecutor said there were not.
The defence said justice had to be done, but that its concomitant was mercy and not a sledgehammer.
Liddell said the court was “dealing with a man who should be on pension”, and to jail him would be to de-humanise him.
The sentencing stage of a case, in which the accused had been found guilty, was about humanity, and a prison sentence for a man who was not prison material would destroy Malherbe, he said.
He added: “Punishing a convicted person should not be likened to revenge.”
The prosecutor countered that Malherbe had planned the “whole scenario” for his own benefit, and that the sentence had to send out the message to society that fraud would not be tolerated.
The prosecutor said Malherbe had failed to take the court into his confidence by explaining why he defrauded Eskom, and had shown no remorse.
He said prison was not reserved for violent crime, and those involved in “white collar” crime had to realize that the prison doors were waiting for them as well, even for first time offenders.
About 23 years ago, Eskom entered into a joint venture with the companies Electricite de France Internationale SA, and East Midlands Electricity, to supply Khayelitsha in Cape Town with electricity.
In the process, a third company was launched, Phambili Nombane Energy Services (PNES), based in Bellville, as an Eskom subsidiary.
The PNES board of directors comprised personnel seconded from Eskom, who remained in the employ of Eskom and were subjected to Eskom’s policies and procedures.
Among them was Malherbe, the managing director.
In early 2008, Eskom decided to turn PNES into a separate company, and no longer an Eskom subsidiary.
Malherbe was duty bound to ensure that his personal and business interests did not conflict with PNES or Eskom.
Malherbe was aware that, once PNES became a separate company, he would no longer be MD of PNES.
He needed an opportunity that would enable him to continue obtaining an income from the PNES services – thus bringing his personal interests into conflict with Eskom and PNES.
Malherbe was aware that certain PNES services had to be outsourced, and he saw this as his opportunity to contract with Eskom.
In order to achieve this, he registered the company Energy Utility Services (EUS), with himself as the sole director.
Malherbe deliberately misled the PNES board on the BEE status of EUS, as it was wholly owned and controlled by himself.
In this manner, he fraudulently induced the PNES board to approve the outsourcing of services to EUS.
-African News Agency (ANA)
