In the appeal concerning charges of corruption and money laundering against the former Permanent Secretary to the President (PSP), Carter Morupisi, retired South African Constitutional Court Judge Bess Nkabinde scrutinized the sentencing decision rendered by High Court Judge Chris Gabanagae. This critical examination followed submissions by Morupisi’s counsel, Obonye Jonas, who argued that the principles of sentencing were adhered to without error, and that the judge a quo correctly applied the Court of Appeal’s precedents in similar cases.
Judge Gabanagae, upon convicting Morupisi of corruption and money laundering, imposed a sentence of two years imprisonment, wholly suspended for three years, contingent on Morupisi refraining from committing a similar offense for the first count. For the second count, corruption, he was fined P50,000.00, with a default sentence of five years imprisonment. On the third count, money laundering, the fine was set at P80,000.00, or in default, eight years imprisonment.
Last week, the Court of Appeal panel upheld Gabanagae’s determination that the state had substantiated the allegations against Morupisi on all counts beyond a reasonable doubt. Consequently, the Court of Appeal had to address the appropriateness of Gabanagae’s sentencing. As Morupisi’s new attorney, Jonas, presented for sentencing, following the withdrawal of Busang Manewe, he was permitted to orally submit Morupisi’s arguments.
Despite Morupisi’s position that Gabanagae had not erred in sentencing, Judge Nkabinde expressed concerns regarding the lack of reasoning provided by the lower court in determining the sentences imposed. “I don’t know how the court a quo concluded that this punishment is appropriate. You can’t just sentence someone to a fine without justifying how you come to that. That is the difficulty that I have,” Judge Nkabinde remarked.
Jonas further articulated that Morupisi, an elderly man nearing the twilight of his life, should be considered with compassion and empathy, especially given that the Court of Appeal had previously held that such considerations are paramount when sentencing someone of his age, approximately 65, with life expectancy around 70. He emphasized Morupisi’s status as a first-time offender and his substantial contributions to community welfare as mitigating factors.
Jonas noted that had Gabanagae imposed a custodial sentence, it would have been challenging to persuade the Court of Appeal against its confirmation. “But the difficulty is that the judge a quo didn’t write an additional judgment where he reapplied his mind on all these things that you are talking about. The judgment is not reasoned, I don’t know how the justice a quo reached the conclusion that the appellant must be given a kind of punishment that he has imposed,” Nkabinde responded.
She underscored that if Gabanagae had thoroughly considered all pertinent factors, including those highlighted by Morupisi and the principles of mercy, this reasoning should have been reflected in the judgment, thus enabling the Court of Appeal to understand his rationale.
The state’s attorney, Kentse Molome, argued that the Court of Appeal has the statutory authority to either enhance or mitigate sentences in accordance with established legal principles. “It is our view that, with sentencing, the high court did not say anything to justify or give reasons why it arrived at the sentencing it arrived at with respect to all the counts,” she maintained.
Molome further highlighted that this case is unprecedented under the amended 2018 economic crimes and corruption legislation. “We had no case in this jurisdiction dealing with such cases; we depend on this court to set precedence that can guide lower courts when deciding on cases of white-collar crime.”
