Former ANC MP Rubben Mohlaloga on Friday failed in his attempt to have the Supreme Court of Appeal (SCA) reconsider its decision refusing his appeal against conviction and 20-year sentence for defrauding Land Bank of R6m.
The Pretoria specialised commercial crimes court sentenced Mohlaloga for fraud and money laundering in February 2019. After his sentence, communications minister Stella Ndabeni-Abrahams removed Mohlaloga as councillor and chairperson of the Independent Communications Authority of South Africa.
The SCA judgment on Friday means that — barring an appeal to the Constitutional Court — Mohlaloga needs to report to prison to start serving his sentence.
The commercial crimes court heard how in 2007, Mohlaloga and others participated in a scheme to illegally apply for a R6m grant from the AgriBBBEE Fund for their personal benefit.
The fund was established to facilitate access to equity and develop small and medium enterprises. The fund was managed and administered by Land Bank on behalf of the department of agriculture and it received R100m from the National Treasury.
Because Mohlaloga was an MP and chairperson of the portfolio committee on agriculture, he was not permitted to apply and/or benefit from the fund. Heinstead got his ANC Youth League friends to apply for funding for a farming project. Mohlaloga was deputy president of the ANC Youth League from 2001 to 2008.
Former AgriBBBEE manager Khutso Mosoma, on the instruction of Mohlaloga's co-accused, former acting Land Bank CEO Philemon Mohlahlane, authorised a request for the payment of R6m. There was no formal application, no business plan or due diligence performed on the project. The application was also never considered or approved.
Mohlaloga started receiving money after the funds had been released to a law firm's trust account.
These included R866,000, which was paid to Leo Haese BMW Hatfield for two BMW vehicles registered under Mohlaloga's name. A further payment of R2.8m was transferred from the attorney's trust account into the bank account of the Disetla Family Trust, Mohlaloga's family trust. Some of the money was used to purchase a farm. There were further payments made to Mohlaloga's bank account and to his attorney, for the benefit of Mohlahlane before the funds ran out.
The commercial crimes court sentenced Mohlaloga to 15 years for each of the two counts. However, it ordered that 10 years of the money laundering sentence be served concurrently with the fraud sentence, effectively meaning Mohlaloga will serve a 20-year sentence.
Mohlaloga applied for leave to appeal before the full bench of the Pretoria High Court, and the court dismissed his appeal in January 2023. Mohlaloga then applied to the SCA for special leave to appeal against the high court's dismissal of his appeal.
He failed to recognise that the grant was intended to empower disadvantaged people in the agricultural sector, and that by defrauding the fund he was denying those who most needed its financial assistance
— Judge Fayeeza Kathree-Setiloane
Two judges of the SCA granted Mohlaloga special leave to appeal against sentence but refused leave against conviction. On September 1 2023, Mohlaloga applied to the president of the SCA for reconsideration of the decision by the two SCA judges refusing special leave to appeal against conviction.
In January 2024, the SCA president referred the decision to dismiss his appeal for reconsideration and, if necessary variation, to the SCA.
In its judgment on Friday, when Mohlaloga turned 52, the court struck from the roll his application for reconsideration of the decision refusing special leave to appeal against conviction. It found no exceptional circumstances existed to warrant reconsideration.
On sentence, the SCA said Mohlaloga’s primary ground of appeal was that 20 years’ imprisonment on both counts was shockingly disproportionate to the convictions of fraud and money laundering.
The SCA disagreed and said AgriBBBEE was a noble project intended to uplift and empower previously disadvantaged and emerging farmers. It said as chair of the portfolio committee, Mohlaloga was enjoined to protect the money in the fund and ensure it was allocated to the intended recipients.
“Instead, he colluded with other public officers to defraud the fund for self-benefit,” said judge of appeal Fayeeza Kathree-Setiloane in a unanimous judgment of the full bench.
The judge said R3.6m was paid to Mohlaloga. Except for the R2.8m that was repatriated to pay for the farm, nothing has been paid back.
“Mr Mohlaloga only bought the farm as a smoke screen to prevent detection and fool the auditors. He failed to recognise that the grant was intended to empower disadvantaged people in the agricultural sector, and that by defrauding the fund he was denying those who most needed its financial assistance.”
She said corruption and white-collar crime in state-owned entities lead to economic decline, job losses, more poverty and reduced public trust.
“Unless those convicted of such crimes receive appropriate sentences, public confidence and participation in government institutions would be completely eroded, leading to increased inefficiencies and possible collapse.”
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