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[2023] ZAECMKHC 76
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Swanepoel v S (Leave to Appeal) (CA&R 90/2022) [2023] ZAECMKHC 76 (27 June 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
REPORTABLE
Case
No: CA&R 90/2022
In
the matter between:
ANNE
JOHANNA MARIA SWANEPOEL

APPELLANT
and
THE
STATE

RESPONDENT
JUDGMENT
ON APPEAL
Rugunanan
J
[1]
On 10 September 2021 the appellant, a former practising attorney aged
47, was convicted
in the Regional Court, Port Elizabeth (now
Gqeberha) on eleven counts - five of them related to fraud, another
five concerned contempt
of court and last, a single count of theft.
Overview
[2]
The charges against the appellant emanated from several counts of
fraud alternatively
contraventions of the Attorneys Act 53 of 1979 in
the period October 2015 to March 2018 when the appellant receipted
funds from
various persons without disclosing that she had been
struck off the attorneys' roll. In the same period the appellant
rendered
herself guilty of theft of money in the amount of R56 000
and contempt of court when she purported to represent various clients

by unlawfully and intentionally providing professional services as a
practising attorney notwithstanding that she had previously
been
struck off the roll and interdicted from legal practise.
[3]
With all counts taken together for the purpose of sentence, the
appellant was sentenced
to 15 years' imprisonment, 5 years of which
were suspended for 5 years on condition that she is not convicted of
any offence involving
theft, fraud, or contempt of court.
[4]
The effective term of imprisonment to be served by the appellant 1s
therefore 10 years.
[5]
Leave to appeal against conviction on all counts and sentences
imposed was refused
by the trial court but on petition to this Court,
leave was granted only against sentence on 5 August 2022.
[6]
The background to the matter is that the appellant was a practising
attorney of approximately
15 years standing before she was struck off
the roll on 27 August 2015.
[1]
The striking off occurred consequent to her conviction in 2012 for
theft of trust funds and three counts for having contravened
the
Attorneys Act. On the theft count she was convicted on 7 July 2011
and on 2 February 2012 sentenced to 3 years' imprisonment
wholly
suspended for 5 years on condition that she is not again convicted of
the same offence committed during the period of suspension.
The
record indicates that there was an additional 3 year component of
correctional supervision included in the sentence necessitating
that
the appellant renders 16 hours community service for the first 12
months of the sentence.
[7]
The theft of R56 000 for which the appellant was convicted in the
Regional Court was
committed during the aforementioned period of
suspension.
[8]
Within that period, the appellant did not cease practising and
continued to render
professional legal services to members of the
public, ostensibly as a legal advisor in return for a fee. She
solicited new clients
by distributing business cards in her name
bearing the designation 'legal advisor' and by displaying similar
signage outside business
premises from which she operated. She also
maintained receipt books in her name albeit that the word 'attorney'
was effaced with
correction fluid. Regarding court appearances, she
outsourced these to another legal firm while retaining her own client
base.
For purposes of sentence, the appellant's modus operandi is
indicative of a level of premeditation and deceit.
[9]
The appellant continued to operate in the manner in which she did
until or about 2017.
In August 2018 she appeared in court on charges
relating to the eleven counts mentioned earlier. Bail was fixed
subject to various
conditions, the most significant of which included
a condition that expressly prohibited her from rendering any legal
services
for a fee, gain or reward.
[10]
On 9 December 2021, the regional magistrate before whom the appellant
was sentenced cancelled
the appellant's bail for breach of the
abovementioned condition. The appellant has since been in custody and
is presently serving
her sentence aforementioned.
The
procedural context for determination of the appeal
[11]
The record on appeal comprises of 18 volumes with a total number of
pages exceeding 4000. An
appeal does not necessarily require
consideration of the record of the entire proceedings in the trial
court, but merely such part
thereof as may be required to enable the
court of appeal to properly consider the particular issue/son appeal
in the context of
the trial proceedings.
[2]
Given that the appeal is limited to sentence, this Court issued
directives requiring counsel to submit written argument
[3]
indicating the portions of the record which are necessary for the
determination of the matter with reference to the specific pages
and
paragraphs of relevance where applicable.
[12]
We are grateful to counsel for their considered efforts and
assistance in this regard.
[13]
Immediately upon being sentenced, the record indicates that the
appellant instructed her legal
representative to move an application
for leave to appeal. The magistrate enquired from the State whether
the operation of the
suspended sentence ought to have been
considered. The State indicated that the inquiry for putting into
operation the suspended
sentence may only be proceeded with once the
appellant has exhausted her appeal rights.
[14]
Whether it was an irregularity or misdirection not to have put into
operation the suspended sentence
of 3 years and whether its pending
operation precluded the hearing of the appeal were issues
preliminarily raised with both counsel
prior to the commencement of
argument in the appeal.
[15]
The procedure for putting into operation of a suspended sentence
ordinarily commences with an
application by the State. This appears
to be the case even where the trial court itself
mero
motu
raises the question of implementing the operation of a suspended
sentence provided that a pre-selected date is chosen to allow
the
prosecution to make the necessary application.
[4]
In either instance, the State must move the court to put the sentence
into operation. The rationale therefor appears to be that
the accused
has to be appraised of his right to lead evidence and be given the
opportunity to advance argument with a view to resisting
the
implementation of the suspended sentence or to advance any other good
and sufficient reason for a further suspension thereof.
[5]
Where such an application has not been forthcoming - and by
implication the accused not having been afforded opportunity - it
would be prejudicial to the appellant if a court of appeal were to
raise the issue
[6]
and decline
to deal with the appeal. We were in any event informed by the State
that the proceedings for putting into operation
the suspended
sentence are expected to be initiated upon finalisation of the
appeal. The upshot is that there was no misdirection
by the
sentencing court, and no reason existed for precluding this Court
from hearing the appeal. We are unreservedly in agreement
with this
approach and are indebted to counsel for their assistance.
The
appropriate test and the appellant's approach on appeal relevant to
her status as primary caregiver and the interests of her
minor child
[16]
Appellate jurisdiction to interfere with a sentence imposed by a
trial court is not discretionary.
On the contrary, it is limited by
principle. Marais JA in
S
v Malgas
[7]
observed that:
'A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing so,
it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance. As it
is said, an appellate Court is at
large. However, even in the absence of material misdirection, an
appellate court may yet be justified
in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence of the trial
court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that it can properly
be described as "shocking",
"startling" or "disturbingly inappropriate". It
must be emphasised that
in the latter situation the appellate court
is not at large in the sense in which it is at large in the former.
In the latter situation
it may not substitute the sentence which it
thinks appropriate merely because it does not accord with the
sentence imposed by the
trial court or because it prefers it to that
sentence. It may do so only where the difference is so substantial
that it attracts
epithets of the kind I have mentioned. No such
limitation exists in the former situation.'
[17]
These formulations, however crafted, are aimed at determining the
same thing; namely, whether
there was a proper and reasonable
exercise of discretion bestowed upon the court that imposed the
sentence. That, in the ultimate
analysis, is the true enquiry. Either
the discretion was properly exercised or it was not. If it was, a
court of appeal has no
power to interfere - if it was not, it may do
so.
[8]
[18]
In her written and oral submissions, the misdirection contended for
by the appellant is that
the sentencing court failed to establish
that she is a primary caregiver to her minor child 'RO', an autistic
boy aged 9, with
the result that the sentence imposed paid
insufficient regard to his best interests as contemplated in section
28 of the Constitution.
[19]
Tritely, where a person convicted of an offence is the primary
caregiver of minor children their
best interests are of paramount
importance in every matter concerning them. The measure of the best
interests principle has never
been given definitive content but it is
necessary that the standard be flexible as the circumstances of each
case may determine.
[9]
In that
regard it has been held that when considering the best interests of
children a court must consider evidence as to their
current position
to determine what their best interests require
[10]
including evidence on the quality of their care.
[11]
The paramountcy principle does not lay down that in all cases the
direct or indirect impact of a measure or action on children
must
oust, override or unrealistically trump all other considerations.
[12]
It simply requires that the interests of children who stand to be
affected be given due consideration.
[13]
[20]
What constitutes a primary caregiver is the following:
'Simply
put, a primary caregiver is the person with whom the child lives and
who performs everyday tasks like ensuring that the
child is fed and
looked after and that the child attends school regularly. This is
consonant with the expressly protected right
of a child to parental
care under section 28(1)(b) [of the Constitution].'
[14]
[21]
The operational thrust is that the caregiver must be, 'almost totally
responsible' for the care
of the child.
[15]
[22]
The guidelines to be adopted by a court when sentencing a pnmary
caregiver are set out in
S
v M
as
follows:
[16]
'(a)
A sentencing court should find out whether a convicted person is a
primary caregiver whenever
there are indications that this might be
so.
(b)
... The court should also ascertain the effect on the children of a
custodial sentence if
such a sentence is being considered.
(c)
If on the
Zinn
-triad approach the appropriate sentence is
clearly custodial and the convicted person is a primary caregiver,
the court must apply
its mind to whether it is necessary to take
steps to ensure that the children will be adequately cared for while
the caregiver
is incarcerated.
(d)
If the appropriate sentence is clearly non-custodial, the court must
determine the appropriate
sentence, bearing in mind the interests of
the children.
(e)
Finally, if there is a range of appropriate sentences on the
Zinn
approach, then the court must use the paramountcy principle
concerning the interests of the child as an important guide in
deciding
which sentence to impose.'
[23]
Relying on
S
v M
[17]
,
the appellant argues that she ought to have been spared a prison
sentence, and that interference on appeal would favour
a sentence of
correctional superv1s1on m terms of section 276(1)(
h
)
alternatively section 276(1)(
i
)
of the
Criminal Procedure Act 51 of 1977
in recognition of RO's best
interests where she is his primary caregiver.
[24]
The essential difference between the two sub-sections is that the
former ((
h
))
permits a court to impose a sentence of house arrest and community
service once a report of a correctional official or probation
officer
has been placed before the court and for a fixed period of three
years
(section 276A(1)).
The latter ((
i
))
entails direct imprisonment, a portion of which the offender may
serve under correctional supervision in the discretion of a
parole
board or the Commissioner of Correctional Services, and may be for a
period not exceeding five years
(section 276A(2)).
[18]
[25]
The State opposes the appeal.
[26]
It contends that the appellant is not the sole caregiver of RO, and
that the regional magistrate's
carefully considered sentence - on the
facts - achieved a judicious counterbalance between what is known as
the
Zinn
[19]
triad and the interests of the minor child, considered
independently.
[20]
The
evidence, arguments and approach by the sentencing court
[27]
Much of the evidence before the court in relation to sentencing
concerned the personal circumstances
of the appellant and her child
RO, the appellant's background and history, and generally her family
circumstances prior to sentencing.
In that regard the sentencing
court had before it the evidence and pre-sentence report of Ms Jolene
Petersen, a probation officer,
Ms Sandra Dunston the manager of
'Sinako' - a centre for persons requiring special needs, and the
appellant's mother Mrs Francina
Swanepoel.
[28]
The appellant did not testify, preferring instead that
ex
parte
statements in mitigation be made from the bar by her legal
representative. Without intending criticism - that was her choice,
but it is not without consequence. Statements from the bar are no
substitute for evidence given under oath or affirmation.
[21]
Evidence adduced in that manner carries more weight.
[22]
The general approach is that, though no more than argument, to
exclude them entirely from consideration would not attract a fair

result.
[23]
[29]
Ms Petersen was requested by the presiding magistrate to prepare a
report in order to determine
the appellant's family background, her
general socio-economic circumstances, the needs of the minor child,
and possible sentencing
options. Evidence as to the circumstances and
needs of the child was similarly elicited from Ms Dunston and Mrs
Swanepoel.
[30]
In the enquiry into whether the appellant is the primary caregiver,
the evidence indicates that it is not the case. Ms Petersen
is
clearly of the view that there is no primary caregiver for the child-
the appellant is a partial caregiver.
[31]
There exists a family support structure pivotal to which are the
appellant's parents Mr and Mrs Swanepoel who are both elderly
persons
over 70 years of age. Since the birth of the child, the appellant and
the child have been residing with them. Despite episodes
of
turbulence between Mr Swanepoel and the appellant due to her conduct
and attitude, all indications from the testimony of Ms
Petersen are
that both grandparents, even though advanced in age and at times
subjected to stress, are physically active and capable
of looking
after themselves and the child. Mrs Swanepoel, reportedly rises early
each day. She prepares the child's lunch and gets
him ready for
school. Mr Swanepoel is able to drive a motor vehicle. He transports
the child to school and to hospitals for consulting
with specialists
and clinicians. In heads of argument, it is mentioned that the
appellant takes the child to a neurologist - it
is not clear if the
appellant drives the child by herself. Presumably, Mr Swanepoel
drives and she accompanies the child during
sessions.
[32]
The appellant informed Ms Petersen that she feeds the child, bathes
him and assists him when
he uses the toilet. As for the latter, Ms
Petersen commented that the child is able to perform his routine on
his own considering
that he does so at school. Ms Petersen testified
that the appellant frequently absents herself from home over weekends
and at times
during the week to visit her boyfriend (Ms Dunston, who
portrayed the appellant somewhat propitiously was unaware of this as
also
the appellant's previous history). On the occasions of the
appellant's absence, the child is left in the care of Mr and Mrs
Swanepoel.
The appellant's absences from home were confirmed by Mrs
Swanepoel from whom evidence was led by the State.
[33]
Testifying as to their level of commitment and love for the child,
Mrs Swanepoel stated that
both she and her husband are fully capable
of looking after their grandchild and have been doing so for the past
nine years.
[34]
Ms Dunstan testified on behalf of the appellant. Her testimony dealt
with the child's schooling,
the cost of which is borne from a state
funded disability grant which is paid directly into the school's
banking account.
[35]
She observed on most occasions that the child would be brought to
school by his grandparents
accompanied by the appellant. He would
sometimes throw a tantrum when the appellant is not present to usher
him into the school
premises. She believes that the child's
grandparents are not strict enough to discipline him. She described
the appellant as a
'disciplinarian' who has better control over RO
and whose role in the child's life is indispensable.
[36]
She conceded however that she never met the grandparents and that the
view she expressed about
them was without having raised the issue of
the child's discipline with them. Obvious from Ms Dunstan's testimony
was that she
had no contact with the child's grandparents but that
she interacted with the appellant and was a lot more familiar with
her. It
is therefore not surprising that Ms Dunston, in general,
portrayed the appellant in a positive light. She expressed the view
that
the child has a strong bond with the appellant and that it was
reported to her that the appellant plays a major role in his life.
Ms
Dunston did not disclose the source of this information, nor did she
elaborate on what she meant by it except for stating that
the child
expresses excitement when the appellant fetches him from school.
Whether the excitement is attributed to the presence
of the appellant
or perhaps the school day being over, is unclear.
[37]
When confronted in cross-examination about the appellant's criminal
history, it emerged that
Ms Dunston had no knowledge thereof. It was
also put to her in cross-examination that the appellant entertains
suicidal thoughts
and is on prescribed antidepressant medication. Her
response was that she had never before seen the appellant in
circumstances
that would have led her to notice that the appellant
was 'high' or 'in a trance or under the influence of any substance'.
[38]
Further aspects of Ms Dunston's evidence dealt with describing RO as
a 'classic autist' with
signs of attention deficit hyperactivity
disorder (ADHD) and Asperger syndrome. This information came to her
from discussions with
psychiatrists. In cross-examination she
retracted reference to Asperger syndrome stating that she had as yet
not received a medical
report to that effect.
[39]
Her testimony indicates that the school is also aware of RO's
medication regime and the schedule
for its administration. RO's
teacher monitors his homework and behaviour. There are what Ms
Dunston described as 'meltdowns' but
these are not anything violent.
She believes that he merely 'acts out' to seek attention.
[40]
On the whole, there is no indication that the school is unable to
manage RO - he is able to communicate
to a certain degree, and follow
instructions. In this regard Ms Dunston gave the example of the
children lining up to visit the
toilet.
[41]
When asked about the relationship between the appellant and RO being
severed, Ms Dunston stated
that the child would regress. Whether this
related to the child's mental, physical or developmental status is
unclear, though she
was candid enough to concede that she is not
medically qualified to have expressed views on these aspects, save
that she could
only rely on her years' of experience in having worked
with children requiring special needs.
[42]
There are, in addition, several noteworthy aspects of the report by
Ms Petersen which are worth
recapitulating for purposes of the
outcome of this appeal.
[43]
Relevant to the appellant's financial circumstances, Ms Petersen's
report indicates that the
appellant is unemployed (though at the time
of sentencing it was mentioned that the appellant earned amonthly
income ofR2 500 asa
hawker and by running errands to fetch medication
for elderly persons). In either instance, she is not the sole
breadwinner. Her
parents are pensioners. They have a house of their
own and provide a living space for the appellant and food for her and
the child.
The report notes that the appellant receives R2 000 a
month from a man 'R', also believed to be the child's father. This
aspect
of the evidence was not fully dealt with in the report nor
ventilated during trial. According to the report the appellant
informed
Ms Petersen that her fiance (whom the appellant claims is
the child's father and whom she married before being sentenced but
whose
relationship with the child's grandparents is obscure) assists
where needed in taking the child on outings and in buying clothing

for the child. The alleged outings with the child stands contrary to
what emerged during the testimony of Ms Petersen and Mrs Swanepoel.
[44]
Indications in the report are that the appellant medicates and
receives psychological treatment
for anxiety and depression. On
occasion she becomes suicidal because of the impact of the criminal
proceedings on her mental stability.
[45]
Ms Petersen noted that the appellant felt comfortable that her
biological parents should take
care of the child in the event that
she was sentenced to prison. This disclosure undeniably assumes
relevance in determining the
best interests issue.
[46]
The appellant has a brother Francisco who is self-employed. He
indicated to Ms Petersen that
he would assist with the driving of the
child and by providing care when needed. He stressed that the child
should not be separated
from the grandparents because it is the only
environment that the child is familiar with. For this reason, he is
not in a position
to assume custody of the child.
[47]
The report also documents a victim impact assessment. One of the
victims indicated that she did
not wish to open old wounds by
discussing the appellant. Another victim indicated that the
appellant's conduct (from which she
suffered financial loss ofR56
000) destroyed her dreams in acquiring a house of her own and that it
is because of the appellant
that she is still homeless. She is
afflicted by anxiety and depression and informed Ms Petersen that she
is unable to come to terms
with what the appellant had done and hopes
that justice will prevail.
[48]
Where the appellant did not testify in mitigation the tart assertion
put to Ms Petersen in cross-examination
by her legal representative
that the R56 000 will be repaid rings hollow. Ms Petersen comments
that the victims put their trust
in the appellant not being aware
that she was not permitted to practice; that they came to the
appellant innocently for assistance
and were misled with no
conclusion or finality to their cases. To this end the appellant
violated the trust of innocent people
and should be held accountable
for her actions. Ms Petersen was unable to interview any of the other
complainant victims who dealt
with the appellant and who were
affected by her conduct.
[49]
The appellant's disavowal of her conduct (insisting that she was
assisting persons in need) was
noted by Ms Petersen as a failure by
the appellant to take responsibility for her criminal conduct and a
failure to reconcile herself
with the outcome. The appellant is
recorded as having denied the role that she played in some instances.
This, in the opinion of
Ms Petersen, indicates that she did not want
to be held accountable for her conduct and raises doubt about her
capability for being
rehabilitated.
[50]
As for the minor child, there is no suggestion in Ms Petersen's
report that his care and fundamental
needs are inadequate or that Mr
and Mrs Swanepoel, despite their age, are incapable in any material
respect, or that the child
will be neglected in the event of the
appellant's incarceration. Ms Petersen acknowledges that it will not
be easy for the child
to adapt to change in the event that the
appellant is separated from him. She considers this a normal stage in
a child's development
that helps them to understand relationships and
come to terms with their environment in changed circumstances.
[51]
As for possible sentencing options, Ms Petersen made an assessment
inter alia
of direct imprisonment on the one hand and
correctional supervision on the other, but recommended that the
sentence issue be left
in the discretion of the sentencing court.
[52]
In heads of argument, the appellant makes the submission that the
sentencing court disregarded
the recommendation by Ms Petersen where
she conceded that the appellant is a suitable candidate for
correctional supervision regard
being had to her previous sentence in
terms of which she complied with the stipulated conditions and
processes. Ms Petersen's concession
is not a standalone viewpoint in
theappellant's favour and must be weighed in the context of her
explicitly leaving the sentence
issue open for determination by the
trial court.
[53]
It is acknowledged that probation officers perform a valuable task of
huge assistance to judicial
officers
[24]
but it must be stressed that a court is not slavishly bound by a
recommendation since sentence is a judicial function that cannot
be
abdicated to another authority and must be perfo1med by the courts
only.
[25]
[54]
Moreover, it is not sufficient to contend that correctional
supervision will assist in the appellant's
rehabilitation where she
ostensibly assumes responsibility for one count (albeit unspecified)
positing that she was negligent in
the commission of the offence.
Each of the offences relating to fraud or contempt of court has an
element attributed to a specific
mental state indicating that the
offences were calculated and deliberate. To posit negligence for
acknowledging responsibility
is disingenuous. It disguises the
deception of people who trusted the appellant and either detracts
from or significantly diminishes
her capacity for rehabilitation.
[55]
In
S v
Flanagan
[26]
a sentence of 7 years' imprisonment for fraud was reduced on appeal
to 4 years' imprisonment in terms of
section 276(1)(
i
)
of the
Criminal Procedure Act in
the case of an offender who had a
previous conviction for theft. The appellant contends that she is not
excluded from correctional
supervision because of her previous
conviction. Flanagan was an employee in the banking sector. The
offence for which she was convicted
had been committed largely as a
result of threats made by her husband. This is not the case here
since the appellant's
modus
operandi
speaks for itself.
[56]
The conclusion arrived at by the magistrate that the appellant's
previous exposure to correctional
supervision had no rehabilitative
impact is not anything farfetched. Community resources were expended
without moral success. The
brusque statement to the appellant that
'you have learnt absolutely nothing from that sentence' cannot be
faulted in the light
of the appellant's
modus operandi
doubtlessly in the full knowledge of the impact of her supercilious
and callous attitude upon her child.
[57]
The high-water mark of the evidential matrix is that the appellant is
not the primary caregiver
of the minor child. She is not 'almost
totally responsible' for his care. The current position is that child
is cared for in a
secure environment by adults, though elderly, whom
it has not been shown are incapable of looking after him, nor are
there indications
that the quality of their care is unsatisfactory,
or in some way harmful or detrimental to his best interests, or that
they are
morally unfit. Although not articulated in these terms, the
magistrate's judgment on sentence indicates that the interests of the

minor child were given independent consideration and weighed against
the traditional factors in the
Zinn
triad.
[58]
The magistrate, in addition, had regard to the guidelines in
S v
M
. As to the effect of a custodial sentence on the child, she
took cognisance of evidence indicating the appellant's frequent
absences
from home. She acknowledged that the child would be affected
by the appellant's absence but at the same time drew on the fact that

children ought to be raised in an environment that teaches them that
immoral choices do not escape accountability in life. Having

considered the child's interests independently of the
Zinn
formulation, all indications in the evidence are that the child is
adequately cared for by his grandparents. This factor clearly

pre-occupied the mind of the court when consideration was given to
the imposition of a custodial sentence. Being of the view that
there
were no other sentencing options, the magistrate was fully cognisant
of the fact that the interests of the child should not
unreasonably
permit the avoidance of an appropriate punishment for the appellant.
[59]
The fraud committed by the appellant by misleading unsuspecting
members of the public that she
was in a position of trust is not
anything to be taken lightly. Sentencing courts have in several cases
taken judicial notice of
the disturbing increase in the incidence of
the type of white-collar crime such as fraud and theft committed by
persons in a position
of trust. It can admit of no doubt that these
are serious offences.
[27]
The
appellant's previous brush with the law for convictions in .February
2012 had not taught her a lesson and society must be assured
that
persons such as her will not profit from improper gains and be
allowed to walk free.
Conclusion
and order
[60]
Regard being had to the testimony of the witnesses and the gamut of
the evidence, the magistrate's
judgment on sentence was delivered
ex
tempore
.
Ordinarily, the degree of emphasis of any relevant factor is a matter
of judicial discretion
[28]
and
it does not necessarily follow that because something has not been
mentioned it has not been considered.
[29]
The detail in the judgment indicates throughout that the interests of
the minor child were judiciously approached with care and
objectivity
and so too were the appellant's personal circumstances along with
factors informing the interests of the community
and the gravity of
the offences. The measure of leniency extended to the appellant is
underpinned by the suspended component of
the sentence which in our
view gives adequate recognition to each of these considerations. The
effective sentence ensures that
the appellant does not allow her
child to be used as an excuse for escaping the consequences of her
unlawful conduct. In the result,
there was no misdirection by the
sentencing court in its factual findings, nor any misdirection in
determining the length of the
sentence - the consequence in either
instance does not necessitate interference on appeal.
[61]
This case, without question, involved highly competitive
interests.
[30]
In recognition
of Mr and Mrs Swanepoel's advanced ages and to moderate any negative
impact or hardship on the minor child as much
as possible during the
appellant's incarceration, this Court may permissibly resort to its
inherent jurisdiction as upper guardian
to fulfil that duty through
an appropriate order.
[31]
It
is considered pragmatic, as was done by Cameron J in
MS
v S
,
[32]
to order the Department of Correctional Services to ensure visitation
by a social worker and that he or she provides the department
with
reports on the child's well-being during his mother's absence.
[62]
For the above reasons the appeal must fail.
[63]
The following order is made:
1.
The appeal against sentence is dismissed.
2.
The National Commissioner for Correctional Services is directed to
ensure that
a social worker in the employ of the Department of
Correctional Services visits the child of the appellant at least once
every
two months during her incarceration and submits a report to the
office of the National Commissioner as to whether the child is in

need of care and protection as envisaged in
section 150
of the
Children's Act 38 of 2005
and, if so, to take the steps required by
that provision.
MS
RUGUNANAN
JUDGE
OF THE HIGH COURT
I
agree.
MJLOWE
JUDGE
OF THE HIGH COURT
Appearances
For
the Appellant:
T
Solani
Instructed
by Legal Aid South Africa
Makhanda
Tel:
046-622 9350
For
the Respondent:
U
de Klerk
Instructed
by The Office of
the
Director of Public Prosecutions
Makhanda
Date
heard:
1 March 2023
Date
delivered:         27 June 2023
[1]
Law
Society of the Cape of Good Hope v Swanepoel
[2015] ZAECGHC 82.
[2]
S
v Zondi
2003
(2) SACR 227
(W) para 9.
[3]
As distinct from
rule 8(
d)(i
)
of the Joint Rules of Practice for the Eastern Cape Division
applicable to heads of argument, the directive was that written

argument shall incorporate an elaboration of the necessary parts of
the substantive issues raised in argument.
[4]
S v
Hoffman
1992 (2) SACR 56
(CPD) at 64
f
.
[5]
S v Hoffman supra at 63b. The prerogative to advance good and
sufficient reason stems from a reading of section 297(7) of the
Criminal Procedure Act 51 of 1977
.
[6]
Compare
S
v Hoffman supra
at 62
h-j
and
63
d
;
S v
Kumede
1988 (4) SA 553 (O).
[7]
S v
Malgas
2001 (1) SACR 469
(SCA) para 12;
S
v De Jager and Another
1965 (2) SA 616
(A) at 628H-629A;
S
v Packereysammy
2004 (2) SACR 169
(SCA) para 7.
[8]
S v
Kgosimore
1999
(2) SACR 238
(SCA) at 241
e-g.
[9]
S v M
(Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA
232
(CC) at 248F.
[10]
NDV
v S
[2015]
JOL 33914
(SCA) paras 11 & 27.
[11]
MS v S
(Centre for Child Law as Amicus Curiae)
2011 (2) SACR 88
(CC) at 96e.
[12]
S
v M
supra
at 249C-E.
[13]
S v M
supra
at 255A.
[14]
S·v
M supra
at 250D.
[15]
MS
v S supra
at
107e.
[16]
S
v M supra
para
36; also
MS
v S supra
para 34.
[17]
Full
citation above n 9.
[18]
NDV
v S supra
para
9.
[19]
S
v Zinn
1969
(2) SA 537
(A) at 540G-H.
[20]
NDV
v S supra
paras
28-32;
MS
v S
supra at 107c.
[21]
S S Terblanche Guide to Sentencing in South Africa 2 ed (2007) at
98, para 4.3.4 & 203-204 para 7.3.17.
[22]
S
v Khumalo
2013
(1) SACR 96
(KZP) para 15.
[23]
They cannot simply be ignored-
S
v Piater
2013 (2) SACR 254
(GNP) para 18.
[24]
S v
Trichart
2014
(2) SACR 245
(GJ) para 10.
[25]
S
v K.D
[2021]
ZAWCHC 10
; 2021 (I) SACR 675 (WCC) para 11.
[26]
S v
Flanagan
1995 (1) SASV 13 (A).
[27]
S v M
supra
at 281A.
[28]
S v
Rabie
1975 (4) SA 855
(A) at 864F-G; S v Lister
1993 (2) SACR 228
(A) at
232
g-h.
[29]
Rex v
Dhlumayo and Another
1948 (2) SA 677
(A) at 678.
[30]
In the words of Madala J in
S
v M supra
at 282D.
[31]
S
v M supra
at
257B;
TC
v SC
[2018] ZAWCHC 46
;
2018 (4) SA 530
(WCC) paras 44-45.
[32]
MS
v S supra
para
68.