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[2011] ZASCA 111
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Pillay v S (739/10) [2011] ZASCA 111; 2011 (2) SACR 409 (SCA) (1 June 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No 739/10
In the matter between
J PILLAY
................................................................................................
APPELLANT
and
THE STATE
........................................................................................
RESPONDENT
Neutral citation:
J Pillay
v The State
(739/10)
[2011] ZASCA 111
(1 June
2011)
Coram:
NAVSA and SERITI JJA and PETSE AJA
Heard:
24 May 2011
Delivered:
1 June 2011
Summary:
Sentence ─ Conviction on 34 counts
of fraud ─ magistrates’ court imposed sentence of five
years’ imprisonment
in terms of s 276(1)(i) of the Criminal
Procedure Act 51 of 1077 ─ accused 32 year-old mother ─
first offender with
six children ─ insufficient information
before trial court to enable trial court to make a decision about a
custodial sentence
or its impact on children of the accused ─
matter remitted to trial court for sentence to be dealt with afresh.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
KwaZulu-Natal
High Court, Pietermaritzburg (Mokgohloa J and Hughes-Madondo AJ,
sitting as court of appeal):
(a) The appeal is upheld and the order of the court
below is set aside.
(b) The sentence imposed by the trial court is set aside
and the matter is remitted to the trial court to impose sentence
afresh
after obtaining the material evidence affecting the children
in accordance with what is set out in
S v The
State, Centre for Child Law as Amicus Curiae
(CCT
63/10)
[2011] ZACC 7
(29 March 2011),
S v M
(Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC) and this judgment.
______________________________________________________________
JUDGMENT
______________________________________________________________
SERITI (NAVSA JA and PETSE AJA concurring):
[1] The appellant, Ms Julie Pillay, was arrested on 3
May 2007 and together with her co-accused, Mr Mnyamezele Mbhele
(Mbhele),
appeared on 15 July 2008 in the Durban Regional Court
facing 34 charges of fraud related to the fraudulent transfer of
monies from
her employer's trust account. The appellant was duly
convicted on a plea of guilty. She was released on bail pending
finalisation
of the proceedings. The appellant’s co-accused
pleaded not guilty and their trials were separated. She was released
on bail
pending the finalisation of the matter.
[2] On 11 December 2008 the appellant
was sentenced to five years imprisonment in terms of
s 276(1)(i)
of
the
Criminal Procedure Act 51 of 1977
1
(the CPA). Her bail was withdrawn and
on 12 December 2008 the Regional Court granted her leave to appeal
against the sentence imposed
to the High Court and her bail was
reinstated.
[3] On 29 April 2010, the KwaZulu-Natal High Court (per
Mokgohloa JA and Hughes-Madondo AJ) dismissed the appeal and
confirmed the
sentence imposed by the Regional Court. On 28 July 2010
the High Court granted her leave to appeal to this Court and her bail
was
extended pending the finalisation of the appeal.
[4] At the time of the conviction, the appellant who was
32 years old was employed by a firm of attorneys, Steenkamp Weakly
Ngwane
and Associates (SWN) as a conveyancing secretary and a
paralegal. At the time of the commission of the offences the
appellant had
been employed by SWN for almost 18 months. She was
regarded by her employers as very efficient and skilled. She headed a
department
at SWN and was studying towards a LLB degree. SWN had
agreed to register the appellant’s articles of clerkship to
enable
her to qualify as an attorney.
[5] From 14 December 2006 up to 26 April 2007 she
fraudulently transferred, or caused to be transferred, from the trust
account
of her employers various sums of monies totalling R270
304,53. Count 34, as set out in the charge sheet, relates to her
fraudulent
transfer of an amount of R700 000 into the account of
Mbhele. On the date of the transfer of those funds she accompanied
Mbhele
to the bank to assist him in accessing the R700 000. Before
allowing Mbhele to access the said funds, the bank communicated with
SWN to determine if the transfer was genuine. On being advised that
the transfer was fraudulent, the transaction was halted and
the
appellant arrested.
[6] An annexure to the charge sheet,
the correctness of which was unchallenged, indicates that on 12
March, 19
March,
23 March and 3 April 2007 various amounts totalling R70 556.07 were
successfully transferred into the account of Mbhele,
the former
co-accused of the appellant. Before any transfer was made into the
account of Mbhele 17 other amounts of money were
transferred into the
accounts of a number of people and institutions. Between 14 December
2006 and 19 February 2007 six different
amounts totalling R24 668.20
were transferred into the account of Mr M Mbuthuma, the father of the
appellant’s youngest child,
with whom she apparently has an
ongoing relationship. On 1 March, 8 March and 20 April 2007 various
amounts totalling R35 900 were
transferred into the account of Moolas
Siza Hardware.
[7] In her statement to the trial court in terms of
s
112(2)
of the
Criminal Procedure Act 51 of 1977
, appellant stated,
inter alia, the following:
'4. The facts to which I plead
guilty are as follows:
4.1. I was [the] person
responsible for the control and transfer of funds to and from the
banking account of the Complainant, and
signed the relevant documents
to effect the fraud,
4.2 I used my position of trust
and authority to perpetuate the various offences of actual and
potential fraud as contained in the
charge sheet,
4.3 I did so by creating
fictious invoices in the existing client files and used these
invoices to draw cheques and effect electronic
transfers,
4.4 I would then process a
payment requisition which would be handed to the book-keeping
department for payment,
4.5 The task of the book-keeper
would be to ascertain if there were sufficient funds in the client's
account to process the payment,
4.6 In all the matters there was
always sufficient funds in the necessary client accounts to effect
the payment,
4.7 If a cheque was to be drawn
the book-keeping employee would have the cheque signed by a director
and hand same to me,
4.8 I would then use an employee
of the complainant to deposit the cheque into the account of MBHELE,
or the account of my mother,
or the account of Moola Siza Hardware,
or the account of Houston Transport,
4.9 As with regard to the
electronic funds transfer, the same procedure would be followed as
with the cheques to be authorized,
except that the book-keeper had
the authority to transfer the funds, they would do so and transfer
the funds to the nominate accounts
that I would provide,
. . .
4.11 Jointly
MBHELE
,
and I transferred a total
of
R215 426.23
to
the various accounts, and which account details and amounts are as
per annexure to the charge sheet,
4.12 As with
regards to the allegation of potential fraud, I do admit that on the
02
nd
May 2007, I
did transfer the sum of R700 000.00 from the banking account of the
Complainant to the banking account of MBHELE;
4.12.1 In this regard, I used
the same procedure as I would use with regards to electronic
transfers and cheque requisitions.
4.12.2 On the
03
rd
May 2007,
MBHELE insisted that I accompany him to the bank to assist him to
draw a cheque in the sum of R285 000.00 in the name
of Auto Car
Sales, as he had intended to use these funds to purchase a motor
vehicle, being a Toyota Quantum,
4.12.3 He further attempted to
withdraw an amount of R10 000.00, in cash, from the proceeds that
were in his banking account,
4.12.4 Due to the diligence of
the staff of the Complainant's bank employees, no amount was paid out
of the sum of R700 000.00 and
the full amount was reversed into the
banking account of the complainant. . . .'
[8] When she gave evidence in mitigation of sentence the
appellant said the following:
'At the time of committing the offence I had a brief
breakup with the father of my child during which time I got hooked up
with
my co-accused. After I broke up with him, which was after a two
month period, he then started demanding monies from me and that
is
basically how the fraud started. After . . . [indistinct] amounts
were deposited into his account, he then demanded larger amounts
of
money after which he threatened that he would burn down my mother's
house. My mum's house is a thatch house which is in a rural
area
which after that I then . . . [indistinct] basically putting monies
into a hardware account to build a house for my mum which
is still
partly incomplete.'
She stated further that at the time she transferred R700
000 into Mbhele's account her relationship with him had ended.
[9] Under cross-examination she
testified that she was not going to benefit from the R700 000 she had
transferred into the account
of Mbhele. When asked why she had not
informed SWN about being threatened by Mbhele she replied that she
did not have the courage
to do so
.
When asked why she had not reported
the matter to the police, she said:
'The state of
the police station in Harding is that it depends who you are for them
to take action.'
When asked why she had not gone to
the police station near SWN’s offices, she replied: 'I did'nt
consider that'
.
[10] It is necessary to record that the amount of R270
304, 53, referred to in para 6, was never recovered by SWN. Their
unsuccessful
attempts to recover monies lost through sequestrating
the appellant cost them an additional R100 000.
[11] Appellant's counsel submitted that the trial court
over-emphasised the retribution and deterrence aspect of sentencing
at the
expense of appellant's circumstances. It was submitted that
the magistrate had failed to consider the impact of incarceration on
her dependent children and failed to consider as an alternative, a
non-custodial sentence coupled with an order that the appellant
repay
in instalments the amounts defrauded. It was contended on behalf of
the appellant that the magistrate had failed to appreciate
that a
custodial sentence would deprive the appellant’s children of
their primary source of financial and emotional support.
It was
submitted that they would be deprived of her day to day care and
nurturing and they would be left in the care of an ageing
and unwell
grandmother.
[12] In
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC) at 559a-c Sachs J, dealing with the need to
consider the interests of children during sentencing proceedings of
an accused
who is a mother of minor children, said the following:
'Focused and informed attention needs to be given to the
interests of children at appropriate moments in the sentencing
process.
The objective is to ensure that the sentencing court is in a
position adequately to balance all the varied interests involved,
including those of the children placed at risk. This should become a
standard preoccupation of all sentencing courts. To the extent
that
the current practice of sentencing courts may fall short in this
respect, proper regard for constitutional requirements necessitates
a
degree of change in judicial mindset. Specific and well-informed
attention will always have to be given to ensuring that the
form of
punishment imposed is the one that is least damaging to the interests
of the children, given the legitimate range of choices
in the
circumstances available to the sentencing court.'
[13] At page 560a-f of
S
v M
, the following
appears:
'(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) A probation officer's report is not needed to
determine this in each case. The convicted person can be asked for
the information
and if the presiding officer has reason to doubt the
answer, he or she can ask the convicted person to lead evidence to
establish
the fact. The prosecution should also contribute what
information it can; its normal adversarial posture should be relaxed
when
the interests of children are involved. 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.'
[14] In
S
v The State, Centre for Child Law as Amicus Curiae
(CCT 63/10)
[2011] ZACC 7
(29 March
2011), the Constitutional Court was dealing with the sentencing of a
young mother and the information required in order
to arrive at an
appropriate sentence. At para 64 the following was said:
‘
In
S
v M
, information
about the position of the young children and their care during their
mother’s incarceration was entirely lacking.
Here, by contrast,
an informative probation officer report dealing with the position of
the children was available to the sentencing
court, and carefully
considered by the sentencing magistrate. A second report was later
commissioned by the family and, after remittal
to the trial court for
inclusion in the record, evaluated together with the other evidence.
Two reports were thus before the High
Court and the Supreme Court of
Appeal. Neither suggests that the fundamental needs or the basic
interests of the children will
be neglected if their mother is
incarcerated.’
[15] The Constitutional Court went further and stated
the following (para 65):
‘
After hearing argument, this
Court obtained a further report from a curator. Nothing in the report
of the curator suggests that
the children will be inadequately cared
for should their mother be incarcerated in accordance with the
sentence imposed on her.
[16] In order to deal with the situation arising in the
event of incarceration, the Constitutional Court said the following
(para
66):
‘
To mitigate the possibility of
the children enduring hardship during their mother’s absence,
it seems to me that this Court
should order the Department for
Correctional Services to ensure that a social worker visits them
regularly, and that he or she
provides the Department with reports on
their well-being during their mother’s absence.’
In
S
v Howells
1999 (1)
SACR 675
(C) the court resorted to a similar order to deal with the
position of minor children after the incarceration of a mother.
2
[17] At the time of sentencing in the present case, the
trial court had two reports before it, one from a social worker
employed
by the Department of Social Development and another by a
correctional services officer. Insofar as the children are concerned,
the report by the social worker can at best be described as sparse.
It records that she has six children, aged 18, 16, 12, 11, 8
and 4
respectively. It records that the appellant is currently living with
Mbuthuma in a three-bedroom house at Umlazi and that
she has a good
relationship with him and receives moral support from him. Other than
stating that the appellant has six dependent
children and setting out
the date she had her first child and that the relationship with the
father of that child had broken down
nothing further is said about
the children.
[18] The report by the correctional services officer is
two pages long. The only information therein concerning the children
is
that there are six of them.
[19] In her testimony in-chief the appellant was led
wholly inadequately by her legal representative, who elicited minimal
information.
In examination in-chief she was asked more questions
concerning her relationship with Mbhele and Mbuthuma than concerning
the children.
Her youngest child was mentioned in passing and no
mention was made of any of the other children.
[20] The only useful information concerning the children
was obtained during cross-examination by the prosecutor. Even then
the
information elicited was minimal. It appeared that the father of
her eldest child, who is 18, had never paid any maintenance from
the
time that child was four years old. The father of three of her other
children had made maintenance payments up until the time
of his
death, shortly after her release on bail. The father of the remaining
child had moved abroad and the appellant had no further
contact with
him. It appeared that the eldest child was in matric and had obtained
a bursary in advance of university studies.
[21] The social worker, whose report is mentioned above,
testified and some relevant information concerning the children was
obtained
from her. It appeared from her testimony that an
investigation revealed that the children were living with their
grandmother, the
appellant’s mother, in Harding. The social
worker appeared uncertain about whether any of the children were
living with Mbuthuma.
That then was the full extent of the evidence
concerning the children.
[22] After consideration of the evidence, the trial
court said the following concerning the appellant and her children:
'She does have other children who are 16 and 18 and I do
not seriously consider those for purposes of the determination that
my
duty calls me to do here regarding the best interests of the
children of the accused that I am about to sentence. . . . Section
29(2) of the Constitution requires that a child's best interests held
paramount importance in every matter concerning the child.
. . . At
least on the face of it, it would appear that the accused could
possibly be a suitable candidate for direct imprisonment
in light of
the considerations that I have alluded to, but I have come to the
conclusion that it would not be appropriate at least
at this stage to
send the accused to a direct term of or full term of imprisonment.
But lest I send a wrong message to people in
the position of the
accused, I have seriously come to the conclusion that the accused
must at least see the inside of gaol for
a certain period of time.'
[23] In deciding an appropriate sentence, the regional
court considered that the appellant had been in a position of trust
with
SWN. The court took into account that the crime was an extremely
serious one. I interpose to state that before us counsel on her
behalf rightly conceded that if the trial court had been considering
these circumstances in respect of a mother who had no dependent
children, a five-year sentence of imprisonment would have been
appropriate.
[24] In order for a court to arrive at an informed
decision concerning sentence the information set out in the dicta
from
S v M
and
S v S
referred to above, was required. A
court having all that information before it might still decide, as
was done in
S v S
and in
Jowell
that incarceration is
called for. Even if it does so it might with the information at hand
be able to fashion an order that will
ensure the continued well-being
of the children, albeit in trying circumstances. On the other hand,
it might, having all that information
at hand decide against
incarceration. The point, though, is that the evidence upon which a
proper decision is to be made has to
be obtained and all the actors
must play their part, including the appellant’s legal
representatives and the state, using
such state resources as may be
available to it. As far as sentencing is concerned a judicial officer
is not required to be passive.
In this regard see
S v Siebert
1998
(1) SACR (A) 554 at 558g-559a.
[25] Having regard to the conclusions reached above, the
interests of justice are best served by setting aside the sentence
and
remitting the matter to the magistrate in order that the exercise
referred to above be embarked upon.
[26] The following order is made:
(a) The appeal is upheld and the order of the court
below is set aside.
(b) The sentence imposed by the trial court is set aside
and the matter is remitted to the trial court to impose sentence
afresh
after obtaining the material evidence affecting the children
in accordance with what is set out in
S v The State, Centre for
Child Law as Amicus Curiae
(CCT 63/10)
[2011] ZACC 7
(29 March
2011),
S v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007 (2)
SACR 539
(CC) and this judgment.
________
W
L SERITI
JUDGE
OF APPEAL
APPEARANCES
Counsel
for Appellant : C P Hunt SC
P
Hunt
Instructed
by : Neil Bowles Attorneys
Pietermaritzburg
Honey
Attorneys
Bloemfontein
Counsel
for Respondent : R du Preez
Director
of Public Prosecutions
Pietermaritzburg
Director
of Public Prosecutions
Bloemfontein
1
Section
276(1)(i) provides for a sentence of imprisonment from which a
person may be placed under correctional supervision at
the
discretion of the Commissioner of Correctional Services.
2
683b-f.