About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 408
|
|
Molefe and Others v S (A02/2021) [2021] ZAGPJHC 408 (3 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A02/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
NO
03-09-2021
In
the matter between:
MOLEFE,
GEORGE
SEROKE
First Appellant
KNOWLEDGE
AND FOOTPRINT CC
Second Appellant
MOSADI
TSHEPO
Third Appellant
and
THE
STATE
Respondent
JUDGMENT
Delivered:
By transmission to the parties via email and uploading onto Case
Lines the Judgment is deemed to be delivered. The date for hand-down
is deemed to be 03 September 2021
SENYATSI
J:
[1]
This is an appeal with leave of
the trial Court against the sentence imposed by the Court
sitting at
the Johannesburg Regional Magistrate on 23 May 2018. The only
appellant is Mr Tshepo Mosadi as his co-accused Mr George
Seroke
Molefe passed away during the trial.
[2]
The appellant was convicted of six counts of theft after he had
pleaded not guilty.
The conviction stems from receipt of six payments
from the Department of Justice and Correctional Services made to
Knowledge and
Footprint Close Corporation (“the CC”) from
21 December 2012 to 1 March 2013 totalling R1 315 770.43.
The
payments were not due to the CC and appellant.
[3]
The appellant was the sole member of the CC at the time of payment.
The appellant
had access and control of the CC’s bank account.
From the evidence, before it, the trial court found that the
appellant was
fully aware that the deposits were not due and payable
to the CC and he proceeded to utilise the funds unlawfully.
[4]
The CC was sentenced to a fine
of R300 000 which was wholly suspended for five years. The
appellant
was sentenced to eight (8) years direct imprisonment.
[5]
The appellant, who was a first offender, raises the following grounds
for appeal against
the sentence, namely:
5.1. The
sentence of 8 (eight) years direct imprisonment is shockingly
inappropriate in the light of the totality of
the acceptable facts
presented in mitigation;
5.2. It was
reported that he was addicted to alcohol and gambling and was
recovering from such. The appellant complains
that the learned
Magistrate misdirected herself by rejecting the recommendations by
the probation officer and the correctional
supervisor’s report.
The appellant contended that the leaned Magistrate erred in not
considering the fact that the applicant
had an alcohol and gambling
addiction;
5.3. The
learned Magistrate erred in not considering rehabilitation properly
and in not accepting a fine as an option
proposed by the probation
officer and/or correctional supervision;
5.4. The
learned Magistrate erred in sentencing the appellant on account of a
non-repayment of the stolen money;
5.5. The
learned Magistrate erred failed to consider that the appellant did
not act in concert with employees of the
Department of Justice to
have the money paid into the CC’s account;
5.6. The
trial court also failed to appreciate that our courts have held that
retribution does not play a significant
role in the sentence process
and that the personal circumstances of the appellant are more
important in determining an appropriate
sentence;
5.7. The
trial court paid lip service to the fact that the admissions made by
the appellant proved remorse;
5.8. The
trial court also erred by not differentiating between individual and
general deterrence; and
5.9. Imposed
the sentence by ignoring the element of mercy.
[6]
In order to deal with the grounds of appeal on the alleged
misdirection by the trial
court, it is important to restate the legal
principles on sentencing of the convicted person which are settled in
our law. Punishment
is pre-eminently a matter for discretion of the
trial court. In
S
v Sadler
[1]
by restating the principle as follows:
“
In every appeal
against the sentence, whether imposed by a magistrate or a Judge, the
Court hearing the appeal (a) should be guided
by the principle that
punishment is pre-eminently a matter for the discretion of the trial
Court and (b) should be careful not
to erode such discretion: hence a
further principle that the sentence should only be altered if the
discretion has not been judicially
and properly exercised. The test
under (b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly
inappropriate.”
[7]
The circumstances under which the appeal court can interfere with a
sentence are limited.
It is only in cases where the trial court
misdirects itself that the appeal court may interfere.
[8]
On the approach to be followed by a court of appeal, the court in
S
v Hewitt
[2]
held that:
“
An appellate court
may not interfere with [the discretion of the trial court] merely
because it would have imposed a different sentence.
In other words,
it is not enough to conclude that its own choice of penalty would
have been an appropriate penalty. Something more
is required, it must
conclude that its own choice of penalty is the appropriate penalty
and that the penalty chosen by the trial
court committed a
misdirection of such a nature, degree and seriousness that it shows
that it did not exercise its sentencing discretion
at all or
exercised it improperly or unreasonably when imposing it. So,
interference is justified only where there exists a “striking”
or “startling” or “disturbing” disparity
between the trial court’s sentence and that which the appellate
court would have imposed. And in such instances the trial court’s
discretion is regarded as having been unreasonably exercised.”
[9]
In addition to the above, our courts have held that a trial court
must take account
of all the objectives of punishment; which include
the elements of deterrent (deterrence), preventative (prevention),
reformative
(reform) and retributive (retribution).
[3]
Ultimately, the punishment should fit the criminal as well as the
crime, be fair to society, and be blended with a measure of mercy
according to the circumstances.
[4]
[10]
In affirming and applying the above principles, the court in
S
v Swart
[5]
held that:
"… in our law
retribution and deterrence are proper purposes of punishment and they
must be accorded due weight in any
sentence that is imposed. Each of
the elements of punishment is not required to be accorded equal
weight, but instead, proper weight
must be accorded to each according
to the circumstances. Serious crimes will usually require that
retribution and deterrence should
come to the fore and that the
rehabilitation of the offender will consequently play a relatively
smaller role.”
[11]
On the effect that a sentence should have, the court in
Mudau
v S
[6]
approved of what was said in
S
v Cott-Crossely
2008
(1) SACR 223
(SCA)
and
said the following:
“
Plainly any
sentence imposed must have deterrent and retributive force. But of
course one must not sacrifice an accused person on
the altar of
deterrence. Whilst deterrence and retribution are legitimate elements
of punishment they are not the only ones, or
for that matter, even
the overriding ones.”
“…
it is
true that it is in the interests of justice that crime should be
punished. However, punishment that is excessive serves neither
the
interests of justice nor those of society.”
[12]
The approach on what considerations the court should bear in mind
when dealing with sentence
was outlined as follows in
S
v Tonga
[7]
:
“
Injured feelings
and interests of complainants (and close relatives) as well as the
attitude of the community are relevant, but
equally relevant are the
consequences of punishment for the offender. Modern times and recent
penal development require of the
presiding officer considering- a
sentence to impose an effective punishment. A sentence is only
effective when it strikes a fine
balance rather between the interests
of society and of the offender. It brings about retribution but of a
balanced nature; it deters
moderately, individually, as well
collectively or generally.”
[13]
The issue that must be determined is whether the Magistrate
misdirected herself and imposed a
sentence that was shockingly
inappropriate. The primary ground for this complaint hinges on the
imposition of a custodial sentence
as opposed to a non-custodial
sentence and the alleged failure by the trial court to consider the
appellant’s personal circumstances.
[14]
Even though not binding on the court, I have carefully considered the
judgment of the trial court
in the light of comparable cases and
sentences imposed on appeal to gauge whether the complaint is well
founded. I observe that
in
S
v Price and Another
[8]
the court had to consider whether a 15 year sentence imposed by the
trial court on an attorney for the money laundering of R2 million
trust monies was shockingly inappropriate. The sentence was confirmed
by the appeal court.
[15]
In
S v
Kwatsha
[9]
the accused, an employee of the Department of Home Affairs was
convicted of theft and conspiracy to commit fraud involving
government
cheques. No real loss was suffered by the Department as
the accused was arrested timeously. An amount of almost R2 million
was
involved. The accused was sentenced to a term of 7 years
imprisonment of which 2 years was suspended conditionally.
[16]
The court in
S
v Rudman
[10]
confirmed a 9 year imprisonment sentence on appeal for a theft
conviction involving R3 million. In
S
v Piater
[11]
a 4 year imprisonment was confirmed on appeal for a theft conviction
involving R384 000 of government cheques. In
Preston
and Another v S,
on
a conviction of theft of company monies amounting to R5.3 million, a
15 and 12 year sentence imposed on the accused was reduced
to 12
years and 9 years respectively. The court in
S
v Mackenna
[12]
confirmed a 10 years’ imprisonment where it was found that the
accused had engaged in a self-enrichment scheme.
[17]
It is evident from the authorities quoted above that an appeal court
will unlikely interfere
with the discretion of the trial court where
misdirection on sentencing cannot be established from the trial
record.
[18]
White collar crime is endemic in our society and it is for this
reason that our courts impose
appropriate sentences on those found
guilty. In
S
v Sadler
[13]
the court said the following about white-collar crime:
“
So called
‘white-collar crime has, I regret to have to say, often been
visited in South African courts with penalties which
are calculated
to make the game seem worth the candle. Justification often advanced
for such inadequate penalties are the classification
of
‘white-collar’ crimes as a non-violent crime and its
perpetrators (where they are a first offender) as not truly
being
'criminals' or 'prison material' by reason of their often ostensibly
respectable histories and backgrounds. Empty generalisations
of that
kind are of no-help in assessing appropriate sentences for
'white-collar' crime. Their premise is that prison is only a
place
for those who commit crimes of violence and that it is not a place
for people from ‘respectable’ backgrounds
even if their
dishonesty has caused substantial loss, was resorted to for no other
reason than self-enrichment and entailed gross
breach
of trust.”
[19]
From the record of the trial, it is evident that the trial court
considered the recommendations
from the probation officer’s and
the correctional supervision officer’s reports for the purposes
of sentence. The content
of the probation officer’s report was
also considered and fully appreciated.
[14]
The court took account that the appellant was a first offender, 40
years old, married with children and had a tough upbringing
without a
father. He had passed grade 12 and was running his own business with
the result that he was contracted to the Department
of Justice and
Correctional Services as a service provider. The trial court,
correctly stated that the recommendations were the
expression of
opinion for the guidance of the court to apply its mind to the
relevant considerations in so far as they affect sentence.
These
factors were considered when the trial court imposed the custodial
sentence.
[20]
It is also evident from the record that the appellant was not
remorseful. The record reveals
that he did not take accountability
for what took place in his business as he claimed to have no
financial skills and he blamed
Apartheid for his lack of skills. He
could not explain to the trial court how he billed his clients. He
could not even explain
what services the CC rendered to the
Department of Justice and Correctional Services. Furthermore, the
appellant could not explain
why he received six payments. He admitted
that his company was engaged to do work for the Department of Justice
and Constitutional
Services on two occasions. His explanation that he
left one of his employees to attend to invoicing as she deemed fit
was not adequate.
[21]
We are of the view that our courts should stand firm and impose
sentences that are not only appropriately
retributive and
rehabilitative but will also send a strong message to those who
continue to commit these type of crimes, that the
perpetrators of
this crime will not be treated leniently.
[22]
The appellant took advantage of his own client, by stealing, not once
but six times. The total
amount stolen was indeed substantial.
Stealing from the State has become a scourge in our Republic. No day
goes by without the
media reporting about a qualified report from the
Auditor General involving State organs who cannot account fully for
money entrusted
to them to effect service for the public benefit. The
amount stolen could have been put to good use by having access to
more court
interpreters which is one of the critical elements of
administering justice in our courts.
[23]
For the reasons stated above, we do not find there was any
misdirection by the
court a quo.
There is no basis to
interfere with the sentence imposed by the trial court.
[24]
As a result, the appeal must fail and the sentence is confirmed.
ORDER
[25]
The following order is made:
The appeal is dismissed.
SENYATSI
ML
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
I
concur,
SIWENDU
T
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
REPRESENTATION
Date
of hearing: 10 May 2021
Date
of Judgment: 03 September 2021
Third
Appellants’ Counsel: Adv Ndlovu
Instructed
by: Ngobeni Attorneys
Respondents’
Counsel: Adv D Van Wyk
Instructed
by: National Director of Public Prosecutions, Johannesburg
[1]
[2000] ZASCA 105
;
[2000] 2 ALL SA 121
(A), (57/99)
[2000] ZASCA 13
at para 6
[2]
[2016] ZASCA 100
para [8]
[3]
See S v Rabie
1975 (4) SA 855
(AD) at 862 A-B
[4]
See same 862 G-H
[5]
2004 (2) SACR 370
(SCA) at 378 para [12]
[6]
(547/13) [2014] ZASCA (31 March)
[7]
1993 (1) SACR, P365
[8]
2003 (2) SACR 551 (SCA)
[9]
(2) SACR 564 (E)
[10]
2017 JDR 0980 (ECG)
[11]
2014 JDR 1927 (SCA)
[12]
2019 JDR (JDR)
[13]
Same as above