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[2019] ZALMPPHC 1
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Manala v S (A38/2017) [2019] ZALMPPHC 1 (17 January 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: A38/2017
17/1/2019
In
the matter between:
AGNES MASHEGOANYANA
MANALA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The Appellant was convicted in the Magistrates’ Court of Nebo
on one count of theft and
was sentenced to 18 months (eighteen)
months imprisonment. She now appeals against both conviction and
sentence imposed, leave
to appeal having been granted by the Court
a
quo
. The Appellant was released on bail in an amount of R
1 000.00 pending this appeal on 16 June 2013 after her
conviction and
sentence on 21 May 2013.
[2]
It is alleged in the charge sheet that on or about the 4 December
2012 to 12 January 2013 and
at Jane Furse in the district of Nebo the
Appellant did unlawfully and intentionally steal a cash amount of R
9 969.00 the
property or in the lawful possession of Rebel
Picardi or David Disegoane. The Appellant was an employee of the
Rebel Picardi Liquor
Store. She pleaded not guilty to the charge and
was legally represented throughout her trial.
[3]
The manager of the store, Mr David Disegoane testified that he
appointed the Appellant as a cashier
and that a cash register was
assigned to her where she had to select her own 4-digit pin code for
security purposes. This pin code
was not supposed to be shared among
the cashiers and that the Appellant would bear the consequences of
any discrepancy that may
occur.
When
the manager discovered that there was a shortage of empty bottles, he
discovered that the cash register of the Appellant had
paid out the
money.
The
transactions were done on the Appellant’s cash register under
her name and 4-digit pin code. The manager further testified
that
there was only one method used to check as part of his daily business
if any money was stolen on the system. The version of
the manager was
never disputed by the Appellant. The Appellant also never disputed
that there was a shortage of money.
[4]
When the Appellant was confronted she admitted to the manager that
she took the money and she
even said that her co-workers, Tshepo
Tsegoane and Samuel Choma taught her how to steal money from the
till. She even agreed to
repay the money but the manager’s
seniors decided that she must be brought to Court. She made the
confession spontaneously
and voluntarily. This confession was later
repeated to a Police Captain.
[5]
In her evidence in defence the Appellant could not take the matter
any further save to persist
that her pin code was known to her
co-workers who could have possibly taken the money from her till.
[6]
It is trite that a Court of appeal will be hesitant to interfere with
the factual findings and
evaluation of the evidence by a trial Court
– see
R v Dhlumayo and Another
1948 (2) SA 677
(A)
.
[7]
In
S v Francis
1991 (1) SACR 198
(A) at 198 - 199
the approach
of an appeal Court to findings of fact by a trial Court was crisply
summarised as follows:
“
The
powers of a Court of appeal to interfere with the findings of fact of
a trial Court are limited. In the absence of any misdirection
the
trial Court’s conclusion, including its acceptance of a
witness’ evidence is presumed to be correct. In order to
succeed on appeal, the Appellant must therefore convince the Court of
appeal on adequate grounds that the trial Court was wrong
in
accepting the witness’ evidence – a reasonable doubt will
not suffice to justify interference with its findings.
Bearing in
mind the advantage which a trial Court has in seeing, hearing
and appraising a witness, it is only in exceptional
cases that the
Court of appeal will be entitled to interfere with a trial Court’s
evaluation of oral testimony.”
In
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645 e – f
,
the Court held:
“……
..
in the absence of demonstrable and material misdirection by the trial
Court, its findings of fact are presumed to be correct
and will only
be disregarded if the recorded evidence shows them to be clearly
wrong.”
[8]
The evidence of the manager in this regard should thus
be accepted. It is highly improbable that
the manager would expect
from the Appellant to select her own pin code and allow her to make
the pin available for use by other
employees. No one was, according
to the manager, allowed to use her pin code. The Appellant was
clearly aware of how to steal money
by pretending that it was paid
out for empty bottles. She in any event, admitted that she was taught
by the other two co-workers
how to do it.
[9]
In
casu
the question is whether there is a reasonable
possibility that the Appellants version may be true. The answer is in
the negative
and I make a finding that the trial Court correctly
convicted the Appellant on the theft of the money. There is no reason
why the
version of the manager should not be accepted. The manager at
first did not want to prosecute the Appellant and he was willing to
allow her to pay back the money. If the Appellant did not take the
money why would she offer to pay it back to the manager. The
conviction of the Appellant on theft can therefore not be interfered
with.
[10]
What remains to be considered is whether the effective sentence of 18
(eighteen) months imprisonment is appropriate.
On the 22 November
2018 and in anticipation of the hearing of this appeal on 7 December
2018 I addressed a letter to both the Director
of Public Prosecutions
and Legal Aid South Africa, the relevant contents whereof are the
following:
“
Our
concern is that this matter has long been pending. The accused was
sentenced on 21 May 2013 and released on bail pending appeal
on 11
June 2013. It is now more than five years that the accused who was
supposed to have served an 18 months imprisonment has
been out on
bail.
Even
if the conviction were to be confirmed, can it be said that such an
accused should be called upon to undergo a period of imprisonment
after the lapse of five years period? Is it in the interest of
justice to further postpone this matter or call upon the accused
to
undergo the period of imprisonment?
Counsel
are requested to prepare heads of argument and address the appeal
Court on the 7 December 2018 in the light of the following
authorities:
1.
State / Michele and Another
2010 (1) SACR 131
(SCA)
2.
State / Jafta
2010 (1) SACR 136
(SCA)
3.
State / Malgas and Others
2013 (2) SACR 343
(SCA)
4.
State / Karolia
2006 (2) SACR 75
(SCA)
We
look forward to your assistance in this regard.”
[11]
At the hearing of the appeal Counsel for the Appellant argued that it
will not be in the interest of justice
that the Appellant be called
upon to serve her sentence of 18 months. Counsel further submitted
that it is not clear from the available
Court record that the
Appellant had caused a delay in the prosecution of the appeal. There
is an indication that there was a reconstruction
of the Court record,
which is an indication that the Court record had been missing, hence
the appeal could not have been proceeded
with in the normal cause.
Counsel asked for an appropriate lenient sentence and submitted the
following personal and mitigating
factors to be considered by the
Court:
1.
The
Appellant was 25 years of age during sentencing.
2.
She
is a first offender.
3.
She
is unmarried with two minor children aged 5 and 7 years to look
after.
4.
She
lost her job as a result of this case, which is a punishment in
itself.
5.
The
Appellant offered to pay back the money by way of regular deductions
from her salary.
6.
Circumstances
under which the offence was committed – she was new at the job
and was taught and influenced by colleagues to
steal the money.
[12]
Counsel for the Respondent / State argued that the Appellant must
serve her full term of imprisonment. He
submitted that it would be in
the interest of justice to call upon the Appellant to serve the
period of 18 months imprisonment.
The
following factors where submitted in aggravation of sentence:
1.
The
Appellant was in a position of trust and was given a pin code for
security reasons.
2.
She
planned the offence by side lining the security features of the till
with fictitious transactions to hide the fact that she
removed money
from the till.
3.
The
money was taken over a period of time.
4.
The
complainant lost money and given the financial position of the
Appellant, he will never be able to recover it from her.
5.
Theft
is a serious offence and the penalty should be a warning to would-be
perpetrators not to steal from their employers.
[13]
This Court took into consideration both the mitigating and
aggravating factors in the case. Of importance it is
found that there
is no indication that the Appellant is to blame for the late
prosecution of her appeal. A five years period of
the delay in the
prosecution of the appeal is rather an inordinate delay. After a
period of five years since the sentencing the
Appellant’s
personal and / or family circumstances might have changed for the
better or worse. The question remains as to
whether it is in the
interest of justice to remove the Appellant away from her family for
her to undergo the term of imprisonment.
[14]
In
S v Malgas and Others
2013 (2) SACR 343
(SCA)
the
Appellants’ appeal on conviction and sentence was finalised
after a period of eight years since their release on bail
pending
appeal. The issue to be decided on appeal was whether the eight-year
delay, from the imposition of sentence by the Magistrate
to the
hearing of the appeal, in and of itself, justifies a lighter
sentence. The SCA decided that there could be no automatic
alleviation of sentence merely because of the long interval of time
between the imposition of sentence and the hearing of an appeal
for
those persons fortunate enough to have been granted bail pending the
appeal. The Court held that it was only in truly exceptional
circumstances that this should occur. The Court stated that the
Appellants in this case had adopted a supine attitude to the hearing
of their appeal. They were to blame for the long delay in bringing
the matter to finality, and the predicament in which they found
themselves was largely of their own making. The Court concluded that
if the Court were to regard this case as yet another exception,
it
would undermine the administration of justice. The appeal was
dismissed.
[15]
In
S v
Michele and Another
2010 (1) SACR 131
(SCA)
the
High Court when granting leave to appeal to the Supreme Court of
Appeal expressed the view that the lengthy delay in the prosecution
of the appeal was a factor which the Supreme Court of Appeal might
take into consideration in regard to the question of sentence.
Indeed
the Supreme Court of Appeal upheld the appeal on sentence and reduced
same considerably. The Appeal Court held that while
an appeal Court
would generally only consider the facts and circumstances known when
sentence was initially imposed it has recognised
that in exceptional
circumstances factors later coming to light may be taken into account
on appeal where it is in the interest
of justice to do so. The Court
further held that the Appellants in this case had been obliged to
wait for a period of six years
without clarity as to their future and
that this was a factor to which the Court should have regard in the
assessment of an appropriate
sentence.
[16]
In
S v Jaftha
2010 (1) SACR 136
(SCA)
ten years had lapsed
after conviction and sentence before a warrant for arrest of the
Appellant (Jaftha) was issued. On appeal
the Appellant sought to
explain and to place before the Court of appeal facts that show that
imprisonment was no longer warranted.
The State did not object to the
application to place the Appellant’s evidence before the Court
in the form of an affidavit
and the State did not question the truth
of the allegations. Accordingly, the sentence of three years
imprisonment for driving
under the influence of alcohol imposed ten
years ago had to be set aside and a new sentence of payment of a fine
of R 10 000
or two years imprisonment was substituted.
[17]
The principle laid down in
Jaftha
supra is that ordinarily, in
an appeal against sentence, only facts known to the Court at the time
of sentencing should be taken
into account. But the rule is not
invariable. Where there are exceptional or peculiar circumstances
that occur after the sentence
is imposed it is possible to take these
factors into account and for a Court on appeal to alter the sentence
imposed originally
where this is justified.
[18]
There has been instances where the appeal Court has interfered with
sentence on the ground of delay in the
hearing of an appeal. In
S
v Karolia
2006 (2) SACR 75
(SCA)
[2004] 3 All SA 298
the Supreme
Court of Appeal approved the following dicta from The Queen v CNH
(Court of Appeal for Ontario, 19 December 2002 para
54)
“
This
Court is always hesitant to return a Respondent to prison”
In
Karolia
approximately
four years passed before the appeal was heard in the SCA. The appeal
Court substituted a suspended sentence and a
fine for the custodial
sentence originally imposed.
[19]
In
S v Jaftha
, supra Lewis JA, who delivered the judgment of
the Court said:
“
Ordinarily,
of course, only facts known to the Court at the time of sentencing
should be taken into account.”
The
learned Judge referred to R v Verster
1952 (2) SA 231
(A), R v Hoson
1953 (4) SA 464
(A) and Goodrich v Botha and Others
1954 (2) SA 540
(A) at 546 A-D.
Lewis
JA went on to say that:
“
The
State also accepts that the ten-year delay (between sentence in the
Magistrates’ Court and the hearing of the appeal in
the Supreme
Court of Appeal) is exceptional and that the sentence should be
revisited. In my view, the sentence imposed ten years
ago should be
set aside and a new sentence considered.”
[20]
Taking into consideration the facts of this case, this Court comes to
a conclusion that there are exceptional
circumstances justifying a
finding that it will not be in the interest of justice to call upon
the Appellant to undergo a term
of imprisonment for 18 (eighteen)
months.
In
the premises the following order is made:
1.
The
appeal against conviction is dismissed.
2.
The
appeal against the sentence of 18 (eighteen) months is upheld to the
extent that the sentence of 18 (eighteen) months is wholly
suspended
for a period of three years on condition the Appellant is not
convicted of theft committed during the period of suspension.
3.
The
suspended sentence takes effect from the 7 December 2018.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
M
S SIKHWARI
ACTING
JUDGE OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
For
the Appellant
: Mr L
M Manzini
Legal
Aid South Africa
Polokwane
Justice Centre
For
the Respondent
: Adv. J J Jacobs
Director
of Public Prosecutions
Limpopo,
Polokwane